THE HONOURABLE SRI JUSTICE E.V. VENUGOPAL WRIT PETITION No.10011 of 2025

ORDER

This writ petition is filed to issue appropriate writ, order or direction, more particularly, a Writ of Mandamus, declaring the action of the respondent No.6 in passing Order dated 07.02.2025 rejecting the petitioner’s Application dated 04.11.2024 for permission under the Surrogacy Regulation Act, 2021 including a Certificate of Essentiality and Eligibility Certificate under Section 4 of the said Act on the ground that the Petitioners are above the prescribed age under Section 4(iii)(c)(I) of the Act as illegal, arbitrary, unreasonable, unconstitutional and unsustainable and to consequently direct the respondent go grant the various permissions under Section 4 of the Surrogacy Regulation Act to the petitioners to undergo surrogacy procedures by relaxing the age restriction prescribed by Section 4(iii)(c)(I) of the Surrogacy Regulation Act and Section 21 (g) of the Assisted Reproductive Technology (Regulation) Act, 2021 and to pass such other or orders.

2. Heard Sri M.Prateek Reddy, learned counsel for the petitioners, Ms.L.Pranathi Reddy, learned counsel representing Sri Gadi Praveen Kumar, Deputy Solicitor General of India appearing for respondent No.1 and 2 and Ms.Swapna Madhuri, learned Assistant Government Pleader for Health, Medical and Family Welfare appearing for respondent Nos.3 to 6.

3. The brief facts leading to filing of this writ petition are that the petitioner No.1 was Lecturer and Principal of the Mahatma Jyotiba Phule College at Mukhed, Maharashtra, retired on 31.01.2022 upon superannuation at 58 years of age. Presently, he is aged about 62 years. Petitioner No.2 is his wife and she is Home Maker and aged about 52 years. The petitioners were blessed with one son on 13.08.1999 by name Manideep Kolli and he suffered drowning in a swimming pool in Kansas, United State of America and died on 29.06.2023. To overcome the trauma, the petitioners have made all possible efforts, but they could not overcome that trauma. Therefore, they filed an application on 04.11.2024 before the District Medical and Health Officer (DM&HO) requesting for the granting of approvals under Surrogacy Act. But the District Medical and Health Officer rejected the application of the petitioners dated 07.02.2025, stating that as per provisions of Section 4 of clause (iii)(c)(i) of Surrogacy Act, 2021, the intending couple is to be between 23 to 50 years in case of female and between 26 to 55 years in case of male on the day of certification. Challenging the said rejection order, the petitioners filed the present writ petition.

4. Learned counsel for the petitioners would contend that the petitioners are medically fit to undergo surrogacy, the petitioners are not too old at this age. The petitioners have taken recourse to fertility treatment at Anu Test Tube Baby Centre, Somajiguda and conceived a pregnancy of twins through the assisted reproductive technology process, but unfortunately petitioner No.2 suffered a miscarriage and lost the pregnancy in the year 1997. It is further submitted that in the year 2016 petitioner No.2 suffered from a medical issue and she had to undergo hysterectomy on 08.11.2016 though which, her uterus was surgically removed. Therefore, there is no way in which she can conceive a child by bearing the foetus in her womb. Therefore, he seeks permission of this Court to direct the respondents to grant the eligibility certificate, certificate of essentiality and permission to the petitioners without reference to the age restriction prescribed by Section 4(iii)(c) (I) of the Surrogacy (Regulation) Act, 2021 and Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021.

5. Learned counsel for the petitioners relied upon the judgment of the Hon’ble Supreme Court of Indian in Savitha Tejaswi v Union of India, 2024 Supreme (Online) (KAR) 28326 and would submit that the subject matter in this writ petition is similar to WP (Civil) No.75