Karnataka High Court
Mrs.Xxxx vs The Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5309
WP No. 1697 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. 1697 OF 2024 (GM-RES)
BETWEEN:
1. MRS. XXXX
W/O XXXX
AGED ABOUT 50 YEARS,
WORKING AS ASSISTANT PROFESSOR,
GOVERNMENT FIRST GRADE COLLEGE,
VIJAYANAGAR, BENGALURU 560 040
2. MR XXXX
S/O XXXX
AGED ABOUT 52 YEARS,
WORKING AS SUPERINTENDENT OF
CENTRAL TAX, GST,
OFFICE OF THE COMMISSIONER OF CENTRAL
Digitally signed by TAX, (APPEAL-I) TTMC BMTC,
NAGAVENI OLD AIRPORT ROAD, DOMMALURU,
Location: HIGH BENGALURU 560071
COURT OF
KARNATAKA
BOTH ARE RESIDING AT
GF-01, NO.6, HR PRIDE,
10TH CROSS, 3RD MAIN, NGEF LAYOUT,
NAGARABHAVI,
BENGALURU 560 072.
...PETITIONERS
(BY SRI. C.S. HIREMATH, ADVOCATE)
-2-
NC: 2024:KHC:5309
WP No. 1697 of 2024
AND:
1. THE UNION OF INDIA
BY ITS SECRETARY,
MINISTRY OF HEALTH AND
FAMILY WELFARE, SHASTRI BHAVAN,
NEW DELHI - 110 001.
2. THE DEPARTMENT OF HEALTH AND
FAMILY WELFARE
UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
NEW DELHI - 110 001.
3. THE STATE OF KARNATAKA
ASSISTED REPRODUCTIVE TECHNOLOGY AND
SURROGACY BOARD, DEPARTMENT OF HEALTH AND
FAMILY WELFARE
GOVERNMENT OF KARNATAKA,
VIKASA SOUDHA,
REPRESENTED BY ITS SECRETARY,
BENGALURU 560 001.
4. APPROPRIATE AUTHORITY UNDER THE ASSISTED
REPRODUCTIVE TECHNOLOGY
(REGULATION) ACT, 2021, K C GENERAL HOSPITAL,
MALLESHWARAM,
REPRESENTED BY ITS SECRETARY,
BENGALURU 560 003.
...RESPONDENTS
(BY SMT. SADHANA S DESAI, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2 TO R4)
-3-
NC: 2024:KHC:5309
WP No. 1697 of 2024
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO a) DIRECTING THE
RESPONDENTS TO RELAX THE UPPER AGE LIMIT OF 50 YEARS
FOR WOMEN AND GIVE TREATMENT FOR ASSISTED
REPRODUCTIVE SERVICE TO THE PETITIONERS THROUGH
INDIRA IVF CENTER BENGALURU OR ANY OTHER REGISTERED
IVF CENTERS IN BENGALURU WITH COMMITTED APPROACH
FOLLOWING ALL THE REQUIRED PARAMETERS OF THE HEALTH
CONDITION OF THE PETITIONERS FITTING FOR UNDERGOING
IVF TREATMENT THAT MAY COME FORWARD FOR THE
PETITIONER NO.1 TO UNDERGO IVF TREATMENT AND ETC.
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) Issue a Writ in the nature of Mandamus directing
the respondents to relax the upper age limit of 50
years for women and give treatment for Assisted
Reproductive Service to the petitioners through
Indira IVF Center Bengaluru or any other registered
IVF Centers in Bengaluru with committed approach
following all the required parameters of the health
condition of the petitioners fitting for undergoing
IVF treatment that may come forward for the
Petitioner No. 1 to undergo IVF treatment.
b) Issue a Writ in the nature of Mandamus directing
the respondents for immediate semen analysis of
petitioner No.2 and for freezing of semen required
during IVR procedure.
NC: 2024:KHC:5309
c) Grant any other Writ, Order, Direction or Relief as
this Hon'ble Court deem fit to grant in the
circumstances of the petitioners' case in the
interest of justice and equity."
2. Heard Sri. C.S. Hiremath, 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 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,
NC: 2024:KHC:5309
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:
"REPORT (TVS)
Uterus is normal in size and retroverted.
Two gestational sacs are seen in the right and left corneal
region.
Both sacs appear to be partly intrauterine and partly
extending to corneal interstitium.
Right gestational sac shows an embryo with faint cardiac
activity.
No embryo and yolk sac are seen in the left corneal
gestational sac with MSD 6mms (5weeks + 2days)."
Therefore, the issue stands covered on all its fours to the
judgment rendered by this Court in W.P.No.15824/2023.
NC: 2024:KHC:5309
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) 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.
(iii) The petitioners are entitled to opt for
surrogacy for the reasons rendered in the
course of the order.
(iv) 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.
(v) 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
NC: 2024:KHC:5309
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
