Calcutta High Court (Appellete Side)
Sangita Saha & Anr vs State Of West Bengal & Ors on 18 July, 2023
28
18.07.2023
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IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A. No. 15755 of 2023
Sangita Saha & Anr.
Vs.
State of West Bengal & Ors.
Mr. Victor Chatterjee,
Mr. Barnamoy Basak
...for the petitioeners
Mr. Sk. Md. Galib,
Ms. Sujata Mukherjee
...for the State
Mr. S. Banerjee,
Ms. Sucheta Banerjee
...for the respondent no. 3
The present challenge has been preferred by the petitioners against an order passed by the appropriate authority under the Surrogacy (Regulation) Act, 2021 whereby the petitioners' application for having a child by the mode of surrogacy has been turned down on two-fold grounds.
First, the authority held that the petitioners are over-aged within the contemplation of the Act. Secondly, it was observed by the authority that according to the present position of law, intending 2 couples are to have their own gametes and not to use gametes from the surrogate mother.
Learned counsel appearing for the respondent- authorities submits that the petitioners, under a misconception that they have taken out an appeal, preferred the application before the authority concerned. However, the initial order sought to be portrayed as the first forum's order, was merely an observation by the concerned clinic. Hence, it is submitted that the appropriate remedy before the petitioners is to prefer an appeal before the competent authority under Section 14 of the 2021 Act.
It is further submitted, by placing reliance on Section 36 onwards of the said Act, that within the contemplation of the said Act, the functions of the appropriate authority have been clearly delineated. Hence, it is contended that the present writ petition is not maintainable.
Learned counsel appearing for the clinic, in addition to adopting the submissions of the State- respondents, also places reliance on the provisions of the Assisted Reproductive Technology (Regulation) Act, 2021. It is submitted that, within the provisions of the said Act, the clinic concerned 3 shall also have to adhere to the provisions regarding the age restrictions as stipulated in the Surrogacy Act. Hence, it is submitted that the petitioners could not override the age restrictions as stipulated in the Surrogacy Act itself.
The question which arises in the present case is whether the availability of an alternative remedy before the State Government is an equally efficacious alternative remedy and debars the writ court's jurisdiction.
Considering the situation and the predicament of the petitioners, this Court is of the opinion that the petitioners ought not to be refused the remedy of justice before the writ court and be relegated to an appellate forum for further litigation.
The petitioners, as averred in the writ petition, were married on August 05, 1992 and gave birth to a female child on August 18, 1994. Unfortunately, the only child of the petitioners expired on October 28, 2022 due to severe septic shock with multi- organ failure. The petitioners mentally broke down and, thereafter, have sought the assistance of modern medicine and technology by way of seeking a surrogacy.
4It is relevant to mention here that the petitioner no. 1, the lady involved, has a severe gynecological problem and has undergone surgery in the year 2008, in which her uterus and tubes (apparently Fallopian tubules), along with both ovaries, were removed. Hence, it is no longer possible for the petitioner no. 1 to bear a baby in her womb.
Hence, in such situation, the mere restriction of age, which has been stipulated in the Acts of 2021, ought not be a hindrance by itself, since the contemplation of the statute was to fix an upper ceiling to the age at which surrogacy is required to be sought, in all probability, keeping in view the notions of society regarding the capacity of a couple or a woman to raise a child after a particular age of the said parent/parents.
However, in the age of modern technology and clinical advancements, the notion of advanced years is gradually attaining plasticity, to the extent that a person in her/his late 50's may not, in certain cases, depending on his/her physical capabilities, be termed as "elderly", even as per assessment of the World Health Organization as per recent reports.
5Hence, the subject of upper age limit to have a surrogacy is an arguable issue. Thus, the upper age restriction in the surrogacy Act of India can, at best, be held to be a directory guideline and not an absolute bar to a couple having a surrogacy. The particular attending circumstances in each and every case, where surrogacy is sought, is to be scrutinized diligently, keeping in perspective the conditions and circumstances as well as the physical and other capabilities of the concerned parties seeking such surrogacy.
