Karnataka High Court
Smt. Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5303
WP No. 71 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. 71 OF 2024 (GM-RES)
BETWEEN:
1. SMT. XXXX
W/O XXXX
AGED ABOUT 38 YEARS,
2. SRI. XXXX
S/O XXXX
AGED ABOUT 41 YEARS,
BOTH ARE R/AT NO.109, 2ND CROSS,
KASTURI NAGAR,
EAST OF NGEF LAYOUT,
BANGALORE-560043
...PETITIONERS
Digitally signed (BY SRI. GAUTAM S. BHARADWAJ, ADVOCATE)
by NAGAVENI
Location: HIGH AND:
COURT OF 1. UNION OF INDIA
KARNATAKA
THROUGH MINISTRY OF HEALTH AND FAMILY
WELFARE, THROUGH ITS SECRETARY,
NIRMAN BHAWAN, NEW DELHI-110011
2. THE KARNATAKA STATE ASSISTED REPRODUCTIVE
TECHNOLOGY AND SURROGACY BOARD,
DEPARTMENT OF HEALTH AND FAMILY WELFARE
GOVERNMENT OF KARNATAKA.
VIKASA SOUDHA,
-2-
NC: 2024:KHC:5303
WP No. 71 of 2024
BENGALURU-560001
REPRESENTED BY ITS SECRETARY.
...RESPONDENTS
(BY SRI. SHANTHI BHUSHAN H., DSGI FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WP IS FILED UNDER ARICLES 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 PRELIMINARY HEARING
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court, seeking the following prayers:
"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 -3- NC: 2024:KHC:5303 WP No. 71 of 2024 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'. 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.-4-
NC: 2024:KHC:5303 WP No. 71 of 2024
(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.
(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 and Mr xxxx married since 30 May 2012.
• 1st pregnancy Pt conceived naturally in April 2012 and child is k/c/o a non-reversible mental disorder i.e. Autism.
• The couple tried for a second pregnancy in Sept 2017 at a4 weeks of pregnancy, the foetus was detected with high risk for down- syndrome and were advised medical termination of pregnancy.
• In 2021 After the MTP procedure couple got advised for IVF since they couldn't conceive naturally due to low AMH hence the couple was advised to undergo for IVF using -5- NC: 2024:KHC:5303 WP No. 71 of 2024 Donor eggs and husband sperm for the IVF procedure. 4 d3 embryos formed.
• Pt underwent for Hysteroscopy since diagnosed with subserosal and submucosal fibroid.
• Post hysteroscopy 1 d3 Embryo transfer done and it was negative, due to thin endometrial lining.
• Pt advised for repeat hysteroscopy due to thin endometrial lining and to improve the lining before next embryo transfer.
• Couple got advised for 2nd IVF 2022 and 3 D3 embryos were formed and transferred post hysteroscopy. Resulted negative.
• Pt underwent with 3rd and 4th IVF. They were 2 embryos formed in each cycle and transferred 2embryos each cycle on D5 also resulted negative.
• Couple tried 5th and 6th IVF cycle. They were 2 embryos formed in each cycle and transferred 2embryos each cycle on D5 also resulted negative.
• After 3d/4d ultrasound pt got advised for Hystero- laparoscopic myectomy to remove the fibroids.
• Hence pt advised clearly to consider surrogacy or adoption.
• The couple has underwent through 6 failed IVFs and 4 hysteroscopy procedure yielding no successful results. Pt advised for surrogacy + IVF using with donor eggs and husband sperm.
• Considering maternal health condition due to multiple Oocyte Donor-IVF failure, with h/o multiple hysteroscopy procedures, Advanced Maternal Age (AMA), and 1st biological child with H/O Autism.
Kindly approve the NOC for surrogacy."-6-
NC: 2024:KHC:5303 WP No. 71 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:5303 WP No. 71 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 List No.: 3 Sl No.: 4