Delhi High Court - Orders
Amit Kumar & Anr vs Union Of India Through The Secretary, ... on 6 December, 2023
$~49
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 15687/2023 & C.M. Appl.62931/2023
AMIT KUMAR & ANR. ..... Petitioners
Through: Dr. S.K. Khattri, Advocate
versus
UNION OF INDIA THROUGH THE SECRETARY, MINISTRY OF
HEALTH AND FAMILY WELFARE (DEPARTMENT OF
HEALTH RESEARCH) ..... Respondent
Through: Ms. Arunima Dwivedi, Ms. Pinky
Pawar, Mr. Aakash Pathak,
Advocates for UOI
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 06.12.2023
1. Present writ petition has been filed with the following prayers:-
"I. Issue an Order or direction as directed in Writ Petition(Civil) No. 7033 of 2023 titled 'Sachin Alang & Anr v Union of India (Through Secretary, Department of Health Research")' by an order of the Hon'ble High Court of Delhi dated 09.10.2023 where an interim order was passed giving permission to the Petitioners (therein) to proceed with altruistic gestational surrogacy using donor eggs because the circumstances of the present Petitioners are similar to them;
II. Issue a Writ, Order or direction in the nature of Mandamus and/or any other Writ, Order or Direction, thereby, quashing the impugned notification dated 14.03.2023 amending the Surrogacy (Regulations) Rules, 2022, being beyond the rule-making power of the Government of India and also being unconstitutional and therefore, void;"
2. Issue notice.
3. Ms. Arunima Dwivedi, learned counsel accepts notice on behalf of respondent-UOI.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 08/12/2023 at 00:10:16
4. She prays for and is permitted to file a counter affidavit within four weeks. Rejoinder affidavit, if any, be filed before the next date of hearing.
5. List on 29th February, 2024.C.M. Appl.62931/2023
6. Learned counsel for the petitioners has drawn the attention of this Court towards an order passed in similar circumstances dated 09th October, 2023 in the cases of Dr. Ravikant Chauhan & Anr vs. Union of India & Anr and Saching Alang & Anr vs. Union of India Through The Secretary Department of Health Research in W.P.(C) 6020/2023 and W.P.(C) 7033/2023, respectively. The operative paragraphs of the order are reproduced as under:-
"12. While we have expressed our prima facie views on the matter, it is crucial to acknowledge a compelling reason, which is, in our opinion, sufficient for granting interim relief to the Petitioners. The Impugned Notification must logically be held to be prospective in its application. This conclusion is bolstered by the fact that the Petitioners had already secured the requisite Certificate of Medical Indication, as mandated under Section 4(iii)(a)(I) of the Surrogacy Act, from the Delhi State Level Medical Board, Department of Family Welfare, Government of NCT of Delhi, prior to the amendment taking effect. Furthermore, the process of embryo generation was initiated prior to the Impugned Notification being issued as well. The Petitioners have a cryogenically preserved fertilized embryo earmarked for surrogacy use, predating the amendment. As such, the Petitioners possess a vested and constitutionally protected right to parenthood. The amendment cannot be allowed to retroactively render their legally fertilized embryo unviable. On the legal front, it is worth noting that Mr. Chetan Sharma, learned Additional Solicitor General, does not contest the general principle of law that notifications are typically applied prospectively. Hence, this compelling argument reinforces the need for interim relief in favour of the Petitioners.
13. Regardless of the fate of the Impugned Notification with regards to the challenge to its vires, it is essential to recognize that the Petitioners have secured a right to access surrogacy services which stood crystallized with the issuance of the Certificate of Medical Indication issued under Section 4(iii)(a)(I)of the Surrogacy Act. Moreover, given the fact that the embryo was generated prior to the issuance of the Impugned Notification, the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 08/12/2023 at 00:10:16 Petitioners possess a legally enforceable entitlement to surrogacy. This right aligns with their basic civil, human and right to reproductive autonomy and parenthood.
14. For the foregoing reasons, Petitioners in both petitions are permitted to resume the process for gestational surrogacy using their respective preserved embryos, which were generated using donor oocytes fertilized by the husbands' sperms prior to the issuance of the Impugned Notification. The Respondents are directed to facilitate the same in accordance with the previously existing regime, and it is made clear that the conditions stipulated in the amended Form 2 shall not be insisted upon from the surrogate mother.
15. In light of the aforesaid, the present interim applications are disposed of.
16. List on 15th December, 2023."
7. The undisputed facts in the present case reveal that the process of surrogacy in the present case under the Surrogacy Act read with Surrogacy Regulations, 2021 was initiated much prior to the amendment which came into force on 14th March, 2023 and the embryo was created with the donor eggs and husband's sperm on 14th July, 2022. A certificate to that effect is on record dated 9th September, 2022.
8. The certificate dated 9th September, 2022 after redacting the full name of the parties is reproduced hereinbelow:-
"State Level Medical Board (under Surrogacy (Regulation) Act, 2021) Directorate of Family Welfare, Govt. of NCT of Delhi, Vikas Bhawan II, 7th Floor, 'B' Wing, Civil Lines, New Delhi -110054 Email: [email protected], Tel: 011-23813477 Certificate for Medical Indication (u/s 4(iii)(a)(I) of Surrogacy (Regulation) Act, 2021) Joint Photograph of the Indenting Couple F.No. 23(9)/3/SURR./DFW/2022/002 Dated:
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 08/12/2023 at 00:10:17 Mrs. TL (Passport No. XXXXXXXX) wife of Mr. AK (Passport No. XXXXXXXX) have been undergoing treatment of infertility and have applied for certificate for Medical Indication for undergoing Gestational Surrogacy under Section 4 of The Surrogacy (Regulation) Act, 2021 read with Rule 14 of The Surrogacy (Regulation) Rules, 2022.
The State Medical Board examined the available medical reports on records of the intending couple/ (Husband/Wife) and hereby certify that the Mrs. TL & Mr. AK satisfy the provision as per Rule 14(b) & (C) of The Surrogacy (Regulation) Rules, 2022 having "Recurrent failed IVF attempts" as an indication and can undergo surrogacy procedure as an advanced treatment for infertility.
Sd/- Sd/- Sd/-
Dr. Amit Saxena Dr. G.P.Kaushal Dr.Bimlesh Yadav
(Gynae & Obstetrics) Pediatrician CMO(SAG)/SPO(MH&MTP)
(Member) (Member) (Chairperson)
Date: 09.09.2022
Place: Delhi"
9. Learned counsel for Union of India has not disputed the aforesaid facts and has not disputed the interim orders passed in aforesaid circumstances.
10. Not only this, the Hon'ble Supreme Court of India has recently in case of Arun Muthuvel vs. Union of India & Ors. in W.P.(C) No.756/2022 held as under:-
"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 is intended under the main provisions of the surrogacy Act both in form as well as in substance.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 08/12/2023 at 00:10:17 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.
Since the report in respect of other petitioners/applicants has not yet been received, list the matters on 21.11.2023."
11. In the light of the aforesaid order passed by the Hon'ble Supreme Court, the petitioners are permitted to resume the process for gestational surrogacy using their respective preserved embryos, which were generated using donor oocytes fertilized by the husband's sperms prior to the issuance of the impugned Notification. The respondents are directed to facilitate the same in accordance with the previously existing regime, and it is made clear that the conditions stipulated in the amended Form 2 shall not be insisted upon from the surrogate mother.
12. List on 29th February, 2024.
ACTING CHIEF JUSTICE MINI PUSHKARNA, J DECEMBER 6, 2023 AS This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 08/12/2023 at 00:10:17