In a significant judgment, the Karnataka High Court has allowed a Bengaluru couple, aged 55 and 59, to apply for surrogacy despite exceeding the maximum age limit prescribed under the Surrogacy (Regulation) Act, 2021. Justice Hemant Chandandangoudar directed the State Surrogacy Board to consider their application in accordance with a 2023 ruling that established a “triple test” for assessing eligibility in such cases.
The couple, who tragically lost their two biological sons in separate incidents between 2002 and 2016, sought permission to undergo surrogacy using donor eggs. Under the Surrogacy Act, the maximum age limit for intending parents is 50 years for women and 55 years for men.
Referring to the case of H Siddaraju v. Union of India, the petitioners argued that the same “triple test”—genetic, physical, and economic—used to determine a couple’s capability of caring for a child could be applied to them. The 2023 ruling had allowed a similar petition, emphasizing the need for an individualized assessment rather than rigid adherence to age limits.
Justice Chandandangoudar, taking note of the previous judgment, observed:
“In similar circumstances, a coordinate Bench of this Court… 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.”
He further directed the State Surrogacy Board to assess the couple’s application on its merits and issue an eligibility certificate within four weeks.
The petitioners were represented by Advocate Gautam S Bharadwaj, while Advocates Sadhana S Desai and Shamanth Naik appeared for the Central and State governments.
