Last week, the Karnataka High Court directed the state Surrogacy Board to consider the surrogacy plea of a Bengaluru-based couple. The woman, aged 45, got her uterus surgically removed, whereas her partner is aged 57. The Surrogacy Act of 2021 mandates that the father and mother should not be above the ages of 55 and 50, respectively. In this case, the couple was ineligible to avail the surrogacy option and hence filed the plea i the Karnataka High Court.
In this case, the couple had a son who was an MBBS graduate. However, the couple had lost their only son in an accident. After being depressed over losing their son, they considered adopting a child but were advised to opt for surrogacy. The woman’s sister came forward to donate eggs, while a 25-year-old family friend, a mother of two children, has agreed to be the surrogate mother.
Karnataka HC Sets Triple Test
However, since the father’s age was above the acceptable age limit, the couple had to approach the Karnataka HC with a plea to allow the surrogacy under exceptional circumstances, which has now been granted. “All love begins and ends with motherhood, by which a woman plays God,” the Karnataka High Court observed while granting the couple's plea.
Justice M. Nagaprasanna put forth a "triple test" for considering such exceptional cases—a test that requires the surrogacy board to consider the couples' "genetic, physical, and economical" criteria to determine if the couple is fit to raise a child.
It is noteworthy that the Karnataka HC chose to consider various factors and granted the couple’s surrogacy plea based on them passing the "triple test." Given that the father is only two years older than the age limit set by the state surrogacy board, it would be unfair to reject the plea. Also, the mother's age of 45 has been taken into consideration. Also, it seems that the couple has a good support system around them.
It is significant that the Karnataka HC has checked for the "triple test" to determine if the couple can really raise a child. Since the father, who is also the surrogate father, is 57 years old, it is necessary to ensure the health of the sperm so that the child is not born with any disorders.
The couple also needs to have the "physical capacity" to take care of the child. Like the court stated, it is not mandatory that the child be carried around all the time; it is necessary to ensure that the couple is physically healthy enough to take care of an infant.
The triple test also made sure that the couple is "economically strong" so that the child is not born into poverty. Given that the couple is nearing retirement age, they need to be financially sufficient to provide a good life for the child. It is definitely to be appreciated that the Karnataka HC considered all these factors and granted the couple’s plea to have a child through surrogacy upon ensuring their capacity to raise the child.
The court has also ensured that no surrogacy laws were breached. The surrogate mother has to be genetically related to the couple. In this case, it is the woman’s sister who is the egg donor. The mandatory age limit has been slightly breached but has been allowed by the court in exceptional cases based on various other factors.
The Karnataka High Court’s decision comes as the Supreme Court considers making "amendments" to the Surrogacy Act to make it more workable. The HC also raised questions over the mandatory requirement that the surrogate mother be genetically related to the couple. "That defeats both altruism and logic," Justice Nagaprasanna observed.
It was also noted that the constitutionality of the act was pending before the Supreme Court, but the court directed the Surrogacy Board to accelerate the couple’s application considering the father’s increasing age. The Karnataka High Court’s verdict in this case is highly appreciable and seems hopeful for the future.