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

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

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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. 973 OF 2024 (GM-RES)

BETWEEN:

SMT.XXXX W/O XXXX AGED ABOUT 46 YEARS.

SRI. XXXX S/O XXXX AGED ABOUT 53 YEARS.

BOTH 1 AND 2 ARE R/AT LORDS COURT VILLA 16, PAROLICKAL JUNCTION, PEROOR VILLAGE, ATHIRAMPUZHA, KOTTAYAM, KERALA - 686 562.

Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA

(BY SRI. ABHIRAJ B. CHENGTI, ADVOCATE) AND:

…PETITIONERS

UNION OF INDIA, THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEW DELHI - 110 011. (THROUGH ITS SECRETARY)

THE KARNATAKA STATE APPROPRIATE AUTHORITY ART AND SURROGACY ACT,

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DEPARTMENT OF HEALTH AND FAMILY WELFARE, AROGYA SOUDHA, BANGALORE, KARNATAKA - 560 023, (THROUGH ITS MEMBER SECRETARY).

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

…RESPONDENTS

(BY SMT. DEEPA J., CGC FOR R1; SMT. NAVYA SHEKHAR, AGA FOR R2 AND R3)

THIS WP IS FILED UNDER ARICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTIFICATION DATED:14.03.2023 BEARING NO.GSR.179(E) ISSUED BY R1 PRODUCED AT ANNEXURE-F 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:

ORDER

The petitioners are before this Court, seeking the following prayers:

"I. Issue Writ of Certiorari quashing the impugned Notification Dated 14.03.2023 bearing No. GSR.179(E) issued by Respondent No.1 produced at ANNEXURE F as

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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. 2 & 3 to rectify the surrogacy certificate Dated 09.05.2023 issued in favour of petitioners produced at ANNEXURE G and allow them to go for surrogacy with donor eggs/Oocytes.

III. Issue such other writ/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. Deepa J., 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 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.

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(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:

” .....

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 intended mother 45 years with "History of married life of 23 years with multiple ART failures - 4 to 5 cycles of OI, 68 cycles of IUI, 2 cycles of ICSI failures, one ICSI cycles conceived but had a missed abortion. 4th ICSI embryos frozen, endometrial preparation of ET was attempted multiple times but due to thin

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endometrium ET could not be done and embryos were discarded on later date. Hence it's an indication and 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.

(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.

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

Sd/JUDGE

SJK CT:SNN