In the present case, the factor which has operated against the petitioners are primarily the age restrictions. I find from the observations made in the impugned order itself that the petitioner no. 2, the male partner of the couple, is about 57 years old and the lady, that is, the petitioner no. 1 is 54 years of age. The upper limits, respectively of 55 and 50 years of age for the male and female partners are quite close to the actual ages of the petitioner couple.
As such, the years by which the upper limit of age is exceeded in the present case by both the petitioners is not so overwhelming so as to absolutely prevent them, on the strength of such 6 directory provisions of the Surrogacy Act, from going for a surrogacy.
It is for the authorities to decide as to whether, in the particular circumstance and the unfortunate predicament of the petitioners, they are entitled to have a surrogacy even if the upper limit of age is exceeded by a negligible number of years. Insofar as the other ground cited for refusals by the respondent-authorities is concerned, the same is palpably de hors the statute.
A cursory perusal of Section 4(b)(iii) indicates that the surrogate mother is in possession of an eligibility certificate issued by the appropriate authority, which is subject to fulfillment of certain conditions, including that no woman providing the womb can also provide the gamete.
In the present case, however, the petitioners have clarified that they are not seeking the gamete from the mother who would be providing the womb for the purpose of surrogacy.
The petitioners are agreeable to seek gamete from a third person-donor who is a different person than the proposed surrogate mother. Hence, the rigour of Section 4(b)(iii) does not, in any manner, justify the observations in the impugned order. 7
At this juncture, learned counsel the State- respondents hands over a copy of a Notification dated May 14, 2023. In the second clause therein, it has been specifically stipulated that in the in Form 2 under Rule 7 of the Surrogacy Regulation Rule 2022, the existing Part -I(d) stands omitted and shall be substituted as thereunder. It is provided therein, inter alia, that a couple undergoing surrogacy must provide both gametes and that donor gametes are not allowed.
It is palpably debatable as to whether the Government could alter the specific provisions of the parent Act itself by way of subordinate legislation. Where there is no such restriction in the Surrogacy Act of 2021 and/or the other corresponding statutes, including the Assisted Reproductive Technology (Regulation) Act, 2021, with regard to such donation of gametes, there is no occasion for the respondent-authorities to issue such notification, which is palpably de hors the parent statue.
Read in conjunction with the statute, the provisions sought to be relied on by the respondent authorities are required to be read down to the extent that a couple undergoing surrogacy would be 8 subject to the restriction as stipulated in the Act of 2021 itself and not by any other additional restriction, that both gametes must be from the intending couple and have from the intending gamete and donor gametes are not allowed. However, indeed, it is for the concerned authority to ensure, by checks and bounds, that such donation of gamete is not obtained by unlawfully influencing the said donor of the gamete. The authority concerned shall also have to look into the aspect as to whether such donation is in contravention of any other law operative at present.
In fact, the relevant clause in the Notification dated May 14, 2023 may very well be read down, to harmonize it with the import of the parent Act, to the effect that the intending couple must provide the gametes by lawful means, even though such gametes may not be biologically their own, in exceptional circumstances (as the present one), particularly when the couple is not medically in a position to give their own gametes, and not take the gametes from the surrogate mother.
Interpreting the Notification in such light, it is not impossible to grant the petitioners, and similarly placed others, who are medically 9 incapable of providing their own gametes, the right to have a surrogate child.
Accordingly, W.P.A. No. 15755 of 2023 is allowed, thereby directing the respondent- authorities to give a fresh hearing to the petitioners on their application for surrogacy and to decide the same afresh, in the light of the observations made above, by giving adequate opportunity of hearing to all concerned, including the appropriate authorities as well as the petitioners. The entire exercise shall be concluded as expeditiously as possible, in accordance with law and in terms of the above observations, positively within six weeks from date.
There will be no order as to costs.
Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of all necessary formalities.
(Sabyasachi Bhattacharyya, J.)