Allowed

V.Girija v. State of Tamilnadu

Madras HC14 Mar 2024WP/6411/2024

Case brief

AI extract

What is this about?

The High Court at Madras disposed of multiple writ petitions filed by couples seeking eligibility certificates for surrogacy using donor eggs. Relying on a Supreme Court interim order, the court held that the amended Form 2 prohibiting donor gametes is inconsistent with medical indications for surrogacy where the woman lacks a uterus. Petitioners were allowed to proceed with surrogacy via donor eg

What did the court decide?

Petitioners allowed; authorities directed to proceed with applications for Eligibility Certificates for surrogacy utilizing donor eggs.

V.Girija Vs State of Tamilnadu — Pension and Retirement Benefits | Madras HC (2024)

¶1

2024:MHC:1287

¶2

W.P.No.6411 of 2024 etc

¶3

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶4

DATED: 14.03.2024

¶5

CORAM :

¶6

THE HONOURABLE DR.JUSTICE ANITA SUMANTH

¶7

W.P.Nos.6411, 6456, 6475, 6461, 6467 & 6468 of 2024 & 6433, 6439, 6442, 6446, 6449 & 6436 of 2024 and WMP.Nos.7187, 7192, 7120, 7174, 7182 & 7184 of 2024 & 7169, 7153, 7164, 7155, 7160 & 7161 of 2024

¶8

W.P.No.6411 of 2024

¶9

1.V.Girija 2.Valluru Srinivasulu .. Petitioners

¶10

¶11

1.State of Tamil Nadu Rep. by its Principal Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai.

¶12

2.The Director, Directorate of Medical and Rural Health Service, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006.

¶13

3.The Joint Director of Health Service/ District Medical Board, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006. .. Respondents

¶14

https://www.mhc.tn.gov.in/judis

¶15

1/10

¶16

W.P.No.6411 of 2024 etc

¶17

Prayer in W.P.No.6411 of 2024: Petition filed under Article 226 of the

¶18

Constitution of India praying to issue a writ of Mandamus directing the 2^nd and 3^rd respondents to consider the petitioners representation dated 11.10.2023 under the Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021 and consequently issue eligibility certificate to the petitioners to undergo surrogacy procedure by utilizing the donor egg to the proposed surrogate mother and the 2^nd petitioner's sperm.

¶19

For Petitioners : Ms.Reshmi Christy (in all writ petitions) For Respondents : Mr.K.Tippu Sultan Government Advocate (for official respondents in all writ petitions)

¶20

COMMON ORDER

¶21

W.M.P.Nos.7187, 7192, 7120, 7174, 7182, 7184, 7169, 7153,

¶22

7164, 7155, 7160 and 7161 of 2024, filed seeking permission to file a single writ petition are ordered on payment of separate court fee, if not already paid.

¶23

2.These writ petitions have been filed by 12 couples seeking a mandamus directing the second respondent, being the Director,

¶24

https://www.mhc.tn.gov.in/judis

¶25

2/10

¶26

W.P.No.6411 of 2024 etc

¶27

Directorate of Medical and Rural Health Services and the third respondent being the Joint Director of Health Service / District Medical Board to consider their representations under Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021 ('Act') and issue eligibility certificates to them to undergo the procedure of surrogacy utilizing the second petitioner's sperm and a donor egg from the proposed surrogate mother.

¶28

3.The Act provides for constitution of Boards at the National and State level as well as other authorities to regulate the practice and process of surrogacy. The procedure relating to surrogacy is set out in various rules and regulations, including in the Surrogacy (Regulation) Rules, 2022 (Rules). The Rules, provide, inter alia at Rule 14, that a woman may opt for surrogacy in certain specified medical conditions. Rule 14 reads as follows:-

¶29

"14. Medical indications necessitating gestational

¶30

surrogacy

¶31

A woman may opt for surrogacy, if-

¶32

(a) she has no uterus or missing uterus or abnormal uterus (like hypoplastic uterus or intrauterine adhesions or thin endometrium or small uni-cornuate uterus, T-shaptd uterus) or if the uterus is surgically removed due to any medical conditions such as gynaecological cancer; (b) intended parent or woman who has repeatedly failed to conceive after multiple In vitro

¶33

https://www.mhc.tn.gov.in/judis

¶34

3/10

¶35

W.P.No.6411 of 2024 etc

¶36

fertilization or Intracytoplasmic sperm injection attempts, (Recurrent implantation failure);

¶37

(c) multiple pregnancy losses resulting from an unexplained medical reason, unexplained graft rejection due to exaggerated immune response;

¶38

(d) any illness that makes it impossible for woman to carry a pregnancy to viability or pregnancy that is life threatening."

