Madras High Court
D.Rochas Berlin vs State Of Tamil Nadu on 16 February, 2024
Author: Anita Sumanth
Bench: Anita Sumanth
2024:MHC:6390
W.P.No.3641 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.02.2024
CORAM :
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P.No.3641 of 2024
and WMP No.3929 of 2024
1.D.Rochas Berlin
2. Deepak Chandrasekar
.. Petitioners
vs
1.State of Tamil Nadu
Rep. by its Principal Secretary to Government,
Health and Family Welfare Department,
Secretariat, Chennai.
2.The Director,
The Directorate of Medical and Rural Health Service,
No.359, DMS Complex, 361, Anna Salai,
Chennai - 600 006.
3.The Joint Director of Health Service/
District Medical Board,
No.359, DMS Complex,
361, Anna Salai, Chennai - 600 006. .. Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
praying to issue a writ of mandamus directing the 2nd and 3rd
respondents to consider the letter application dated 10.07.2023 sent b by
the petitioners and issue the certificate of Eligibility and Certificate of
Essentiality/Certificate of Medical Indication necessitating Gestational
Surrogacy under Section 4 of the Surrogacy (Regulation) Act, 2021 to
https://www.mhc.tn.gov.in/judis
1/10
W.P.No.3641 of 2024
both the petitioners being the intending couple under the provisions of
the Surrogacy (Regulation) Act, 2021.
For Petitioners : Ms.R.S.Lakshmi Priya
For Respondents : Mr.K.Tippu Sultan
Additional Government Pleader
ORDER
W.M.P.No.3929 of 2024, filed seeking permission to file a single writ petition is ordered on payment of separate court fee, if not already paid.
2. Mr.Tippu Sultan, learned Government Advocate accepts notice for the respondents and is armed with instructions to enable a purposeful adjudication of this Writ Petition, even at the stage of admission.
3. The petitioners (intending couple) seek a mandamus directing R2 and R3, being the Director and Joint Director of Health Service, Directorate of Medical and Rural Health Service, to consider application dated 10.07.2023 and issue certificate of Eligibility and Certificate of Essentiality/Certificate of Medical Indication under the provisions of the Surrogacy (Regulation) Act, 2021 (in short 'Act'.).
4. Mr.Tippu Sultan circulates a copy of order dated 29.01.2024 passed in a batch of Writ Petitions, being W.P.Nos.1410 of 2024 etc., https://www.mhc.tn.gov.in/judis 2/10 W.P.No.3641 of 2024 wherein, I had an occasion to consider the case of identically placed intending couples. The order passed in that matter is as follows:
'2. These writ petitions have been filed by 11 couples seeking a mandamus directing the second respondent, being the Director, Directorate of Medical and Rural Health Services and the third respondent being the Joint Director of Health Service / District Medical Board to consider their representations under Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021 ('Act') and issue eligibility certificates to them to undergo the procedure of surrogacy utilizing the second petitioner's sperm and a donor egg from the proposed surrogate mother.
3. The Act provides for constitution of Boards at the National and State level as well as other authorities to regulate the practice and process of surrogacy. The procedure relating to surrogacy is set out in various rules and regulations, including Surrogacy (Regulation) Rules, 2022 (Rules). The Rules, provide, inter alia at Rule 14 that a woman may opt for surrogacy in certain specified medical conditions. Rule 14 reads as follows:-
"14. Medical indications necessitating gestational surrogacy A woman may opt for surrogacy, if-
(a) she has no uterus or missing uterus or abnormal uterus (like hypoplastic uterus or intrauterine adhesions or thin endometrium or small uni-cornuate uterus, T-shaptd uterus) or if the uterus is surgically removed due to any medical conditions such as gynaecological cancer;
(b) intended parent or woman who has repeatedly failed to conceive after multiple In vitro fertilization or Intracytoplasmic sperm injection attempts, (Recurrent implantation failure);
(c) multiple pregnancy losses resulting from an https://www.mhc.tn.gov.in/judis 3/10 W.P.No.3641 of 2024 unexplained medical reason, unexplained graft rejection due to exaggerated immune response;
(d) any illness that makes it impossible for woman to carry a pregnancy to viability or pregnancy that is life threatening."
