Kolli Balaraju vs The Union Of India
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Telangana High Court

Kolli Balaraju vs The Union Of India on 13 June, 2025

 THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL
             WRIT PETITION No.10011 of 2025
ORDER:

This writ petition is filed to issue appropriate writ,

order or direction, more particularly, a Writ of Mandamus,

declaring the action of the respondent No.6 in passing

Order dated 07.02.2025 rejecting the petitioner's

Application dated 04.11.2024 for permission under the

Surrogacy Regulation Act, 2021 including a Certificate of

Essentiality and Eligibility Certificate under Section 4 of the

said Act on the ground that the Petitioners are above the

prescribed age under Section 4(iii)(c)(I) of the Act as illegal,

arbitrary, unreasonable, unconstitutional and

unsustainable and to consequently direct the respondent go

grant the various permissions under Section 4 of the

Surrogacy Regulation Act to the petitioners to undergo

surrogacy procedures by relaxing the age restriction

prescribed by Section 4(iii)(c)(I) of the Surrogacy Regulation

Act and Section 21 (g) of the Assisted Reproductive

Technology (Regulation) Act, 2021 and to pass such other

or orders.

2. Heard Sri M.Prateek Reddy, learned counsel for the

petitioners, Ms.L.Pranathi Reddy, learned counsel

representing Sri Gadi Praveen Kumar, Deputy Solicitor

General of India appearing for respondent No.1 and 2 and

Ms.Swapna Madhuri, learned Assistant Government

Pleader for Health, Medical and Family Welfare appearing

for respondent Nos.3 to 6.

3. The brief facts leading to filing of this writ petition are

that the petitioner No.1 was Lecturer and Principal of the

Mahatma Jyotiba Phule College at Mukhed, Maharashtra,

retired on 31.01.2022 upon superannuation at 58 years of

age. Presently, he is aged about 62 years. Petitioner No.2

is his wife and she is Home Maker and aged about 52 years.

The petitioners were blessed with one son on 13.08.1999 by

name Manideep Kolli and he suffered drowning in a

swimming pool in Kansas, United State of America and died

on 29.06.2023. To overcome the trauma, the petitioners

have made all possible efforts, but they could not overcome

that trauma. Therefore, they filed an application on

04.11.2024 before the District Medical and Health Officer

(DM&HO) requesting for the granting of approvals under

Surrogacy Act. But the District Medical and Health Officer

rejected the application of the petitioners dated 07.02.2025,

stating that as per provisions of Section 4 of clause (iii)(c)(i)

of Surrogacy Act, 2021, the intending couple is to be

between 23 to 50 years in case of female and between 26 to

55 years in case of male on the day of certification.

Challenging the said rejection order, the petitioners filed the

present writ petition.

4. Learned counsel for the petitioners would contend

that the petitioners are medically fit to undergo surrogacy,

the petitioners are not too old at this age. The petitioners

have taken recourse to fertility treatment at Anu Test Tube

Baby Centre, Somajiguda and conceived a pregnancy of

twins through the assisted reproductive technology

process, but unfortunately petitioner No.2 suffered a

miscarriage and lost the pregnancy in the year 1997. It is

further submitted that in the year 2016 petitioner No.2

suffered from a medical issue and she had to undergo

hysterectomy on 08.11.2016 though which, her uterus

was surgically removed. Therefore, there is no way in

which she can conceive a child by bearing the foetus in

her womb. Therefore, he seeks permission of this Court to

direct the respondents to grant the eligibility certificate,

certificate of essentiality and permission to the petitioners

without reference to the age restriction prescribed by

Section 4(iii)(c) (I) of the Surrogacy (Regulation) Act, 2021

and Section 21(g) of the Assisted Reproductive Technology

(Regulation) Act, 2021.

5. Learned counsel for the petitioners relied upon the

judgment of the Hon'ble Supreme Court of Indian in

Savitha Tejaswi v Union of India 1 and would submit

that the subject matter in this writ petition is similar to

WP (Civil) No.756 of 2022, which is pending before the

Hon'ble Supreme Court for appropriate adjudication.

While so, the right of the petitioners cannot be deprived of

to undergo surrogacy and seeks to allow this writ petition.

