Altruistic Surrogacy Should Mean Surrogacy By Outsider, 'Genetically Related' Clause In 2021 Act Defeats Logic: Karnataka High Court

The provision of Surrogacy (Regulation) Act 2021 which mandates that a surrogate mother should be "genetically related" to the intending couple defeats both altruism and logic, the Karnataka High Court has observed.

"The words “genetically related” appearing in Section 2(1)(zg) can only mean that the child to be born through surrogacy should be genetically related to the intending couple, failing which, the words genetically related would not have any meaning if it were to be said that the surrogate mother should be genetically related to the intending couple," Justice M Nagaprasanna observed.

In India commercial surrogacy is prohibited, but altruistic surrogacy is permitted under the Surrogacy (Regulation) Act, 2021. Section 2(1)(b) defines ‘altruistic surrogacy’. In this form of surrogacy, no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on surrogate mother are given to the surrogate mother or her dependent or her representative.

Section 2(1)(zg) defines “surrogate mother” as a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb...

The couple in this petition had lost its biological child and since the mother had already undergone surgery for removal of her uterus, they wished to opt for surrogacy. The petitioners were then faced with two challenges, first vis-a-vis the age of intending father who had crossed the bar of 55 years. The same was addressed by the bench by evolving a triple test for the couple. Second challenge pertained to the proposed surrogate mother, who happened to be the couple's family friend (not genetically related to the couple).

Petitioners argued that in the entire process, there is no financial consideration as they are all closely knit family or like a family. However, Section 2(1)(zg) is coming in the way of them becoming parents. 

Counsel for the Union of India opposed the plea contending that merely because the provision does not suit the petitioners, it cannot be held to be contrary to law. "Detailed deliberations have gone into while promulgating the Act as the country had become a hub of lending a womb for surrogacy, for people in India and abroad who are affluent, who would exploit the plight of poor women, in the rural areas of the country,” it was argued.

At the outset, the High Court expressed concern over the limiting nature of the provision. "The provision runs counter to the philosophy or principle behind the enactment,” it remarked.