Kerala High Court
Deepa Sreenivasan @ Deepa Rasvind vs Union Of India on 11 March, 2022
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
Friday, the 11th day of March 2022 / 20th Phalguna, 1943
WP(C) NO. 7472 OF 2022(H)
PETITIONERS:
1. DEEPA SREENIVASAN @ DEEPA RASVIND, AGED 44 YEARS, W/O. RASIVINDA
KUMAR, MANGALASSERIL, PONNEZHA, THEKKEKKARA P.O, MAVELIKKARA,
ALAPPUZHA (DIST.), KERALA STATE PIN CODE 690 107.
2. RASIVINDA KUMAR, S/O. LATE RAMAKRISHNAN K.K, AGED 50 YEARS,
MANGALASSERIL, PONNEZHA, THEKKEKKARA P.O, MAVELIKARA, ALAPPUZHA (DIST.)
KERALA- STATE , PIN CODE 690 107.
RESPONDENTS:
1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE, SOUTH BLOCK,NEW DELHI 110
001.
2. MINISTRY OF HEALTH AND FAMILY WELFARE, REPRESENTED BY ITS SECRETARY,
UNION OF INDIA, NIRMAN BHAWAN, C WING, NEW DELHI 110 001.
3. MEDICAL COUNCIL OF INDIA, REPRESENTED BY ITS DIRECTOR, POCKET 14,
SECTOR 8, DWARAKA PHASE-1, NEW DELHI 110 077
4. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM, 695 001.
5. THE SECRETARY,DEPARTMENT OF HEALTH AND FAMILY
WELFARE,SECRETARIAT,THIRUVANANTHAPURAM-695 001
6. THE DIRECTOR, KERALA STATE MEDICAL COUNCIL, COMBINED COUNCIL BUILDING,
RED CROSS ROAD, NEAR GENERAL HOSPITAL, THIRUVANANTHAPURAM, KERALA 695
035.
7. THE DIRECTOR, LIFE LINE, SUPER SPECIALITY HOSPITAL, 14TH MILE, MELOOD
POST, ADOOR, PATHANAMTHITTA DISTRICT, KERALA STATE 691 554.
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 direct the respondents 1 to 6 to consider Exhibit P3
representation, constitute an adhoc registry and grant special permission
to petitioners and intended women for surrogacy procedure and direct the
7th respondent to facilitate the surrogacy procedure in his hospital
within a period of 15 days for the interest of justice and for the ends of
justice.
This petition again coming on for admission upon perusing the
petition and the affidavit filed in support of WP(C) and this court's
order dated 08-03-2022 and upon hearing the arguments of the Parties in
Person, ASG OF INDIA for R1 to R3 (B/O) and of GOVERNMENT PLEADER for R4
and R5(B/O), the court passed the following:
N.NAGARESH, J.
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W.P.(C).No.7472 of 2022
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Dated this the 11th day of March, 2022
ORDER
The petitioners seek permission for non-commercial and altruistic surrogacy. The 1st petitioner is 44 years old and the 2nd petitioner is 50. The petitioners have undergone Oocyte aspiration and embryos are kept frozen and Cryopreserved in the 7th 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 W.P.(C).No.7472 of 2022 2 be taken invoking the powers of this Court under Article 226 of the Constitution of India. Accordingly, the following interim directions are given.
(1) The 7th respondent-Hospital is required to file a statement regarding the clinical facilities for surrogacy available in the Hospital and and competency of the Physicians/Doctors with them.
(2) The Superintendent of Government Hospital, Mavelikkara is directed 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, Mavelikkara 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 W.P.(C).No.7472 of 2022 3 (Regulation) Act, 2021.
(5) The petitioners shall make available a Certificate of Medical and Psychological Fitness of surrogate mother.
(6) The 7th 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 18.03.2022.
Sd/-
N.NAGARESH, JUDGE rpk 11-03-2022 /True Copy/ Assistant Registrar