¶39

4.The form of consent in Form 2 is relatable to Rule 7. Rule 7

¶40

deals with consent of a surrogate mother. Form 2 is the form of consent of the surrogate mother and the agreement for surrogacy. It contains inter

¶41

alia various methods of treatment that may be adopted as follows:-

¶42

(a) stimulation of the genetic mother for follicular

¶43

recruitment;

¶44

(b) the recovery of one or more oocytes from the genetic mother by ultrasound-guided oocyte recovery or by laparoscopy;

¶45

(c) the fertilization of the oocytes from the genetic mother with the sperm of her husband;

¶46

(d) the fertilization of a donor oocyte by the sperm of the husband;

¶47

(e) the maintenance and storage by cryopreservation of the embryo resulting from such fertilization until, in the view of the medical and scientific staff, it is ready for transfer;

¶48

(f) implantation of the embryo obtained through any of the above possibilities into my uterus, after the necessary treatment if any.

¶49

(emphasis provided)

¶50

5.Vide Notification dated 14.03.2023, an amendment was

¶51

proposed to the Form and existing paragraph 1(d), highlighted in bold

¶52

https://www.mhc.tn.gov.in/judis

¶53

4/10

¶54

W.P.No.6411 of 2024 etc

¶55

above, was substituted as follows:-

¶56

"G.S.R.179(E).- In exercise of the powers conferred by section 50 of the Surrogacy (Regulation) Act, 2021 (47 of 2021), the Central Government hereby makes the following rules, further to amend the Surrogacy (Regulation) Rules, 2022.

¶57

1(d) (I) Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed;

¶58

(II) Single woman (widow / divorcee) undergoing Surrogacy must use self eggs and donor sperms to avail surrogacy procedure."

¶59

6.This would lead to a situation where Rule 14 would be rendered

¶60

otiose as it adumbrates several medical conditions where the mother is

¶61

unable to conceive. When this anomaly was brought to the attention of the Hon'ble Supreme Court, an interim order was passed on 18.10.2023 in W.P.(C) No. 830 of 2023 staying the operation of newly substituted

¶62

Rule 1(d). The order, reads as follows:-

¶63

“We find substance in the arguments of the learned counsel for the petitioner inasmuch as Rule 14 which is extracted above clearly refers to the wife as not being able to achieve parenthood owing to the “disability” on account of the absence of a uterus or repeatedly failed pregnancies, multiple pregnancies or an illness which makes it impossible for a woman to carry a pregnancy to term or would make the pregnancy lifethreatening. The justification for necessitating

¶64

https://www.mhc.tn.gov.in/judis

¶65

5/10

¶66

W.P.No.6411 of 2024 etc

¶67

gestational surrogacy in Rule 14 is all related to the intending woman or the wife and does not refer to the man/husband at all. The said provision is womancentric and relates 8 to the medical or congenital condition of a woman, which impedes her from becoming a mother.

¶68

Therefore, the whole scheme of the Act revolves around the “inability” of the woman to conceive and to give birth to a child and the medical indication necessitating gestational surrogacy in Rule 14 explains the various circumstances which incapacitate or disable women from having a normal pregnancy and having a child.

¶69

We have closely perused the original Paragraph 1 (d) 5 in Form 2 and the substituted Paragraph 1(d). A reading of Paragraph 1 of Form 2 clearly indicates several procedures contemplated prior to the implantation of the embryo obtained through any of the procedures or possibilities into the uterus, after the necessary treatment if any of the surrogate mother. However, the substituted Paragraph 1(d) is in the nature of a mandate prohibiting or permitting the use of gametes of the intending couple or the single woman, as the case may be, and does not relate to fertilisation or other procedures contemplated therein. In other words, the fertilisation of a donor oocyte by the sperm of the husband is deleted. This in our view is contrary to what is contemplated under Rule 14(a) of the Surrogacy Rules. Moreover, the form as well as the substance of the amendment of Paragraph 1 (d) is not in tune with the form and substance of the pre-existing Paragraph 1 (a)-(f) of the Form 2. When Rule 14(a) specifically recognises the absence of a uterus or any allied condition as a medical indication necessitating

¶70

https://www.mhc.tn.gov.in/judis

¶71

6/10

¶72

W.P.No.6411 of 2024 etc

¶73

gestational surrogacy, the consent of the surrogate mother and the agreement for surrogacy in Form 2 appended to Rule 7 cannot mandate a condition contrary to Rule 14(a).

