Gujarat High Court
Stuti Rakesh Painter vs State Of Gujarat on 29 July, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
C/SCA/10400/2021 ORDER DATED: 29/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10400 of 2021
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STUTI RAKESH PAINTER
Versus
STATE OF GUJARAT
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Appearance:
MR NILAY H PATEL(7856) for the Petitioner(s) No. 1,2,3
MS MANISHA LOVKUMAR SHAH GP, MS AISHWARYA GUPTA
AND MS SURBHI BHATI AGP for the Respondent(s) No. 1
MR RAJESH K KANANI(2157) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 29/07/2021
ORAL ORDER
1. Heard learned Advocate Shri Nilay H. Patel for the petitioner, learned GP Ms. Manisha Lavkumar Shah, learned AGP Ms. Aishwarya Gupta and learned AGP Ms. Surbhi Bhati for respondent No.1 State and learned Advocate Shri Rajesh K. Kanani for the respondent No.2.
2. By way of this petition, the petitioner has invoked extra-ordinary jurisdiction of this Court praying that appropriate direction may be issued to the respondent to conduct the procedure for collection of sample from the body of Shri Dhruv Kumar Patel, husband of the petitioner No.1 and son of the petitioner Nos.2 and 3. It was contended at the relevant point of time that Shri Dhruv Kumar Patel had been admitted in Critical Care Unit of the respondent No.2 hospital on account of acute COVID 19 symptom since 10.05.2021 and since out of extreme love and affection, the petitioner No.1 wants a child of her husband through IVF procedure for which purpose, Page 1 of 4 Downloaded on : Fri Jul 30 21:29:37 IST 2021 C/SCA/10400/2021 ORDER DATED: 29/07/2021 sperms had to be collected from the husband of the petitioner No.1 and since the husband of the petitioner No.1 was not in a condition to give consent and more particularly, since the condition of the husband of the petitioner No.1 was stated to be critical at that relevant point of time, therefore, interference of this Court had been sought for. By an order dated 20.07.2021, the Coordinate Bench of this Court (Coram: Ashutosh J. Shastri, J.) has directed as thus:
"1. This petition was to be circulated during the course of the day upon mentioning at 2.30 p.m., in view of extraordinary circumstances of condition of husband of petitioner No.1, which has stated to have been deteriorated and few hours are stated to be crucial. Keeping in view such extraordinary circumstance to avoid creation of irreversible situation, the Court has permitted the petition to be circulated.
2. Heard learned advocate Mr.Nilay H. Patel appearing for the petitioners.
3.Notice, returnable on 23rd July, 2021. Learned Assistant Government Pleader Ms.Aishwarya Gupta waives service of Notice on behalf of respondent-State authority.
4. In the meantime, the respondent No.2 is directed to conduct IVF/ART procedure for collection of samples from the body of Shri Dhruv Kumar Patel, the husband of petitioner No.1 and the said sample shall be stored at an appropriate place as per the medical advice.
5. This ad interim relief is granted in an extraordinary urgent situation before the Court and the same shall be subject to the outcome of the petition.
6. It is open for the petitioner to communicate this order telephonically to respondent No.2 and simultaneously, learned AGP Ms.Aishwarys Gupta is also requested to communicate the same to respondent No.2 Direct service qua respondent No.2 is permitted today."Page 2 of 4 Downloaded on : Fri Jul 30 21:29:37 IST 2021
C/SCA/10400/2021 ORDER DATED: 29/07/2021
3. In compliance of the said order, the respondent No.2 has filed an affidavit inter alia submitting that on the date of order itself i.e. 20.07.2021, the procedure had been undertaken by Urologist and Embryologist, Dr. Haresh Thummar and Dr. Abhishek Shah respectively and whereas through procedure namely Testicular Sperm Extraction TESE, sperm had been extracted from the body of the husband of the petitioner No.1. It is further informed that since the sperm so extracted, could not be stored with respondent No.2, since the respondent No.2 did not have an appropriate facility, the same had been shifted to one M/s. OASIS Fertility Center, Vadodara. It is further informed that unfortunately, the husband of the petitioner No.1 and son of the petitioner Nos.2 and 3 had expired on 22.07.2021. The petitioner No.1 has also filed a further affidavit on 22.07.2021, confirming the facts as stated by the respondent No.2 hospital, as hereinabove.
4. The request of the petitioner having been considered by this Court and procedure having been undertaken, the question before this Court now is to decide as to what further course of action is to be undertaken or permitted. Attention of this Court has been drawn to a proposed law being "The Assisted Reproductive Technology (Regulation) Bill, 2020", which is stated to be under the consideration of the Parliamentary Standing Committee on Health and Family Welfare and whereas the Bill has not been assented to by the Parliamentary and has not attained the form of a Law. As such there is nothing pointed out before this Court, which would be in the nature of restraining the petitioner No.1 to undertake IVF/ART procedure for getting herself impregnated using sperm of her late husband. It appears that at the relevant point of time, issue had reached this Court on account position of the husband of the petitioner No.1, who could not take and informed consent with regard to the procedure to be undertaken.
5. In view of the fact that there is no legal impediment which would Page 3 of 4 Downloaded on : Fri Jul 30 21:29:37 IST 2021 C/SCA/10400/2021 ORDER DATED: 29/07/2021 prevent the petitioner No.1 to undergo the procedure as recorded hereinabove and more particularly, in view of the fact that parents of the late husband of the petitioner No.1 are also party petitioners to the present petition and who also were supporting the decision of the petitioner No.1, who wants a child through the sperm of her late husband, this Court is of the opinion that nothing further is required to be done at this stage by this Court. Suffice it to state that it would be open for the petitioner No.1 to utilise the sperms of her late husband which are as now kept at OASIS Fertility Center, Vadodara for undergoing IVF/ART procedure, as and when the petitioner No.1 so desires.
In view of the aforesaid observations, the petition stands disposed of as allowed.
(NIKHIL S. KARIEL,J) Y.N. VYAS Page 4 of 4 Downloaded on : Fri Jul 30 21:29:37 IST 2021