Karnataka High Court
Smt Xxxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5461
WP No. 3918 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. 3918 OF 2024 (GM-RES)
BETWEEN:
1. SMT. Xxxxx
WIFE OF SRI. xxxxx
AGED ABOUT 42 YEARS,
2. SRI. xxxxx
SON OF xxxxx
AGED ABOUT 50 YEARS
BOTH ARE R/AT NO. 144
SOUTH PARK ROAD
NEHRU NAGAR
BENGALURU - 560 020.
...PETITIONERS
(BY SRI. GAUTAM S.BHARADWAJ, ADVOCATE)
Digitally signed by
PADMAVATHI B K
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
-2-
NC: 2024:KHC:5461
WP No. 3918 of 2024
DEPARTMENT OF HEALTH AND FAMILY
WELFARE GOVERNMENT OF KARNATAKA
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 WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING NOTIFICATION DTD 14.03.2023 BEARING
NO.G.S.R.179(E), ISSUED BY THE 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.
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court seeking the following prayer:
"a. Stay the operation of the notification dated 14.03.2023 bearing no.G.S.R.179(E), published Respondent No.1 (i.e. Department of Ministry of Health and Family Welfare) pending disposal of the present petition (Annexure - A). B. Direct Respondent No.2 to issue a eligibility and essentiality certificate under Section 14 of Surrogacy Regulation Act, 2021, without insisting upon the usage of own gametes as stipulated under the impugned notification dated 14.03.2023."-3-
NC: 2024:KHC:5461 WP No. 3918 of 2024
2. Heard Sri. Gautam S. Bharadwaj, learned counsel appearing for the petitioners, Sri. H. Shanthi Bhushan, learned Deputy Solicitor General of India appearing for respondent No.1, Smt. Navya Shekhar, learned Additional Government Advocate 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.
(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.-4-
NC: 2024:KHC:5461 WP No. 3918 of 2024
(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 petitioner No.1, intending mother through surrogacy is also the one that is considered in the aforesaid writ petition. The medical certificate reads as follows:
"xxxxxx Need for surrogacy -
• Non receptive uterus • thin endometrium (third cycle embryo transfer was canceled due to thin endometrium) • Previous failed to conceive with 1 intra uterine insemination, 2 frozen embryo transfer with DE + HS"
(emphasis added) Therefore, the issue stands covered on all its fours to the judgment rendered by this Court in W.P.No.15824/2023. -5-
NC: 2024:KHC:5461 WP No. 3918 of 2024
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 statute, except the one that is in the notification dated 14-03-2023.-6-
NC: 2024:KHC:5461 WP No. 3918 of 2024
(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.
Pending I.A.No.1/2024, is disposed, as a consequence.
Sd/-
JUDGE NVJ List No.: 5 Sl No.: 17 CT:SS