BENGALURU: The Karnataka High Court has permitted a 57-year-old man and his 45-year-old wife from the city to have a surrogate child. The court, however, directed them to undergo a triple test for an eligibility certificate as the law prohibits a man aged above 55 to have a child through surrogacy. The couple have to undergo genetic, physical and economic tests.
The court issued a directive to the state surrogacy board to consider granting an eligibility certificate to the couple. Since the man is growing old, the court fixed four weeks for the board to consider his application.
Justice M Nagaprasanna passed the order, while partly allowing the petition filed by the couple from Gokula, questioning certain provisions of the Act that prevent them from having a child. The woman had gone into a deep depression after their 23-year-old only son, who was doing an internship at a college in Mangaluru after his MBBS, died in a road accident in December 2022.
“It is said one of the most painful moments of one’s life is to be the pallbearer of a deceased son or daughter. Even medical science says that many parents tend to go into a deep depression due to the sudden loss of their children. This emotional vacuum is what is prayed to be filled in the case,” the judge said.
The petitioners contended that there is no rationale behind the prescription of the cut-off age of 55 for the man. Declining to accept the said contention, the court said it has to salvage the situation and hence, it is necessary to iron out the creases in legislation without disturbing the content of the statute.
‘Triple test for couple’
The lawmakers, at the time of making the law, would not have envisaged that a situation like this would emerge, the court said. Therefore, on such ironing out, “I deem it appropriate to evolve a triple test theory. For the law to be corrected, it is for the legislature to salvage any unique situation for the issue of eligibility certificates to the intending couples,” the judge said.
The man works as a first-division assistant in a government college and his wife, who has undergone surgery for the removal of her uterus, is a businesswoman. Since it would take a minimum of three years to get a child in adoption under the provisions of the Juvenile Justice Act, the couple came forward to have a child through surrogacy. The man has to first undergo a genetic test to determine the strength of the gamete/sperm and its quality. Second, the couple should file proof of their income status to ensure that they can take care of the child.
They should also specify the measures taken, such as the creation of property or any fixed deposit, in the name of the child for its financial security. Last, the couple should specify steps to be taken to bring up the child by the father or mother. This is to ensure that the child is not left at the mercy of others for its upbringing.