Karnataka High Court
Smt. Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5301
WP No. 29417 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. 29417 OF 2023 (GM-RES)
BETWEEN:
1. SMT. XXXX
W/O XXXX
AGED ABOUT 36 YEARS,
2. SRI. XXXX
S/O XXXX
AGED ABOUT 46 YEARS,
BOTH R/AT NO.C 208,
HILIFE SUNNYSIDE APARTMENT,
HADOSIDDAPURA,
CARMELARAM,
Digitally signed
by NAGAVENI BANGALORE-560035
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, NEW DELHI-110011.
-2-
NC: 2024:KHC:5301
WP No. 29417 of 2023
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.
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:
NC: 2024:KHC:5301
"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.
NC: 2024:KHC:5301
(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:
" This is to inform that Mrs. xxxx w/o Mr. xxxx with
MRN number [SDN20036/SDN20037] came to our center
NOVA IVF FERTILITY Basaveshwaranagar Bangalore in
20-September 2021 for Infertility Evaluation. On
Investigations she was found to have low AMH -
0.06ng/ml, and her antral follicular count was [1], hence
she was advised IVF with donor egg
She had previous history of undergoing
Laparoscopic Myomectomy + left cystectomy +
NC: 2024:KHC:5301
adhesiolysis in 21/11/2019 and Hysteroscopic
Adhesiolysis for intrauterine adhesions [ASHERMANNS
SYNDROME] on 11/3/2020. Despite giving her multiple
cycle of Hormone replacement treatment, patient never
used to form a good endometrium appropriate for embryo
transfer. She has never got mensus since 2020. Hence
she was planned for donor egg IVF cycle with Surrogacy.
ICSI-OD cycle done in December 2021"
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
declared inapplicable to the case of the
petitioners.
NC: 2024:KHC:5301
(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
SJK
CT:SNN
