Karnataka High Court: While deciding the instant writ petition wherein the validity of Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 was questioned by an elderly couple desirous of having a child via surrogacy, the Bench of M. Nagaprasanna, J.*, noting the peculiar situation and in order to “iron the creases in the Surrogacy Act” evolved a ‘Three Test Theory’ and formulated the same to consider the application by the petitioners aged 57 and 45 years, for grant of an eligibility certificate to become parents by way of surrogacy. These three tests are to determine the petitioners’ genetic, economical and physical eligibility. The tests are as follows-
• Genetic Test- It is imperative to test the strength of the sperm as the sperm contains genetic information necessary to make a new individual.
• Physical Test- The intending couple must be in a position to take care of the child and cannot abandon the child on the ground that they are themselves infirmed to handle the child.
• Economic Test- The intending couple must be economically sound and should not lead the child to penury the moment it is born.
The Court directed the State Surrogacy Board / Appropriate Authority / Prescribed Authority to consider the application by the petitioners for grant of an eligibility certificate as is necessary in law, based on the triple tests as indicated above.
Background of the Case: The petitioners are husband and wife, who have a son born from the wedlock. However, due to health complications the wife had to undergo an operation in which her uterus had to be removed. The couple’s son who completed his MBBS degree and was undergoing internship at a college in Mangalore, unfortunately died in a road accident in December 2022. This loss caused the couple to go into depression.
Showing interest in adopting a child, the father visited several Shishu Kendras and the couple became aware of the process of registering with Central Adoption Resource Authority. However, they were told that there is large number of prospective parents registered in the organization and it would take minimum of 3 years for the couple to get a child in adoption. Later, on medical consultancy, the couple come to know that they can have a child by way of surrogacy, within nine months.
Moving forward with the option of surrogacy, the husband’s sister-in-law came forward to donate her egg and a close family friend of the couple, agreed to be a surrogate mother. The sperm of the husband was to be used to fertilize the donated egg.
However, the impugned provisions of the Surrogacy (Regulation) Act, 2021 i.e., Section 2(1)(zg) and Section 4(iii)(c)(I) have prohibited the couple to have a child by way of surrogacy. Therefore, the instant petition has come up before the Court.
Impugned provisions of the Surrogacy (Regulation) Act, 2021:
Section 2(1) (zg)- “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 sub-clause (b) of clause (iii) of Section 4.
Section 4(iii)- no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or initiated, unless the Director or in-charge of the surrogacy clinic and the person qualified to do so are satisfied, for reasons to be recorded in writing, that the following conditions have been fulfilled, namely:
(c) an eligibility certificate for intending couple is issued separately by the appropriate authority on fulfilment of the following conditions, namely: —
(I) the intending couple are married and between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification.
Contentions: The counsel for the couple contended that the impugned provisions have nothing to do with the object sought to be achieved, for enacting the 2021 Act. It was further contended that the age restriction in Section 4(iii)(c)(I) has no rationale behind it and must be obliterated. According to the counsel, it should be made age free, both to the husband and the wife who are intending couple. The petitioner also submitted that the surrogacy is altruistic.
Per contra, the respondents argued that merely because it does not suit the petitioners, a provision cannot be held to be contrary to law. The respondents further submitted that detailed deliberations have gone into while promulgating the 2021 Act as the country had become a hub of lending a womb for surrogacy, for people in India and abroad who are affluent, who would exploit the plight of poor women.
Court’s Assessment:
➢ Perusing the plight of the couple and contentions raised by the parties, the Court took note of the Supreme Court decision in Baby Manji Yamada v. Union of India, (2008) 13 SCC 518, where the Court considered what is surrogacy and different kinds of surrogacy. The Court also noted the 2 types of surrogacies which have medically evolved- Gestational and Traditional. The Court also noted the difference between the two: in gestational surrogacy, the baby born, has no genetic link to the surrogate; in traditional surrogacy, the baby has a genetic link to the surrogate.
➢ The Court also took note of the fact that surrogacy notoriously came to be called as “womb on rent” when cases of exploitation became rampant. It was noted that the Parliament thought it fit to regulate surrogacy in India, hence, the Surrogacy (Regulation) Act, 2021 came into being.
➢ The Court also took a detailed note of the several relevant provisions of 2021 Act, including the impugned ones. The Court also took note of the Assisted Reproductive Technology (Regulation) Act, 2021 which prescribes the reproductive assistance and its regulation and deals with the intention and procedure for intending couple to become surrogate parents.
➢ The Court observed that sudden loss of a son or a daughter, in the prime of their youth, is a terrible blow to the parents and one of the most painful moments of one’s life is to be the pall bearer of a deceased son or a daughter. Considering the events which led the couple to opt for surrogacy, the Court pointed out that definition in Section 2(1)(zg) mandates a surrogate mother can only be a woman who agrees to bear a child who is genetically related to the intending couple or intending woman. However, in the case at hand, the surrogate mother is not genetically related to the couple, though the donor of the egg is related to the couple.
➢ Taking note of Section 4(iii)(c)(I), the Court pointed out that the mother in this case comes within the provisions of law as she is yet to cross 50 years. The father however has crossed 55 years of age and he is 57 years. The Court declined to accept the couple’s submission as to there being no rationale behind the stipulation of the cut off age. Given the situation in the instant case, the Court opined that, “it is necessary to iron out the creases in the legislation”.
➢ In order to address the peculiar situation at hand, the Court formulated three tests to determines the petitioners’ eligibility vis-à-vis genetics, economic condition and physical ability to raise a child-
• The father shall undertake to undergo the genetic test for determination of the strength of the gamete/sperm and its quality.
• The economic capacity of the intending couple for the growth of the child and to place the measures taken to secure the life by creation of property or any fixed deposit in the name of the child.
• Measures to be taken for the upbringing of the child, if in case the father or the mother are not physically able to bring up the child. “This would not mean the petitioners would abandon the child or leave it at the mercy of anybody else”.
➢ The Court observed that it is for the legislature to ponder over the issue, as the 2021 Act nowhere leaves any discretion to the Board (National or the State) and the Appropriate Authority (Centre 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 was of the opinion that 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.
➢ The Court took note of the fact that the entire gamut of challenge to the provisions of the Act is pending consideration before the Supreme Court where the National Board of Surrogacy has been asked to submit their reply to all the contentions advanced.
[H. Siddaraju v. Union of India, 2023 SCC OnLine Kar 16, decided on 21-04-2023]
*Order written by Justice M. Nagaprasanna
Advocates who appeared in this case :
A. Sampath, appearing for the Petitioner;
M.N. Kumar, Central Government Council, appearing for the Respondents 1 and 2.
