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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2023 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.15824 OF 2023 (GM-RES)
C/W WRIT PETITION No.22462 OF 2023 (GM-RES) WRIT PETITION No.20476 OF 2023 (GM-RES) WRIT PETITION No.20492 OF 2023 (GM-RES) WRIT PETITION No.22468 OF 2023 (GM-RES) WRIT PETITION No.22470 OF 2023 (GM-RES) WRIT PETITION No.22511 OF 2023 (GM-RES) WRIT PETITION No.22515 OF 2023 (GM-RES) WRIT PETITION No.22530 OF 2023 (GM-RES) WRIT PETITION No.22533 OF 2023 (GM-RES) WRIT PETITION No.22536 OF 2023 (GM-RES) WRIT PETITION No.22624 OF 2023 (GM-RES) WRIT PETITION No.22631 OF 2023 (GM-RES)
IN WRIT PETITION No.15824 OF 2023 BETWEEN:
1 . SMT. XXXX WIFE OF XXXX AGED ABOUT 41 YEARS, 2 . SRI XXXX SON OF XXXX AGED ABOUT 44 YEARS, BOTH ARE R/AT NO. 73, 3RD MAIN
3RD CROSS, HEMAVATHI NAGAR HASSAN – 573 201.
KARNATAKA PRESENTLY RESIDING AT:
NO. 44, 2ND FLOOR, MICO LAYOUT
2ND MAIN ROAD, J.C.NAGAR WEST OF CHORD ROAD EXTENSION MAHALAKSHMIPURAM BENGALURU – 560 086.
... PETITIONERS (BY SRI GAUTAM S.BHARADWAJ, ADVOCATE A/W., SRI B.S.DATTATREYA, ADVOCATE AND SRI ANKITH JAIN, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI – 110 001.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA, BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY ... RESPONDENTS (BY SRI H.SHANTHI BHUSHAN, DSGI FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DT.14.03.2023 BEARING NO. GSR.179(E) ISSUED BY R1 (I.E. DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNX-A.
IN WRIT PETITION No.22462 OF 2023 BETWEEN:
1 . SMT. XXXX W/O XXXX AGED ABOUT 37 YEARS, 2 . SRI. XXXX S/O XXXX AGED ABOUT 38 YEARS, BOTH ARE R/AT NO.2083 PRESTIGE SANTINIKETAN APARTMENTS ITPL MAIN ROAD, WHITEFIELD BENGALURU – 560 048.
... PETITIONERS (BY SRI GAUTAM S. BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI – 110 001.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY ... RESPONDENTS (BY SRI M.N.KUMAR, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD 14.03.2023 BEARING NO.G.S.R.179(E), ISSUED BY R1 (I.E., DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A.
IN WRIT PETITION No.20476 OF 2023 BETWEEN:
1 . SMT. XXXX W/O XXXX, AGED ABOUT 32 YEARS, 2 . SRI XXXX S/O XXXX AGED ABOUT 39 YEARS BOTH ARE RESIDING AT NO. 1006 B10 BLOCK, SOUTH CITY, APARTMENTS AREKERE MICO LAYOUT BANNERGHATTA MAIN ROAD BENGALURU -560 076.
... PETITIONERS (BY SRI GAUTAM S. BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI – 110 001.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY ... RESPONDENTS (BY SMT. IRFANA NAZEER, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE NOTIFICATION DATED 14/03/2023 BEARING NO. G.S.R.179(E), ISSUED BY R1 (I.E. DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A.
IN WRIT PETITION No.20492 OF 2023 (GM-RES)
BETWEEN:
1 . SMT. XXXX W/O XXXX AGED ABOUT 37 YEARS, 2 . SRI XXXX S/O XXXX AGED ABOUT 39 YEARS BOTH ARE R/AT FLAT NO.235B RANKA COLONY, BILEKAHALLI BANNERGHATTA ROAD BENGALURU – 560 076.
... PETITIONERS (BY SRI GAUTAM S. BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI – 110 001.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY ... RESPONDENTS (BY SMT. IRFANA NAZEER, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE NOTIFICATION DATED 14/03/2023 BEARING NO. G.S.R.179(E), ISSUED BY R1 (I.E. DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, SURROGACY (REGULATIONS) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A.
IN WRIT PETITION No.22468 OF 2023 BETWEEN:
1 . SMT. XXXX W/O XXXX AGED BOUT 42 YEARS, 2 . SRI XXXX S/O XXXX AGED ABOUT 45 YEARS, BOTH ARE R/AT NO.36/1 GROUND FLOOR SUBRAMANYA TEMPLE STREET KUMARA PARK WEST BENGALURU – 560 020.
... PETITIONERS (BY SRI GAUTAM S. BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS (BY SRI M.N.KUMAR, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE NOTIFICATION DATED 14/03/2023 BEARING NO. G.S.R. 179(E) ISSUED BY R1 (I.E. DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A.
