The Karnataka High Court has developed three criteria to evaluate requests from couples seeking to have a child through altruistic surrogacy.

The court has also recommended revisions to the Surrogacy (Regulation) Act, which currently forbids men over the age of 55 from using surrogacy, to address minor flaws.

The Act's provision requiring genetic relation between the surrogate mother and the couple was criticised by the court as defeatist of altruism and logic.

In a partially allowed petition by a 57-year-old government college employee and his wife, Justice M Nagaprasanna stated that genetically related surrogacy goes against the principle of altruistic surrogacy, which involves the involvement of an outsider.

The grieving parents, who lost their 23-year-old son in a 2022 road accident, sought to pursue altruistic surrogacy to have another child.

According to the petition, the wife's sister has offered to donate her eggs for surrogacy as the wife had a hysterectomy and cannot ovulate.

However, the husband is encountering legal obstacles as he has exceeded 55 years of age, and his sperm cannot be utilised for fertilisation through in vitro fertilisation (IVF) with the donated eggs.

A 25-year-old woman, a friend of the petitioners and a mother of two, offered to be their surrogate. However, that still presents a legal issue since the woman is not 'genetically related' to them.

Justice Nagaprasanna noted that lawmakers would have likely anticipated the situation when creating the Act, and emphasised the Constitutional court's responsibility to refine the legislation without altering its substance.

The High Court has created three tests — genetic, physical, and economic — for the petitioner-husband to meet in order to be eligible for surrogacy fatherhood, while the Surrogacy (Regulation) Act's legal issues are pending in the Supreme Court.

As men's sperm health declines with age, the court ruled the petitioner-husband must take a genetic test to prevent any disorders in the future child.

Before being allowed to adopt the surrogate child, the couple must pass two tests.

First, they must undergo a physical evaluation to ensure they are physically capable of managing the child. This is important as the child’s life could be affected negatively if they are not able to properly care for them.

Secondly, they must complete an economy test by disclosing their financial assets and liabilities to the authorities. This is to ensure that the couple is financially stable enough to provide for the child's future.

The High Court mandated the authority established under the Act to review the couple's request within eight weeks on the basis of the triple tests and after verifying the details of the potential surrogate mother.

Surrogacy (Regulation) Act 2021

Get Swarajya in your inbox.