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

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Karnataka HC
2024
Smt Xxxx Vs Union of IndiaSmt Xxxx v. Union of India

Partly allowed

Smt Xxxx v. Union of India

Karnataka HC8 Feb 2024WP/906/2024

Case brief

AI extract

What is this about?

An intending couple sought surrogacy eligibility despite the March 2023 notification restricting use of donor gametes. Following the Court's earlier identical ruling, their medical condition was accepted and authorities were barred from insisting against donor gametes.

What did the court decide?

Notification dated 14-03-2023 declared inapplicable to petitioners; entitled to surrogacy; authorities to issue Eligibility/Essentiality Certificate if other conditions met.

What the court decided

AI extract

Outcome

Notification dated 14-03-2023 declared inapplicable to petitioners; entitled to surrogacy; authorities to issue Eligibility/Essentiality Certificate if other conditions met.

Issue for consideration

Whether the notification dated 14-03-2023 prohibiting donor gametes in surrogacy applies to the petitioners? +1 more

Detailed headnote1 paragraphs

Where an intending mother's documented infertility treatment failures satisfy the District Medical Board's certification, the High Court declared the notification dated 14-03-2023 inapplicable to the petitioners' case, following its earlier order in W.P.No.15824/2023. The challenge to the notification itself was left unanswered pending before the Apex Court. The petitioners were held entitled to opt for surrogacy subject to fulfilling other statutory conditions, and authorities cannot insist that donor gametes not be used; certificates must be processed if other conditions are met.

A compact analysis

This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.

A

1 -

NC: 2024:KHC:5331 WP No. 906 of 2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 8^TH DAY OF FEBRUARY, 2024

BEFORE

THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 906 OF 2024 (GM-RES)

BETWEEN:

SMT.XXXX W/O XXXX AGED ABOUT 37 YEARS.

SRI.XXXX S/O XXXX AGED ABOUT 40 YEARS.

Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA

BOTH 1 AND 2 PERMANENT R/AT #69/B, RKM LAYOUT, T.C. PALYA MAIN ROAD, RAMAMURTHY NAGAR, KRISHNARAJAPURAM, BENGALURU NORTH, BENGALURU - 560 036. PRESENLTY RESIDING AT #3078, LONGCOMMON PKWY, ELGIN IL, UNITED STATES OF AMERICA-60124

…PETITIONERS

(BY SRI. ABHIRAJ B. CHENGTI, ADVOCATE)

AND:

UNION OF INDIA, THROUGH MINISTRY OF HEALTH AND FAMILY

2 -

NC: 2024:KHC:5331 WP No. 906 of 2024

WELFARE, NIRMAN BHAVAN, NEW DELHI - 110 011

THE KARNATAKA STATE APPROPRIATE AUTHORITY, ART AND SURROGACY ACT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, AROGYA SOUDHA, BENGALURU, KARNATAKA - 560 023

(THROUGH IT MEMBER SECRETARY)

THE DISTRICT MEDICAL BOARD, CONSTITUTED UNDER SURROGACY (REGULATIONS) ACT,2021 K.C. GENERAL HOSPITAL, MALLESHWARAM, BENGALURU, KARNATAKA - 560 003 (THROUGH IT CHAIRPERSON)

…RESPONDENTS

(BY SMT. SADHANA S. DESAI, CGC FOR R1; SMT. NAVYA SHEKHAR, AGA FOR R2 AND R3)

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE IMPUGNED NOTIFICATION DATED 14.03.23 BEARING NO. GSR.179 (E) ISSUED BY R1 PRODUCED AT ANNEXURE-L AS BEING ULTRA VIRES THE CONSTITUTION OF INDIA, SURROGACY (REGULATIONS) ACT, 2021 AND ETC.

THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2024:KHC:5331 WP No. 906 of 2024

ORDER

The petitioners are before this Court, seeking the

following prayers:

"I. Issue Writ of Certiorari or any other writ or order or direction Quashing the impugned Notification Dated 14.03.2023 bearing No. GSR.179(E) issued by Respondent No.1 produced at ANNEXURE L as being ultra vires the constitution of India, Surrogacy (Regulations) Act, 2021.

