ORDER
The petitioners are before this Court seeking the following prayer:
"i. Declare that the Notification bearing No.G.S.R.179(E) dated 14.03.2023 (Annexure-F) issued by Respondent No.1 is
inapplicable to the case of the Petitioners;
ii. Declare that the Petitioners are entitled to surrogacy without the authorities insisting or directing that donor gametes cannot be made use of by the Petitioners;
iii. Set aside Surrogacy Certificate for Medical Indication bearing No.KCGH/Surrogacy/29/2023-24 dated 12.05.2023 (Annexure-E) issued by the District Medical Board (i.e., Respondent No.3) insofar as it requires the Petitioner No.1 to undergo altruistic surrogacy procedure 'with their own gametes', and direct the Respondent No.3 to issue a revised Surrogacy Certificate for Medical Indication permitting the Petitioners to have a child through a surrogate using donor gamete;
iv. Grant such other order(s) as this Hon'ble Court deems fit under the facts and circumstances of the case, in the interests of justice.
2. Heard Sri. Vikram Unni Rajagopal, 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 No.2 and have perused the material on record.
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3. 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.
(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 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
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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. Xxxxx and Mr. Xxxxx satisfy the provision as per rule 14(c), (d) of The Surrogacy (Regulation) rules, 2022. In view of intending mother 46 years with "History of secondary infertility since 18 years, with previous history of 6 spontaneous pregnancy losses in which one pregnancy with pre eclampsia at 24 weeks with IUFD, later she had secondary infertility. In 2022 she was diagnosed with diffuse adenoysis with multiple fibroid for which she underwent total abdominal hysterectomy with Bilateral salpingectomy as per the reports, 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.
4. 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.
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5. 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.
(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
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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.
I.A.No.1/2024 is rendered unnecessary for the aforesaid reasons.
Sd/-
JUDGE
SJK
List No.: 3 Sl No.: 20
CT:SNN