Sri H Siddaraju vs The Union Of India
2023 Latest Caselaw 2330 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 21ST DAY OF APRIL, 2023          R
                            BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

           WRIT PETITION No. 5861 of 2023 (GM-RES)

BETWEEN:

1.   SRI H.SIDDARAJU
     AGED ABOUT 57 YEARS
     S/O LATE HENJARAPPA

2.   SMT. K.ANITHA
     AGED ABOUT 45 YEARS
     W/O H.SIDDARAJU

     BOTH ARE R/AT NO. 502, 'A' BLOCK,
     NO. 72, DIVYA MSR GATEWAY
     OFF M.S.RAMAIAH ROAD,
     GOKULA,
     BENGALURU - 560 054
                                              ... PETITIONERS

(BY SRI SAMPATH A., ADVOCATE)

AND:

1.   THE UNION OF INDIA
     BY ITS SECRETARY
     NEW DELHI - 110 001.

2.   THE DEPARTMENT OF
     HEALTH AND FAMILY WELFARE,
     UNION OF INDIA,
                            2



     NEW DELHI - 110 001.
     REPRESENTED BY SECRETARY

3.   THE KARNATAKA STATE
     ASSISTED REPRODUCTIVE TECHNOLOGY AND
     SURROGACY BOARD,
     DEPARTMENT OF HEALTH AND
     FAMILY WELFARE
     GOVERNMENT OF KARNATAKA,
     VIKASA SOUDHA,
     BENGALURU - 560 001.
     REPRESENTED BY ITS SECRETARY

4.   APPROPRIATE AUTHORITY UNDER THE,
     SURROGACY ACT ,
     K.C.GENERAL HOSPITAL,
     MALLESHWARAM,
     BENGALURU - 560 003.
     REPRESENTED BY ITS SECRETARY
                                           ... RESPONDENTS

(BY SRI M.N.KUMAR, CGC FOR R1 AND R2)

      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH SECTION 4(iii)(c)(I)
OF THE SURROGACY REGULATION ACT, 2021 BNO.CG.DL-
E.251220-21-232118 AT ANNEXURE-D RECEIVED ASSENT OF
HONBLE PRESIDENT ON 25.12.2021 IN SO FAR AS IT RELATES TO
DISQUALIFYING THE PETITIONER NO.1 FROM BECOMING AN
INTENDEND FATHER DUE TO HIS AGE AND ALSO QUASH SECTION
2(1)(zg) AT ANNEXURE-D IN SO FAR IT MANDATES THAT THE
SURROGATE MOTHER SHOULD BE RELATED TO THE INTENDED
COUPLE OR THE INTENDING WOMAN.

     THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 31.03.2023, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
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                               ORDER

"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," says Robert

Brown. The altered perspective is what forms the kernel of this

conundrum.

The petitioners are before this Court calling in question

validity of Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy

(Regulation) Act, 2021 (hereinafter referred to as 'the Act' for

short).

2. Shorn of unnecessary details, facts in brief, are as follows:

The petitioners are husband and wife, from their wedlock had

a son. The mother owing to certain health problems, undergoes

surgery for removal of her uterus and, therefore, the uterus is no

longer a part of the body of the mother. The son of the petitioners,

completes his MBBS course and was undergoing internship at a

College in Mangalore. The son on 13-12-2022, dies due to a road

traffic accident. The couple on losing their son go into depression.

3. The 1st petitioner is working as a First Division Assistant in

the Government Arts College, Bengaluru and the second petitioner

is a home maker and a business woman, is what is averred in the

petition. The further averment in the petition is that, the 1st

petitioner visited several Shishu Kendras/ home for children, who

informed him about the process of registering with Central Adoption

Resource Authority, which is a nodal body of the Central

Government monitoring and regulating in-country and inter-country

adoption under the provisions of the Juvenile Justice (Care and

Protection of Children) Act, 2000. The 1st petitioner was told that

there is large number of prospective parents registered in the

organization and it would take minimum of 3 years for the

petitioners to get a child in adoption. Later on medical consultancy,

the petitioners come to know that they could have a child by way of

surrogacy, within nine months and are told that surrogacy is

regulated by the Surrogacy (Regulation) Act, 2021 ('the Act' for

short) and the Surrogacy (Regulation) Rules, 2022 framed under

the Act.

