reported by, Salil Tiwari
Last Update: April 28, 2023, 21:08 IST
The court was hearing a petition filed for striking down Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. (Representative image/Shutterstock)
HC pointed out that the intention behind the provision was to prevent misuse of the method of surrogacy; Therefore, altruistic surrogacy is permitted under the Act and not commercial surrogacy. But if the provision is deemed to be altruistic surrogacy, it is contrary to the philosophy or principle behind the enactment, the court said.
The Karnataka High Court recently held that Section 2(1)(zg) of the Surrogacy (Regulation) Act, 2021, which mandates that the surrogate mother must be genetically related to the intending couple, violates both altruism and logic. defeats.
A bench of Justice M Nagaprasanna said in its order, “…altruistic surrogacy is illusory if everything happens within the family…Altruistic surrogacy must mean surrogacy by an outsider.”
HC pointed out that the intention behind the provision was to prevent misuse of the method of surrogacy; Therefore, altruistic surrogacy is permitted under the Act and not commercial surrogacy.
But if the provision is deemed to be altruistic surrogacy, it is contrary to the philosophy or principle behind the enactment, the court said.
“The words ‘genetically related’ occurring in section 2(1)(zg) may mean only that the child to be born through surrogacy must be genetically related to the intending couple, failing which, The words genetically related would make no sense if it were to be said that the surrogate mother must be genetically related to the intending couple. It defeats both altruism and logic,” the HC asserted.
The court was hearing a petition seeking to strike down Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021.
The petition was filed by a couple who have a son. After the birth of the son, the mother’s uterus had to be removed due to some health problems. The couple’s son had died in a road accident in December last year.
Thereafter, the couple tried to adopt a child, but were told that it would take at least 3 years. Meanwhile, on medical consultation, the couple came to know that they could have a child through surrogacy.
The woman’s sister-in-law also agreed to donate her eggs and a close family friend, a 25-year-old mother of two, also agreed to act as a surrogate mother for the couple.
However, the above-mentioned provisions of the Surrogacy (Regulation) Act, 2021 came in the form of a restriction, which prohibits the proposed surrogate mother and the child to be born through surrogacy. Hence, the couple and the proposed surrogate mother moved the High Court.
The HC noted that the full scope of the challenge to the provisions of the Act is sub judice before the apex court where the National Board of Surrogacy has been asked to respond to all disputes advanced before the SC.
In view of this, the court observed that the repeal of the provisions sought by the petitioner was unavailable at the present time.
HC further said that there is a National Assisted Reproductive technology And the Surrogacy Board and a State Surrogacy Board as well as appropriate officers have been appointed both at the Center and in the State to consider the applications submitted by the intending couple.
Accordingly, the court ordered that the State Surrogacy Board/Appropriate Authority/Prescribed Authority shall consider the application by the petitioners for grant of certificate of eligibility on triplet tests to become parents through surrogacy. as indicated – genetic; physical and economic.
Further, considering that the male petitioner was already 57 years old, the court said that it would be imperative to fix a time limit for the consideration of the petitioner’s application by the State Board/Authority.
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