Karnataka High Court
Smt. Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5310
WP No. 2831 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. 2831 OF 2024 (GM-RES)
BETWEEN:
1. SMT. XXXX
W/O XXXX
AGED ABOUT 43 YEARS,
2. DR. XXXX
S/O XXXX
AGED ABOUT 41 YEARS,
BOTH ARE R/AT NO.2373, 9TH MAIN,
M C C A BLOCK,
DAVANAGERE,
KARNATAKA 577004
...PETITIONERS
(BY SRI. LOHIT TALAVAR, ADVOCATE)
Digitally signed AND:
by NAGAVENI
Location: HIGH 1. UNION OF INDIA
COURT OF THROUGH MINISTRY OF HEALTH AND FAMILY
KARNATAKA WELFARE,
THROUGH ITS SECRETARY,
NIRMAN BHAWAN
NEW DELHI 110011
2. THE KARNATAKA STATE ASSISTED REPRODUCTIVE
TECHNOLOGY AND SURROGACY BOARD
DEPARTMENT OF HEALTH AND FAMILY
WELFARE GOVERNMENT OF KARNATAKA
VIKASA SOUDHA
-2-
NC: 2024:KHC:5310
WP No. 2831 of 2024
BENGALURU - 560 001
REPRESENTED BY ITS
SECRETARY
...RESPONDENTS
(BY SRI. SHANTHI BHUSHAN H., DSGI FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION DTD 14.03.2023 BEARING NO.G.S.R.179(E),
ISSUED BY R1 (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 AND
ETC.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING
IN '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
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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."
2. Heard Sri. Lohit Talavar, 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.
NC: 2024:KHC:5310
(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:
"This is to certify that Dr.xxxx aged 43yrs, w/o Dr.
xxxx aged 40yrs UHID number GEN-2021-11-163/164 is
under our care for fertility treatment. She is a known case
of poor ovarian reserve with Adenomyosis and has failed
to conceive after multiple attempts. She requires donor
egg in view of Poor ovarian reserve.
She also requires surrogacy in view of recurrent IVF
failures due to adenomyosis (Uterine Factor). "
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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.
(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
NC: 2024:KHC:5310
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
