Karnataka High Court
Smt. Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:5329
WP No. 189 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 189 OF 2024 (GM-RES)
BETWEEN:
1. SMT. XXXX
W/O XXXX
AGED ABOUT 35 YEARS.
2. SRI. XXXX
S/O XXXX
AGED ABOUT 35 YEARS.
BOTH R/AT FLAT 102B,
SRADDHA SILVEROAK APT,
RAHATH BAGH,
CV RAMAN NAGAR,
BENGALURU - 560 093.
...PETITIONERS
Digitally signed
by NAGAVENI (BY SRI. GAUTAM S. BHARADWAJ, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. UNION OF INDIA,
THROUGH MINISTRY OF HEALTH AND FAMILY
WELFARE, THROUGH ITS SECRETARY,
NIRMAN BHAWAN,
NEW DELHI - 110 011.
2. KARNATAKA STATE ASSISTED REPRODUCTIVE
TECHNOLOGY AND SURROGACY BOARD,
DEPARTMENT OF HEALTH AND FAMILY WELFARE
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NC: 2024:KHC:5329
WP No. 189 of 2024
GOVERNMENT OF KARNATAKA,
VIKASA SOUDHA,
BENGALURU - 560 001,
REPRESENTED BY ITS SECRETARY.
...RESPONDENTS
(BY SRI. H. SHANTHI BHUSHAN, DSGI FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
NOTIFICATION DTD 14.03.23 BEARING NO. G.S.R. 179(E),
ISSUED BY RESPONDENT NO. 1 (I.E DEPARTMENT OF
MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS
ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY
(REGULATION ) ACT, 2021 AND THE ASSISTED REPRODUCTIVE
TECHNOLOGY (REGULATION ) ACT, 2021. A COPY OF THE SAID
NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A AND
ETC.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court, seeking the following prayers:
"A. To issue a writ in the nature of certiorari or any other appropriate writ direction, order quashing the notification dated 14.03.2023 bearing no. G.S.R.179(E), issued by Respondent No.1 (i.e. Department of Ministry of Health and Family Welfare) as the same is ultra vires the Constitution of India, the Surrogacy (Regulation) Act, 2021 and -3- NC: 2024:KHC:5329 WP No. 189 of 2024 the Assisted Reproductive Technology (Regulation) Act, 2021. A copy of the said Notification is produced herewith as Annexure 'A'. B. Issue any other such appropriate order Writ or Directions as the Hon'ble Court deems fit in the interest of justice and equity."
2. Heard Sri. Gautam S. Bharadwaj, learned counsel appearing for the petitioners, Sri. H. Shanthi Bhushan, learned DSGI appearing for respondent No.1, Smt. Navya Shekhar, learned AGA appearing for respondent No.2 and have perused the material on record.
3. The relief sought by the petitioners in the subject petition is identical to the one that was sought in W.P.No.15824/2023, which is disposed by permitting surrogacy on manifold reasons. The order passed in W.P.No.15824/2023, disposed on 18.11.2023, reads as follows:
"(i) Writ Petition is allowed in part.
(ii) The challenge to the notification dated 14-03-2023 is left unanswered, as the challenge to it is pending consideration before the Apex Court.
(iii) For the reasons rendered in the course of the order, the notification dated 14-03-2023 is declared inapplicable to the case of the petitioners.
(iv) The petitioners are entitled to opt for surrogacy for the reasons rendered in the course of the order.-4-
NC: 2024:KHC:5329 WP No. 189 of 2024
(v) The petitioners would become entitled to opt for surrogacy, subject to them fulfilling all other conditions and requirements under the statute, except the one that is in the notification dated 14- 03-2023.
(vi) In the light of the findings rendered in the course of the order, the Authorities cannot insist or direct the petitioners that the donor gamete cannot be made use of by the intending couple. The Authorities shall forthwith process the applications, if any and issue Eligibility Certificate/Essentiality Certificate, if the intending couple would fulfil all other conditions."
The aforesaid order was passed on account of the health condition as prayed by the petitioners in the document appended to the writ petition in the case at hand as well. The medical condition of the petitioners are intending mother through surrogacy are also the one that is considered in the aforesaid writ petition. The medical certificate reads as follows:
"Mrs xxxx and Mr xxxx are married since 02-Jul-17 (6 Years, 5 months) Pt had tried till Sep 2021 Natural conception for 4 Years.
In 06-Oct-20 pt had First conception but resulted as a biochemical Pregnancy.
In 31-Oct-20 Wife diagnosed with Hyperthyroidism. Underwent PTU treatment for 1 year.
15-Mar-21 Husband had high DFI 41% and advised to meet Andrologist and taken medication as per advice.
Repeated DFI on 16-Apr-21 and result- 35.239% due to high DFI and morphology of sperm pt advised for Varicocele correction.-5-
NC: 2024:KHC:5329 WP No. 189 of 2024 in May-21: Husband underwent Varicocele surgery: Right Varicocele In Aug-21 Repeated DFI and semen analysis as per advice.
DFI at 30.35% and Morphology test: Normal at 1% continued with medication and repeated DFI on 29-Oct-
21: result DFI at 22.11% In Sep-21 and-Oct-21 tried with IUI X 2 cycle and failed and advised for IVF.
In Nov-21 Egg pick up + ICSI and embryos are frozen.
In Dec-21 HRT+ 1" FET (Day 5 Transfer) Result - Negative In Jan-22 HRT+2nd FET (6 day Transfer) Result- Negative. Since low graded embryo left for transfer pt suggested for 2nd IVF cycle.
In Apr-22 pt had ICSI with TESA and got oocyte with poor quality. Embryos frozen.
In Sep-22 ERA planned due to thin endometrium.
In Apr-23: Egg pick up 3rd time + ICSI and embryos are frozen.
In Sep-23 Approval for embryo with self-gamete was received from Metropolitan Magistrate In Nov-23 embryo transfer was done to the surrogate and result came negative In the view of recurrent implantation failures of embryos with self-gametes due to thin Endometrium. Hence patient has been advised for Embryo Transfer using Donor Garnete to Surrogate Mother."-6-
NC: 2024:KHC:5329 WP No. 189 of 2024 Therefore, the issue stands covered on all its fours to the judgment rendered by this Court in W.P.No.15824/2023.
4. For the very reasons rendered to allow surrogacy in W.P.N.15824/2023, this petition deserves to succeed, and granting of the same relief.
5. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed-in-part.
(ii) The challenge to the notification dated 14-03-2023 is left unanswered, as the challenge to it is pending consideration before the Apex Court.
(iii) For the reasons rendered in the course of the order, the notification dated 14-03-2023 is declared inapplicable to the case of the petitioners.
(iv) The petitioners are entitled to opt for surrogacy for the reasons rendered in the course of the order.
(v) The petitioners would become entitled to opt for surrogacy, subject to them fulfilling all other conditions and requirements under the -7- NC: 2024:KHC:5329 WP No. 189 of 2024 statute, except the one that is in the notification dated 14-03-2023.
(vi) In the light of the findings rendered in the course of the order, the Authorities cannot insist or direct the petitioners that the donor gamete cannot be made use of by the intending couple. The Authorities shall forthwith process the applications, if any and issue Eligibility Certificate/Essentiality Certificate, if the intending couple would fulfill all other conditions.
Sd/-
JUDGE SJK CT:SNN