Kerala High Court
Dr. A. Sindhu vs The Union Of India on 10 June, 2022
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
Friday, the 10th day of June 2022 / 20th Jyaishta, 1944
WP(C) NO. 18346 OF 2022(P)
PETITIONERS:
1. DR. A. SINDHU, AGED 45 YEARS, WIFE OF DR. K. MAHESH MENON, ASSISTANT
PROFESSOR, DEPARTMENT OF ZOOLOGY, ZAMOORIAN GURUVAYOORAPPAN COLLEGE,
MALIKKAPARAMBIL HOUSE, KALLOOR, THEKKUMURI VILLAGE, CHALAKUDY TALUK,
ANNAMANADA P.O., THRISSUR DISTRICT, PIN - 680741
2. DR. K. MAHESH MENON ,AGED 47 YEARS ,M.D., AYURVEDA, SON OF LATE T.A.
RADHAKRISHNA MENON, MALIKKAPARAMBIL HOUSE, KALLOOR, THEKKUMURI
VILLAGE, CHALAKUDY TALUK, ANNAMANADA P.O., THRISSUR DISTRICT, PIN -
680741
RESPONDENTS:
1. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE, SOUTH BLOCK, NEW DELHI, PIN
- 110001.
2. THE MINISTRY OF HEALTH AND FAMILY WELFARE, REPRESENTED BY ITS
SECRETARY, UNION OF INDIA, NIRMAN BHAWAN, C WING, NEW DELHI, PIN -
110001.
3. THE MEDICAL COUNCIL OF INDIA, REPRESENTED BY ITS DIRECTOR, POCKET
14, SECTOR 8, DWARKA PHASE 1, NEW DELHI, PIN - 110007.
4. THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY TO
GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.
5. THE SECRERARY DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001.
6. THE DIRECTOR, KERALA STATE MEDICAL COUNCIL, COMBINED COUNCIL
BUILDING, RED CROSS ROAD, NEAR GENERAL HOSPITAL, THIRUVANANTHAPURAM,
PIN - 695035
7. THE DIRECTOR AR MEDICAL CENTRE, CRAFT CAMPUS, CHANDAPURA,
KODUNGALLUR, THRISSUR DISTRICT, PIN - 680664.
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
seventh respondent to facilitate the surrogacy procedure in this hospital
within a period of 15 days for the interest of justice and for the ends of
justice, pending disposal of the above writ petition.
This petition coming on for orders upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S N.M.MADHU, P.P.HARRIS and C.S.RAJANI, Advocates for the petitioners,
ASSISTANT SOLICITOR GENERAL OF INDIA for R1 and R2 and of GOVERNMENT
PLEADER for R4 and R5, the court passed the following:
p.t.o
Exhibit P3:- TRUE COPY OF THE REPRESENTATION DATED 31.05.2022
SUBMITTED BY THE PETITIONERS BEFORE THE RESPONDENTS.
V.G.ARUN, J.
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W.P (C) No. 18346 of 2022
.....................................................................
Dated this the 10th day of June, 2022
ORDER
The petitioners have approached this Court for a direction to respondents 1 to 6 to grant permission for non- commercial and altruistic surrogacy. The 1st petitioner / wife is aged 45 years and the 2nd petitioner / husband, 47 years. Repeated attempt of the 1st petitioner to conceive through fertility treatment having failed, the couple opted for surrogacy. The 1st attempt for surrogacy was also unsuccessful. By the time the 2nd attempt could be made, the Surrogacy (Regulation) Act, 2021 came into force on 25.12.2021, under the new enactment various conditions have to be satisfied, before permission is granted for surrogacy. One such condition is the constitution of a Surrogacy Board, which admittedly has so far not been constituted. Under similar circumstances, this Court had earlier passed interim orders, the first among which is made available for perusal.
Having gone through the order I am in respectful WP© No. 18346 of 2022 2 agreement with the directions issued therein. Accordingly, the following interim directions are issued:-
(1) The 7th respondent-Hospital shall file a statement regarding the clinical facilities for surrogacy available in the Hospital and the competency of the Physicians/Doctors supervising the procedure.
(2) The Superintendent of Government Hospital, Kodungallur shall 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, Kodungallur 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 (Regulation) Act, 2021.
(5) The petitioners shall make available the WP© No. 18346 of 2022 3 Certificate of Medical and Psychological Fitness of the surrogate mother.
(6) The 7th respondent shall explain to the surrogate mother all known side effects of the procedure in a language known to her and obtain written consent of the surrogate mother for undergoing such procedure.
Sd/-
V.G.ARUN JUDGE SJ 10-06-2022 /True Copy/ Assistant Registrar