6. Ms.Pranathi Reddy, learned counsel representing Sri

Gadi Praveen Kumar, learned Deputy Solicitor General of

2024 Supreme (Online) (KAR) 28326

India appearing for respondent Nos.1 and 2 would submit

that Section 4(iii)(c) (I) of the Surrogacy (Regulation) Act,

2021 and Section 21 (g) of the Assisted Reproductive

Technology (Regulation) Act, 2021 does not permit the

petitioners to undergo surrogacy and the case in WP (Civil)

No.756 of 2022 (Arun Muthuvel v Union of India) is

pending before the Hon'ble Supreme Court for appropriate

adjudication. Therefore, at this stage, interference of this

Court is not warranted. Hence, seeks to dismiss the writ

petition.

7. Ms.Swapna Madhuri, learned Assistant Government

Pleader for Medical and Health appearing for respondent

Nos.3 to 6 would submit that since the Surrogacy

(Regulation) Act, 2021 does not permit the petitioners to

undergo surrogacy, hence seeks to dismiss the writ

petition filed by the petitioners.

8. Having heard learned counsel for the respective

parties and material available on record, it is evident that

this Court on an earlier occasion referred the petitioners to

Modern Government Maternity Hospital, Petlaburg,

Hyderabad and also Fernandez Maternity Hospital,

Hyderabad for grant of eligibility of surrogacy to both the

petitioners basing on their age, medical conditions.

8(i). The Modern Government Maternity Hospital,

Petlaburg, Hyderabad hospital issued a report as under:

"We have gone through the medical records of this couple as per the direction of the Hon'ble High Court - Telangana:

Kolli Rajya Lakshmi, 52 years with

1. Diabetes on treatment

2. Post Hysterectomy status (confirmed by scan in our hospital)

Kolli Balaraj, 62 years - semen count awaited as it is not done in our hospital (in private reports count is normal)

As per the Surrogacy Act, 2021, this couple does not come under the criteria to be eligible for Surrogacy.

8(ii). The Fernandez Hospital, Bogulakunta, Hyderabad

issued a report as under:

As per reports:-

Mr Balaraju - Blood reports are normal, the semen analysis report of Mr.Balaraju is normal.

Smt.Rajyalakshmi - Fasting blood sugar is high, known diabetic on treatment.

Her ultrasound Pelvis showed absent uteres (post Hysterectomy status), both ovaries were not visualized.

As per the finds Mr.Balaraju is capable of donating his sperms for surrogacy.

Smt. Rajyalakshmi is not capable of donating eggs as per the reports.

9. As per the medical report issued by the Fernandez

Hospital, Bogulakunta, Hyderabad, which is reputed

hospital and which is specialized in obstetrician and in

respectful agreement with the judgment passed by the

High Court of Karnataka in case of H.Siddaraju and

another v Union of India by its Secretary and others 2,

wherein the High Court had an occasion to deal with the

similar set of matters and in which it is held that:-

Therefore, on such ironing out, I deem it appropriate to evolve a triple test theory to permit the petitioners to avail of procedure of surrogacy, in the peculiar facts of this case by directing conduct of 3 tests. The first petitioner has to cross the wall of the triple tests to become eligible to become a father by surrogacy. All the tests directed are aspects which are in public domain. The tests would be:

i.Genetic Test ii.Physical Test and iii.Economic Test

(i) Genetic Test:

In medical parlance, what is needed for an embryo is a healthy sperm and an egg. Therefore, it is imperative to test the strength of the sperm as the sperm contains genetic information necessary to make a new individual. The genetic information is densely packed into the head of the sperm. The sperm contains 23 chromosomes. These 23 chromosomes will pair up with 23 chromosomes in the egg to give out 46 chromosomes necessary for a healthy human embryo. It is again medically determined that men

(2023) 4 KCCR 3039

over the age of 35 to 40 typically experience a decrease in sperm health. Since the petitioner is now aged 57 years, it would become necessary for him to undergo the genetic test for determination of the health of the sperm, so that the child born out of the embryo of which the sperm of the petitioner is impregnable part, is not born with any disorder or infirm.

(ii) Physical Test:

The intending couple must be in a position to take care of the child and cannot abandon the child on the ground that they are themselves infirmed to handle the child, failing which, it would be bringing a child to life, on the face of the earth, for making the life of the child miserable. This cannot be countenanced. Therefore, the couple must have the physical capacity to handle the child, though not physical capacity stricto senso to carry the child everywhere, but to manage the child.

