Karnataka HC orders couple to undergo triple test for seeking child through surrogacy

PTI, Apr 26, 2023, 8:28 PM IST

Bengaluru: The High Court of Karnataka has ordered a couple to undergo a triple test — genetic, physical and economical — for seeking permission to obtain a child through surrogacy.

Since the husband was 57 years old and above the age prescribed, and secondly the would-be surrogate mother was not genetically related to them, they were not eligible to have a child through surrogacy.

The court did not consider their plea for quashing Sections 2(1)(zg) and 4(iii)(c)(I) of the Surrogacy (Regulation) Act as a similar matter is pending before the Supreme Court. However, it directed the State Surrogacy Board to ”consider the application and pass appropriate orders for issuance of eligibility certificate within four weeks.”

Along with their application before the concerned authorities, the couple was ordered to file an affidavit on the following criteria: the petitioner/father should 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.

Also, measures that have to be taken for the upbringing of the child as the father or the mother, if they 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 matter pertains to a couple from Bengaluru, which had approached the high court seeking permission for obtaining a child through surrogacy.

Their only son, a 23-year-old MBBS student had died in an accident in December 2022. They went into depression after it.

Their attempts to adopt a child proved futile as the Central Adoption Resource Authority informed them that there were a large number of prospective parents registered for adopting children and it would take a minimum of three years.

The woman has had her uterus removed for medical reasons and therefore is not in a position to bear a child.

The husband’s sister-in-law had agreed to donate her egg and a 25-year-old woman had agreed to be a surrogate mother with the sperm of the husband and the egg of the sister-in-law.

As per Section 2(1)(zg) only a genetically related woman can be a surrogate mother for a couple.

The 25-year-old in this case was not genetically related. The couple’s case was that she had agreed to it purely for ‘altruistic’ reasons and not for ‘commercial’ reasons. Further, Section 4(c)(I) mandates that the 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. In this case, the man is 57.

Justice M Nagaprasanna in his judgment on April 21 said, ”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 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.” But since a similar matter was pending before the apex court, the HC did not pass any orders on the couple’s petition.