The Karnataka High Court has directed the State Surrogacy Board to review an application filed by an elderly couple from Bengaluru who are seeking to undergo surrogacy despite being above the maximum age limit set by the Surrogacy (Regulation) Act, 2021.
Justice Hemant Chandandangoudar passed the order after considering the couple’s petition, in which they sought surrogacy certificates for medical reasons, along with the eligibility and essentiality certificates required for surrogacy treatment using donor eggs.
The petitioners, a 55-year-old woman and her 59-year-old husband, shared their tragic story with the Court, explaining that they had lost both their biological sons in separate incidents between 2002 and 2016. Under the current Surrogacy Act, the maximum age limit for a woman seeking surrogacy is 50, and for a man, it is 55.
Despite exceeding the age limits specified by the law, the petitioners referenced a similar case in 2023, H Siddaraju v. Union of India, in which a different Bench of the Karnataka High Court allowed a petition from a couple in similar circumstances. In that case, the Court established a “triple test” – genetic, physical, and economic assessments – to determine whether the couple was capable of raising a child and permitted them to proceed with surrogacy if they passed the test.
The petitioners argued that they should be assessed under the same criteria and would be found eligible to pursue surrogacy. Taking note of the 2023 judgment, Justice Chandandangoudar ruled that the petitioners should be given the opportunity to apply for surrogacy certificates, as the circumstances were similar. The Court observed, “In similar circumstances, a coordinate Bench of this Court in H Siddaraju ruled that the petitioners’ case for issuance of an eligibility certificate may be considered by the State Surrogacy Board, subject to satisfying the triple test.”
The Court, therefore, directed the petitioners to approach the State Surrogacy Board with their application for an eligibility certificate, in line with the 2023 judgment. The Board was ordered to assess the petitioners based on the triple test criteria and issue a decision within four weeks of receiving the application.
This ruling provides a precedent for other couples facing similar age-related challenges in pursuing surrogacy. It emphasizes that the Surrogacy Board should consider individual cases based on merit and capacity to care for a child rather than solely on age.
Advocate Gautam S. Bharadwaj represented the petitioners, while Advocates Sadhana S. Desai and AGA Shamanth Naik appeared on behalf of the Central and State governments, respectively.
