Smt. Xxxx vs Union Of India
2024 Latest Caselaw 3879 Kant

Karnataka High Court

Smt. Xxxx vs Union Of India on 8 February, 2024

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

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                                                    NC: 2024:KHC:5329
                                                   WP No. 189 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. 189 OF 2024 (GM-RES)
              BETWEEN:

              1.    SMT. XXXX
                    W/O XXXX
                    AGED ABOUT 35 YEARS.

              2.    SRI. XXXX
                    S/O XXXX
                    AGED ABOUT 35 YEARS.

                    BOTH R/AT FLAT 102B,
                    SRADDHA SILVEROAK APT,
                    RAHATH BAGH,
                    CV RAMAN NAGAR,
                    BENGALURU - 560 093.
                                                        ...PETITIONERS
Digitally signed
by NAGAVENI (BY SRI. GAUTAM S. BHARADWAJ, ADVOCATE)
Location: HIGH
COURT OF         AND:
KARNATAKA
                 1. UNION OF INDIA,
                    THROUGH MINISTRY OF HEALTH AND FAMILY
                    WELFARE, THROUGH ITS SECRETARY,
                    NIRMAN BHAWAN,
                    NEW DELHI - 110 011.

              2.    KARNATAKA STATE ASSISTED REPRODUCTIVE
                    TECHNOLOGY AND SURROGACY BOARD,
                    DEPARTMENT OF HEALTH AND FAMILY WELFARE
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                                                    NC: 2024:KHC:5329
                                                 WP No. 189 of 2024




    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 WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
NOTIFICATION DTD 14.03.23 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 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:

"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

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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.

(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.

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(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 and Mr xxxx are married since 02-Jul-17 (6 Years, 5 months)

Pt had tried till Sep 2021 Natural conception for 4 Years.

In 06-Oct-20 pt had First conception but resulted as a biochemical Pregnancy.

In 31-Oct-20 Wife diagnosed with Hyperthyroidism. Underwent PTU treatment for 1 year.

15-Mar-21 Husband had high DFI 41% and advised to meet Andrologist and taken medication as per advice.

Repeated DFI on 16-Apr-21 and result- 35.239% due to high DFI and morphology of sperm pt advised for Varicocele correction.

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in May-21: Husband underwent Varicocele surgery: Right Varicocele

In Aug-21 Repeated DFI and semen analysis as per advice.

DFI at 30.35% and Morphology test: Normal at 1% continued with medication and repeated DFI on 29-Oct-

21: result DFI at 22.11%

In Sep-21 and-Oct-21 tried with IUI X 2 cycle and failed and advised for IVF.

In Nov-21 Egg pick up + ICSI and embryos are frozen.

In Dec-21 HRT+ 1" FET (Day 5 Transfer) Result - Negative

In Jan-22 HRT+2nd FET (6 day Transfer) Result- Negative. Since low graded embryo left for transfer pt suggested for 2nd IVF cycle.

In Apr-22 pt had ICSI with TESA and got oocyte with poor quality. Embryos frozen.

In Sep-22 ERA planned due to thin endometrium.

In Apr-23: Egg pick up 3rd time + ICSI and embryos are frozen.

In Sep-23 Approval for embryo with self-gamete was received from Metropolitan Magistrate

In Nov-23 embryo transfer was done to the surrogate and result came negative

In the view of recurrent implantation failures of embryos with self-gametes due to thin Endometrium. Hence patient has been advised for Embryo Transfer using Donor Garnete to Surrogate Mother."

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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.

(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

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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