This Karnataka High Court judgment offers hope to older couples who want to have a child through surrogacy

This judgment is significant because it demonstrates the beauty of the law in dealing with a case that is peculiar and contrasting to an enacted statute. This case will provide a ray of hope to those couples who want to become parents through surrogacy but, due to age eligibility criteria or for other reasons, are not able to do so.

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THE Karnataka High Court's ruling in H. Siddaraju and Anr versus Union of India & Ors on April 21 offers some hope to people who desire to become surrogate parents but have passed the age requirement.

In India, surrogacy is governed by the Surrogacy (Regulation) Act, 2021 wherein Section 4(iii)(c)(I) stipulates that the intending parents must be married, and that the woman cannot be older than 50 years and the man must not be older than 55 years of age.

What were the facts of the case?

The brief of this case was that the petitioners (husband and wife) had a son who died in an unfortunate road accident. Understandably, after the death of their only child, the parents became lonely and sad. They felt the need to have another child in their lives. The first petitioner (husband) visited several shishu kendras, where he was informed that a large number of prospective parents were registered with the organisations and that it would take a minimum of three years for the petitioners to get a child through adoption.

Later on, after medical consultation, the petitioners come to know that they could have a child by way of surrogacy. However, the first petitioner had crossed the eligibility criterion provided under the Surrogacy (Regulation) Act.

Both petitioners challenged the validity of Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act. The former says that a surrogate mother could only be a woman who is genetically related to the intending couple or intending woman, and the latter sets the age bar for intending couples. The petitioners challenged both the provisions as they were coming in their way to get a child through surrogacy.

Also read: Lacunae in the Surrogacy (Regulation) Act, 2021

What was the legal conundrum?

In this case, the wife/second petitioner had certain health problems because of which she had undergone surgery for the removal of her uterus. Because of this she could not bear a child and could not even give her eggs. That is why the 35-years-old sister-in-law of the first petitioner came forward to donate her egg, and a family friend aged 25 years (who is not genetically related to the intending couple) with two children agreed to be a surrogate mother. The sperm of the first petitioner was intended to be used to fertilise the donated egg.

This goes against Section 2(1)(zg), which says that "surrogate mother" means 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 and fulfils the conditions as provided in Section 4(iii)(b). Also, in this case, the age of the first petitioner/husband is now 57 years old, which is more than the age limit given under Section 4(iii)(c)(I).

What did the court rule?

A sudden death of a son or daughter in their prime is a devastating shock to the parents, the court observed after taking into account the couple's situation.

On the validity of age eligibility, the court declined 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. Instead, the court tried to salvage the situation by coming up with a triple test, which the first petitioner would have to go through in order to become eligible to become a surrogate father.

• Genetic test: The sperm contains genetic information necessary for creating a new individual, and contains 23 chromosomes that pair up with the egg's 23 chromosomes to produce a healthy embryo with 46 chromosomes. Men over the age of 35 to 40 typically experience a decrease in sperm health. Therefore, the petitioner, who is 57 years old, would have to undergo genetic testing to determine the health of his sperm to prevent any disorder or infirmities in the child born out of the embryo.
• Physical test: It is the responsibility of intending couples to ensure that they are physically capable of taking care of a child before bringing them into the world. It is not acceptable for the couple to abandon the child due to their inability to handle them, which would lead to a miserable life for the child. Therefore, while the couple may not be expected to carry the child everywhere, they must have the physical capacity to manage and handle the child properly.
• Economic test: The intending couple that wishes to have a child through surrogacy must be financially stable and should not lead the child into penury after birth. The couple is required to file affidavits providing details of their assets and liabilities to help the appropriate authority to determine their economic capacity. It may be necessary to make future investments on the child, and the procedure and nuances of such economic tests were left to the appropriate authority to decide.

Also read: Amendments required to make surrogacy workable, says Supreme Court while hearing petitions challenging the constitutionality of Surrogacy Act

Why is the judgment noteworthy?

In this case, the court not only considered the welfare of the potential child but also the welfare of an old couple living in a state of depression and illness after the demise of their son in a road accident. For the welfare of the new child, the court came up with the triple test, which the first petitioner would have to pass in order to become a father through surrogacy.

This judgment is significant because it demonstrates the beauty of the law in dealing with a case that is peculiar and contrasting to an enacted statute. In this case, not only did surrogacy potentially help an elderly couple regain its sense of happiness, but it also addressed a unique set of circumstances. In the end, this case will also provide a ray of hope to those couples who want to become parents through surrogacy but, due to age eligibility criteria or other reasons, are not able to do so.