Kerala High Court Upholds Altruistic Surrogacy, Emphasizes Prohibition of Financial Gain

The Kerala High Court has issued a ruling that might alter the landscape of assisted reproduction in the state in a crucial move to protect the ethical norms of surrogacy. The court has ordered a comprehensive probe into the circumstances surrounding a putative surrogate mother and her family to be carried out by the DIG of Thiruvananthapuram. The key objective of this investigation is to determine the presence of altruism and the lack of financial gain in the surrogacy arrangement. The court’s ruling demonstrates a strong desire to keep surrogacy a selfless act motivated by true kindness rather than financial incentives.

The Surrogacy (Regulation) Act of 2021 provided the backdrop for this direction. The petitioners, a married couple for almost a decade, asked the court for a medical indication certificate from the District Medical Board in order to effectuate surrogacy. They claimed that surrogacy was their last option as the wife’s medical condition prohibited natural pregnancy. Except for the essential certificate and the certificate of medical indication, all statutory prerequisites for surrogacy have been met.

Also Read: ‘Khula’ Divorce and Maintenance: Kerala High Court’s Landmark Ruling

Tale of Hope and Perseverance

The petitioners’ challenges began when they were unable to conceive naturally following years of fertility procedures and breakdowns. Surrogacy appeared to be their last chance to succeed in their dream of becoming parents. The petitioner’s living embryo was to be transferred to a surrogate mother by November 11, 2023, when they had been staying in a leased residence in the Kollam district.

Enter the surrogate mother, who had agreed to be involved in altruistic surrogacy. The petitioners and the planned surrogate mother had already been reviewed by the Judicial First-Class Magistrate in Karunagapally, who granted the order of Parentage and custody in favour of surrogacy. Except for the odd credentials required to move forward, everything appeared to be in order.

Search for Altruism

The case was presided over by Justice Devan Ramachandran, who directed the DIG of Thiruvananthapuram to undertake an extensive inquiry. This investigation, which is to be conducted by an experienced female officer in plain clothes, will aim to figure out if the surrogate mother’s motivations are entirely altruistic or influenced by other factors. The court chose to select a female police officer in the hope that this approach would result in a more open evaluation of the surrogate mother’s intentions.

The petitioner’s attorney argued strongly that the surrogate mother was doing so in good faith, while the government pleader raised concerns about probable discrepancies and legal infractions. The court’s decision to investigate further proves the determination to retain the purity of intent underlying surrogacy.

Challenges and Fundamental Rights

Amongst these hurdles, the appeal stressed the petitioners’ challenges in obtaining a certificate of medical indication. They said that the District Medical Officer consented to grant the certificate but then sought a copy of their rental agreement, adding to the stress and pressure. The petitioners presented a copy of their most recent rental agreement, signed in October 2023 for an 11-month term, only to be presented with a threat to involve the police from the District Medical Officer and a subsequent refusal of the certificate.

The petitioners rightfully pointed out that the freedom to bear children is a basic right guaranteed by Article 21 of the Indian Constitution. They claimed that the failure to create the National Assisted Reproductive Technology and Surrogacy Registry, as mandated by THE SURROGACY (REGULATION) ACT 2021, amounted to a violation of their fundamental rights.

The Kerala High Court’s decision to look into surrogacy agreements for altruism and lack of financial advantages is an important milestone toward ensuring that surrogacy remains a selfless act driven by a desire to aid childless families rather than financial gain. The court’s concern about enforcing ethical norms in assisted reproduction is admirable, and it accords with the larger goal of defending basic rights.

The case will be heard again on November 8, when the fate of the petitioners and the surrogate mother will hopefully be resolved in a way that protects the purity of surrogacy and the right to parenting. Advocates Mahesh V Ramakrishnan and Deepa Sreenivasan supported the petitioners in this critical court struggle, emphasizing the case’s significance for surrogacy in Kerala and beyond.

Also Read: Kerala High Court Rules that Private Consumption of Pornography is Not a Criminal Offense

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