Karnataka High Court
Dr. Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:5319
WP No. 2017 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. 2017 OF 2024 (GM-RES)
BETWEEN:
1. DR. XXXX
W/O XXXX
AGED ABOUT 46 YEARS,
PERMANENTLY A RESIDENT OF
G-11, WARD NO. 19,
KHANNA CHAUK, HUZUR REWA,
MADHYA PRADESH - 486 001.
CURRENTLY RESIDING AT
A-3, 510, TUNGABHADRA BLOCK,
NATIONAL GAMES VILLAGE,
KORAMANGALA, BENGALURU - 560 047.
2. XXXX
S/O XXXX
Digitally signed
AGED ABOUT 48 YEARS,
by NAGAVENI
PERMANENTLY A RESIDENT OF
Location: HIGH
COURT OF G-11, WARD NO. 19,
KARNATAKA KHANNA CHAUK, HUZUR REWA,
MADHYA PRADESH - 486 001.
CURRENTLY RESIDING AT
61-A, JR HIG, VINDHYA VIHAR COLONY,
REWA,
MADYA PRADESH - 486 001
...PETITIONERS
(BY SRI. VIKRAM UNNI RAJAGOPAL, ADVOCATE)
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NC: 2024:KHC:5319
WP No. 2017 of 2024
AND:
1. UNION OF INDIA
MINISTRY OF HEALTH AND FAMILY WELFARE,
THROUGH ITS SECRETARY,
NIRMAN BHAWAN,
NEW DELHI - 110 011.
2. THE KARNATAKA STATE ASSISTED REPODUCTIVE
TECHNOLOGY AND SURROGACY BOARD,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
VIKASA SOUDHA,
BENGALURU - 560 001
REPRESENTED BY ITS SECRETARY
3. DISTRICT MEDICAL BOARD,
GOVERNMENT OF KARNATAKA,
OFFICE OF THE K.C GENERAL HOSPITAL,
BENGALURU - 560 003.
REPRESENTED BY ITS 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 i) DECLARE THAT
THE NOTIFICATION BEARING NO. G.S.R.179(E) DATED
14/03/2023 (ANNEXURE-F) ISSUED BY R1 IS INAPPLICABLE TO
THE CASE OF THE PETITIONERS AND ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 2017 of 2024
ORDER
The petitioners are before this Court seeking the following
prayer:
"i. Declare that the Notification bearing
No.G.S.R.179(E) dated 14.03.2023 (Annexure-F)
issued by Respondent No.1 is
inapplicable to the case of the Petitioners;
ii. Declare that the Petitioners are entitled to surrogacy
without the authorities insisting or directing that donor
gametes cannot be made use of by the Petitioners;
iii. Set aside Surrogacy Certificate for Medical
Indication bearing No.KCGH/Surrogacy/29/2023-24
dated 12.05.2023 (Annexure-E) issued by the District
Medical Board (i.e., Respondent No.3) insofar as it
requires the Petitioner No.1 to undergo altruistic
surrogacy procedure 'with their own gametes', and
direct the Respondent No.3 to issue a revised
Surrogacy Certificate for Medical Indication permitting
the Petitioners to have a child through a surrogate
using donor gamete;
iv. Grant such other order(s) as this Hon'ble Court
deems fit under the facts and circumstances of the
case, in the interests of justice.
2. Heard Sri. Vikram Unni Rajagopal, 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.
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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
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
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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. Xxxxx and Mr. Xxxxx
satisfy the provision as per rule 14(c), (d) of The
Surrogacy (Regulation) rules, 2022. In view of
intending mother 46 years with "History of
secondary infertility since 18 years, with previous
history of 6 spontaneous pregnancy losses in which
one pregnancy with pre eclampsia at 24 weeks with
IUFD, later she had secondary infertility. In 2022
she was diagnosed with diffuse adenoysis with
multiple fibroid for which she underwent total
abdominal hysterectomy with Bilateral
salpingectomy as per the reports, 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.
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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.
(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
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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.
I.A.No.1/2024 is rendered unnecessary for the aforesaid
reasons.
Sd/-
JUDGE
SJK
CT:SNN
