Karnataka High Court
Smt Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5462
WP No. 4105 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. 4105 OF 2024 (GM-RES)
BETWEEN:
1. SMT.XXXX
W/O SRI XXXX
AGED ABOUT 30 YEARS.
2. SRI XXXX
S/O XXXX
AGED ABOUT 36 YEARS.
BOTH RESIDING AT NO.385,
4TH MAIN, 12TH CROSS
HAPPY GARDEN LAYOUT
SEEGEHALLI
BENGALURU - 560 079.
Digitally signed by
PADMAVATHI B K ...PETITIONERS
Location: HIGH COURT
OF KARNATAKA (BY SRI. GAUTAM S. BHARADWAJ, ADVOCATE)
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:5462
WP No. 4105 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
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.
THIS 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
of India, the Surrogacy (Regulation) Act, 2021 and
NC: 2024:KHC:5462
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 the 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 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.
NC: 2024:KHC:5462
(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:
"Whom so ever it may concern
Mrs. Xxxxx & Mr. xxxxx married since 2018. Couple
trying to conceive naturally for 2 years since it was not
successful consulted infertility specialist in 2021.
• In 2022 couple advised try IUI with ovulation
induction in the Feb 2023 and march 2023
and that was unsuccessful.
NC: 2024:KHC:5462
• In 2022 june 1st IVF done 21 oocytes
retrieved no embryos formed due to average
oocyte quality hence all discarded.
• Couple advised for donor oocyte due poor
oocyte quality.
• In 2023 may 2nd IVF (using donor oocyte and
husband sperm) done 8 oocytes retrieved, 5
blastocyst frozen.
• In 2023 june and august 2 cycle of HRT +
FROZEN EMBRYO Tansfer done and failed.
• In 2023 September and December
Hysteroscopy + D&c, ERA and RGS test done
due to previous implantation failure.
• In 2024 jan 3rd HRT + FET done with ERA
time but unsuccessful.
Hence couple has been advised for Surrogacy with
(donor oocyte) embryo transfer considering
multiple implantation failure and maternal health
condition.
Kindly approve the NOC for couple."
(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:5462
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:5462
forthwith process the applications, if any and
issue Eligibility Certificate/Essentiality
Certificate, if the intending couple would fulfill
all other conditions.
Sd/-
JUDGE
NVJ
