Allowed

Mrs.Xxxx v. the Union of India

Karnataka HC8 Feb 2024WP/1697/2024

Case brief

AI extract

What is this about?

Petitioners, an intending couple, filed a writ seeking relaxation of the upper age limit for IVF and treatment for surrogacy. The Court found the facts and medical conditions identical to a previous judgment (W.P. No. 15824/2023) which permitted surrogacy, and therefore allowed the current petition in part.

What did the court decide?

The notification dated 14-03-2023 declared inapplicable; petitioners entitled to opt for surrogacy subject to statutory conditions; Authorities to issue certificates.

Mrs.Xxxx Vs the Union of India — Writ and Judicial Review | Karnataka HC (2024)

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NC: 2024:KHC:5309 WP No. 1697 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 1697 OF 2024 (GM-RES)

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BETWEEN:

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MRS. XXXX W/O XXXX AGED ABOUT 50 YEARS, WORKING AS ASSISTANT PROFESSOR, GOVERNMENT FIRST GRADE COLLEGE, VIJAYANAGAR, BENGALURU 560 040

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MR XXXX S/O XXXX AGED ABOUT 52 YEARS, WORKING AS SUPERINTENDENT OF CENTRAL TAX, GST, OFFICE OF THE COMMISSIONER OF CENTRAL TAX, (APPEAL-I) TTMC BMTC, Digitally signed by NAGAVENI OLD AIRPORT ROAD, DOMMALURU, Location: HIGH BENGALURU 560071 COURT OF KARNATAKA BOTH ARE RESIDING AT GF-01, NO.6, HR PRIDE, 10TH CROSS, 3RD MAIN, NGEF LAYOUT, NAGARABHAVI, BENGALURU 560 072.

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…PETITIONERS

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(BY SRI. C.S. HIREMATH, ADVOCATE)

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NC: 2024:KHC:5309 WP No. 1697 of 2024

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AND:

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THE UNION OF INDIA BY ITS SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, SHASTRI BHAVAN, NEW DELHI - 110 001.

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THE DEPARTMENT OF HEALTH AND FAMILY WELFARE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, NEW DELHI - 110 001.

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THE STATE OF KARNATAKA ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD, DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA, VIKASA SOUDHA, REPRESENTED BY ITS SECRETARY, BENGALURU 560 001.

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APPROPRIATE AUTHORITY UNDER THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021, K C GENERAL HOSPITAL, MALLESHWARAM, REPRESENTED BY ITS SECRETARY, BENGALURU 560 003.

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…RESPONDENTS

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(BY SMT. SADHANA S DESAI, CGC FOR R1; SMT. NAVYA SHEKHAR, AGA FOR R2 TO R4)

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NC: 2024:KHC:5309 WP No. 1697 of 2024

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO a) DIRECTING THE RESPONDENTS TO RELAX THE UPPER AGE LIMIT OF 50 YEARS FOR WOMEN AND GIVE TREATMENT FOR ASSISTED REPRODUCTIVE SERVICE TO THE PETITIONERS THROUGH INDIRA IVF CENTER BENGALURU OR ANY OTHER REGISTERED IVF CENTERS IN BENGALURU WITH COMMITTED APPROACH FOLLOWING ALL THE REQUIRED PARAMETERS OF THE HEALTH CONDITION OF THE PETITIONERS FITTING FOR UNDERGOING IVF TREATMENT THAT MAY COME FORWARD FOR THE PETITIONER NO.1 TO UNDERGO IVF TREATMENT AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioners are before this Court, seeking the

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following prayers:

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"a) Issue a Writ in the nature of Mandamus directing the respondents to relax the upper age limit of 50 years for women and give treatment for Assisted Reproductive Service to the petitioners through Indira IVF Center Bengaluru or any other registered IVF Centers in Bengaluru with committed approach following all the required parameters of the health condition of the petitioners fitting for undergoing IVF treatment that may come forward for the Petitioner No. 1 to undergo IVF treatment.

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b) Issue a Writ in the nature of Mandamus directing the respondents for immediate semen analysis of petitioner No.2 and for freezing of semen required during IVR procedure.

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NC: 2024:KHC:5309 WP No. 1697 of 2024

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c) Grant any other Writ, Order, Direction or Relief as this Hon'ble Court deem fit to grant in the circumstances of the petitioners' case in the interest of justice and equity."

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Heard Sri. C.S. Hiremath, 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.

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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:

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“(i) Writ Petition is allowed in part.

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(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.

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(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.

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(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,

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NC: 2024:KHC:5309 WP No. 1697 of 2024

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except the one that is in the notification dated 1403-2023.

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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 fulfil all other conditions."

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The aforesaid order was passed on account of the health

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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:

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" REPORT (TVS)

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Uterus is normal in size and retroverted.

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Two gestational sacs are seen in the right and left corneal region.

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Both sacs appear to be partly intrauterine and partly extending to corneal interstitium.

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Right gestational sac shows an embryo with faint cardiac activity.

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No embryo and yolk sac are seen in the left corneal gestational sac with MSD 6mms (5weeks + 2days)."

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Therefore, the issue stands covered on all its fours to the

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judgment rendered by this Court in W.P.No.15824/2023.

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NC: 2024:KHC:5309 WP No. 1697 of 2024

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For the very reasons rendered to allow surrogacy in

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W.P.N.15824/2023, this petition deserves to succeed, and granting of the same relief.

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For the aforesaid reasons, the following:

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ORDER

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(i) Writ Petition is allowed-in-part.

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(ii) 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.

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(iii) The petitioners are entitled to opt for surrogacy for the reasons rendered in the course of the order.

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(iv) 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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(v) 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

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NC: 2024:KHC:5309 WP No. 1697 of 2024

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forthwith process the applications, if any and issue Eligibility Certificate/Essentiality Certificate, if the intending couple would fulfill all other conditions.

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Sd/JUDGE

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SJK List No.: 3 Sl No.: 10 CT:SNN

Mrs.Xxxx v. the Union of India

Case brief

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Mrs.Xxxx v. the Union of India

Case brief

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