Karnataka High Court
Smt Xxxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5461
WP No. 3918 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. 3918 OF 2024 (GM-RES)
BETWEEN:
1. SMT. Xxxxx
WIFE OF SRI. xxxxx
AGED ABOUT 42 YEARS,
2. SRI. xxxxx
SON OF xxxxx
AGED ABOUT 50 YEARS
BOTH ARE R/AT NO. 144
SOUTH PARK ROAD
NEHRU NAGAR
BENGALURU - 560 020.
...PETITIONERS
(BY SRI. GAUTAM S.BHARADWAJ, ADVOCATE)
Digitally signed by
PADMAVATHI B K
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
-2-
NC: 2024:KHC:5461
WP No. 3918 of 2024
DEPARTMENT OF HEALTH AND FAMILY
WELFARE 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 WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASHING NOTIFICATION DTD 14.03.2023 BEARING
NO.G.S.R.179(E), ISSUED BY THE 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.
THIS WRIT PETITION, COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court seeking the following
prayer:
"a. Stay the operation of the notification dated
14.03.2023 bearing no.G.S.R.179(E), published
Respondent No.1 (i.e. Department of Ministry of
Health and Family Welfare) pending disposal of the
present petition (Annexure - A).
B. Direct Respondent No.2 to issue a eligibility and
essentiality certificate under Section 14 of
Surrogacy Regulation Act, 2021, without insisting
upon the usage of own gametes as stipulated
under the impugned notification dated
14.03.2023."
NC: 2024:KHC:5461
2. Heard Sri. Gautam S. Bharadwaj, learned counsel
appearing for the petitioners, Sri. H. Shanthi Bhushan, learned
Deputy Solicitor General of India appearing for respondent
No.1, Smt. Navya Shekhar, learned Additional Government
Advocate 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.
(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.
NC: 2024:KHC:5461
(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 petitioner No.1, intending mother through
surrogacy is also the one that is considered in the aforesaid writ
petition. The medical certificate reads as follows:
"xxxxxx
Need for surrogacy -
• Non receptive uterus
• thin endometrium (third cycle embryo
transfer was canceled due to thin
endometrium)
• Previous failed to conceive with 1 intra
uterine insemination, 2 frozen embryo
transfer with DE + HS"
(emphasis added)
Therefore, the issue stands covered on all its fours to the
judgment rendered by this Court in W.P.No.15824/2023.
NC: 2024:KHC:5461
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.
(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.
NC: 2024:KHC:5461
(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.
Pending I.A.No.1/2024, is disposed, as a consequence.
Sd/-
JUDGE
NVJ
CT:SS