4. The form of consent in Form 2 is relatable to Rule 7. Rule 7 deals with consent of a surrogate mother. Form 2 is the form of consent of the surrogate mother and the agreement for surrogacy. It contains inter alia various methods of treatment that may be adopted as follows:-
(a) stimulation of the genetic mother for follicular recruitment;
(b) the recovery of one or more oocytes from the genetic mother by ultrasound-guided oocyte recovery or by laparoscopy;
(c) the fertilization of the oocytes from the genetic mother with the sperm of her husband;
(d) the fertilization of a donor oocyte by the sperm of the husband;
(e) the maintenance and storage by
cryopreservation of the embryo resulting
from such fertilization until, in the view of the medical and scientific staff, it is ready for transfer;
(f) implantation of the embryo obtained through any of the above possibilities into my uterus, after the necessary treatment if any.
(emphasis provided)
5. Vide Notification dated 14.03.2023, an amendment was proposed to the Form and existing paragraph 1(d), highlighted in bold above, was substituted as follows:-
"G.S.R.179(E).- In exercise of the powers conferred by section 50 of the Surrogacy (Regulation) Act, 2021 (47 of 2021), the Central Government hereby makes the following rules, further to amend the Surrogacy (Regulation) Rules, 2022.
.....
https://www.mhc.tn.gov.in/judis 4/10 W.P.No.3641 of 2024 1(d) (I) Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed;
(II) Single woman (widow / divorcee) undergoing Surrogacy must use self eggs and donor sperms to avail surrogacy procedure."
6. This would lead to a situation where Rule 14 would be rendered otiose as it adumbrates several medical conditions where the mother is unable to conceive.
7. When this anomaly was brought to the attention of the Hon'ble Supreme Court, an interim order was passed on 18.10.2023 in W.P.(C) No. 830 of 2023 staying the operation of newly substituted Rule 1(d). The order, reads as follows:-
“We find substance in the arguments of the learned counsel for the petitioner inasmuch as Rule 14 which is extracted above clearly refers to the wife as not being able to achieve parenthood owing to the “disability” on account of the absence of a uterus or repeatedly failed pregnancies, multiple pregnancies or an illness which makes it impossible for a woman to carry a pregnancy to term or would make the pregnancy life-threatening. The justification for necessitating gestational surrogacy in Rule 14 is all related to the intending woman or the wife and does not refer to the man/husband at all. The said provision is womancentric and relates 8 to the medical or congenital condition of a woman, which impedes her from becoming a mother.
Therefore, the whole scheme of the Act revolves around the “inability” of the woman to conceive and to give birth to a child and the medical indication necessitating gestational surrogacy in Rule 14 explains the various circumstances which incapacitate or disable women from having a normal pregnancy and having a child.
https://www.mhc.tn.gov.in/judis 5/10 W.P.No.3641 of 2024 We have closely perused the original Paragraph 1 (d) 5 in Form 2 and the substituted Paragraph 1(d). A reading of Paragraph 1 of Form 2 clearly indicates several procedures contemplated prior to the implantation of the embryo obtained through any of the procedures or possibilities into the uterus, after the necessary treatment if any of the surrogate mother. However, the substituted Paragraph 1(d) is in the nature of a mandate prohibiting or permitting the use of gametes of the intending couple or the single woman, as the case may be, and does not relate to fertilisation or other procedures contemplated therein. In other words, the fertilisation of a donor oocyte by the sperm of the husband is deleted. This in our view is contrary to what is contemplated under Rule 14(a) of the Surrogacy Rules. Moreover, the form as well as the substance of the amendment of Paragraph 1
(d) is not in tune with the form and substance of the pre-existing Paragraph 1 (a)-(f) of the Form
2. When Rule 14(a) specifically recognises the absence of a uterus or any allied condition as a medical indication necessitating gestational surrogacy, the consent of the surrogate mother and the agreement for surrogacy in Form 2 appended to Rule 7 cannot mandate a condition contrary to Rule 14(a).