4. In furtherance of the intention of the petitioners to have a

child on surrogacy, the sister-in-law of the 1st petitioner, one

Smt. S.M.Prathiba comes forward to donate her egg and a close

family friend Smt. Priyasarvanan, aged about 25 years and a

mother of two children had agreed to be a surrogate mother and

the sperm of the 1st petitioner would be used to fertilize the

donated egg. It is averred that, it is purely for altruistic purpose

and no commercial intentions are behind it. What comes as an

embargo, are the provisions of the Act which prohibit the

petitioners and the like to have a child by way of surrogacy. It is in

the wake of provisions of the Act placing such embargo and the

desire of the 2nd petitioner to become a mother by surrogacy, has

led the petitioners to this Court, in the subject petition, calling in

question those provisions which place an embargo upon the

intention of the petitioners to have a child by way of surrogacy.

5. Heard Sri A. Sampath, learned counsel appearing for the

petitioner and Sri M.N. Kumar, learned Central Government Council

appearing for respondents 1 and 2.

6. The learned counsel appearing for the petitioners would

submit that the petitioners were a happy family of couple with a

child/ boy, who was about 23 years old. The boy meets with a road

accident and dies. On the death of the only child, the health of the

2nd petitioner began to completely deteriorate due to acute

depression. The couple then wanting another child by way of

adoption, were told that it is going to take 3 or 4 years and on

further consultation told that surrogacy was the only method to

bear the child. Sister in-law of the 1st petitioner who is 35 years old

has come forward to donate her egg and a family friend aged 25

years and having two children has agreed to be a surrogate mother

and the sperm of the 1st petitioner would be used to fertilize the

donated egg. In the entire process, there is no financial

consideration as they are all closely knit family or like a family.

However, certain provisions of the Act are coming in the way of the

2nd petitioner becoming a mother. It is, therefore, those provisions

are called in question, as according to the learned counsel for the

petitioners, those provisions have nothing to do with the object

sought to be achieved, for enacting the Act. Therefore, the

petitioners call them in question, in this petition.

7. On the other hand, Sri M.N.Kumar, learned Central

Government Counsel representing respondents 1 and 2 would

vehemently refute the submissions to contend that merely because

it does not suit the petitioner, a provision cannot be held to be

contrary to law. Detailed deliberations have gone into while

promulgating the Act as the country had become a hub of lending a

womb for surrogacy, for people in India and abroad who are

affluent, who would exploit the plight of poor women, in the rural

areas of the country. He would contend that the petitioners will

have to approach State Surrogacy Board, under the Rules for

redressal of their grievance and cannot call in question the

provisions of the Act. He would further submit that identical issues

are pending consideration at the hands of the Apex Court where

various provisions of the Act have been called in question and this

petition will have to await the outcome of proceedings before the

Apex Court.

8. I have given my anxious consideration to the submissions

made by the respective learned counsel and have perused the

material on record. In furtherance whereof, the issue that falls for

consideration is, whether the petitioners will be entitled to the

prayers that are sought for?

9. Before embarking upon the consideration of the issue of

surrogacy brought up before this Court in the lis, I deem it

appropriate to notice the judgment of the Apex Court rendered in

the case of BABY MANJI YAMADA VS. UNION OF INDIA AND

ANOTHER reported in (2008) 13 SCC 518, wherein, the Apex

Court considered what is surrogacy and different kinds of surrogacy

while observing as follows:

"8. Surrogacy is a well-known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child's genetic mother (the more traditional form for surrogacy) or she may be,

as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.

9. The word "surrogate", from Latin "subrogare", means "appointed to act in the place of". The intended parent(s) is the individual or couple who intends to rear the child after its birth.

10. In traditional surrogacy (also known as the Straight method) the surrogate is pregnant with her own biological child, but this child was conceived with the intention of relinquishing the child to be raised by others; by the biological father and possibly his spouse or partner, either male or female. The child may be conceived via home artificial insemination using fresh or frozen sperm or impregnated via IUI (intrauterine insemination), or ICI (intracervical insemination) which is performed at a fertility clinic.

11. In gestational surrogacy (also known as the Host method) the surrogate becomes pregnant via embryo transfer with a child of which she is not the biological mother. She may have made an arrangement to relinquish it to the biological mother or father to raise, or to a parent who is themselves unrelated to the child (e.g. because the child was conceived using egg donation, germ donation or is the result of a donated embryo). The surrogate mother may be called the gestational carrier.

12. Altruistic surrogacy is a situation where the surrogate receives no financial reward for her

pregnancy or the relinquishment of the child (although usually all expenses related to the pregnancy and birth are paid by the intended parents such as medical expenses, maternity clothing, and other related expenses).

