Karnataka HC Directs Surrogacy Board To Consider Elderly Couple's Application For Surrogacy Approval Despite Age Limits

The couple, aged 55 (woman) and 59 (man), had lost both of their biological sons in separate tragic incidents between 2002 and 2016. They are seeking a surrogacy certificate based on medical grounds, along with the necessary eligibility and essentiality certificates required for undergoing surrogacy using donor eggs.

A Bench of Justice Hemant Chandangoudar observed, “In similar circumstances, a coordinate Bench of this Court in the case of H Siddaraju and Another v. Union of India through its Secretary and Others ruled that the petitioners’ case for issuance of an eligibility certificate may be considered by the State Surrogacy Board/Appropriate Authority/Prescribed Authority, subject to the petitioners satisfying the triple test as enumerated in paragraph 25 of the judgment. Therefore, it is expedient to dispose of the petition in terms of the order passed by the coordinate Bench of this Court in the aforementioned case,”

Advocate Gautam S. Bharadwaj appeared for the Petitioners and Advocate Sadhana S. Desai appeared for the Respondents.

Under the Surrogacy Act, the age limits for surrogate parents are 50 for women and 55 for men. Although the petitioners fall outside these age limits, they referred to a previous Karnataka High Court decision from 2023, in which a similar petition was allowed. In the 2023 case of H Siddaraju v. Union of India, the court had established a "triple test," which involved assessing the petitioners' genetic, physical, and economic capability to care for a child. The Court had ruled that if the couple met the criteria of this test, they would be eligible to proceed with surrogacy.

Therefore, the Court directed the petitioners to approach the State Surrogacy Board and the appropriate authorities for an eligibility certificate. The Court further ordered that the Surrogacy Board assess the petitioners based on the criteria set forth in the 2023 judgment and issue a decision within four weeks of receiving the application.

Cause Title: Indiramma A.R. & Anr. v. Union of India & Ors., [2024:KHC:46592]

Appearance:

Petitioner: Advocate Gautam S. Bharadwaj

Respondent: Advocate Sadhana S. Desai and AGA Shamanth Naik