IN WRIT PETITION No.22470 OF 2023 BETWEEN:
1 . SMT. XXXX W/O XXXX AGED ABOUT 43 YEARS, 2 . SRI XXXX S/O XXXX AGED ABOUT 46 YEARS, BOTH ARE R/AT NO.B202 PURVA PARADISE
3RD MAIN ROAD, DOMLUR 1ST STAGE, BENGALURU – 560 071.
... PETITIONERS (BY SRI GAUTAM S. BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI – 110 001.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS (BY SRI M.N.KUMAR, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD 14.03.2023 BEARING NO.G.S.R.179(E), ISSUED BY R1 (I.E., DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A.
IN WRIT PETITION No.22511 OF 2023 BETWEEN:
1 . DR. XXXX W/O XXXX AGED ABOUT 43 YEARS, 2 . DR. XXXX S/O XXXX AGED ABOUT 52 YEARS, BOTH ARERESIDING AT NO. 2093, SRI RAMA KRISHNA SANTHE GATE M.B.ROAD, BANGARAPET KOLAR – 563 101.
... PETITIONERS (BY SRI GAUTAM S. BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI – 110 001.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA BENGALURU - 560 001.
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS (BY SRI M.N.KUMAR, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD 14.03.2023 BEARING NO.G.S.R.179(E), ISSUED BY R1 (I.E., DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A.
IN WRIT PETITION No.22515 OF 2023 BETWEEN:
1 . SMT.XXXX W/O XXXX AGED ABOUT 36 YEARS, 2 . SRI XXXX S/O XXXX AGED ABOUT 37 YEARS, BOHT ARE R/AT NO.405 INDUS SINGATURE ESHWARA LAYOUT, CITI NEST APPAREDDY LAYOUT BANGALORE NORTH INDIRANAGAR BENGALURU – 560 038.
... PETITIONERS (BY SRI GAUTAM S. BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI – 110 001.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS (BY SRI M.N.KUMAR, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE NOTIFICATION DATED 14/03/2023 BEARING NO. G.S.R. 179(E) ISSUED BY R1 (I.E. DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A.
IN WRIT PETITION No.22530 OF 2023 BETWEEN:
1 . SMT. XXXX W/O XXXX AGED ABOUT 38 YEARS, 2 . SRI XXXX S/O XXXX AGED ABOUT 38 YEARS BOTH ARE R/AT FLAT NO.A008 NATASHA GOLFVIEW APARTMENT DOMLUR, BENGALURU – 560 071.
ALSO AT NO.68A SURENDRANATH BANERJEE ROAD TATALA MOULALI, ENTALLY, KOLKATA – 700 014.
... PETITIONERS (BY SRI GAUTAM S. BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY ... RESPONDENTS (BY SRI M.N.KUMAR, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE NOTIFICATION DATED 14/03/2023 BEARING NO. G.S.R.179(E), ISSUED BY R1 (I.E. DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTIONS OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE -A.
IN WRIT PETITION No.22533 OF 2023 BETWEEN:
1 . SMT. XXXX W/O XXXX AGED ABOUT 40 YEARS, 2 . SRI. XXXX S/O XXXX AGED ABOUT 43 YEARS, BOTH ARE RESIDING AT:
BREN PALMS APARTMENTS KUDLU MAIN ROAD OPPOSITE SRI BHAGYA, VEG. KUDLU, BENGALURU – 560 068.
... PETITIONERS (BY SRI GAUTAM S. BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH IS SECRETARY NIRAM BHAWAN NEW DELHI – 110 001.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDA BENGALURU - 560 001.
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS (BY SRI M.N.KUMAR, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE NOTIFICATION DTD 14.03.2023 BEARING NO.G.S.R.173(E), ISSUED BY R1 (I.E., DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A.
IN WRIT PETITION No.22536 OF 2023 BETWEEN:
1 . SMT.XXXX W/O XXXX AGED ABOUT 34 YEARS, 2 . SRI XXXX S/O XXXX AGED ABOUT 39 YEARS, BOTH ARE R/AT NO.155-156 HIREMATH MATHAD ONI NEAR WATER TANK HIREHARAKUNI VILLAGE KUNDAGOL TALUK DHARWAD – 581 113.
... PETITIONERS (BY SRI GAUTAM S. BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE, THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA, BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS (BY SRI M.N.KUMAR, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE NOTIFICATION DATED 14/03/2023 BEARING NO. G.S.R. 179(E) ISSUED BY R1 (I.E. DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A.
IN WRIT PETITION No.22624 OF 2023 BETWEEN:
1 . SMT. XXXX W/O XXXX AGED ABOUT 38 YEARS, 2 . SRI XXXX S/O XXXX AGED ABOUT 42 YEARS, BOTH RESIDING AT FLAT NO. 111 BALAJI ENCLAVE, BEGUR KOPPA ROAD YELLANAHALLI BENGALURU – 560 068.
... PETITIONERS (BY SRI GAUTAM S.BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA BENGALURU - 560 001.
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS (BY SRI M.N.KUMAR, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE NOTIFICATION DATED 14/03/2023 BEARING NO. G.S.R. 179(E), ISSUED BY R1 (I.E. DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A.
