Case Note & Summary
The petitioners, a married couple aged 57 and 45 respectively, filed a writ petition under Article 226 of the Constitution of India before the High Court of Karnataka, challenging the constitutionality of Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021. The couple had a son who died in a road traffic accident on 13-12-2022, throwing them into deep depression. The wife, having previously undergone a hysterectomy, was unable to conceive. The petitioners explored adoption but were informed of a three-year waiting period. They then learned that surrogacy could provide a quicker path to parenthood. The sister-in-law of the 1st petitioner volunteered to donate her egg, and a close family friend aged 25 and mother of two agreed to act as a surrogate. The arrangement was purely altruistic with no financial consideration beyond medical expenses. However, the provisions of the Surrogacy Act created an embargo: Section 4(iii)(c)(I) disqualifies the 1st petitioner from becoming an intended father due to his age exceeding the prescribed limit of 55 years for males; and Section 2(1)(zg) mandates that the surrogate mother be a close relative of the intending couple or intending woman, which the family friend is not. The petitioners contended that these restrictions are unrelated to the Act's object of preventing commercial surrogacy and arbitrarily violate their right to parenthood. The respondents opposed the petition, arguing that the Act was a well-considered legislation to curb the rampant exploitation of poor women who were used as surrogates. They submitted that the petitioners should have approached the State Surrogacy Board for redressal and that identical issues were pending before the Supreme Court, suggesting the petition should await that outcome. The court, after hearing both sides, reserved the matter for orders on 31-03-2023. In its order pronounced on 21-04-2023, the court began by examining the concept of surrogacy, distinguishing between gestational and traditional types, and tracing the legislative history that led to the enactment of the Surrogacy (Regulation) Act, 2021. The court noted that India had become a hub for commercial surrogacy, necessitating a law that permits only altruistic surrogacy. The court then proceeded to consider the relevant provisions but the provided judgment text cuts off mid-sentence before delivering a final ruling. Consequently, the ultimate decision on the constitutional validity of the challenged provisions and the grant of relief to the petitioners is not contained in the available excerpt.
Headnote
A) Surrogacy - Types and Legal Framework - Gestational vs. Traditional - Surrogacy (Regulation) Act, 2021 - The court explained the two recognized types of surrogacy: gestational, where the surrogate has no genetic link to the child, and traditional, where the surrogate's own egg is used. It noted that the Act permits only altruistic surrogacy, without monetary compensation beyond medical expenses and insurance coverage, to prevent commercial exploitation of vulnerable women. (Paras 9-10) B) Family Law - Surrogacy Eligibility - Age Limits for Intended Parents - Sections 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021 and Surrogacy (Regulation) Rules, 2022 - The petition challenges the provision disqualifying the 1st petitioner, aged 57, from becoming an intended father as his age exceeds the prescribed upper limit for males (55 years). The petitioners argue the age restriction is unrelated to the object of the Act and violates their right to parenthood. (Paras 2, 4, 6) C) Family Law - Surrogacy Eligibility - Requirement of Surrogate being Close Relative - Section 2(1)(zg) of the Surrogacy (Regulation) Act, 2021 - The petitioners challenge the mandate that the surrogate mother must be a close relative of the intending couple or intending woman. They contend that a family friend who was willing to act as surrogate is not covered, thereby obstructing their altruistic surrogacy arrangement. (Paras 4, 6) D) Constitutional Law - Challenge to Statutory Provisions - Maintainability and Alternative Remedy - Constitution of India, Article 226 - The respondents argued that the petitioners should approach the State Surrogacy Board and that identical issues are pending before the Supreme Court. The court reserved judgment on the main issues but did not dismiss the petition on these preliminary grounds, indicating that the matter required consideration. (Paras 7-8) E) Human Rights - Right to Procreation and Dignity - Impact of Statutory Restrictions - Constitution of India, Article 21 - The petitioners, having lost their only child and the wife being unable to conceive, sought surrogacy as the only viable path to parenthood. The court considered the personal trauma and the state's interest in regulating surrogacy, highlighting the tension between individual rights and legislative intent to curb exploitation. (Paras 2, 3, 6)
Issue of Consideration
Whether the petitioners are entitled to the reliefs sought, i.e., quashing of Section 4(iii)(c)(I) and Section 2(1)(zg) of the Surrogacy (Regulation) Act, 2021, and whether those provisions are constitutionally valid
Law Points
- Surrogacy is an arrangement where a woman carries and delivers a child for intended parents
- gestational surrogacy involves no genetic link to the surrogate
- traditional surrogacy involves surrogate's own egg
- the Surrogacy (Regulation) Act
- 2021 permits only altruistic surrogacy to prevent commercial exploitation and mandates that the surrogate be a close relative of the intending couple and imposes age limits on intending parents
- Section 2(1)(zg) defines surrogate mother as a close relative aged 25-35 years
- Section 4(iii)(c)(I) empowers prescription of age limits
- petitioners challenge these provisions as arbitrary
