Surrogacy Permissible Only If Altruism And Lack Of Financial Benefits Established: Kerala High Court Orders Police To Question Proposed Mother

The Court was considering a plea submitted by the petitioners for the issuance of a medical indication certificate from the District Medical Board for undergoing surrogacy as per the Surrogacy (Regulation) Act, 2021.

Justice Devan Ramachandran directed thus:

“I, therefore, direct the DIG, Thiruvananthapuram, to cause an appropriate enquiry into the request of the petitioners, through a competent woman officer in civil dress, assisted by such other officers as may be necessary, who shall interact with the surrogate mother and her family; and file a report before this Court whether she is acting in altruism or for any other interests. This shall be done within a period of one week.”

During the hearing, the counsel for the petitioner submitted that the surrogate mother is acting altruistically. On the other hand, the government pleader argued that there are various inconsistencies and violations of law committed by the petitioners and the Court has to consider the issue seriously.

The Court initially wanted to interact with the surrogate mother, but found it appropriate that a lady police officer, in civil dress, interact with the surrogate mother and her family and submit a report to the Court regarding the angle of altruism. 

As per factual matrix of the case, the petitioners who got married in the year 2011 were unable to conceive children naturally even after years of fertility treatment. The petitioner submitted that surrogacy was her last resort to have a child as she has a medical condition because of which she cannot have children naturally. The petitioners contended that were presently residing in a rented house in Kollam district in Kerala. It was submitted before the Court that the living embryo of the petitioners have to be transferred to the womb of the surrogate mother within November 11, 2023.

The petitioners submitted before the Court that the intended surrogate mother has agreed to undergo altruistic surrogacy. The plea also stated that the Judicial First-Class Magistrate, Karunagapally has examined the petitioners, intended surrogate mother and granted the order of Parentage and custody for the purpose of Surrogacy. It was submitted that all other statutory requirements were complied with by the petitioners and the surrogacy clinic, except the certificate of essentiality and certificate of medical indication.

The plea alleged that despite several requests, the District Medical Officer was not issuing the certificate of medical indication to the petitioner couple without which they cannot undergo surrogacy. It was alleged that the District Medical Officer agreed to issue the certificate of medical indication but demanded a copy of their rental agreement. The petitioners contended that they submitted their latest rental agreement which was executed in October 2023 for a period of 11 months. On submission of rental agreement, it was alleged that District Medical Officer threatened the petitioners that he will inform police about this and denied the issuance of medical indication certificate.

The plea stated that non-issuance of medical indication certificate has caused great disappointment to the petitioners as surrogacy is their last option to have a child and stated thus:

“Right to have a child is also a fundamental right under the preview of Article 21 of the constitution of India. Since THE SURROGACY (REGULATION) ACT 2021, came in to force in the year 2021, the National Assisted Reproductive Technology and Surrogacy Registry has not been constituted by the appropriate government till date for the registration of legal and altruistic surrogacy is the violation of the fundamental rights guaranteed under Article 21 of Indian Constitution.”, stated the plea.

The matter has been posted for further consideration on November 8. 

The petitioners were represented by Advocates Mahesh V Ramakrishnan and Deepa Sreenivasan.

Case name: Shwetha Janardhan Barve v State of Kerala

Case number: WP(C) NO. 35506 OF 2023