Karnataka High Court Directs Surrogacy Board To Consider Application Of Man Who Crossed 55 Yrs Age Bar, Evolves Triple Test Citing 'Unique Situation'

The Karnataka High Court has evolved a triple test theory to permit a couple to undertake the procedure of surrogacy, which otherwise was not permitted to them as the husband being 57-year-old has crossed the age eligibility criteria, under the Surrogacy (Regulation) Act, 2021.

A Single judge bench of Justice M Nagaprasanna allowed in part the petition filed by H Siddaraju and his wife and directed the State Surrogacy Board or prescribed authority to consider their application for grant of an eligibility certificate as is necessary in law for the petitioners to become parents by way of surrogacy, on the triple tests as indicated – genetic; physical and economical.

The petitioners had approached the court questioning the validity of Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021.

Section 2(1)(zg) defines ‘surrogate mother’ to mean a woman who agrees to bear a child, which would be genetically related to intending couple through surrogacy from the implantation of the embryo in her womb and fulfills all other condition.

Section 4(c)(I) which mandates that an intending couple should be married and the woman should not have crossed 50 years of age and the man should not have crossed 55 years of age. The mother in the case at hand comes within the provisions of law as she is yet to cross 50 years.

The petitioners contended that they were a happy family of a couple with a child/ boy, who was about 23 years old when he met with a road accident and died. On the death of the only child, the health of the 2nd petitioner (wife) began to completely deteriorate due to acute depression. The couple then wanting another child by way of adoption, were told that it is going to take 3 or 4 years and on further consultation were told that surrogacy was the only method to bear the child.

It is then that the sister in-law of the 1st petitioner who is 35 years old came forward to donate her egg and a family friend aged 25 years and having two children agreed to be a surrogate mother and the sperm of the 1st petitioner would be used to fertilize the donated egg. In the entire process, there is no financial consideration as they are all closely knit family or like a family, it was said.

The petitioners contended that the age restriction has no rationale behind the Act and has to be obliterated. “It should be made age free, both the husband and wife who are an intending couple,” it was argued.

Findings:

Firstly the bench rejected the contention of the petitioners to obliterate the age criteria, it said “The emphatic submission of the petitioner is that, there is no rationale behind the prescription of the cut off age and there being no rationale, the provision is unconstitutional. I decline to accept the submission that there is no rationale behind the stipulation of the cut off age of 55 years for the husband to become an intending father by way of surrogacy.”

However, it observed that the Court has to salvage the situation that is brought before the Court. “In the opinion of this Court it is necessary to iron out the creases in the legislation,” it said.

The bench then opined “Ironing out the creases by the constitutional Courts of the provisions of law as promulgated without disturbing the content of the statute is permitted exercise of judicial review, as the law makers at the time of making the law would not have envisaged a situation of the kind that is generated in the case at hand.”

Following which it said “I deem it appropriate to evolve a triple test theory to permit the petitioners to avail of procedure of surrogacy, in the peculiar facts of this case by directing conduct of 3 tests. The first petitioner has to cross the wall of the triple tests to become eligible to become a father by surrogacy.”

The triple test laid down by the court was as follows:

1: Genetic Test: The court has suggested the 1 petitioner (Husband) to undergo the genetic test for determination of the health of the sperm, so that the child born out of the embryo of which the sperm of the petitioner is impregnable part, is not born with any disorder or infirm.

2: Physical Test: The (intending) couple must have the physical capacity to handle the child, though not physical capacity stricto senso to carry the child everywhere, but to manage the child.

3: Economic Test: The intending couple must be economically sound and should not lead the child to penury the moment it is born.

The court suggested affidavits of the intending couple should be filed before the Board/appropriate authority with regard to their assets and liabilities which would become helpful to decide the economic capacity of the intending couple.

“It may become necessary to protect the child by making future investments on the child by the intending couple. The procedure and the nuances of seeking such economic tests is best left open to the Board/appropriate authority to decide, but such economic test is imperative,” it said.

The bench clarified that “The aforesaid observation and direction is owing to the peculiarity of the circumstances generated in the case at hand.”

Further it expressed “For the law to be corrected, it is for the legislature to ponder over the issue, as the Act nowhere leaves any discretion to the Board be it National or the State, to the Appropriate Authority be it Center or the State to have any play in the joints to salvage any unique situation, to consider and issue eligibility certificate to the intending couples.”

The court remarked “As it is trite, when the legislature enacts a law, it does not say everything on the subject as every conceivable eventuality of the future would not be present at the time when the law makers make the law. It is those legislative silences that generate relief of the kind that is sought to be granted in the case at hand.”

The court also expressed concern over the limiting nature of 2(1)(zg) of the Act, which prescribes that the surrogate mother has to be genetically related to the intending couples.

It said “Altruistic surrogacy should mean surrogacy by an outsider. The provision runs counter to the philosophy or principle behind the enactment. 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. That defeats both altruism and logic.”

Noting that the entire gamut of challenge to the provisions of the Act is pending consideration before the Apex Court where the National Board of Surrogacy has been asked to submit their reply to all the contentions advanced before the Apex Court.

The bench said “Therefore, striking down the provisions as sought by the petitioner, at this juncture, is unavailable. They would all remain subject to further orders to be passed by the Hon’ble Apex Court.”

Finally it directed “If an affidavit is filed before the Board, the Board shall consider the same bearing in mind the observations made in the course of this order and draw up appropriate proceedings, in accordance with law.”

It added “Since the 1st petitioner is already growing old, as he is now 57 years, it would be imperative to fix a timeline for consideration by the State Board/Authority."

Case Title: H Siddaraju & ANR Union of India & others.

Case No: WRIT PETITION No. 5861 of 2023

Citation: 2023 LiveLaw (Kar) 162

Date of Order: 21-04-2023

Appearance: Advocate Sampath A for Petitioners.

CGC M.N.Kumar FOR R1 AND R2.