Surrogate Mother Should Be Genetically Related: Karnataka HC Directs Couple To Undergo Triple Test For Obtaining Child Via Surrogacy
The Karnataka High Court has directed a couple to undergo a triple test i.e., genetic, physical, and economical for the purpose of obtaining a child through the surrogacy method as the would-be surrogate mother was not genetically related to them.
A Single Bench of Justice M. Nagaprasanna held, “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 not 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.”
The Bench said that since the husband is already growing old, as he is now 57 years, it would be imperative to fix a timeline for consideration by the State Board/Authority.
“All love begins and ends with motherhood, by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood”, the Court begin its judgment with this quote by Robert Brown.
Advocate A. Sampath appeared on behalf of the petitioners while CGC M.N. Kumar appeared on behalf of the respondents.
In this case, the petitioners were before the Court calling in question the validity of Section 2(1) (zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. The petitioners were husband and wife, and from their wedlock had a son.
The mother owing to certain health problems underwent surgery for the removal of her uterus, and, therefore, the uterus was no longer a part of her body. The son of the petitioners completed his MBBS course and was undergoing an internship at a College in Mangalore but he died in December last year, due to a road traffic accident as a result of which the couple went into depression.
The High Court in view of the above facts noted, “For the law to be corrected, it is for the legislature to ponder over the issue, as the Act nowhere leaves any discretion to the Board be it National or the State, to the Appropriate Authority be it Center or the State to have any play in the joints to salvage any unique situation, to consider and issue eligibility certificate to the intending couples.”
The Court asserted that when the legislature enacts a law, it does not say everything on the subject as every conceivable eventuality of the future would not be present at the time when the law makers make the law.
“It is those legislative silences that generate relief of the kind that is sought to be granted in the case at hand. As observed, this Court is concerned with the case at hand and intends to iron out the crease, direct conduct of triple test upon the 1st petitioner and on such tests, direct consideration of the case for grant of eligibility certificate from the hands of the Authority under Sections 35 and 36 of the Act”, said the Court.
The Court further noted that the surrogate mother has to be genetically related to the intending couple and that the intention behind the provision is, misuse of the method of surrogacy.
“Therefore, the surrogate mother who seeks to lend her womb for surrogacy should do so only in cases of altruistic surrogacy and not commercial surrogacy. What is permitted under the Act is altruistic surrogacy and not commercial surrogacy. … the State Surrogacy Board / Appropriate Authority / Prescribed Authority shall consider the application by the petitioners for grant of an eligibility certificate as is necessary in law for the petitioners to become parents by way of surrogacy, on the triple tests as indicated hereinabove – genetic; physical and economical”, held the Court.
Accordingly, the Court partly allowed the plea and directed the couple to approach Surrogacy Board/ Appropriate Authority/ Prescribed Authority with the appropriate application seeking redressal of their grievance.
Cause Title- H. Siddaraju & Anr v. The Union of India & Ors.