Karnataka High Court
Smt Gomathi Ramesh vs Union Of India on 25 September, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC:40559
WP No. 8756 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 8756 OF 2024 (GM-RES)
BETWEEN:
1. SMT. GOMATHI RAMESH
W/O RAMESH VIJAYARAGHAVALU,
AGED ABOUT 51 YEARS
2. SRI. RAMESH V.,
S/O VIJAYARAGHAVALU,
AGED ABOUT 48 YEARS.
BOTH (1) AND (2) ARE
PERMANENT RESIDENT OF
NO. 601, FUJI, SJR PAVILION HOMES,
SY.NO. 58/7, NERA KUMAR LIFE APARTMENT,
DEVARABISANAHALLI, BENGALURU 560 103,
NOW TEMPORARILY RESIDING AT
NO. 2520 FOUNTAIN FATE, DR. LITTLE ELM,
TEXAS UNITED STATES OF AMERICA 57068
...PETITIONERS
(BY SRI. ABHIRAJ B CHENGTI, ADVOCATE)
AND:
Digitally signed by
R HEMALATHA 1. UNION OF INDIA,
Location: HIGH THROUGH MINISTRY OF HEALTH AND FAMILY
COURT OF
KARNATAKA WELFARE, NIRMAN BHAVAN,
NEW DELHI 110 011,
THROUGH ITS SECRETARY
2. THE KARNATAKA STATE APPROPRIATE AUTHORITY,
ART AND SURROGACY ACT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
AROGYA SOUDHA, BENGALURU,
KARNATAKA 560 023
THROUGH ITS MEMBER SECRETARY
3. THE DISTRICT MEDICAL BOARDM
CONSTITUTED UNDER SURROGACY
(REGULATIONS) ACT, 2021
K.C. GENERAL HOSPITAL,
MALLESHWARAM, BENGALURU,
KARNATAKA 560 003,
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NC: 2024:KHC:40559
WP No. 8756 of 2024
THROUGH ITS CHAIRPERSON
...RESPONDENTS
(BY SRI. H. SHANTHI BHUSHAN, DSGI FOR R1;
SMT. NAVYA SHEKAR, AGA FOR R2 AND R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE SECTION 4
(III)C(I) OF SURROGACY (REGULATIONS) ACT 2021 BEARING NO.
BNO CG DL -E 251220-21-232118 ISSUED BY THE R-1 PRODUCED
AT ANNEXURE-K IN SO FAR AS IT RELATES TO DISQUALIFYING
THE PETITIONER NO.1 FROM BECOMING INTENDED MOTHER DUE
TO DISQUALIFYING THE P-1 FROM BECOMING INTENDED
MOTHER DUE TO HER AGE AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN
'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
The learned counsel for the petitioners submits that the petitioners do not wish to press the challenge to the validity of Section 21(g)(ii) of the Assisted Reproductive Technology (Regulation) Act, 2021.
2. This submission is placed on record.
3. The petition, insofar as it pertains to Prayer-I, is dismissed as not pressed.
4. The petitioners, who are a childless couple, have approached this Court seeking a Surrogacy Certificate on the grounds of medical necessity, as well as eligibility and essentiality certificates, upon fulfillment of all other conditions prescribed under the Surrogacy (Regulation) Act, 2021 (hereinafter referred to as "the Surrogacy Act").
5. Petitioner No.1, the husband, has exceeded the age limit prescribed under Section 21(g)(ii) of the Assisted Reproductive Technology (Regulation) Act, 2021 (hereinafter referred to as "the ART Act"), while Petitioner No.2, the wife, remains within the prescribed age -3- NC: 2024:KHC:40559 WP No. 8756 of 2024 limit. Therefore, the petitioners seek permission to undergo surrogacy treatment using donor eggs. In support of their plea, they have cited the judgment of the High Court of Calcutta in Sudarsan Mandal and Another vs. State of West Bengal and Others, which addresses a similar situation. The relevant portions of the judgment are as follows:
"17. Admittedly, the petitioner no.1/husband has crossed the upper age limit and does not qualify for gamete donation. The petitioner No.2/wife, however, still comes within the upper age limit of 50 years, being aged about 46 years at present.
18. Section 2(1)(e) defines "Commissioning Couple" as an infertile married couple who approach an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the services authorized of the said clinic or bank. Thus, the only qualifications are that they have to be a married couple and infertile, which qualifications are met in the present case by the petitioners.
19. Again, Section 2(1) (u) defines "woman" as any woman above the age of twenty-one years who approaches an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the authorized services of the clinic or bank.
20. Thus, Section 21(g) makes no difference between a woman who approaches a clinic for taking resort to such technology individually and a woman who is one of the spouses of a commissioning couple approaching a clinic for similar purposes.
21. Since the Act does not discriminate between women who are married and those who are not, such distinction cannot be made in the present case as well.
22. For all practical purposes, the petitioner No.1 is, thus, debarred individually from taking resort to assisted reproductive technology services. However, the petitioner No.2 comes within the permissible age limit of Section 21(g)(i).
23. In the facts of the present case, the petitioners seek to use the sperm of a third-party donor, thus, ruling out physical participation of the petitioner No.1, who is debarred under the Act, from seeking assisted reproductive -4- NC: 2024:KHC:40559 WP No. 8756 of 2024 technology services. Even the petitioner No.2 seeks donation of occyte from a third party donor. Thus, the bar under Section 21(g)(ii) does not come into play at all. Although the petitioners together make a commissioning couple, for all practical purposes it is the petitioner No.2 (who comes within the permissible age limit) who will have active participation in the process, since the sperm as well as oocyte of third-party donors will be used and the assisted reproductive technology shall be applied on the petitioner No.2."
6. In light of the principles laid down in the aforementioned judgment and having considered the facts and circumstances of the present case, it is deemed appropriate to dispose of the petition.
7. Accordingly, the petition is disposed of, with the petitioners being granted leave to pursue surrogacy treatment in compliance with the applicable provisions of the Surrogacy Act and the ART Act, as outlined above.
Sd/-
(HEMANT CHANDANGOUDAR) JUDGE TIN