The Karnataka High Court has come with a judgment that could help childless couples who are barred from using surrogacy due to the Surrogacy (Regulation) Act, 2021.
A single-judge Justice M Nagaprasanna laid down three tests: the Genetic Test, the Physical Test and the Economic Test.
On the Genetic Test, the bench stated that in medical terms, what is required for an embryo is a healthy sperm and an egg.
In the Physical Test, the bench stated that the intending couple must be able to care for the child and cannot abandon the child.
And for according to the Economic Test, the intending couple must be financially secure and should not place the child in poverty the moment he or she is born.
The single bench stepped in to help a Bengaluru-based couple who lost their 23-year-old son in a car accident in 2022. After his death, the old parents, aged 57 and 46, were depressed. They considered adopting a child at first, but were advised to wait due to adoption laws.
The couple later learned about surrogacy. However, because the mother had her uterus removed during surgery, she was unable to participate in the surrogacy procedure. As a result, the husband’s sister-in-law agreed to donate her eggs, and a close family friend agreed to be a surrogate mother.
Their dream of having their own child, however, failed due to two factors: the father’s age and the fact that the surrogate mother was not genetically related to them.
Notably, the Act only allows males under the age of 55 to donate sperm or participate in the procedure. Similarly, the law allows only women who are genetically related to become surrogate mothers. Both of these provisions were challenged in the couple’s plea.
Given that the issues were being considered by the Supreme Court in another case, the Court refused to strike down the provisions. It did, however, believe that the situation needed to be salvaged and that the kinks in the legislation needed to be ironed out.
According to Justice Nagaprasanna, it is up to the legislature to decide whether the law should be changed, as it gives no leeway to the National or State Boards or the Appropriate Authority to salvage any unique situation and issue eligibility certificates to intending couples.
The requirement that the surrogate mother be genetically related to the intending couple, according to the judge, contradicts both the logic and meaning of altruistic surrogacy.
Altruistic surrogacy is a process in which the surrogate mother receives no monetary assistance other than medical expenses and health insurance during the pregnancy.
It went on to say that the intending couple must file affidavits with the appropriate authority outlining their assets and liabilities, which will help the authority determine the couple’s economic capacity.
The single bench eventually ordered the authority to reconsider the couple’s application after they demonstrated that they could pass all three tests outlined in this decision.
