Surrogacy case: Karnataka HC sets ‘triple test’ to check eligibility of parents

The bench noted that the issues facing the petitioners were that the husband has exceeded the age limit, and the family friend who would act as a surrogate was not genetically related as per the statutory requirements.

In a case heard by the Karnataka High Court on April 21, a single-judge bench has set a test with three conditions to check the eligibility of surrogacy, as one of the parents has crossed the age limit.

The bench of Justice M Nagaprasanna noted that the issues facing the petitioners were that the husband has exceeded the age limit, and the family friend who would act as a surrogate was not genetically related as per the statutory requirements. It proposed a triple test, which included a genetic test, a physical test, and an economic test.

The wife in the case was 45 years old, while the husband was 57 (two years past the age limit for surrogacy). Their son had passed away in a road accident after completing his MBBS, and they found out that there would be a long waiting period to adopt another child. The wife had also earlier had a hysterectomy. In the case of surrogacy, the sister-in-law of the husband was willing to donate the egg cell while a 25-year-old family friend was willing to act as a surrogate to give birth to the child.

The court, further, directed the couple to approach the relevant Surrogacy Board or Authority, which was in turn directed to pass appropriate orders for eligibility certificate within four weeks, bearing in mind the observations of the court.

Referring to the case of Seaford Estate v Asher, the bench pointed out that this was a fit case to exercise judicial review, as the present circumstances could not have been foreseen by lawmakers. To resolve this, a “triple test” was proposed by the bench.

The genetic test is being conducted to confirm whether the embryo could be genetically healthy in the context of sperm and egg cells which would contribute genetic material to it. Thus the petitioner would have to undergo testing to ensure that the embryo would not suffer from deformity, as he was aged 57 years.

The physical test will check if the couple is physically able to raise the child.

The economic test is being done to verify if the prospective parents are economically sound so as to not put the child in financial difficulty.

Noting the provisions of the Surrogacy Act which allowed surrogacy only if the surrogate mother was genetically related and without a commercial element (altruistic surrogacy), the bench observed that altruism is illusory if everything happens within the family. “In the considered view of this court, Altruistic 35 surrogacy should mean surrogacy by an outsider. Therefore, the provision runs counter to the philosophy or principle behind the enactment. The words “genetically related” appearing 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,” the court held.