Karnataka High Court
Smt Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5460
WP No. 3936 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. 3936 OF 2024 (GM-RES)
BETWEEN:
1. SMT.XXXX
WIFE OF SRI. XXXX
AGED ABOUT 38 YEARS.
2. SRI. XXXX
SON OF XXXX
AGED ABOUT 39 YEARS.
BOTH RESIDING AT G-42, J BLOCK
SUMADHURA SRINIVASAM
SEETHARAM PALYA, HOODI
BENGALURU - 560 048.
...PETITIONERS
Digitally signed by
PADMAVATHI B K
Location: HIGH
COURT OF (BY SRI GAUTAM S. BHARADWAJ, ADVOCATE)
KARNATAKA
AND:
1. UNION OF INDIA
THROUGH MINISTRY OF HEALTH AND
FAMILY WELFARE
THROUGH ITS
SECRETARY
NIRMAN BHAWAN
NEW DELHI 110 011
-2-
NC: 2024:KHC:5460
WP No. 3936 of 2024
2. THE KARNATAKA STATE ASSISTED REPRODUCTIVE
TECHNOLOGY AND SURROGACY BOARD
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. 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
the Assisted Reproductive Technology (Regulation)
Act, 2021. A copy of the said Notification is
produced herewith as Annexure 'A'.
NC: 2024:KHC:5460
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. 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.
NC: 2024:KHC:5460
(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."
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 and intending mother
through surrogacy are also the one that is considered in the
aforesaid writ petition. The medical certificate reads as follows:
"To whomsoever it may concern
Xxxxx / Age: 39 and xxxxx / Age: 38
Married on 25-Nov-2013 and Trying to conceive 8 years.
After trying to conceive naturally for several months
couple Conceived Naturally 2016 which leads to
Miscarriage at 6 weeks due to no fetal pole.
2nd Natural conception in 2017 miscarriage due to No fetal
pole detected. Indication - Secondary Infertility.
2018 couple advised for OI + TI X 1 cycle unsuccessful.
Advised for IUI/IVF.
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2019: January and February IUI done and Unsuccessful.
In March 2019 operated for Diagnostic Hysteroscopy and
All findings were normal.
In April 2019 couple advised for IVF cycle 12 oocyte
retrieved 3 embryos were frozen.
In June 2019 Frozen embryo transfer done and failed.
Aug 2019: 3rd IUI done and unsuccessful.
In 2020; 3rd natural conception and leads to Miscarriage
at 6 weeks 5 days due to No cardiac activity detected.
In 2021 couple advised for IVF using donor oocytes +
Husband sperm due to constant LOW AMH and multiple
miscarriage.
2022 jan egg retrieval done, 12 oocytes retrieved, IVF
done (using donor oocytes + husband sperm) and
embryos were frozen.
Couple has been advised for Surrogacy embryo
transfer using donor gametes due to meternal
health condition, multiple miscarriages, multiple
cycle failure of IVF, IUI, and embryo transfer.
Kindly approve NOC for surrogacy. "
(emphasis added)
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.
NC: 2024:KHC:5460
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.
(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
NC: 2024:KHC:5460
forthwith process the applications, if any and
issue Eligibility Certificate/Essentiality
Certificate, if the intending couple would fulfill
all other conditions.
Sd/-
JUDGE
NVJ
