Kerala High Court
Sabu C Thomas vs Union Of India Represented By The ... on 27 May, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
Friday, the 27th day of May 2022 / 6th Jyaishta, 1944
WP(C) NO. 16477 OF 2022(H)
PETITIONERS:
1. SABU C THOMAS, AGED 52 YEARS, S/O THOMAS, FLAT NUMBER 301 A, DREAM
FLOWER, AURIGA, MANJUMMAL PO, KOCHI, PIN - 683501
2. JEAN GEORGE, AGED 47 YEARS, W/O SABU C THOMAS, FLAT NUMBER 301 A,
DREAM FLOWER, AURIGA, MANJUMMAL PO, KOCHI, PIN - 683501
RESPONDENTS:
1. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE, ROOM NUMBER 348, A WING,
NIRMAN BHAVAN, NEW DELHI, PIN - 110011
2. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3. DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES, GENERAL
HOSPITAL JUNCTION THIRUVANANTHAPURAM, PIN - 695035
4. DISTRICT MEDICAL OFFICER, DISTRICT MEDICAL OFFICE OF HEALTH, PARK
AVENUE, MARINE DRIVE ERNAKULAM, PIN - 682011
5. CIMAR, FERTILITY CENTRE, REPRESENTED BY THE MEDICAL DIRECTOR
THYKKAVU, CHERANELOOR, KOCHI, PIN - 682034
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to
(a) direct the 4th respondent to constitute a medical Board as
mandated under S.4 of the Surrogacy Regulation Act 2021 and to issue
certificate of essentiality and certificate of eligibility to the
petitioners as required under the said Act (b) to permit the petitioners
and the surrogate mother to file an application for order of parentage and
custody before the Judicial Magistrate of 1st class, Ernakulam (c) to
direct the Judicial Magistrate of 1st class, Ernakulam to pass an order of
parentage and custody on the application sought to be filed by the
petitioners pending decision in the above Writ Petition.
This petition coming on for admission upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S S.KARTHIKA, PREETHY KARUNAKARAN, K.MEERA, ANJANA M VADHYAR, Advocates
for the petitioners, ASSISTANT SOLISITOR GENERAL OF INDIA for R1,
GOVERNMENT PLEADER for R2 to R4 (B/o) and SRI.M.R.ANISON, Advocate for R5,
the court passed the following:
N.NAGARESH, J.
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W.P.(C).No. 16477 of 2022
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Dated this the 27th day of May, 2022
ORDER
The petitioners seek permission for non-commercial and altruistic surrogacy. The 1st petitioner is 52 years old and the 2nd petitioner is 47. The petitioners have undergone Oocyte aspiration and embryos are kept frozen and Cryopreserved in the 5th respondent-Hospital.
2. Though the Parliament has enacted the Surrogacy (Regulation) Act, 2021, the counsel on either side admit that the requisite statutory mechanism for enabling surrogacy is not in place even now.
3. In the circumstances of this case, this Court is of the view that in the interest of justice and in order not to defeat the cause of the petitioners, certain interim measures are necessary. This Court feel that such interim measures have to be taken invoking the powers of this Court under Article 226 of W.P.(C).No. 16477 of 2022 2 the Constitution of India. Accordingly, the following interim directions are given.
(1) The 5th respondent-Hospital is required to file a statement regarding the clinical facilities for surrogacy available in the Hospital and competency of the Physicians/Doctors with them.
(2) District Medical Officer, Ernakulam is directed to arrange to constitute a Medical Board and issue a Certificate of Medical Indication, as regards the surrogacy intended.
(3) The petitioners along with the surrogate mother, shall appear before the Judicial Magistrate of the First Class, Ernakulam and obtain an Order of Parentage and Custody.
(4) The petitioners shall ensure that an insurance is taken for a period of 36 months as contemplated under Section 4(iii)
(a)(III) of the Surrogacy (Regulation) Act, 2021.
(5) The petitioners shall make available a Certificate of Medical and Psychological Fitness of surrogate mother. W.P.(C).No. 16477 of 2022 3
(6) The 5th respondent shall explain to the surrogate mother all known side effects of the procedure and obtain a written consent of the surrogate mother to undergo such procedures in a language known to the surrogate mother.
Post the writ petition on 09.06.2022.
sd/-
N.NAGARESH, JUDGE hmh H/o.
27-05-2022 /True Copy/ Assistant Registrar