Karnataka High Court
Smt Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5321
WP No. 3797 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. 3797 OF 2024 (GM-RES)
BETWEEN:
1. SMT. XXXX
W/O XXXX,
AGED ABOUT 42 YEARS.
2. SRI. XXXX,
S/O XXXX,
AGED ABOUT 42 YEARS.
BOTH RESIDING AT NO.116, 13TH MAIN,
NEAR MARENAHALLI, 2ND STAGE, BINNY LAYOUT,
VIJAYANAGARA,
BANGALORE - 560 040.
...PETITIONERS
(BY SRI. GAUTAM S. BHARADWAJ, ADVOCATE)
Digitally signed
by NAGAVENI AND:
Location: HIGH
COURT OF
KARNATAKA 1. UNION OF INDIA,
THROUGH MINISTRY OF HEALTH AND FAMILY
WELFARE, THROUGH ITS SECRETARY,
NIRMAN BHAWAN,
NEW DELHI - 110 011.
2. THE KARNATAKA STATE ASSISTED REPRODUCTIVE
TECHNOLOGY AND SURROGACY BOARD,
DEPARTMENT OF HEALTH AND FAMILY WELFARE
GOVERNMENT OF KARNATAKA, VIKASA SOUDHA,
-2-
NC: 2024:KHC:5321
WP No. 3797 of 2024
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 QUASH THE
NOTIFICATION DATED 14/03/2023 BEARING NO. G.S.R.179(E)
ISSUED BY R1 (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 PRELIMINARY
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 the Assisted Reproductive Technology (Regulation) -3- NC: 2024:KHC:5321 WP No. 3797 of 2024 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:5321 WP No. 3797 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, 37-year-old, W/O. xxxx, 41-year-old, is married for 5 years. Her menstrual cycles are regular. She consulted us for infertility.
She has previously tried four cycles of ovulation induction in which she failed to conceive.
She had undergone laparoscopic
endometrioma clearance outside on 25/11/2019.
She underwent
1. First IVF/ICSI on 21/05/2020. 20 Oocytes were retrieved, 13 M2, 8 slow growing Day 4 embryos were formed which were arrested and hence no embryo transfer was done.
2. She underwent second IVF/ICSI on 02/09/2020. 23 -5- NC: 2024:KHC:5321 WP No. 3797 of 2024 Oocytes were retrieved, 16 M2, single expanding blastocyst was vitrified, rest of all the embryos arrested. Embryos were slow growing.
-She underwent FET on 19/10/2020 with single blastocyst, but was failed to conceive.
On 18/12/2020, She underwent HSG which showed bilateral hydrosalpinx.
Feb 2021: She had undergone Laparoscopic bilateral hydrosalpinx disconnection + endometrioma drainage Final Diagnosis: Stage 3 endometriosis in Vardhan Fertility and Laparoscopic centre.
3 Third IVF/ICSI she underwent outside at Ankur health care pvt ltd, in April 2021. 8 oocytes retrieved, 4 fertilized, 2 blastocyst transferred, she failed to conceive again.
4. Fourth IVF/ICSI done outside at Ankur health care in August 2021. Details not available. FET 2 D4 embryos transferred, in which she failed to conceive.
5. She underwent fifth IVF/ICSI with us on 10/05/2022. It was IVF ICSI with donor oocytes, Oocytes 23 were retrieved, 18 Day 4 embryos vitrified.
- She has undergone FET in which three blastocysts were transferred on 07/06/2022, again she failed to conceive."
Her endometrial receptivity assay was done on 05/08/2022. Endometrium was receptive at HRTP+5(120+/-3 hrs).
Endometrial biopsy for MTB tuberculosis was not detected.
Her APLA screening was negative.
She still has 14 Day 4 embryos left in storage. She has been advised to go for surrogacy with donor egg embryo in view of multiple IVF failures and poor oocyte quality of the intending mother."
-6-
NC: 2024:KHC:5321 WP No. 3797 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 -7- NC: 2024:KHC:5321 WP No. 3797 of 2024 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 fulfill all other conditions.
I.A.No.1/2024 is rendered unnecessary for the aforesaid reasons.
Sd/-
JUDGE SJK List No.: 3 Sl No.: 22 CT:SNN