¶74

In circumstances stated in Rule 14(a) for instance, the intending couple would necessarily have to have a surrogate child through donor’s oocytes because in 6 such a condition, it is not possible for the woman to produce oocytes. Otherwise Rule 14 which has to be read as part of Section 2(r) cannot be given effect at all, even having regard to the scheme of the Act which permits surrogacy subject to certain conditions being complied with.

¶75

In this regard, it may be noted that the expression “genetically” related to the intending couple has to be read as being related to the husband when Rule 14(a) applies. Similarly, the expression “genetically” related to the intending woman would refer only to the intending woman who is an Indian woman who is a widow or divorcee which is in consonance with Paragraph d(ii) of the amendment, between the age of 35 to 45 years and intending to avail surrogacy. When an intending woman avails of surrogacy naturally, she would have to use her own oocytes or eggs and donor’s sperm. Conversely, when the woman in the intending couple is unable to produce oocytes or eggs, then donor oocytes or eggs have to be made use of.

¶76

Secondly, the petitioner herein had commenced the procedure for achieving parenthood through surrogacy much prior to the amendment which has come into effect from 14.03.2023. Therefore, the amendment which is now coming in the way of the intending couple

¶77

https://www.mhc.tn.gov.in/judis

¶78

7/10

¶79

W.P.No.6411 of 2024 etc

¶80

and preventing them from achieving parenthood through surrogacy, we find, is, prima facie contrary to what 7 is intended under the main provisions of the Surrogacy Act both in form as well as in substance.

¶81

In the said circumstances, the amendment i.e., Paragraph 1(d) in Form 2 which is the Consent of the Surrogate Mother and Agreement for Surrogacy read with Rule 7 of the Surrogacy Rules made under the Surrogacy Act is stayed insofar as the petitioner herein Mrs. ABC is concerned.

¶82

It is needless to observe that if the petitioner Mrs. ABC otherwise fulfils all other conditions mentioned under the Act, she is entitled to proceed with the process of surrogacy.”

¶83

7.Following the above order, several interlocutory applications

¶84

have been allowed on 05.12.2023 and 09.01.2024 wherein the

¶85

amendment, i.e., Paragraph 1(d) (i) in Form ‘2’, which is the consent of the surrogate mother and agreement for surrogacy read with Rule 7 of the Surrogacy (Regulation) Act, 2021, has been stayed. The applicant is thus entitled to proceed with the process of surrogacy if she fulfills all other statutory conditions.

¶86

8.In light of the above, the petitioners / intending couples may appear before the authorities on 21.03.2024 or 28.03.2024 or 04.04.2024, for requisite medical tests and their applications shall be processed and

¶87

https://www.mhc.tn.gov.in/judis

¶88

8/10

¶89

W.P.No.6411 of 2024 etc

¶90

ordered expeditiously.

¶91

9.These writ petitions stand allowed in terms of this order. No

¶92

costs.

¶93

14.03.2024

¶94

Index:Yes/No Speaking order Neutral Citation:Yes vs

¶95

Note to Registry: Upload on 14.03.2024.

¶96

¶97

1.The Principal Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai.

¶98

2.The Director, Directorate of Medical and Rural Health Service, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006.

¶99

3.The Joint Director of Health Service/ District Medical Board, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006.

¶100

https://www.mhc.tn.gov.in/judis

¶101

9/10

¶102

W.P.No.6411 of 2024 etc

¶103

DR. ANITA SUMANTH,J.

¶104

¶105

W.P.Nos.6411, 6456, 6475, 6461, 6467 & 6468 of 2024 & 6433, 6439, 6442, 6446, 6449 & 6436 of 2024

¶106

14.03.2024

¶107

https://www.mhc.tn.gov.in/judis

¶108

10/10

V.Girija v. State of Tamilnadu

Case brief

What is this about?

What did the court decide?

V.Girija v. State of Tamilnadu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Coram

Case details

Similar cases

Century Flour Mills Private Limited Vs the Tamilnadu Generation and

Tamilselvi Vs the Registrar of Birth and Death

Arunn.K.R. Vs the District Collector

Dr.Vishnupriya Vs the State of Tamil Nadu

New Bharathavel Sago Factory Vs Commissioner of Food Safety

Rajendran Vs Deputy General Manager (Rs)