13. Commercial surrogacy is a form of surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually resorted to by well-off infertile couples who can afford the cost involved or people who save and borrow in order to complete their dream of being parents. This medical procedure is legal in several countries including in India where due to excellent medical infrastructure, high international demand and ready availability of poor surrogates it is reaching industry proportions. Commercial surrogacy is sometimes referred to by the emotionally charged and potentially offensive terms "wombs for rent", "outsourced pregnancies" or "baby farms".

14. Intended parents may arrange a surrogate pregnancy because a woman who intends to parent is infertile in such a way that she cannot carry a pregnancy to term. Examples include a woman who has had a hysterectomy, has a uterine malformation, has had recurrent pregnancy loss or has a health condition that makes it dangerous for her to be pregnant. A female intending parent may also be fertile and healthy, but unwilling to undergo pregnancy."

(Emphasis supplied)

In the light of what is considered by the Apex Court,

surrogacy is an arrangement in which a women (surrogate) agrees

to carry and give birth to a child on behalf of another person or

couple (the intended, intending or commissioning parents).

Surrogacy involves a process known as in vitro fertilization (IVF), a

procedure by which, embryos are created in a lab and implanted

into the surrogate. There are 2 types of surrogacy medically

evolved, now known:

(i) Gestational surrogacy:

In gestational surrogacy, the surrogates egg is not used in

conception, therefore the surrogate (the gestational carrier) has no

genetic link to the baby and is not a biological mother. The embryo

transferred into the surrogate would be created using the intended

parents sperm and egg or at times, donor embryos also would be

used.

(ii) Traditional surrogacy:

Traditional surrogacy involves an egg from the surrogate.

Fertility treatment, either artificial insemination or even IVF is used

with the intending father's sperm. In traditional surrogacy the

surrogate carries the pregnancy and gives birth to a child that they

are genetically related to.

The difference between the two is that, in gestational

surrogacy, the baby born, has no genetic link to the surrogate; in

traditional surrogacy, the baby has a genetic link to the surrogate.

10. Surrogacy became popularly known as a 'womb on rent',

all over the globe. India had become a hub of commercial

surrogacy, as rent a womb practice, mushroomed in all parts of

India, whereby, plenty of women impoverished, were being

exploited by the affluent for taking the womb on rent. When such

cases of exploitation became rampant, the Parliament thought it fit

to regulate surrogacy in India. Therefore, a Bill came to be

introduced which prohibits commercial surrogacy, but permits

altruistic surrogacy. The altruistic surrogacy involves no monetary

compensation, to the surrogate mother other than medical

expenses and insurance coverage during the said pregnancy.

Commercial surrogacy, in contrast, was undertaken for monetary

benefit or reward either in cash or kind exceeding the basic medical

expenses and insurance coverage. The misuse of surrogacy and

exploitation of woman became a heated debate in the Parliament

which initially led to a Bill being introduced in the Parliament called

the Surrogacy (Regulation) Bill, 2016. The Bill was debated in the

Parliament. Certain corrections were suggested to the Bill. One

such correction was that the baby need not be genetically related to

the intending couple. This was accepted and finally the Act was

promulgated on 25-12-2021. Therefore, Surrogacy is now

regulated under the Act.

11. Certain provisions of the Act are germane to be noticed.

Section 2 deals with definitions. Certain definition clauses are

significant for consideration of the issue in the lis. I deem it

necessary to quote those clauses of Section 2, they are: Sections

2(1)(a), (b), (e), (g), (i), (n), (r), (s), (v), (x), (zb), (zd), (zf) and

(zh) and they run as follows:

"2. Definitions:

(1) In this Act, unless the context otherwise requires,--

(a) "abandoned child" means a child born out of surrogacy procedure who has been deserted by his intending parents or guardians and declared as abandoned by the appropriate authority after due enquiry;

(b) "altruistic surrogacy" means the surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical

expenses and such other prescribed expenses incurred on surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependents or her representative;

... ...

(e) "Board" means the National Assisted Reproductive Technology and Surrogacy Board constituted under Section 17;

... ...

(g) "commercial surrogacy" means commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependents or her representative, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother;

(i) "egg" includes the female gamete;

            ...                      ...
(n)   "gamete" means sperm and oocyte;
            ...                      ...

(r) "intending couple" means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy;

(s) "intending woman" means an Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy;

... ...

(v) "oocyte" means naturally ovulating oocyte in the female genetic tract;

... ...

