Smt Xxxx vs Union Of India
2024 Latest Caselaw 3827 Kant

Karnataka High Court

Smt Xxxx vs Union Of India on 8 February, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

                                            -1-
                                                        NC: 2024:KHC:5463
                                                      WP No. 4103 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. 4103 OF 2024 (GM-RES)


               BETWEEN:

               1.    SMT.XXXX
                     W/O SRI XXXX
                     AGED ABOUT 31 YEARS.

               2.    SRI XXXX
                     S/O XXXX,
                     AGED ABOUT 31 YEARS.

                     BOTH RESIDING AT FLAT NO.A 005, GROUND
                     FLOOR, SUNRISE BRUNDARAN GARDENS,
                     VASANTAPURA, DODDAKALLASANDRA,
                     KANAKAPURA ROAD, BENGALURU - 560 062.
                                                          ...PETITIONERS
Digitally signed by
PADMAVATHI B K
Location: HIGH      (BY SRI. GAUTAM S.BHARADWAJ, ADVOCATE)
COURT OF
KARNATAKA
               AND:

               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:5463
                                             WP No. 4103 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 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.TO
THE CONCERN OF THE PETITIONERS.

     THIS WRIT PETITION, COMING ON FOR PRELIMINARY
HEARING, 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

NC: 2024:KHC:5463

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', to the concern of the Petitioners.

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

NC: 2024:KHC:5463

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 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 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

Mr. xxxxx and Mrs. Xxxxx married since 27.11.2020.

Couples are first cousins got Consanguineous marriage.

Mrs xxxxx is known case of

-Cyanotic congenital heart disease

NC: 2024:KHC:5463

-pulmonary atresia

-VSD Large

-Hypoplasia pa's

Since birth And underwent with below mentioned treatment under Dr Ranjit at Sri Ramachandran Medical Colleg Research Institute, Porur, Chennai.

In 18.04.1995 at this Age of 2 years advised Coronary Angiogram - 13.04.1995, Diagnosed as - pulmonary atresia with h/o -Cyanotic congenital heart disease

Operated for Right modified Blalock tawssig shunt using 5mm goretex graft on Date 20.04.1995.

In 16.07.1997 at the Age of - 5 years with h/o pulmonary atresia, Ventricular septal defect, MAPCAs.

Operated for Unifocalisation of MAPCAs to LPA on 21.07.1997.

In 19.04.1999 at the Age of - 6years with h/o Pulmonary atresia, Ventricular septal defect, MAPCAs.

Operated for (Rt) sided unifocalisation + 5mm PTFE tube graft ascending AORTA and RPA on 23.04.1999.

In 21.02.2002 at the Age of -9 years with h/o Cyanotic congenital heart disease, Pulmonary atresia operated for RV-PA conduit with 12mm ST Jude Biocar conduit on 31.01.2002.

In 29.04.2005 at the Age of -11 years with h/o Complex pulmonary atresia,

VSD with MAPCA-PA/post RV conduit with 12mm bovine pericardial conduit,

Operated for Excision of bovine pericardial conduit/ RVOT reconstruction with the bovine pericardial patch/ VSD closure on 11.05.2005.

NC: 2024:KHC:5463

As per the advice of cardiologist couple has been advised for ICSI with oocyte donor+husband sperm + surrogacy due to maternal health condition and multiple surgical correction for cardiac disease with possibility of congenital heart disease for the child.

Kindly approve NOC for ICSI with oocyte donor + husband sperm + surrogacy

Date: 9th jan, 2024."

(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.

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

NC: 2024:KHC:5463

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 forthwith process the applications, if any and issue Eligibility Certificate/Essentiality Certificate, if the intending couple would fulfill all other conditions.

Sd/-

JUDGE