Karnataka High Court
Smt. Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5327
WP No. 37 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. 37 OF 2024 (GM-RES)
BETWEEN:
1. SMT. XXXX,
W/O SRI. XXXX,
AGED ABOUT 42 YEARS.
2. SRI. XXXX,
S/O XXXX,
AGED ABOUT 35 YEARS.
BOTH R/AT NO.18, 11TH MAIN,
1ST BLOCK, HMT LAYOUT,
VIDYARANYAPURA,
BANGALORE - 560 097.
...PETITIONERS
Digitally signed (BY SRI. GAUTAM S. BHARADWAJ, ADVOCATE)
by NAGAVENI
Location: HIGH AND:
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,
-2-
NC: 2024:KHC:5327
WP No. 37 of 2024
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 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 FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court, seeking the following prayer:
"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:5327 WP No. 37 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:5327 WP No. 37 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 Age: 42 years, Mr xxxx Age: 35 years. Married since: 02-December-2021. Trying to conceive naturally since marriage, pt consulted Gynaecologist for a fertility check-up in 2022. The test results were normal for couple.
1) October 2022, pt have been consulted gynaecologist recommended IUI and IVF due to Advanced Maternal Age (AMA), Advised to consult infertility specialist.
2) December 2022 IVF process started and egg retrieval done. January-2023, 5 blastocyst stage were sent for preimplantation genetic testing for aneuploidy, PGT-A (PGS), due to Advanced Material Age (AMA). One embryo were ready for transfer.
3) January 2023, pt consulted Gynaecologist for removal -5- NC: 2024:KHC:5327 WP No. 37 of 2024 of the fibroids. Underwent - Hysteroscopy with Endocervical Curettage under GA on 18-January-2023.
The procedure was unsuccessful.
4) February-2023, Re visited another Gynaecologist redid the procedure - Hysteroscopy with Endocervical Curettage and successful in removing the fibroids. Intra operative diagnosis: Unicornuate uterus, which is a genetic disorder. Which is Increased risks of miscarriage, abortion, preterm labour, associated with a Unicornuate uterus.
5) April-2023, pt. underwent 2 IVF process and 4 embryos formed, since they were poor quality embryos discarded.
6) Pt suggested for ERA (Endometrial Receptivity Analysis) before the embryo transfer On 29-May-2023.
7) June-2023, PGS selected 1 embryo transfer done under GA (General Anaesthesia), and it was unsuccessful.
8) Due to multiple IVF failures, poor-quality embryos, AMA, and genetic disorder, Got recommended Oocyte Donation, Involving the retrieval of eggs from a donor and with husband sperm.
9) August-2023, 7 embryos which reached the blastocyst stage were sent for preimplantation genetic test, (PGT-A) 3 embryos were ready for transfer.
10) September-2023 planned for frozen embryo transfer under GA with lembryo due to Unicornuate uterus and it was unsuccessful.
The remaining 2 donor embryos were frozen at Cloudnine Fertility.
Patient has been advised for Surrogacy considering maternal health condition due to multiple IVF failures, Oocyte Donor, IVF failure, with h/o Unicornuate uterus, and Advanced Maternal Age (AMA).
Kindly approve the NOC for surrogacy."
-6-NC: 2024:KHC:5327 WP No. 37 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:5327 WP No. 37 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