(x) "prescribed" means prescribed by rules made under this Act;

... ...

(zb) "State Board" means the State Assisted Reproductive Technology and Surrogacy Board constituted under Section 26;

... ...

(zd) "surrogacy" means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth;

... ...

(zf) "surrogacy procedures" means all gynaecological, obstetrical or medical procedures, techniques, tests, practices or services involving handling of human gametes and human embryo in surrogacy;

(zg) "surrogate mother" means a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub- clause (b) of clause (iii) of Section 4;"

(Emphasis supplied)

Section 2(1)(b) defines 'altruistic surrogacy' to mean surrogacy in

which no charges, expenses, fees, remuneration or monetary

incentive of whatever nature, except the medical expenses incurred

on surrogate mother are given to the surrogate mother or her

dependent or her representative; Section 2(1)(g) defines

'commercial surrogacy' which is completely in contrast with

altruistic surrogacy. Selling or buying of human embryo or trading

in sale or purchase of human embryo or gamete or selling or buying

the surrogate motherhood all of which would come under the

umbrella of commercial surrogacy; Section 2(1) (i) defines 'egg' to

include a female gamete; Section 2(1)(n) defines 'gamete' to mean

sperm and oocyte; Section 2(1)(s) defines 'intending woman' to

mean an Indian woman who is a widow or a divorcee between the

age of 35 to 45 and who intends to avail the surrogacy; Section

2(1)(v) defines 'oocyte' to mean naturally ovulating oocyte in the

female genetic tract; Section 2(1)(zd) defines 'surrogacy' to mean a

practice whereby one woman bears and gives birth to a child for an

intending couple after the birth; Section 2(1)(r) defines an

'intending couple' to mean a couple who have a medical indication

necessitating gestational surrogacy and who intend to become

parents through surrogacy; Section 2(1)(zg) defines 'surrogate

mother' to mean a woman who agrees to bear a child, which would

be genetically related to intending couple through surrogacy from

the implantation of embryo in her womb and fulfills all other

conditions; Section 2(1)(zb) defines 'State Board' to mean the State

Assisted Reproductive Technology and Surrogacy Board. Section

2(1)(e) defines a Board which would mean a National Assisted

Reproductive Technology and Surrogacy Board constituted under

Section 17. The appropriate authority is notified under Section 35

of the Act and Section 36 prescribes functions of the appropriate

authority. The applications filed by the intending couple are to be

placed before the appropriate authority who in terms of Section 36

has the power to accept or reject it within 90 days. It is further

germane to notice Sections 4, 35 and 36 of the Act and they read

as follows:

Section 4 deals with regulation of surrogacy and surrogacy

procedures and reads as follows:

"4. Regulation of surrogacy and surrogacy procedures.--On and from the date of commencement of this Act,--

(i) no place including a surrogacy clinic shall be used or cause to be used by any person for conducting surrogacy or surrogacy procedures, except for the purposes specified in clause (ii) and after satisfying all the conditions specified in clause (iii);

(ii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or availed of, except for the following purposes, namely:--

(a) when an intending couple has a medical indication necessitating gestational surrogacy:

Provided that a couple of Indian origin or an intending woman who intends to avail surrogacy, shall obtain a certificate of recommendation from the Board on an application made by the said persons in such form and manner as may be prescribed.

Explanation.--For the purposes of this sub-clause and item (I) of sub-clause (a) of clause (iii) the expression "gestational surrogacy" means a practice whereby a surrogate mother carries a child for the intending couple

through implantation of embryo in her womb and the child is not genetically related to the surrogate mother;

(b) when it is only for altruistic surrogacy purposes;

(c) when it is not for commercial purposes or for commercialisation of surrogacy or surrogacy procedures;

(d) when it is not for producing children for sale, prostitution or any other form of exploitation; and

(e) any other condition or disease as may be specified by regulations made by the Board;

(iii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or initiated, unless the Director or in-charge of the surrogacy clinic and the person qualified to do so are satisfied, for reasons to be recorded in writing, that the following conditions have been fulfilled, namely:--

(a) the intending couple is in possession of a certificate of essentiality issued by the appropriate authority, after satisfying itself, for the reasons to be recorded in writing, about the fulfilment of the following conditions, namely:--

(I) a certificate of a medical indication in favour of either or both members of the intending couple or intending woman necessitating gestational surrogacy from a District Medical Board.

