HC orders ‘triple tests’ for couple facing legal hurdles to have child through surrogacy

Introduction:

• The Karnataka High Court has recently evolved “triple tests” for a couple’s plea for a child through altruistic surrogacy.
• The court has suggested these tests to “iron out the creases” in the Surrogacy (Regulation) Act, 2021, which prohibits men above 55 years to have a child through surrogacy.
• The court has also highlighted that the provision in the Act, which states that the “surrogate mother should be genetically related” to the couple who wants to have a child through surrogacy, defeats both altruism and logic.

Background:

• The Karnataka High Court’s decision comes in the wake of a petition filed by a 57-year-old employee in a government college in Bengaluru and his 45-year-old wife. The couple had lost their only child in a road accident in 2022, and they sought to have a child through altruistic surrogacy.

Observations of the Court

• The Karnataka High Court has made the following observations regarding the Surrogacy (Regulation) Act, 2021:
  • The court has suggested “triple tests” to be applied to the petitioner-husband for becoming eligible to become a father through surrogacy. These tests include genetic, physical, and economic tests.
  • The court has highlighted that the provision in the Act, which states that the “surrogate mother should be genetically related” to the couple who wants to have a child through surrogacy, defeats both altruism and logic.
  • The court has suggested that altruistic surrogacy should mean surrogacy by an outsider. Therefore, the provision of being genetically related runs counter to the philosophy or principle behind the enactment.
  • The court has also emphasized that the Surrogacy (Regulation) Act, 2021, prohibits men above 55 years to have a child through surrogacy. The court has opined that this provision is not appropriate, and it should be left to the couple’s discretion and ability to raise the child.
  • The court has suggested that the physical test should be conducted to assess the petitioner’s ability to look after the child, and the economic test should ensure that the petitioner is financially capable of providing for the child’s upbringing.

Merits:

• Evolving “triple tests” for considering the plea of a couple to have a child through altruistic surrogacy helps to iron out the creases in the Surrogacy (Regulation) Act, 2021.
• Allowing men above 55 years to have a child through surrogacy, if they pass the triple tests, provides them with an opportunity to have a child if they are unable to do so naturally.
• Eliminating the provision that the surrogate mother should be genetically related to the couple who wants to have a child through surrogacy opens up the possibility of altruistic surrogacy, which means surrogacy by an outsider.
• Enabling couples who have lost their only child, such as the petitioners in this case, to have a child through altruistic surrogacy can help them cope with their loss and provide them with the opportunity to start a new family.

Demerits:

• Allowing men above 55 years to have a child through surrogacy may not be desirable from a public policy perspective, as it may lead to issues such as children being born to parents who may not live long enough to provide them with adequate care and support.
• The genetic, physical, and economic tests, though intended to ensure that only eligible individuals become parents through altruistic surrogacy, may be subjective and prone to abuse, leading to potential discrimination against certain individuals or groups.
• The Surrogacy (Regulation) Act, 2021, which is currently before the Supreme Court, may be undermined by the decision of the Karnataka High Court, leading to confusion and inconsistency in the application of surrogacy laws across the country.

Conclusion:

• The Karnataka High Court’s decision to evolve “triple tests” for a couple’s plea for a child through altruistic surrogacy is a significant step towards making the Surrogacy (Regulation) Act, 2021 more effective. The court’s observations on the Act’s provisions regarding the genetic relationship of the surrogate mother and the age limit for men to have a child through surrogacy highlight the need for a more nuanced approach. The court’s suggestion to conduct physical and economic tests will ensure that only those who are fit and capable of raising a child can opt for surrogacy. Overall, the Karnataka High Court’s decision is a positive development that addresses the concerns of couples seeking to have a child through surrogacy while ensuring that the interests of the child are protected.