Karnataka High Court
Smt.Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5308
WP No. 563 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. 563 OF 2024 (GM-RES)
BETWEEN:
1. SMT. XXXX
W/O XXXX
AGED ABOUT 36 YEARS.
2. SRI. XXXX
S/O XXXX
AGED ABOUT 37 YEARS.
BOTH RESIDING AT NO.B 406 DEFINER
KINGDOM, BOMMENAHALLI, OFF OLD
MADRAS ROAD, BUDIGERE CROSS, NEAR
PRESTIGE TRANQUILITY,
BANGALORE - 560 049.
...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. THE KARNATAKA STATE ASSISTED
REPRODUCTIVE,
TECHNOLOGY AND SURROGACY BOARD,
-2-
NC: 2024:KHC:5308
WP No. 563 of 2024
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 FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION DATED: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
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
'B' GROUP, 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
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."
NC: 2024:KHC:5308
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.
(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
NC: 2024:KHC:5308
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 W/O Mr. xxxx, Aged 36 years, Resident of
8406, Definer Kingdom, Bommnehalli, Budigere Cross,
Bangalore 560049, was under my care and treatment
over a period of 5 years for IVF and other related
treatments like Hysteroscopy, Plasma Therapy etc.
Since 2019, I Dr Reshu Sarogi KMC 96710, have
personally conducted her IVF treatment 4 times with
required interval as below:
First IVF treatment on 3rd June 2019
Second IVF treatment on 7th January 2021
Third IVF treatment on 21 November 2021
Fourth IVF treatment on 19 October 2022
Unfortunately, the previously attempted IVF treatments
proved unsuccessful, primarily attributed to recurrent
implantation failure. This is due to mainly Adenomyosis in
the uterus. The condition posed a significant obstacle,
hindering the successful implantation of embryos during
the IVF procedures.
NC: 2024:KHC:5308
Given the patient's limited egg reserve and compromised
egg quality, the utilization of a donor egg becomes crucial
and inevitable. The imperative need for a donor egg
arises to fulfil their dream of parenthood and motherhood.
In this context, relying on a donor egg is a vital step to
overcome the challenges associated with fertility and
achieve their desired family goals.
Given the challenges faced, I strongly recommend and
advise her to consider surrogacy as the only remaining
viable option with the help of DONOR EGGS offering a
potential solution to the complexities encountered in
previous fertility treatments."
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
NC: 2024:KHC:5308
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.
Sd/-
JUDGE
SJK
CT:SNN