In circumstances stated in Rule 14(a) for instance, the intending couple would necessarily have to have a surrogate child through donor’s oocytes because in 6 such a condition, it is not possible for the woman to produce oocytes. Otherwise Rule 14 which has to be read as part of Section 2(r) cannot be given effect at all, even having regard to the scheme of the Act which permits surrogacy subject to certain conditions being complied with.
In this regard, it may be noted that the https://www.mhc.tn.gov.in/judis 6/10 W.P.No.3641 of 2024 expression “genetically” related to the intending couple has to be read as being related to the husband when Rule 14(a) applies. Similarly, the expression “genetically” related to the intending woman would refer only to the intending woman who is an Indian woman who is a widow or divorcee which is in consonance with Paragraph d(ii) of the amendment, between the age of 35 to 45 years and intending to avail surrogacy. When an intending woman avails of surrogacy naturally, she would have to use her own oocytes or eggs and donor’s sperm. Conversely, when the woman in the intending couple is unable to produce oocytes or eggs, then donor oocytes or eggs have to be made use of.
Secondly, the petitioner herein had commenced the procedure for achieving parenthood through surrogacy much prior to the amendment which has come into effect from 14.03.2023. Therefore, the amendment which is now coming in the way of the intending couple and preventing them from achieving parenthood through surrogacy, we find, is, prima facie contrary to what 7 is intended under the main provisions of the Surrogacy Act both in form as well as in substance.
In the said circumstances, the amendment i.e., Paragraph 1(d) in Form 2 which is the Consent of the Surrogate Mother and Agreement for Surrogacy read with Rule 7 of the Surrogacy Rules made under the Surrogacy Act is stayed insofar as the petitioner herein Mrs. ABC is concerned.
It is needless to observe that if the petitioner Mrs. ABC otherwise fulfils all other conditions mentioned under the Act, she is entitled to proceed with the process of surrogacy.” https://www.mhc.tn.gov.in/judis 7/10 W.P.No.3641 of 2024
8. Following the above order, several other interlocutory applications have been allowed on 05.12.2023 and 09.01.2024 wherein the amendment, i.e., Paragraph 1(d) (i) in Form ‘2’, which is the consent of the surrogate mother and agreement for surrogacy read with Rule 7 of the Surrogacy (Regulation) Act, 2021 under the surrogacy Act has been stayed. The applicant is thus entitled to proceed with the process of surrogacy if she fulfills all other statutory conditions.
9. In light of the above, the petitioners / intending couples will appear before the authorities on Thursday, i.e., 01.02.2024 for requisite medical tests and their applications shall be processed and ordered on the same date.
10. These writ petitions stand allowed in terms of this order. No costs.
11. List under the caption 'for filing status report' on 08.02.2024. '
5. In light of the above, the petitioners/intending couples will appear before the authorities on Thursday, i.e., 29.02.2024 for requisite medical tests and their applications shall be processed and ordered on the same date, in accordance with law.
6. This Writ Petition stands allowed in terms of this order. No costs.
7. List under the caption 'for filing status report' on 01.03.2024.
16.02.2024 Index:Yes/No Neutral Citation:Yes sl Note: Registry is directed to upload this order today.
https://www.mhc.tn.gov.in/judis 8/10 W.P.No.3641 of 2024 To
1.The Principal Secretary to Government, State of Tamil Nadu Health and Family Welfare Department, Secretariat, Chennai.
2.The Director, Directorate of Medical and Rural Health Service, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006.
3.The Joint Director of Health Service/ District Medical Board, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006.
https://www.mhc.tn.gov.in/judis 9/10 W.P.No.3641 of 2024 DR. ANITA SUMANTH,J.
sl W.P.No.3641 of 2024 and WMP No.3929 of 2024 16.02.2024 https://www.mhc.tn.gov.in/judis 10/10