Karnataka High Court
Smt. Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5300
WP No. 29384 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. 29384 OF 2023 (GM-RES)
BETWEEN:
1. SMT. XXXX
W/O XXXX
AGED ABOUT 39 YEARS
2. SRI XXXX
S/O XXXX
AGED ABOUT 45 YEARS
BOTH R/A NO.FLAT NO.4116
SOBHA VALLEY VIEW
DSOUZA NAGAR
OPPOSITE TO V LEGACY CONVENTIONAL HALL
Digitally signed BSK 3RD STAGE
by NAGAVENI BANGALORE-560085
Location: HIGH
COURT OF
KARNATAKA ...PETITIONERS
(BY SRI. GAUTAM S. BHARADWAJ, ADVOCATE)
AND:
1. UNION OF INDIA
THROUGH MINISTRY OF HEALTH AND
FAMILY WELFARE
THROUGH ITS SECRETARY
NIRMAN BHAWAN
-2-
NC: 2024:KHC:5300
WP No. 29384 of 2023
NEW DELHI-110011
2. THE KARNATAKA STATE ASSISTED REPRODUCTIVE
TECHNOLOGY AND SURROGACY BOARD
DEPARTMENT OF HEALTH AND FAMILY WELFARE
GOVERNMENT OF KARNATAKA
VIKASA SOUDHA
BENGALURU-560001
REPRESENTED BY ITS SECRETARY
...RESPONDENTS
(BY SRI. SHANTHI BHUSHAN H., DSGI FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WP IS FILED UNDER ARICLES 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 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:
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"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'.
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
DSGI 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.
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(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 is considered in the
aforesaid writ petition. The medical certificate reads as follows:
" Mrs. xxxx, 39y/F ML: 12 yrs
W/o. Mr. xxxx, 45y/M 09.04.2023
Mrs xxxx tried multiple times to conceive but not able to
carry pregnancy. She had multiple miscarriages in her
past due to adenomyotic changes in the uterus. She is
Auto Immune Disorder patient too. Details for entire
history as below:
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- 2011 A1-2month pregnancy-miscarriage, Oral MTP pills.
- 2013 A2-heart beat absent miscarriage D&C done.
- 2015 A3-IUI conception - heart beat present till 3
months-miscarriage followed by D&C done.
- 2017-18 IVF Own Egg Retrieval (6 time) 16PSG Done
failed
- 2020-FET with Donor Oocytes Failed.
- 2020-FET with Donor done Oocyte failed.
- Self-Oocyte & Donor Oocyte 3 IVF failed. For self-
Transfer.
- Also she has NK cells +ve PTT & thyroid disorder
xxxx is unlikely to become pregnant in such scenario and
would be difficult for her to carry a pregnancy or give
birth. Even if she becomes pregnant or carries pregnancy,
she is likely to place her life/health at risk. Looking at her
current medical condition even she get pregnant it is
more likely miscarriage.
Hence it is recommended to go with self-Oocyte with
Husband sperm and surrogacy for implantation."
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.
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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
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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
CTT:SNN
