Karnataka High Court
H Siddaraju & ANR V. Union of India & others
WRIT PETITION No. 5861 of 2023 (GM-RES)
Bench- HON’BLE MR. JUSTICE M. NAGAPRASANNA
Decided On 21-04-2023
Facts of the case-
The petitioners brought before the court their concerns regarding the validity of Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021.
Section 2(1)(zg) provides a definition for the term ‘surrogate mother,’ which pertains to a woman who consents to carry a child through surrogacy, wherein the child would be genetically related to the intending couple through the implantation of an embryo in her womb. The section further requires the surrogate mother to fulfill all other specified conditions.
Section 4(c)(I) mandates that an intending couple must be married, with the woman not having exceeded 50 years of age, and the man not having exceeded 55 years of age. The mother involved in the present case falls within the confines of the law as she is still below 50 years of age.
The petitioners put forth their argument, stating that they were a contented family comprising a couple with a 23-year-old child, who tragically lost his life in a road accident. Following the demise of their only child, the mental health of the second petitioner (wife) significantly deteriorated due to severe depression. The couple then sought to expand their family through adoption but were informed of a lengthy waiting period of 3 to 4 years. Upon further consultation, they were advised that surrogacy was their only viable option to have another child.
Consequently, the sister-in-law of the first petitioner, aged 35, expressed willingness to donate her egg, while a close family friend, aged 25 and already a mother of two, volunteered to act as a surrogate mother. The first petitioner’s sperm would be used to fertilize the donated egg. Importantly, no financial transactions were involved in this entire process, as the individuals involved were closely related or considered to be akin to family.
The petitioners argued that the age restriction stipulated by the Act lacks a rational basis and should be eliminated. They contended that the age limitation should be removed entirely for both the husband and wife who form the intending couple.
In light of the aforementioned facts, the petitioners seek the court’s intervention to reconsider and strike down the provisions of the Act that they find objectionable.
Judgement
A single judge bench of Justice M Nagaprasanna addressed the issue of surrogacy eligibility criteria under the Surrogacy (Regulation) Act, 2021. The court allowed the petition filed by H Siddaraju and his wife, but only partially. The couple was seeking permission for surrogacy, despite the husband being 57 years old, which exceeded the age limit specified in the Act.
The court acknowledged that there was a rationale behind the age cutoff and declined the petitioners’ argument to remove it. However, it recognized the need to address the situation at hand and “iron out the creases in the legislation.” The court emphasized the role of constitutional courts in reviewing laws without altering their content, in order to deal with unforeseen circumstances.
To allow the petitioners to undergo surrogacy, the court devised a “triple test theory” comprising three tests: genetic, physical, and economic. The first test involved the husband undergoing a genetic test to ensure the health of his sperm, thus minimizing the risk of any disorders or health issues in the child.
The second test focused on the couple’s physical capacity to care for the child, not necessarily in terms of physically carrying the child everywhere, but rather their ability to responsibly manage the child.
The third test examined the couple’s economic stability and their ability to provide for the child without subjecting them to financial hardship. The court suggested that the couple submit affidavits disclosing their assets and liabilities to assess their economic capacity. Additionally, the court emphasized the need for future investments in the child’s well-being, leaving the specifics to be determined by the appropriate authority.
The court clarified that its observations and directions were specific to the circumstances of the case and did not grant general discretion to the boards or authorities to issue eligibility certificates in unique situations. It urged the legislature to consider amending the Act to address such situations comprehensively.
The court also expressed concerns about a provision in the Act that required the surrogate mother to be genetically related to the intending couple. It argued that altruistic surrogacy should involve an outsider as the surrogate, and the requirement of genetic relationship went against the principles and logic behind the legislation.
The court acknowledged that the overall challenge to the provisions of the Act was pending before the Supreme Court, where the National Board of Surrogacy had been asked to respond to the contentions raised. Therefore, the court could not strike down the provisions as requested by the petitioner at that stage, as any decision on the matter would be subject to the Supreme Court’s further orders.
Finally, the court directed the State Surrogacy Board or appropriate authority to consider the affidavit filed by the petitioners, taking into account the court’s observations, and proceed accordingly within a specified timeline, considering the advancing age of the first petitioner.
JUDGEMENT REVIEWED BY ABHAY SHUKLA
“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”
