Karnataka High Court
Smt. Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5316
WP No. 3295 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. 3295 OF 2024 (GM-RES)
BETWEEN:
1. SMT. XXXX
W/O XXXX
AGED ABOUT 47 YEARS.
2. SRI. XXXX
S/O XXXX
AGED ABOUT 45 YEARS.
BOTH ARE R/AT NO.7,
JAYALAKSHMIPURAM,
MYSORE,
KARNATAKA - 570 012.
...PETITIONERS
(BY SRI. LOHIT TALAVAR, ADVOCATE)
Digitally signed
by NAGAVENI AND:
Location: HIGH
COURT OF
KARNATAKA 1. UNION OF INDIA
THROUGH MINISTRY OF HEALTH AND FAMILY
WELFARE,
THROUGH ITS SECRETARY,
NIRMAN BHAWAN,
NEW DELHI - 110 011.
2. THE KARNATAKA STATE ASSISTED REPRODUCTIVE
TECHNOLOGY AND SURROGACY BOARD,
DEPARTMENT OF HEALTH AND FAMILY WELFARE
-2-
NC: 2024:KHC:5316
WP No. 3295 of 2024
GOVERNMENT OF KARNATAKA,
VIKASA SOUDHA,
BENGALURU - 560 001
REPRESENTED BY ITS SECRETARY.
...RESPONDENTS
(BY SRI. H. SHANTHI BHUSHAN, DSGI FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WP IS FILED UNDER ARTICLES 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 ORDERS, 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 of India, the Surrogacy (Regulation) Act, 2021 and -3- NC: 2024:KHC:5316 WP No. 3295 of 2024 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 this Hon'ble Court deems fit in the interest of justice and equity."
2. Heard Sri. Lohit Talavar, 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.
(iv) The petitioners are entitled to opt for surrogacy for the reasons rendered in the course of the order.-4-
NC: 2024:KHC:5316 WP No. 3295 of 2024
(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:
"This is to certify that Mrs.xxxx aged 46yrs, w/o Mr xxxx aged 44yrs UHID number GEN-2022-10-060/061 under our care for fertility treatment. She has undergone 4 cycles of IVF (outside) 1st cycle of IVF in 2011-Fresh Embryo transfer done-failed to conceive (FTC) 2nd cycle of IVF in-2012-Fresh ET done-FTC.
3rd cycle of donor egg IVF with 2 single Blastocyst transfer
-FTC.
At Genea Fertility Centre, couple has undergone donor egg + Husband sperm resulting IVF in October-2022. Subsequently Mrs xxxx had undergone Embryo transfer in Jan-2023 and Conceived. Unfortunately she had -5- NC: 2024:KHC:5316 WP No. 3295 of 2024 spontaneous abortion. She underwent repeat Embryo Transfer in April 2023, conceived but resulting in complete abortion. Presently she has remaining embryos frozen with us. She requires surrogacy in view of multiple abortions and multiple implantation failure."
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.-6-
NC: 2024:KHC:5316 WP No. 3295 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 fulfill all other conditions.
I.A.No.1/2024 is rendered unnecessary for the aforesaid reasons.
Sd/-
JUDGE SJK List No.: 3 Sl No.: 17/CT:SNN