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:5307
                                                     WP No. 440 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. 440 OF 2024 (GM-RES)
              BETWEEN:

              1.    SMT. XXXX
                    W/O XXXX
                    AGED ABOUT 46 YEARS.

              2.    SRI. XXXX
                    S/O XXXX
                    AGED ABOUT 48 YEARS.

                    BOTH R/AT MIG 876B,
                    18th MAIN ROAD, 18TH CROSS,
                    KHB ANEKAL ROAD,
                    SURYA NAGAR SPACE 1,
                    CHANDAPURA,
                    BANGALORE - 560 099.
Digitally signed                                       ...PETITIONERS
by NAGAVENI
Location: HIGH (BY SRI. GAUTAM S. BHARADWAJ, ADVOCATE)
COURT OF
KARNATAKA        AND:

              1.    UNION OF INDIA,
                    THROUGH MINISTRY OF HEALTH AND
                    FAMILY WELFARE,
                    THROUGH ITS SECRETARY,
                    NIRMAN BHAWAN,
                    NEW DELHI - 110 011.
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                                                NC: 2024:KHC:5307
                                              WP No. 440 of 2024




2.   THE 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)

      THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDA 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:

"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.

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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.

(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.

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(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:

"I have been seeing Mrs. xxxx aged about 46 years, W/o Mr. xxxx aged about 48 years, bearing MRN no 3053 married for 11 years, since 1 year.

She conceived naturally in 2014 unfortunately had multiple foetal anomalies for which she underwent MTP. In 2015 and 2017, she concieved again naturally but ended as an blighted ovum and missed abortion respectively.

In view of Recurrent pregnancy loss with one anomalous baby, she was advised for IVF (self eggs and husband sperm) with which she underwent 4 Embryo transfer in which she didn't conceive. After which she counselled for

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egg donor and husband sperm IVF and underwent 5 embryo transfers (2 fresh ET and 3 frozen embryo transfer). On 2020, she conceived with embryos of egg donor and husband sperm which ended as missed miscarriage.

She consulted us in 2022 and was treated with many procedures like Hysteroscopy, ploughing, PRP, Biosera, EMMA, ALICE and also immunomodulation was done. After which she again underwent an euploid embryo transfer with egg donor and husband sperm wherein she conceived but ended as a missed abortion at 8 weeks.

On account of her Severe adenomyosis, Recurrent pregnancy loss and Recurrent Implantation failure, I strongly recommend her to undergo embryo transfer to Gestational surrogate with remaining embryos frozen with us(6 embryos of donor egg and husband sperm)."

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

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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 fulfill all other conditions.

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I.A.No.1/2024 is rendered unnecessary for the aforesaid

reasons.

Sd/-

JUDGE

SJK

CT:SNN