Karnataka High Court
Smt. Annu Joseph vs Union Of India on 7 November, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
-1-
NC: 2024:KHC:46179
WP No. 29261 of 2024
C/W WP No. 29228 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 29261 OF 2024 (GM-RES)
C/W
WRIT PETITION NO. 29228 OF 2024 (GM-RES)
IN WP No. 29261/2024
BETWEEN:
1. SMT. POORNIMA SREERAGHAVAN
W/O SRI. RAMAKRISHNAN T.S.,
AGED ABOUT 51 YEARS.
2. SRI. RAMAKRISHNAN T.S.,
S/O SUBRAMANIAN T.S.,
AGED ABOUT 55 YEARS.
BOTH RESIDING AT NO.149,
GROUND FLOOR, SECOND MAIN,
R.K. LAYOUT, PADMANABHANAGAR,
BANGALORE - 560 070.
Digitally signed by
R HEMALATHA ...PETITIONERS
Location: HIGH (BY SRI. B.S. DATTATREYA AND
COURT OF SRI. ANKITH JAIN, ADVOCATES FOR
KARNATAKA
SRI. GAUTAM SHREEDHAR BHARADWAJ, ADVOCATE)
AND:
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
-2-
NC: 2024:KHC:46179
WP No. 29261 of 2024
C/W WP No. 29228 of 2024
SURROGACY BOARD,
DEPARTMENT OF HEALTH AND FAMILY
WELFARE, GOVERNMENT OF KARNATAKA,
VIKASA SOUDHA,
BENGALURU - 560 001.
REPRESENTED BY ITS SECRETARY.
3. GOVERNMENT OF KARNATAKA,
DISTRICT MEDICAL BOARD SURROGACY
(REGULATION) ACT, 2021,
OFFICE AT THE K C GENERAL HOSPITAL
BENGALURU - 560 003
REPRESENTED BY ITS AUTHORIZED OFFICER
...RESPONDENTS
(BY SMT. SADHANA S DESAI, ADVOCATE FOR R1;
SRI. MOHAMMED JAFFAR SHAH, AGA FOR R2 AND R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH SEC 4(iii)(c)(I) OF
THE SURROGACY (REGULATION) ACT 2021 IS
UNCONSTITUTIONAL, BEING VIOLATIVE OF ARTICLES 14 AND 21
OF THE CONSTITUTION OF INDIA AND ETC.
IN WP NO. 29228/2024
BETWEEN:
1. SMT. ANNU JOSEPH,
W/O SRI. VINAYARAJ A C,
AGED ABOUT 51 YEARS
2. SRI. VINAYARAJ A.C.,
S/O LATE K.V. CHACKO,
AGED ABOUT 57 YEARS.
BOTH RESIDING AT 3-E-G-774/5, VILLA NO.3
CASA MARIE, 2ND CROSS ROAD,
BEHIND ALVARIS BUILDING, NANTHOOR,
MANGALORE, KARNATAKA - 575 005.
...PETITIONERS
(BY SRI. B.S. DATTATREYA AND
SRI. ANKITH JAIN, ADVOCATES FOR
SRI. GAUTAM SHREEDHAR BHARADWAJ, ADVOCATE)
-3-
NC: 2024:KHC:46179
WP No. 29261 of 2024
C/W WP No. 29228 of 2024
AND:
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,
GOVERNMENT OF KARNATAKA
VIKASA SOUDHA,
BENGALURU - 560 001
REPRESENTED BY ITS SECRETARY.
3. GOVERNMENT OF KARNATAKA,
DISTRICT MEDICAL BOARD SURROGACY (REGULATION)
ACT, 2021
OFFICE AT THE K C GENERAL HOSPITAL
BENGALURU - 560 003,
REPRESENTED BY ITS AUTHORIZED OFFICER
...RESPONDENTS
(BY SMT. SADHANA S DESAI, ADVOCATE FOR R1;
SRI. MOHAMMED JAFFAR SHAH, AGA FOR R2 AND R3)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH SECTION
2(III)(C)(I) OF THE SURROGACY (REGULATION) ACT 2021 IS
UNCONSTITUTIONAL, BEING VIOLATIVE OF ARTICLES 14 AND
21 OF THE CONSTITUTION OF INDIA AND ETC.
THESE PETITIONS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
-4-
NC: 2024:KHC:46179
WP No. 29261 of 2024
C/W WP No. 29228 of 2024
CORAM: HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
ORAL ORDER
The petitioners, who are childless, are seeking a
surrogacy certificate for medical reasons, as well as eligibility
and essentiality certificates, upon fulfilling the conditions laid
down under the Surrogacy (Regulation) Act, 2021 (hereinafter
referred to as 'the Act').
