Karnataka High Court comes up with triple test to help elderly couple opt for surrogacy

In a judgment that could aid childless couples who are restricted from opting for surrogacy due to the Surrogacy (Regulation) Act, 2021, the Karnataka High Court has come up with a triple test [H Siddaraju v. Union of India]..The three tests laid down by Justice M Nagaprasanna are the Genetic Test, the Physical Test and the Economic Test. On the Genetic Test, the Court noted that in medical parlance, what is needed for an embryo is a healthy sperm and an egg. "Therefore, it is imperative to test the strength of the sperm as the sperm contains genetic information necessary to make a new individual. It is medically determined that men over the age of 35 to 40 typically experience a decrease in sperm health. Since the petitioner is now aged 57 years, it would become necessary for him to undergo the genetic test for determination of the health of the sperm," the judge underscored. In the Physical Test, the Bench said, the intending couple must be in a position to take care of the child and cannot abandon the child."This cannot be countenanced. Therefore, the couple must have the physical capacity to handle the child, though not physical capacity stricto senso to carry the child everywhere, but to manage the child," the judgment stated. As per the Economic Test, the intending couple must be economically sound and should not lead the child to penury the moment it is born. .The Court came to the rescue of a Bengaluru-based couple who had lost their 23-year-old son in an accident in 2022. The parents, aged 57 and 46, were depressed after his death. They initially thought of adopting a child, but were asked to wait owing to the laws regulating adoption. The couple then learnt of surrogacy. However, since the mother had undergone a surgery by which her uterus was removed, she couldn't participate in the surrogacy procedure. Therefore, the husband's sister-in-law agreed to donate her eggs and a close family friend volunteered to become a surrogate mother. However, their dream of giving birth to their own child was barred owing to two factors - the father's age and the fact that the surrogate mother wasn't genetically related to them. Notably, the Act permits only males upto the age of 55 to donate their sperm or to participate in the procedure. Similarly, the law allows only a genetically-related woman to become a surrogate mother. In their plea, the couple challenged both these provisions..The Court refused to strike down the provisions, given that the issues were being considered by the Supreme Court in another case. However, it opined that the situation needed to be salvaged and the creases in the legislation must be ironed out. Justice Nagaprasanna said that it is for the legislature to ponder over whether the law is to be corrected, as it leaves no discretion for the National or State Board or the Appropriate Authority to salvage any unique situation and issue eligibility certificates to intending couples.As far as the requirement that the surrogate mother must be genetically related to the intending couple is concerned, the judge opined that the same defeats both the logic and meaning of altruistic surrogacy. Altruistic surrogacy is a process wherein the surrogate mother isn't given any money or any other monetary help except the medical expenses and health insurance during the pregnancy. .It further held that the intending couple must file affidavits before the appropriate authority to indicate their assets and liabilities, which would become helpful for the authority to decide the economic capacity of the intending couple."It may become necessary to protect the child by making future investments on the child by the intending couple. The procedure and the nuances of seeking such economic tests is best left open to the authority to decide, but such economic test is imperative," the Bench clarified. .The Court ultimately ordered the authority to reconsider the couple's application, after they prove that they can pass all three tests laid down in this judgment. .Advocate Sampath A appeared for the petitioners. Advocate MN Kumar represented the Central government..[Read Judgment]