Karnataka High Court
Jayakumar S/O Bhimappa Hiresomannavar vs The State Of Karnataka on 4 July, 2024
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NC: 2024:KHC-D:9148
WP No. 101872 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 101872 OF 2024 (GM-RES)
BETWEEN:
1. JAYAKUMAR
S/O. BHIMAPPA HIRESOMANNAVAR,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O. HULYAL, BAGALKOT.
2. SHOBHA
W/O. JAYAKUMAR HIRESOMANNAVAR,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O. HULYAL, BAGALKOT.
...PETITIONERS
(BY SRI. KUSHAL V. BOLMAL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
REP. BY THE SECRETARY,
ASHPAK
DEPT. OF PRIMARY AND
KASHIMSA
MALAGALADINNI SECONDARY EDUCATION,
Location: HIGH
M.S. BUILDING,
COURT OF
KARNATAKA, BENGALURU-560001.
DHARWAD
BENCH
2. THE KARNATAKA STATE ASSISTED
REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD,
DEPARTMENT OF HEALTH AND FAMILY WELFARE
GOVERNMENT OF KARNATAKA VIKASA SOUDHA,
BENGALURU-560001,
REPRESENTED BY ITS SECRETARY.
3. APPROPRIATE AUTHORITY UNDER THE,
SURROGACY ACT,
DISTRICT MEDIAN BOARD,
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NC: 2024:KHC-D:9148
WP No. 101872 of 2024
K.C. GENERAL HOSPITAL,
MALLESHWARAM,
BENGALURU-560003,
REP. BY SECRETARY.
...RESPONDENTS
(BY SRI. V.S. KALASURMATH, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF MANDAMUS DIRECTING THE RESPONDENT NO.3 TO
MAKE APPROPRIATE REGULATIONS IN VIEW OF THE FACTS OF THIS
CASE, AS PRESCRIBED UNDER SECTION 4 CLAUSE (E) OF THE ACT
OF 2021 OR ALTERNATIVELY DIRECT THE RESPONDENTS 2 AND 3
TO ISSUE THE ESSENTIALITY AND ELIGIBILITY CERTIFICATE AS
PRESCRIBED UNDER THE ACT BY RELAXING THE AGE OF THE
PETITIONER NO.1 AND BY ACCEPTING A NON-RELATIVE OF THE
PETITIONERS AS A SURROGATE MOTHER AND ISSUING DIRECTION
TO THE RESPONDENT NO.3 TO CONSIDER THE REQUEST LETTER
DATED 07.11.2023 AT ANNEXURE-G IN THE INTEREST OF JUSTICE
AND EQUITY.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioners, a married couple, have submitted a representation to respondent No. 3 seeking an eligibility certificate to have a child via surrogacy. Specifically, they requested approval for petitioner No. 2 to undergo IVF and surrogacy using a donor oocyte.
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NC: 2024:KHC-D:9148 WP No. 101872 of 2024
2. The petitioners have attached a surrogacy certificate issued by the Committee of respondent No. 3-Board with their representation. The Board examined the medical reports of the couple, who had multiple unsuccessful infertility treatments, including IVF. Consequently, the Board recommended Altruistic Surrogacy as an advanced infertility treatment using their own gametes. Therefore, the petitioners were permitted to undergo IVF and surrogacy with a donor oocyte.
3. This issue has been addressed by a Co-ordinate Bench of this Court in the case of Sri H. Siddaraju and another v. The Union of India and others1. Paragraph 20 of that judgment is relevant and reads as follows:
"20. The Government of India in terms of a notification dated 04.05.2022 has constituted National Assisted Reproductive Technology and Surrogacy Board (The National Board) and subsequently, on 04.08.2022 and 16.12.2022, has composed the Board with expert members. Likewise, the State Surrogacy Board is also said to be in place. The Appropriate Authorities are also appointed both in the Center and the State for consideration of the applications submitted by the intending couple. Therefore, the State Surrogacy Board / Appropriate Authority / Prescribed Authority shall consider the application by the petitioners for grant of an eligibility certificate as is necessary in law for the petitioners to 1 W.P.No.5861/2023 (D.D.21.04.2023) -4- NC: 2024:KHC-D:9148 WP No. 101872 of 2024 become parents by way of surrogacy, on the triple tests as indicated hereinabove - genetic; physical and economical. For the purpose of these tests, the petitioner shall file an affidavit which would contain the following:
(i) The 1st petitioner/father shall undertake to undergo the genetic test for determination of the strength of the gamete/sperm and its quality.
(ii) The Economic capacity of the intending couple for the growth of the child and to place the measures taken to secure the life by creation of property or any fixed deposit in the name of the child.
(iii) Measures to be taken for the upbringing of the child as the father or the mother, if are not physically able to bring up the child, this would not mean the petitioners would abandon the child or leave it at the mercy of anybody else."
4. The Siddaraju judgment outlined that the State Surrogacy Board or Appropriate Authority must evaluate applications for eligibility certificates based on three critical tests: genetic, physical, and economic. To facilitate this evaluation, the petitioners are required to submit an affidavit detailing:
4.1. The first petitioner/father's willingness to undergo a genetic test to assess the quality and strength of his gametes/sperm.-5-
NC: 2024:KHC-D:9148 WP No. 101872 of 2024 4.2. The couple's economic capacity to support the child, including plans for securing the child's future through property or fixed deposits in the child's name. 4.3. The measures in place for the child's upbringing, ensuring that if the parents are unable to care for the child due to physical limitations, the child will not be abandoned or left in the care of others.
5. The affidavit with these details shall be submitted to the Appropriate Authority or the Board along with the application for eligibility. The application must include all relevant details, including information about the intended surrogate mother. Upon receiving such an affidavit, the Board shall consider it in accordance with the observations made in this order and draw up appropriate proceedings as per the law. Given that the first petitioner is 57 years old, it is imperative to set a timeline for the State Board/Authority's consideration.
6. In light of the principles established by this Court in the judgment cited above, this Court issues the following: -6-
NC: 2024:KHC-D:9148 WP No. 101872 of 2024 ORDER
i) The writ petition is allowed in part.
ii) Respondent No. 3-Authority is directed to consider the application submitted by the petitioners, as per Annexure-G, and issue appropriate orders for the eligibility certificate within four weeks from the date of receipt of a certified copy of this order.
Sd/-
JUDGE MBS,YAN Ct-mck, List No.: 1 Sl No.: 21