II. Issue a Writ of mandamus or any other writ, order or direction, directing the respondent No.3 to rectify the surrogacy certificate Dated 06.07.2023 issued in favour of petitioners produced at ANNEXURE M bearing no. KCGH/surrogacy/3/2023/24 and allow them to go for surrogacy with donor eggs/Oocytes.

III. Issue such other order/directions/relief as this Hon'ble court may deem fit to grant in the circumstances of the case."

Heard Sri. Abhiraj B. Chengti, 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 Nos.2 and 3 and have perused the material on record.

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

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NC: 2024:KHC:5331 WP No. 906 of 2024

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.

(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 1403-2023.

(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:

5 -

NC: 2024:KHC:5331 WP No. 906 of 2024

” .....

The District Medical Board Examined the available medical reports on records of the intending couple (Husband / Wife) and hereby certify that the Mrs. XXXX and Mr. XXXX satisfy the provision as per rule 14(c), (d) of The Surrogacy (Regulation) rules, 2022. In view of intending mother 34 years with Married life is 12 years "History of multiple treatment failures - OI many times, IUI many times, 4 IVF + ICSI cycles failed in 2016, 2017, 2018, 2020, 5th cycle PGT testing of embryo at San Fransisco on 7-8-2020 8 embryo found to have 47 xx +16 and 9 embryo is complex abnormal. NK cell testing of endometrial tissue found to have CD 57 positive lymphoid cells hence she can undergo Altruistic surrogacy procedure as an advanced treatment for infertility with their own gametes as per recent surrogacy amendment act of 14th march 2023."

(emphasis added)

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

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

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.

For the aforesaid reasons, the following:

ORDER

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

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NC: 2024:KHC:5331 WP No. 906 of 2024

(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.

(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

7 -

NC: 2024:KHC:5331 WP No. 906 of 2024

Certificate, if the intending couple would fulfill all other conditions.

Sd/JUDGE

SJK CT:SNN

Issues for consideration

2 issues framed by the court

AI extract

1.
Whether the notification dated 14-03-2023 prohibiting donor gametes in surrogacy applies to the petitioners?
2.
Whether the petitioners are entitled to surrogacy using donor eggs/oocytes despite the notification?

Cases cited

Colour shows how this judgement treated each authority

AI extract

W.P.No.15824/2023Followed¶4

Statutes considered

3 provisions across 3 enactments

AI extract

Constitution of India226
Surrogacy (Regulations) Act, 2021Surrogacy (Regulations) Act, 2021
The Surrogacy (Regulation) Rules, 202214(c),(d)

Parties & counsel

AI extract

petitioner
SMT.XXXX W/O XXXX
petitioner
SRI.XXXX S/O XXXX
respondent
Union of India, through Ministry of Health and Family Welfare
respondent
The Karnataka State Appropriate Authority, ART and Surrogacy Act
respondent
The District Medical Board constituted under Surrogacy (Regulations) Act 2021, K.C. General Hospital

Coram

AI extract

M.Nagaprasanna

Case details

As recorded by the court registry

Court: Karnataka HC
Decided on: 8 Feb 2024 · February
Registered: 9 Jan 2024
Case no.: WP/906/2024
CNR: KAHC010002412024
Topic: Writ and Judicial Review
Bench: M.nagaprasanna
Disposal: DISPOSED

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Cite this judgement

Smt Xxxx v. Union of India, WP/906/2024 (KA), decided on 8 February 2024.

The High Court of Karnataka publishes no neutral citation for this judgement — cite it by case number and date of decision.

Cases cited1

W.P.No.15824/2023Followed¶4

Open Authorities

Statutes3

Constitution of India226
Surrogacy (Regulations) Act, 2021Surrogacy (Regulations) Act, 2021
The Surrogacy (Regulation) Rules, 202214(c),(d)

View all statutes

Bench / Coram

M.Nagaprasanna

Parties & counsel