Explanation.--For the purposes of this item, the expression "District Medical Board" means a medical board under the Chairpersonship of Chief Medical Officer or Chief Civil Surgeon or Joint Director of Health Services of the district and comprising of at least two other specialists, namely, the chief gynaecologist or obstetrician and chief paediatrician of the district;

(II) an order concerning the parentage and custody of the child to be born through surrogacy, has been passed by a court of the Magistrate of the first class or above on an application made by the intending couple or the intending woman and the surrogate mother, which shall be the birth affidavit after the surrogate child is born; and

(III) an insurance coverage of such amount and in such manner as may be prescribed in favour of the surrogate mother for a period of thirty-six months covering postpartum delivery complications from an insurance company or an agent recognised by the Insurance Regulatory and Development Authority established under the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999);

(b) the surrogate mother is in possession of an eligibility certificate issued by the appropriate authority on fulfilment of the following conditions, namely:--

(I) no woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otherwise;

(II) a willing woman shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act:

Provided that the intending couple or the intending woman shall approach the appropriate authority with a willing woman who agrees to act as a surrogate mother;

(III) no woman shall act as a surrogate mother by providing her own gametes;

(IV) no woman shall act as a surrogate mother more than once in her lifetime:

Provided that the number of attempts for surrogacy procedures on the surrogate mother shall be such as may be prescribed; and (V) a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner;

(c) an eligibility certificate for intending couple is issued separately by the appropriate authority on fulfillment of the following conditions, namely:--

(I) the intending couple are married and between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification;

(II) the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier:

Provided that nothing contained in this item shall affect the intending couple who have a child and who is mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure and approved by the appropriate authority with due medical certificate from a District Medical Board; and (III) such other conditions as may be specified by the regulations."

(Emphasis supplied)

"35. Appointment of appropriate authority.--(1) The Central Government shall, within a period of ninety days from the date of commencement of this Act, by notification, appoint one or more appropriate authorities for each of the Union territories for

the purposes of this Act and the Assisted Reproductive Technology Act.

(2) The State Government shall, within a period of ninety days from the date of commencement of this Act, by notification, appoint one or more appropriate authorities for the whole or any part of the State for the purposes of this Act and the Assisted Reproductive Technology Act.

(3) The appropriate authority, under sub-section (1) or sub- section (2), shall,--

(a) when appointed for the whole of the State or the Union territory, consist of--

(i) an officer of or above the rank of the Joint Secretary of the Health and Family Welfare Department--Chairperson, ex officio;

(ii) an officer of or above the rank of the Joint Director of the Health and Family Welfare Department--Vice Chairperson, ex officio;

(iii) an eminent woman representing women's organisation--member;

(iv) an officer of Law Department of the State or the Union territory concerned not below the rank of a Deputy Secretary--member; and

(v) an eminent registered medical practitioner--member:

Provided that any vacancy occurring therein shall be filled within one month of the occurrence of such vacancy;

(b) when appointed for any part of the State or the Union territory, be officers of such other rank as the State Government or the Central Government, as the case may be, may deem fit.

36. Functions of appropriate authority.--The appropriate authority shall discharge the following functions, namely:--

(a) to grant, suspend or cancel registration of a surrogacy clinic;

(b) to enforce the standards to be fulfilled by the surrogacy clinics;

(c) to investigate complaints of breach of the provisions of this Act, rules and regulations made thereunder and take legal action as per provision of this Act;

(d) to take appropriate legal action against the use of surrogacy by any person at any place other than prescribed, suo motu or brought to its notice, and also to initiate independent investigations in such matter;

(e) to supervise the implementation of the provisions of this Act and rules and regulations made thereunder;

(f) to recommend to the Board and State Boards about the modifications required in the rules and regulations in accordance with changes in technology or social conditions;

(g) to take action after investigation of complaints received by it against the surrogacy clinics; and

(h) to consider and grant or reject any application under clause

(vi) of Section 3 and sub-clauses (a) to (c) of clause (iii) of Section 4 within a period of ninety days.

