Karnataka High Court
Smt Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5324
WP No. 28502 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. 28502 OF 2023 (GM-RES)
BETWEEN:
1. SMT.XXXX,
W/O XXXX,
AGED ABOUT 25 YEARS.
2. SRI.XXXX
S/O XXXX
AGED ABOUT 36 YEARS.
BOTH 1 AND 2
RESIDING AT NO.21,
SHASHIKALA SHREE GURU NILAYA,
5TH CROSS, SHANTHI LAYOUT,
NEAR BALAJI NURSING HOME,
RAMAMURTHY NAGAR,
Digitally signed BANGALORE - 560 016
by NAGAVENI
Location: HIGH ...PETITIONERS
COURT OF
KARNATAKA (BY SRI. ABHIRAJ B. CHENGTI, ADVOCATE)
AND:
1. UNION OF INDIA,
THROUGH MINISTRY OF HEALTH AND FAMILY
WELFARE, NIRMAN BHAVAN,
NEW DELHI - 110 011.
THROUGH ITS SECRETARY.
-2-
NC: 2024:KHC:5324
WP No. 28502 of 2023
2. THE KARNATAKA STATE APPROPRIATE AUTHORITY,
ART AND SURROGACY ACT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
AROGYA SOUDHA, BANGALORE,
KARNATAKA - 560 023
(THROUGH ITS MEMBER SECRETARY).
3. THE DISTRICT MEDICAL BOARD,
CONSTITUTED UNDER SURROGACY (REGULATIONS)
ACT 2021, K.C. GENERAL HOSPITAL,
MALLESHWARAM, BENGALURU,
KARNATAKA - 560 003
( THROUGH ITS CHAIRPERSON)
...RESPONDENTS
(BY SMT. RESHMA K.T., CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2 AND R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO I) QUASH
THE IMPUGNED NOTIFICATION DATED 14/03/2023
BEARING NO. GSR.179(E) ISSUED BY R1 PRODUCED AT
ANNEXURE-H AS BEING ULTRA VIRES THE
CONSTITUTION OF INDIA, SURROGACY (REGULATIONS)
ACT, 2021 AND ETC.
THIS PETITION, COMING ON FOR FURTHER
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court, seeking the
following prayers:
NC: 2024:KHC:5324
I. Issue Writ of Certiorari quashing the impugned
Notification Dated 14.03.2023 bearing No. GSR.179(E)
issued by Respondent No.1 produced at ANNEXURE H
as being ultra vires the constitution of India,
Surrogacy (Regulations) Act, 2021.
II. Issue a Writ of mandamus or any other writ, order or
direction, directing the respondent No.3 to rectify the
surrogacy certificate Dated 01.08.2023 issued in favour
of petitioners produced at ANNEXURE K and allow them
to go for surrogacy with donor eggs/Oocytes.
III. Issue a Writ of mandamus or any other writ, order or
direction, directing the respondent No.2 to issue
Eligibility and Essentiality Certificates on fulfilment of all
the other conditions laid down under the surrogacy
(Regulations) Act, 2021 and allow petitioners to go for
altruistic surrogacy with donor eggs/Oocytes.
IV. Issue such other order/directions/relief as this
Hon'ble court may deem fit to grant in the circumstances
of the case."
2. Heard Sri. Abhiraj B. Chengti, learned counsel
appearing for the petitioners, Smt. Reshma K.T., learned
CGC appearing for respondent No.1, Smt. Navya Shekhar,
learned AGA appearing for respondent Nos.2 and 3 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
NC: 2024:KHC:5324
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 through surrogacy are also the one that
NC: 2024:KHC:5324
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 25 years with Married life is
6 years "with History of failed multiple
infertility treatments (one OI, one IVF +ICSI
under anesthesia) and have been diagnosed by
laparoscopy that having cocoon abdomen with
frozen pelvis secondary to laparoscopic
colostomy at day 3 of life for imperforate anus
at birth. Also big endometriotic cyst been
treated surgically. With the above history and
treatment documents she can go 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.
NC: 2024:KHC:5324
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
NC: 2024:KHC:5324
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
SJK
CT:SNN
