Kerala High Court
Nazar M vs Union Of India on 2 September, 2022
Author: V.G.Arun
Bench: V.G.Arun
WP(C) No.28198/2022 1/5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
Friday, the 2nd day of September 2022 / 11th Bhadra, 1944
WP(C) NO. 28198 OF 2022 (Y)
PETITIONERS:
1. NAZAR M, AGED 43 YEARS, SON OF MUHAMMED KUNJU HOUSE NO3/ 500J NEAR
CIMAR FERTILITY CENTRE TIPPU SULTAN ROAD, CHERANELLOOR ERNAKULAM,
PIN - 682034
2. SILJA NAZAR, AGED 37 YEARS, HOUSE NO 3/500J NEAR CIMAR FERTILITY
CENTRE TIPPU SULTAN ROAD, CHERANELLOOR ERNAKULAM, PIN - 682034
RESPONDENTS:
1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVT, DEPARTMENT
HEALTH AND FAMILY WELFARE ROOM NO 348 A WING NIRMAN BHAVAN NEW DELHI
- 110011
2. THE STATE OF KERALA , REP BY THE SECRETARY TO GOVERNMENT DEPARTMENT
HEALTH AND FAMILY WELFARE SECRETARIAT THIRUVANANTHAPURAM - 695001
3. DIRECTOR OF HEALTH SERVICES , DIRECTORATE OF HEALTH SERVICES GENERAL
HOSPITAL JUNCTION THIRUVANANTHAPURAM - 695035
4. APPROPRIATE AUTHORITY SURROGACY REGULATION ACT 2021 REPRESENTED BY
CHAIRMAN OFFICE OF THE JOINT SECRETARY HEALTH AND FAMILY WELFARE
DEPARTMENT SECRETARIAT THIRUVANANTHAPURAM - 695001
5. CIMAR FERTILITY CENTRE REPRESENTED BY THE MEDICAL DIRECTOR THYKKAVU
CHERANELOOR KOCHI - 682034
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 3rd respondent to consider Ext.P11 application and
grant permission to the petitioners to continue with their surrogacy
treatment using their embryo already cyro preserved in the 5th respondent
hospital in the light of Ext.P1 to P10 documents produced herein, pending
decision in the writ petition.
This petition coming on for admission upon perusing the petition and
the affidavit filed in support of WP(C) and upon hearing the arguments of
M/S.S.KARTHIKA, ANJANA M VADHYAR, PREETHY KARUNAKARAN & K.MEERA, Advocates
for the petitioners, ASSISTANT SOLICITOR GENERAL OF INDIA for R1 and of
GOVERNMENT PLEADER for R2 to R4, the court passed the following:
WP(C) No.28198/2022 2/5
V.G.ARUN, J.
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W.P.(C).No.28198 of 2022
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Dated this the 02nd day of September, 2022
ORDER
Learned Counsel for the petitioners pressed for an interim order pointing out that all requirements under the Surrogacy (Regulation) Act, 2021 and the Rules thereunder has been complied with. On perusal of the documents produced, I find that the petitioners have obtained the following;
'1. Certificate of Medical Indication dated 22.08 2022, issued by District Medical Board, General Hospital, Ernakulam.
2. Order of parentage and custody dated 11.08.2022 issued by the Court of Judicial First Class Magistrate (IX), Ernakulam.
3. Insurance policy dated 28.07.2022 in favour of the Surrogate mother.
4. Affidavit of intending couple in compliance with Rule 5(2) of the Surrogacy Regulations Rules, 2022, attested by Judicial First Class Magistrate.
5. Consent form of the surrogate mother in Form (2) under Rule 7 of the Surrogacy Regulations Rules, 2022 It is reliably understood that Authorized Authority as WP(C) No.28198/2022 3/5 W.P.(C).No.28198 of 2022 2 contemplated under the Surrogacy Act has been established in the State of Kerala but the Chairman for the above authority has not been notified so far.' Thus, there is ample proof that the petitioners have n complied with the requirements under the Surrogacy (Regulation) Act and Rules.
2. Learned Government Pleader points out that the Competent Authority under the Act has been appointed and the Head of Account alone has to be sanctioned.
3. As far as the instant case is concerned, it is seen that the petitioners have been undergoing treatment for infertility from 2011 onwards. The second petitioner had 16 abortions and one Intra Uterine Death (IUD). The petitioners are aged 43 and 37 years respectively. At this stage of their life, it will be harsh on the part of this Court to require the petitioners to wait for the competent authority to become functional and to obtain permission from the WP(C) No.28198/2022 4/5 W.P.(C).No.28198 of 2022 3 authority before proceeding with gestational surrogacy treatment.
In such circumstance, there shall be an interim order, permitting the petitioners to continue the surrogacy treatment using their embryos already cyro- preserved in the 5th respondent hospital.
Post on 19.09.2022.
Sd/-
V.G.ARUN JUDGE NB/2-9 02-09-2022 /True Copy/ Assistant Registrar WP(C) No.28198/2022 5/5 APPENDIX OF WP(C) 28198/2022 ExhibitP1 TRUE COPY OF THE MARRIAGE CERTIFICATE DATED.05.06.2022 ISSUED BY THE SECRETARY ISLAHUL MUSLIMEEN JAMA-ATH , KOZHIKODE , KARUNAGAPPALLY, KOLLAM. ExhibitP2 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 06.06.2022 ISSUED BY THE 5TH RESPONDENT .
Exhibit P3 A TRUE COPY OF THE ART TREATMENT SUMMARY DATED 22.04.22 ISSUED BY THE 5TH RESPONDENT TO 2ND PETITIONER. Exhibit P4 TRUE COPY OF THE MEDICAL BOARD CERTIFICATE DATED 22.08.2022 ISSUED BY THE SUPERINTENDENT IN CHARGE , GENERAL HOSPITAL ,ERNAKULAM TO THE PETITIONERS. Exhibit P5 TRUE COPY OF THE ORDER DATED 11.08.2022 IN CMP NO. 3116 OF 2022 PASSED BY HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT(IX) , ERNAKULAM. Exhibit P8 TRUE COPY OF APPLICATION IN FORM 1 OF THE SURROGACY (REGULATION) RULES 2022 BY THE PETITIONERS. Exhibit P10 THE TRUE COPY OF THE INTERIM ORDER DATED 17.06.2022 IN WP(C) NO. 16477/22 PASSED BY THE HON'BLE HIGH COURT OF KERALA.
Exhibit P11 TRUE COPY OF THE EMAIL DATED 25.08.2022 SENT BY PETITIONERS TO 3RD RESPONDENT