Karnataka High Court
Smt Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5332
WP No. 973 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. 973 OF 2024 (GM-RES)
BETWEEN:
1. SMT.XXXX
W/O XXXX
AGED ABOUT 46 YEARS.
2. SRI. XXXX
S/O XXXX
AGED ABOUT 53 YEARS.
BOTH 1 AND 2 ARE
R/AT LORDS COURT VILLA 16,
PAROLICKAL JUNCTION,
PEROOR VILLAGE,
ATHIRAMPUZHA, KOTTAYAM,
KERALA - 686 562.
Digitally signed ...PETITIONERS
by NAGAVENI
Location: HIGH (BY SRI. ABHIRAJ B. CHENGTI, ADVOCATE)
COURT OF
KARNATAKA AND:
1. UNION OF INDIA,
THROUGH MINISTRY OF HEALTH AND FAMILY
WELFARE, NIRMAN BHAVAN,
NEW DELHI - 110 011.
(THROUGH ITS SECRETARY)
2. THE KARNATAKA STATE APPROPRIATE AUTHORITY
ART AND SURROGACY ACT,
-2-
NC: 2024:KHC:5332
WP No. 973 of 2024
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
AROGYA SOUDHA, BANGALORE,
KARNATAKA - 560 023,
(THROUGH ITS MEMBER SECRETARY).
3. THE DISTRICT MEDICAL BOARD,
CONSTITUTED UNDER SURROGACY (REGULATIONS)
ACT 2021,
K.C. GENERAL HOSPITAL,
MALLESHWARAM, BENGALURU,
KARNATAKA - 560 003,
(THROUGH ITS CHAIRPERSON)
...RESPONDENTS
(BY SMT. DEEPA J., CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2 AND R3)
THIS WP IS FILED UNDER ARICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
NOTIFICATION DATED:14.03.2023 BEARING NO.GSR.179(E)
ISSUED BY R1 PRODUCED AT ANNEXURE-F 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:
ORDER
The petitioners are before this Court, seeking the
following prayers:
"I. Issue Writ of Certiorari quashing the impugned
Notification Dated 14.03.2023 bearing No. GSR.179(E)
issued by Respondent No.1 produced at ANNEXURE F as
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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. 2 & 3 to rectify the
surrogacy certificate Dated 09.05.2023 issued in favour of
petitioners produced at ANNEXURE G and allow them to
go for surrogacy with donor eggs/Oocytes.
III. Issue such other writ/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. Deepa J., 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
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.
NC: 2024:KHC:5332
(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:
" .....
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 intended
mother 45 years with "History of married life of 23
years with multiple ART failures - 4 to 5 cycles of
OI, 68 cycles of IUI, 2 cycles of ICSI failures, one
ICSI cycles conceived but had a missed abortion.
4th ICSI embryos frozen, endometrial preparation
of ET was attempted multiple times but due to thin
NC: 2024:KHC:5332
endometrium ET could not be done and embryos
were discarded on later date. Hence it's an
indication and 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.
(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:5332
(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
