Karnataka High Court
Smt Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5331
WP No. 906 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. 906 OF 2024 (GM-RES)
BETWEEN:
1. SMT.XXXX
W/O XXXX
AGED ABOUT 37 YEARS.
2. SRI.XXXX
S/O XXXX
AGED ABOUT 40 YEARS.
BOTH 1 AND 2
PERMANENT R/AT
#69/B, RKM LAYOUT,
T.C. PALYA MAIN ROAD,
RAMAMURTHY NAGAR,
KRISHNARAJAPURAM,
Digitally signed BENGALURU NORTH,
by NAGAVENI
BENGALURU - 560 036.
Location: HIGH
COURT OF PRESENLTY RESIDING AT
KARNATAKA #3078, LONGCOMMON
PKWY, ELGIN
IL, UNITED STATES OF AMERICA-60124
...PETITIONERS
(BY SRI. ABHIRAJ B. CHENGTI, ADVOCATE)
AND:
1. UNION OF INDIA,
THROUGH MINISTRY OF HEALTH AND FAMILY
-2-
NC: 2024:KHC:5331
WP No. 906 of 2024
WELFARE, NIRMAN BHAVAN,
NEW DELHI - 110 011
2. THE KARNATAKA STATE APPROPRIATE AUTHORITY,
ART AND SURROGACY ACT,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
AROGYA SOUDHA, BENGALURU,
KARNATAKA - 560 023
(THROUGH IT MEMBER SECRETARY)
3. THE DISTRICT MEDICAL BOARD,
CONSTITUTED UNDER SURROGACY (REGULATIONS)
ACT,2021
K.C. GENERAL HOSPITAL,
MALLESHWARAM, BENGALURU,
KARNATAKA - 560 003
(THROUGH IT CHAIRPERSON)
...RESPONDENTS
(BY SMT. SADHANA S. DESAI, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2 AND R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE
IMPUGNED NOTIFICATION DATED 14.03.23 BEARING NO.
GSR.179 (E) ISSUED BY R1 PRODUCED AT ANNEXURE-L AS
BEING ULTRA VIRES THE CONSTITUTION OF INDIA,
SURROGACY (REGULATIONS) ACT, 2021 AND ETC.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:5331
WP No. 906 of 2024
ORDER
The petitioners are before this Court, seeking the
following prayers:
"I. Issue Writ of Certiorari or any other writ or order or
direction Quashing the impugned Notification Dated
14.03.2023 bearing No. GSR.179(E) issued by
Respondent No.1 produced at ANNEXURE L as being
ultra vires the constitution of India, Surrogacy
(Regulations) Act, 2021.
II. Issue a Writ of mandamus or any other writ, order or
direction, directing the respondent No.3 to rectify the
surrogacy certificate Dated 06.07.2023 issued in favour
of petitioners produced at ANNEXURE M bearing no.
KCGH/surrogacy/3/2023/24 and allow them to go for
surrogacy with donor eggs/Oocytes.
III. Issue such other order/directions/relief as this
Hon'ble court may deem fit to grant in the circumstances
of the case."
2. Heard Sri. Abhiraj B. Chengti, learned counsel
appearing for the petitioners, Smt. Sadhana S. Desai, learned
CGC appearing for respondent No.1, Smt. Navya Shekhar,
learned AGA appearing for respondent Nos.2 and 3 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
NC: 2024:KHC:5331
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
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:
NC: 2024:KHC:5331
" .....
The District Medical Board Examined the
available medical reports on records of the
intending couple (Husband / Wife) and hereby
certify that the Mrs. XXXX and Mr. XXXX satisfy the
provision as per rule 14(c), (d) of The Surrogacy
(Regulation) rules, 2022. In view of intending
mother 34 years with Married life is 12 years
"History of multiple treatment failures - OI many
times, IUI many times, 4 IVF + ICSI cycles failed in
2016, 2017, 2018, 2020, 5th cycle PGT testing of
embryo at San Fransisco on 7-8-2020 8 embryo
found to have 47 xx +16 and 9 embryo is complex
abnormal. NK cell testing of endometrial tissue
found to have CD 57 positive lymphoid cells hence
she can undergo Altruistic surrogacy procedure as
an advanced treatment for infertility with their own
gametes as per recent surrogacy amendment act of
14th march 2023."
(emphasis added)
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.
NC: 2024:KHC:5331
(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
intending couple. The Authorities shall
forthwith process the applications, if any and
issue Eligibility Certificate/Essentiality
NC: 2024:KHC:5331
Certificate, if the intending couple would fulfill
all other conditions.
Sd/-
JUDGE
SJK
CT:SNN