IN WRIT PETITION No.22631 OF 2023 BETWEEN:
1 . SMT. XXXX W/O XXXX AGED ABOUT 43 YEARS, 2 . SRI XXXX AGED ABOUT 45 YEARS BOTH ARE RESIDING AT FLAT NO.103 MVS PARADISE OPPOSITE TO GREEN EARTH ATRIUM CHANNASANDRA, PARADISE ELMS PARK PRESTIGE MAYBERRY ROAD K.CHANNASANDRA BENGALURU – 560 067.
... PETITIONERS (BY SRI GAUTAM S.BHARADWAJ, ADVOCATE)
AND:
1 . UNION OF INDIA THROUGH MINISTRY OF HEALTH AND FAMILY WELFARE THROUGH ITS SECRETARY NIRMAN BHAWAN NEW DELHI.
2 . THE KARNATAKA STATE ASSISTED REPRODUCTIVE TECHNOLOGY AND SURROGACY BOARD DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KARNATAKA VIKASA SOUDHA BENGALURU – 560 001.
REPRESENTED BY ITS SECRETARY.
... RESPONDENTS (BY SRI M.N.KUMAR, CGC FOR R1;
SMT. NAVYA SHEKHAR, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASHING THE NOTIFICATION DATED 14/03/2023 BEARING NO. G.S.R. 179(E), ISSUED BY R1 (I.E. DEPARTMENT OF MINISTRY OF HEALTH AND FAMILY WELFARE) AS THE SAME IS ULTRA VIRES THE CONSTITUTION OF INDIA, THE SURROGACY (REGULATION) ACT, 2021 AND THE ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021. A COPY OF THE SAID NOTIFICATION IS PRODUCED HEREWITH AS ANNEXURE-A.
THESE WRIT PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08.11.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
“All love begins and ends with motherhood, by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood”.
- ROBERT BROWN.
Science or scientific development never ceases to surprise us; it always outmaneuvers us. We humans, therefore, should either change or become immaterial. Law is no exception. It is now the turn of law to appreciate, the variance in the concept of the divine duty, of motherhood metamorphosing, into split motherhood, albeit, in certain circumstances. The turn to appreciate this dichotomy forms the fulcrum .
of the issue in the lis and becomes the kernel of the conundrum
2. Conglomeration of these cases raise a common challenge.
The petitioners, in all these cases, seek to challenge the amendment brought about to the Surrogacy (Regulation) Rules, 2022, in terms of the notification dated 14-03-2023 issued by the Union of India, with particular challenge to the amendment to clause (1)(d) of Form No.2 of the Surrogacy Regulations. Therefore, they are considered together by this common order. I deem it appropriate to notice the facts petition by petition.
3. Shorn of unnecessary details, facts in brief, germane, are as follows:
W.P.No.15824 of 2023:
The petitioners are again husband and wife who get married in the year 2007. Being desirous of expanding their family, tired to conceive naturally, but have been unsuccessful for the last 16 years since the 1st petitioner is having bulky uterus with thick endometrium which hindered conceiving naturally. Therefore, are left with the only option surrogacy. Since, the notification prohibits it, they call in question the notification, as in the companion petitions.
W.P.No.22462 of 2023 This petition is taken up as the lead petition. The petitioners get married on 26-05-2014. The 1st petitioner desirous of motherhood tries to conceive a child naturally and has been unsuccessful for the last 9 years. It is the averment in the petition that several unsuccessful procedures between the years 2019 and 2021 using her own eggs and her husband’s sperm resulted in successful pregnancy, but suffered from early miscarriage and had to undergo 3 laparoscopic surgeries to her uterus. It is averred that despite considerable efforts, her uterus still harbors multiple uterine fibroids that intrude upon the uterine cavity. All efforts have been in vain, the risk of miscarriage looms large on every ensuing pregnancy is the medical opinion. Therefore, it is a case where the 1st petitioner cannot naturally conceive. Left with no choice the viable option left was surrogacy, but the impugned notification comes in the way of the intending couple, in as much as it prohibits using of a donor egg during surrogacy.
W.P.No.20476 of 2023:
The petitioners get married on 16-11-2016. Efforts of 7 years have led the couple nowhere for expansion of the family due to the 1st petitioner being a patient of “CKD” – Chronic Kidney Disease. Therefore, the grave medical condition has left the couple with no choice, but to opt for surrogacy. The option is taken away by the impugned notification.
W.P.No.20492 of 2023:
The petitioners are husband and wife having got married in the year 2018 and all the efforts of expansion of family have been in vain due to poor heart condition of the 1st petitioner. Therefore, the only method of becoming a mother was through surrogacy, which also is now rendered impossible due to the impugned notification. The impossibility is what has driven the petitioners to this Court.
W.P.No.22468 of 2023:
The petitioners are a couple who have got married on
12-10-2017 and have been unsuccessful for the last 6 years to expand the family on account of poor ovarian reserve and low quality of eggs. All methods medically available except surrogacy have been exhausted by the couple and therefore, they attempt at surrogacy. The attempt is blocked by the notification. The blocking of w
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