Karnataka High Court
Smt Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5322
WP No. 28423 of 2023
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. 28423 OF 2023 (GM-RES)
BETWEEN:
SMT.XXXX
W/O XXXX
AGED ABOUT 45 YEARS,
R/AT NO. 57, SHOP STREET,
N.R COLONY,
BASAVANAGUDI,
BENGALURU - 560 004.
...PETITIONER
(BY SRI. SAMPATH A., ADVOCATE)
AND:
1. UNION OF INDIA
MINISTRY OF HEALTH AND FAMILY WELFARE
Digitally signed by REPRESENTED BY ITS SECRETARY,
NAGAVENI NIRMAN BHAWAN
Location: HIGH
COURT OF NEW DELHI - 110 001.
KARNATAKA
2. 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)
-2-
NC: 2024:KHC:5322
WP No. 28423 of 2023
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
NOTIFICATION DATED:14.03.2023 BEARING NO. GSR 179(E)
ISSUED BY THE R-1 UNION OF INDIA PRODUCED AT
ANNEXURE-A AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court, seeking the
following prayers:
"(a) Issue a Writ in the nature of Certiorari quashing
the Notification dated 14.03.2023 bearing No.GSR
179(E) issued by Respondent No.1 - Union of India,
produced at Annexure-A.
(b) Consequently, issue a Writ in the nature of
Mandamus directing the Respondents to permit the
Petitioner go for surrogacy with donor eggs.
(c) Pass such other orders as this Hon'ble Court
deems fit in the facts and circumstances of the
above case, in the interest of justice and equity.
2. Heard Sri. Abhiraj B. Chengti, learned counsel
appearing for the petitioners, Sri. H. Shanthi Bhushan, learned
DSGI appearing for respondent No.1, Smt. Navya Shekhar,
learned AGA appearing for respondent No.2 and have perused
the material on record.
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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.
(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 are intending mother
NC: 2024:KHC:5322
through surrogacy are also the one that is considered in the
aforesaid writ petition. The medical certificate reads as follows:
" .....
The District Medical Board Examined the
available medical reports on records of the
intending couple (Husband / Wife) and hereby
certify that the Mrs. xxxx and Mr. xxxx satisfy the
provision as per rule 14(c), (d) of The Surrogacy
(Regulation) rules, 2022. In view of intending
mother 45 years with Married life is 21 years "with
History of having twice spontaneous abortion and
now with secondary infertility underwent 3 IVF
failed and 1 embryo is frozen according to the
reports. In view of advanced maternal age with
secondary infertility with 3 IVF failed she is advised
for Altruistic surrogacy procedure as an advanced
treatment for infertility with their own gametes as
per recent surrogacy amendment act of 14th march
2023."
(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.
NC: 2024:KHC:5322
(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
forthwith process the applications, if any and
issue Eligibility Certificate/Essentiality
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Certificate, if the intending couple would fulfill
all other conditions.
Sd/-
JUDGE
SJK
CT:SNN