2. The petitioners, who are intending to undergo
surrogacy, are beyond the age limit prescribed by one year
under Section 4(iii)(C)(I) of the Act, 2021, and therefore seek
permission to undergo surrogacy treatment using donor eggs.
3. In similar circumstances, a coordinate Bench of
this Court in the case of H Siddaraju and Another v. Union of
India through its Secretary and Others (2023 SCC OnLine Kar
16) ruled that the case of the petitioners therein for the
issuance of an eligibility certificate could be considered by the
State Surrogacy Board/Appropriate Authority/Prescribed
Authority, subject to the petitioners satisfying the triple test as
enumerated in paragraph 25 of the judgment.
NC: 2024:KHC:46179
4. Therefore, it is expedient to dispose of the petition
in terms of the order passed by the coordinate Bench of this
Court in the aforementioned case. Accordingly, I pass the
following:
ORDER
1. The petition is disposed of, directing the petitioners
to approach the State Surrogacy Board/Appropriate
Authority/Prescribed Authority with the appropriate application
seeking redressal of their grievance.
2. In the event that the petitioners approach the
Board/Appropriate Authority within four weeks from the date of
receipt of the certified copy of this order, the State Surrogacy
Board/Appropriate Authority/Prescribed Authority shall
consider the application and pass appropriate orders for the
issuance of an eligibility certificate within four weeks
thereafter.
3. While doing so, the Board/Authority shall bear in
mind the observations made by this Court in WP
No.5861/2023 (DD 21.04.2023).
5. The petitioners, who are childless, are seeking a
surrogacy certificate for medical reasons, as well as eligibility
NC: 2024:KHC:46179
and essentiality certificates, upon fulfilling the conditions laid
down under the Surrogacy (Regulation) Act, 2021 (hereinafter
referred to as 'the Act').
6. The petitioners' son and daughter tragically died
due to leukaemia in 2015 and 2021, respectively. They are
seeking a surrogacy certificate for medical reasons, as well as
eligibility and essentiality certificates, upon fulfilling the
conditions set out in the Surrogacy (Regulation) Act, 2021.
The 1st petitioner, the intending mother, is aged 51, and the
2nd petitioner, the intending father, is aged 57, which exceeds
the age limit prescribed under Section 4(iii)(C)(I) of the Act,
2021. Therefore, the petitioners seek permission to undergo
surrogacy treatment using donor eggs.
7. In similar circumstances, a coordinate Bench of
this Court in the case of H Siddaraju and Another v. Union of
India through its Secretary and Others (2023 SCC OnLine Kar
16) ruled that the case of the petitioners for the issuance of an
eligibility certificate may be considered by the State Surrogacy
Board/Appropriate Authority/Prescribed Authority, subject to
the petitioners satisfying the triple test as enumerated in
paragraph 25 of the judgment.
8. Therefore, it is expedient to dispose of the petition
in terms of the order passed by the coordinate Bench of this
NC: 2024:KHC:46179
Court in the aforementioned case. Accordingly, I pass the
following:
ORDER
1. The petition is disposed of, directing the petitioners
to approach the State Surrogacy Board/Appropriate
Authority/Prescribed Authority with the appropriate application
seeking redressal of their grievance.
2. If the petitioners approach the Board/Appropriate
Authority within four weeks from the date of receipt of the
certified copy of this order, the State Surrogacy
Board/Appropriate Authority/Prescribed Authority shall
consider the application and pass appropriate orders for the
issuance of an eligibility certificate within four weeks
thereafter.
3. While doing so, the Board/Authority shall bear in
mind the observations made by this Court in WP
No.5861/2023 (DD 21.04.2023).
Sd/-
(HEMANT CHANDANGOUDAR)
JUDGE
TIN
