Karnataka High Court
Smt Xxxx vs Union Of India on 8 February, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
-1-
NC: 2024:KHC:5320
WP No. 3667 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. 3667 OF 2024 (GM-RES)
BETWEEN:
1. SMT. XXXX,
WIFE OF XXXX,
AGED ABOUT 44 YEARS.
2. SRI. XXXX,
SON OF XXXX,
AGED ABOUT 46 YEARS.
BOTH R/AT FLAT NO.102,
PRITAM WOODS, 3RD B CROSS ROAD,
GREEN GLEN LAYOUT, OUTER RING ROAD,
BELLANDUR - 560 103.
...PETITIONERS
(BY SRI. GAUTAM S. BHARADWAJ, ADVOCATE)
Digitally signed
by NAGAVENI
AND:
Location: HIGH
COURT OF
KARNATAKA 1. UNION OF INDIA,
THROUGH MINISTRY OF HEALTH AND FAMILY
WELFARE,
THROUGH ITS SECRETARY,
NIRMAN BHAWAN,
NEW DELHI - 110 011
2. THE KARNATAKA STATE ASSISTED REPRODUCTIVE,
TECHNOLOGY AND SURROGACY BOARD,
DEPARTMENT OF HEALTH AND FAMILY WELFARE
-2-
NC: 2024:KHC:5320
WP No. 3667 of 2024
GOVERNMENT OF KARNATAKA,
VIKASA SOUDHA,
BENGALURU - 560 001
REPRESENTED BY ITS SECRETARY.
...RESPONDENTS
(BY SMT. SADHANA S. DESAI, CGC 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 DATED 14.03.2023 BEARING NO.G.S.R179(E),
ISSUED BY R-1 (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, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners are before this Court, seeking the
following prayer:
"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
Welfare) as the same is ultra vires the Constitution
of India, the Surrogacy (Regulation) Act, 2021 and
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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. Gautam S. Bharadwaj, 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.
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(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:
"Mrs XXXX and Mr XXXX married since 12-03-2010.
Tring to conceive naturally since 13yrs.
• Couple has been advised for IVF after trying naturally
for 3yrs and 2014 in US 1st IVF done done tried 3
cycle of embryo transfer using 4 embryos and not
successful.
• 2016 2nd IVF advised and 7 embryos formed and 1st
cycle embryo transfer couple conceived and leads to
still birth at 19 weeks of pregnancy hence advised for
break for conception.
• 2016 Pt had constant c/o severe headache, after
multiple visits and medical management pt advised to
do spinal tapping done and diagnosed as Meningitis. Pt
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had h/o coma for 2 weeks, kept for medical
management.
• After pt recovered from coma brain biopsy done and
Resulted TB Meningitis.
• Post-surgery, complications were developed brain
hematoma. Operated to remove the clot and stop
bleeding. A small section of frontal lobe of Right
hemisphere of brain was removed its leads to coma for
one week.
• 2018 left side lower and upper extremities paralyzed
(1.e., weakness in left side of the body).
• After recovered from coma pt has been advised for
physiotherapy and rehabilitation center for further
recovery.
• November 2016 As per the doctor advise pt completed
12 months course of AKT.
• Due to removal of frontal lobe of a brain pt developed
symptoms of episodes convulsions on medications.
• 2021 After visiting infertility specialist in Mumbai pt
has been advised for IVF using donor gametes and It
was not successful.
Pt has been advised for ICSI with Donor gametes +
Surrogacy due maternal medical health condition, multiple
cycle failure of embryo transfer and Advance maternal age.
Kindly approve NOC for surrogacy."
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:5320
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
statute, except the one that is in the
notification dated 14-03-2023.
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(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
