Disposed¶17

Bratin Kumar Jha and Anr. v. Union of India and Ors.

Calcutta HC5 Mar 2024WPA/508/2024

Case brief

AI extract

What is this about?

Donor-gamete surrogacy permitted after amendment to Surrogacy (Regulation) Rules, 2022 vide G.S.R. 119(E) dated February 21, 2024; District Medical Board double certification; direction to respondent no.3 (surrogacy clinic surrendering registration) to hand over stored embryo to petitioners or designated fertility facility within a week; disposal of WPA No. 508 of 2024; amended Rule 1(d); Sabyasachi Bhattacharyya, J.; order dated 05.03.2024.

What did the court decide?

Direction to respondent no.3 to hand over the embryo-in-question to the petitioners or to any other agency/institution/fertility centre/clinical facility designated by the petitioners within a week of communication of the order; thereafter the petitioners permitted to undergo surrogacy with a donor gamete under amended Rule 1(d) of the Surrogacy (Regulation) Rules, 2022.

Bratin Kumar Jha and Anr. Vs Union of India and Ors. — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether, in light of the amendment to the Surrogacy (Regulation) Rules, 2022 notified vide G.S.R. 119(E) dated February 21, 2024, the petitioners may undertake surrogacy using donor gametes. +1 more

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Court's answer

Since the petitioners have already been certified twice by the District Medical Board, there can be no further impediment in the petitioners going for surrogacy with a donor gamete.

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Ratio / Principle

There can be no impediment in respondent no.3 handing over the embryo to the petitioners, particularly as respondent no.3 has decided to surrender its registration as a surrogacy clinic.

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Key takeaways

WPA No. 508 of 2024 is disposed of by directing respondent no.3 to hand over the embryo-in-question to the petitioners, or to any other agency/institution/fertility centre/clinical facility designated by the petitioners, within a week from the date of communication of the order to said respondent.ratio¶17
Upon the embryo being handed over, the petitioners are permitted to go for surrogacy with a donor gamete in terms of the amended Rule 1(d) of the Surrogacy (Regulation) Rules, 2022, as amended till date.ratio¶20

Detailed headnote1 paragraphs

Writ petition WPA No. 508 of 2024 (Bratin Kumar Jha and another v. Union of India and others), signed by Sabyasachi Bhattacharyya, J. on 05.03.2024, was disposed of. Following the amendment to the Surrogacy (Regulation) Rules, 2022 notified vide G.S.R. 119(E) dated February 21, 2024 — under which donor-gamete surrogacy is allowed where the District Medical Board certifies a medical condition necessitating donor gamete, subject to the child born having at least one gamete from the intending couple — and noting that the petitioners had already been certified twice by the District Medical Board, the court found no further impediment to the petitioners undergoing surrogacy with donor gametes. As respondent no.3, the surrogacy clinic holding the embryo, had decided to surrender its registration, respondent no.3 was directed to hand over the embryo-in-question to the petitioners or to any agency/institution/fertility centre/clinical facility designated by them within a week from communication of the order, upon which the petitioners may proceed with donor-gamete surrogacy in terms of the amended Rule 1(d) of the 2022 Rules.

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AD-14 Ct No.09 05.03.2024 TN WPA No. 508 of 2024

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Bratin Kumar Jha and another

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Vs. Union of India and others

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Mr. Kushal Paul

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…. for the petitioners

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Mr. Rudrajyoti Bhattacharya, Ms. Debjani Ghosal

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…. for the UOI

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Mr. Amal Kr. Sen, Ld. AGP, Mr. Lal Mohan Basu

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…. for the State

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1. A fair stand has been taken by the State in this matter.

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2. Learned counsel for the petitioners contends that due to an amendment in the Surrogacy (Regulation) Rules, 2022 (for short “the 2022 Rules”), the petitioners were not being permitted to use donor gametes for the purpose of going for surrogacy, intending to have a baby by such process.

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3. However, learned counsel for the State hands over a Notification dated February 21, 2024 vide G.S.R. 119(E) as per which the latest amendment in the said 2022 Rules provide that the couple undergoing surrogacy must have both gametes from the intending couple. However, in case when the District Medial Board certifies that either husband or wife constituting the intending couple suffers from any

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medical condition necessitating use of donor gamete then surrogacy using donor gamete is allowed, subject to the condition that the child to be born through surrogacy must have at least one gamete from the intending couple.

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4. In the present case, the petitioners have already been certified twice by the District Medical Board as per learned counsel for the petitioners. Hence, there cannot be any further impediment in the petitionerscouple going for surrogacy with a donor gamete.

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5. It is further submitted by the petitioners that the embryo is now being held by the respondent no.3. Learned counsel for the petitioners hands over a communication dated March 04, 2024, whereby it was indicated that the respondent no.3 had decided to surrender its registration as a surrogacy clinic and had already initiated the documentation in that regard.

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6. In such view of the matter, there cannot be any impediment in the respondent no.3 handing over the embryo to the petitioners for the purpose of the petitioners undertaking due procedure for surrogacy. 7. Accordingly, WPA No. 508 of 2024 is disposed of by directing the respondent no.3 to hand over the embryo-in-question to the petitioners or to any other agency/institution/fertility centre/clinical facility as designated by the petitioners, within a week from the

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date of communication of this order to the said respondent.

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8. Upon so having been handed over, the petitioners are permitted to go for surrogacy with a donor gamete in terms of the amended Rule 1(d) of the Surrogacy (Regulation) Rules, 2022, as amended till date.

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9. The parties shall act on the server copy of this order without insisting upon prior production of a certified copy thereof.

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10. There will be no order as to costs.

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11. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.

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(Sabyasachi Bhattacharyya, J.)

Bratin Kumar Jha and Anr. v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

Bratin Kumar Jha and Anr. v. Union of India and Ors.

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

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