(iii) Economic Test:

The intending couple must be economically sound and should not lead the child to penury the moment it is born. Therefore, affidavits of both the intending couple should be filed before the Board/appropriate authority with regard to their assets and liabilities which would become helpful for the Board/appropriate authority to decide the economic capacity of the intending couple.

It may become necessary to protect the child by making future investments on the child by the intending couple. The procedure and the nuances of seeking such economic tests is best left open to the Board/appropriate authority to decide, but such economic test is imperative.

10. The elaborative judgment passed by the High Court

of Karnataka while reading the Hon'ble Apex Court in

case of Baby Manji Yamada v Union of India 3, wherein

the Hon'ble Apex Court considered as follows:

10. Before embarking upon the consideration of the issue of surrogacy brought up before this Court in the lis, I deem it appropriate to notice the judgment of the Apex Court rendered in the case of Baby Manji Yamada v. Union of India, the Apex Court considered what is surrogacy and different kinds of surrogacy while observing as follows:

Surrogacy is a well known method of reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand over to a contracted party. She may be the child's genetic mother (the more traditional form for surrogacy) or she may be, as a gestational carrier, carry the pregnancy to delivery after having been implanted with an embryo. In some cases surrogacy is the only available option for parents who wish to have a child that is biologically related to them.

The word "surrogate", from Latin "subrogare", means "appointed to act in the place of". The intended parent(s) is the individual or couple who intends to rear the child after its birth.

11. The petitioners' son died by drowning in a swimming

pool in Kansas, United State of America. To overcome the

trauma, the petitioners have made all possible efforts, but

they could not overcome that trauma. Accordingly they

consulted with a clinic in Habsiguda, Hyderabad by name

Dr.Padmaja Fertility Centre, where, the doctors advised

them that the petitioner No.1 is fit for surrogacy and they

(2008) 13 SCC 518

can achieve a child only if they undergo In-Vitro

Fertilization with donor egg while taking the altruistic

service of a surrogate mother who would carry their child

in her womb until delivery. Based upon such advice, the

petitioner made an application before respondent Nos.4

and 5, but the application was rejected.

12. Petitioner No.2 is aged about 52 years and as per the

medical report, petitioner No.2 is not fit to undergo

surrogacy and accordingly petitioner No.1 with consent of

petitioner No.2 intending to undergo the In-Vitro

Fertilization with donor egg and it is permissible under the

Act and they genetically fit as per the judgment of the

Hon'ble Supreme Court in case of Arun Muthuvel (cited

supra) the Hon'ble Supreme Court passed an order dated

18.10.2023 [report as ABC v Union of India, 2024 9 SCC

586], where the Hon'ble Supreme Court stayed the

operation of the amendment, primarily on the ground that

the whole scheme of the Act revolves around "inability" of a

woman to conceive and that the amendment to the Form

restricting the use of donor gametes is not in tune with the

scheme of the Act. Even the High Court of Karnataka in

case of Sudarshan V v State of Karnataka, 2023 SCC

Online Kar 178 held the said amendment banning the use

of donor gametes in surrogacy as ultra vires.

13. Thereupon, the Central Government has finally

amended the Surrogacy (Regulation) Rules, 2022 allowing

the use of donor gametes in surrogacy by issuing a

Notification dated 21.02.2024 in G.S.R.119(E).

14. In view of the above, as the petitioner No.1 is fit and

capable of donating his sperms for surrogacy, this Court

deems it appropriate to direct the petitioners to approach

the Telangana State Assisted Reproductive Technology and

Surrogacy Board with appropriate application seeking

redressal of their grievance and in turn, the concerned

authorities are directed to consider the same for issuance

of an eligibility certificate, subject to the petitioners

satisfying the triple test (Genetic, Physical and economic

test) and pass appropriate orders within a period of four (4)

weeks from the date of receipt of a copy of this order.

15. With the above directions, this writ petition is

disposed of.

Miscellaneous applications, if any pending, shall

also stand closed.

____________________________ JUSTICE E.V. VENUGOPAL Date: 13.06.2025.

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