(Emphasis supplied)

What is germane to be noticed for the issue in the lis is sub-section

(b)(I) and sub-section (c)(I) of Section 4. Section 4(b) directs that

the surrogate mother who is in possession of an eligibility certificate

issued by the appropriate authority must fulfill certain conditions,

they are, no woman, other than a married woman having a child of

her own and between the age of 25 to 35 on the day of

implantation, shall be a surrogate mother or help in surrogacy by

donating her egg or oocyte or otherwise. Section 4(c) imposes

certain conditions for grant an eligibility certificate. Section 4(c)(I)

mandates that the intending couple should be married and the

female should be between the age of 23 to 50 and the male should

be between 26 to 55 on the date of certification. Another Act was

notified along with the Surrogacy (Regulation) Act, called the

Assisted Reproductive Technology (Regulation) Act, 2021

(hereinafter referred to as 'the ART Act' for short). The ART Act

prescribes the reproductive assistance and its regulation. This is

the broad frame work of the Act which deals with the intention and

procedure for intending couple to become surrogate parents.

APPLICABILITY OF THE LAW TO THE FACTS:

12. The facts as afore-narrated, though not in dispute, would

require reiteration. The petitioners are a couple who did bear a

child who in the year 2021-22 was at the age of 23 years. The son

on a fateful day i.e., 13.12.2022 dies, out of a road traffic accident,

leaving the family devastated. The mother unable to bear the

shock, agony and trauma goes into depression. The sudden loss of

a son or a daughter, in the prime of youth, is a terrible blow to the

parents. It is said that, one of the most painful moments of one's

life, is to be the pall bearer of a deceased son or a daughter. Even,

medical science finds that a large number of parents tend to go into

deep depression due to sudden loss of their children. This

emotional vacuum is what is prayed to be filled up in the case at

hand.

13. The agonizing and depressed condition of the mother

drives the 1st petitioner/husband to all the adoption centers only to

be told that there was long waiting period as adoption has to be

done in terms of the provisions of Juvenile Justice Act. These

circumstances lead the couple to scout for a method of having a

child to get over the unbearable agony. This leads to an intention of

having a child by way of surrogacy as the 2nd petitioner/mother

whose uterus had been removed could not bear a child and could

not even give egg / gamete. Therefore, the sister-in-law of the

husband comes forward to donate her eggs / gamete. After finding

a donor of the eggs a family friend comes forward to bear the child

or become a surrogate mother. The sperm of the husband would

be used to fertile the donated egg of the sister in-law of the

husband. The averment in the petition is that it is purely for

altruistic purpose and notwithstanding this the couple would be

unable to bear the child owing of two provisions under the Act. One

being definition in Section 2(1)(zg) supra which mandates a

surrogate mother can only be a women who agrees to bear a child

who is genetically related to the intending couple or intending

woman. In the case on hand, the surrogate mother is not

genetically related to the petitioners though the donor of the egg is

related to the couple.

14. The other provision is Section 4(c)(I) which mandates

that intending couple should be married and the woman should not

have crossed 50 years of age and the man should not have crossed

55 years of age. The mother in the case at hand comes within the

provisions of law as she is yet to cross 50 years. The father/1st

petitioner suffers a disability as he has crossed 55 years of age and

he is 57 years now. In the light of these provisions placing an

embargo upon the motherhood of the wife, the petitioners have

called these provisions in question. It becomes germane now to

notice the prayer that is sought in the petition and it reads as

follows:

"Wherefore, the petitioners pray that this Hon'ble Court may be pleased to -

(a) Issue a Writ in the nature of Certiorari quashing Section 4(iii)(c)(I) of the Surrogacy Regulation Act, 2021 BRO:CG-DL-E-25122021-232118 at Annexure-D received assent of Hon'ble President on 25-12-2021 insofar as it relates to disqualifying the petitioner No.1 from becoming an intended father due to his age and also quash Section 2(1)(zg) at Annexure-D insofar as it mandates that surrogate mother should be related to the intended couple or the intending woman.

(b) Issue a Writ in the nature of Mandamus directing the Respondent No.4 to make appropriate regulations in view of the facts of this case, as prescribed under Section 4 Clause

(e) of the Act of 2021 or alternatively direct the respondents 3 and 4 to issue the essentiality and eligibility certificate as prescribed under the Act by relaxing the age of the petitioner No.1 and by accepting a non-relative of the petitioners as a surrogate mother.

(c) Pass such other order or further orders as this Hon'ble Court deems fit to grant in the facts and circumstances of the case and in the interest of justice and equity."

The challenge is to Section 4(iii)(c)(I) and 2(1)(zg) which are

extracted hereinabove. I deem it appropriate to quote them again.

"4. Regulation of surrogacy and surrogacy procedures.--On and from the date of commencement of this Act,--

(iii) no surrogacy or surrogacy procedures shall be conducted, undertaken, performed or initiated, unless the Director or in- charge of the surrogacy clinic and the person qualified to do so are satisfied, for reasons to be recorded in writing, that the following conditions have been fulfilled, namely:--

(c) an eligibility certificate for intending couple is issued separately by the appropriate authority on fulfillment of the following conditions, namely:--

(I) the intending couple are married and between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification;

(Emphasis supplied) .. .. .. ..

"2. Definitions:

(1) In this Act, unless the context otherwise requires,--

(zg) "surrogate mother" means a woman who agrees to bear a child (who is genetically related to the intending couple or intending woman) through surrogacy from the implantation of embryo in her womb and fulfils the conditions as provided in sub-clause (b) of clause (iii) of Section 4;"

(Emphasis supplied)

What offends the petitioners according to the averment is

that the intending couple, married should be between the age of 23

to 50 in the case of a female and between 26 to 55 in the case of a

male. This is as on the date of the certificate being issued for

eligibility to the intending couple by the appropriate authority. The

1st petitioner/husband is now 57 years old. The 2nd petitioner/wife

is 45 years old. In terms of the afore-quoted provision the 1st

petitioner loses eligibility to become a father by way of surrogacy.

The wife has no problem. Therefore, the argument is the age

restriction has no rationale behind it and has to be obliterated.

According to the counsel, it should be made age free, both to the

husband and the wife who are intending couple.

15. The mother, on account of certain health ailment has

undergone hysterectomy. Therefore, cannot ovulate or donate

eggs/ gamete for surrogacy. Sister of the wife has come forward to

donate the eggs. The embryo would be an amalgam of the eggs

from the sister-in-law of the husband and the sperm of the

husband. The law prohibits it, as the husband is beyond 55 years

as noted above. The emphatic submission of the petitioner is that,

there is no rationale behind the prescription of the cut off age and

there being no rationale, the provision is unconstitutional. I decline

to accept the submission that there is no rationale behind the

stipulation of the cut off age of 55 years for the husband to become

an intending father by way of surrogacy, but this Court has to

salvage the situation that is brought before the Court. It is

therefore, in the opinion of this Court it is necessary to iron out the

creases in the legislation. Ironing out the creases by the

constitutional Courts of the provisions of law as promulgated

without disturbing the content of the statute is permitted exercise

of judicial review, as the law makers at the time of making the law

would not have envisaged a situation of the kind that is generated

in the case at hand. Reference being made to the judgment of the

Court of Appeal, England, in the case of SEAFORD ESTATE V.

ASHER1, becomes apposite, in which Lord Denning observes as

follows:

"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy,

1949(2) ALL.E.R. 155

and then he must supplement the written word sc as to give "force and life" to the intention of the legislature. That was clearly laid down by the resolution of the judges in Heydon's case18, and it is the safest guide to-day. Good practical advice on the subject was given about the same time by Plowden in his second volume Eyston v. Studd19. Put into homely metaphor it is this: A judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.

Approaching this case in that way, I cannot help feeling that the legislature had not specifically in mind a contingent burden such as we have here."

(Emphasis supplied)

Therefore, on such ironing out, I deem it appropriate to evolve a

triple test theory to permit the petitioners to avail of procedure of

surrogacy, in the peculiar facts of this case by directing conduct of

3 tests. The first petitioner has to cross the wall of the triple tests

to become eligible to become a father by surrogacy. All the tests

directed are aspects which are in public domain. The tests would

be:

   (i)         Genetic Test.

   (ii)        Physical Test and

   (iii)       Economic Test.




(i) Genetic Test:

In medical parlance, what is needed for an embryo is a

healthy sperm and an egg. Therefore, it is imperative to test the

strength of the sperm as the sperm contains genetic information

necessary to make a new individual. The genetic information is

densely packed into the head of the sperm. The sperm contains

23 chromosomes. These 23 chromosomes will pair up with 23

chromosomes in the egg to give out 46 chromosomes necessary

for a healthy human embryo. It is again medically determined

that men over the age of 35 to 40 typically experience a

decrease in sperm health. Since the petitioner is now aged 57

years, it would become necessary for him to undergo the genetic

test for determination of the health of the sperm, so that the

child born out of the embryo of which the sperm of the petitioner

is impregnable part, is not born with any disorder or infirm.

(ii) Physical Test:

The intending couple must be in a position to take care of the

child and cannot abandon the child on the ground that they are

themselves infirmed to handle the child, failing which, it would

be bringing a child to life, on the face of the earth, for making

the life of the child miserable. This cannot be countenanced.

Therefore, the couple must have the physical capacity to handle

the child, though not physical capacity stricto senso to carry the

child everywhere, but to manage the child.

(iii) Economic Test:

The intending couple must be economically sound and should

not lead the child to penury the moment it is born. Therefore,

affidavits of both the intending couple should be filed before the

Board/appropriate authority with regard to their assets and

liabilities which would become helpful for the Board/appropriate

authority to decide the economic capacity of the intending couple.

It may become necessary to protect the child by making future

investments on the child by the intending couple. The procedure

and the nuances of seeking such economic tests is best left open to

the Board/appropriate authority to decide, but such economic test

is imperative.

16. The aforesaid observation and direction is owing to the

peculiarity of the circumstances generated in the case at hand. 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. As it is trite, 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.

17. The other provision that is under challenge is Section

2(1)(zg) of the Act. Section 2(1)(zg) defines who is a surrogate

mother. The women i.e., the surrogate mother has to be

genetically related to the intending couples. Here lies the choke to

the petitioners. 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. Therefore, it becomes necessary to notice what is

altruism.

18. Altruism, as defined in plethora of dictionaries would

mean, when a person acts to promote someone else's welfare, even

at the risk or cost to themselves, if the provision that is called in

question 2(1)(zg) is considered qua altruistic surrogacy, it would

become an object of contradiction, as 2(1)(zg) mandates that the

surrogate mother should be genetically related to the intending

couple. If that be so, altruism is illusory if everything happens

within the family. In the considered view of this Court, Altruistic

surrogacy should mean, surrogacy by an outsider. Therefore, the

provision runs counter to the philosophy or principle behind the

enactment. 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.

19. Though the petitioners have called in question the

provisions as afore-quoted in the prayer. It is brought to the notice

of this Court that the entire gamut of challenge to the provisions of

the Act is pending consideration before the Apex Court where the

National Board of Surrogacy has been asked to submit their reply to

all the contentions advanced before the Apex Court. Therefore,

striking down the provisions as sought by the petitioner, at this

juncture, is unavailable. They would all remain subject to, further

orders to be passed by the Hon'ble Apex Court.

20. The Government of India in terms of a notification dated

04.05.2022 has constituted National Assisted Reproductive

Technology and Surrogacy Board (The National Board) and

subsequently, on 04.08.2022 and 16.12.2022, has composed the

Board with expert members. Likewise, the State Surrogacy Board is

also said to be in place. The Appropriate Authorities are also

appointed both in the Center and the State for consideration of the

applications submitted by the intending couple. Therefore, 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. For the

purpose of these tests, the petitioner shall file an affidavit which

would contain the following:

(i) The 1st petitioner/father shall undertake to undergo the

genetic test for determination of the strength of the

gamete/sperm and its quality.

(ii) The Economic capacity of the intending couple for the

growth of the child and to place the measures taken to

secure the life by creation of property or any fixed

deposit in the name of the child.

(iii) Measures to be taken for the upbringing of the child as

the father or the mother, if are not physically able to

bring up the child, this would not mean the petitioners

would abandon the child or leave it at the mercy of

anybody else.

The affidavit with the aforesaid details shall be filed before the

Appropriate Authority or the Board as the case would be along

with the application seeking eligibility. The application shall

contain all the details including the details of the intending

surrogate mother. If such an affidavit is filed before the Board,

the Board shall consider the same bearing in mind the

observations made in the course of this order and draw up

appropriate proceedings, in accordance with law. Since the 1st

petitioner 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.

21. For the aforesaid reasons, the following:

ORDER

(i) Writ Petition is allowed in part.

(ii) The challenge to the provisions - Section 2(1)(zg)

and Section 4(iii)(c)(I) of the Surrogacy (Regulation)

Act, 2021, at present, is not considered, as they

would be subject to the pendency proceedings before

the Apex Court.

(iii) The petitioners are directed to approach the State

Surrogacy Board / Appropriate Authority/ Prescribed

Authority with the appropriate application seeking

redressal of their grievance.

(iv) In the event petitioners would approach the

Board/Appropriate Authority within 4 weeks from the

date of receipt of the copy of this order, the State

Surrogacy Board / Appropriate Authority / Prescribed

Authority shall consider the application and pass

appropriate orders for issuance of eligibility

certificate within 4 weeks thereafter. While doing so,

the Board/Authority shall bear in mind the

observations made in the course of the order.

Accordingly, I.A.No.1 of 2023 also stand disposed.

Sd/-

JUDGE

bkp CT:MJ