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Xyz and Others Versus The Union of India and Others Lnind 2024 Bom 121

The document pertains to a legal case in the High Court of Bombay regarding a writ petition filed by a couple seeking to challenge certain rules under the Surrogacy (Regulation) Act, 2021 that prohibit the use of donor gametes for surrogacy. The petitioners argue that these rules are unconstitutional and impede their right to parenthood due to the wife's medical condition, which prevents her from carrying a pregnancy. The court acknowledges the couple's situation and references a related Supreme Court case that has raised similar concerns about the legality of the impugned rules.

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0% found this document useful (0 votes)
11 views18 pages

Xyz and Others Versus The Union of India and Others Lnind 2024 Bom 121

The document pertains to a legal case in the High Court of Bombay regarding a writ petition filed by a couple seeking to challenge certain rules under the Surrogacy (Regulation) Act, 2021 that prohibit the use of donor gametes for surrogacy. The petitioners argue that these rules are unconstitutional and impede their right to parenthood due to the wife's medical condition, which prevents her from carrying a pregnancy. The court acknowledges the couple's situation and references a related Supreme Court case that has raised similar concerns about the legality of the impugned rules.

Uploaded by

Harjas Gulati
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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You are on page 1/ 18

907-WP-10108-2023.

ODT
2024:BHC-OS:2255-DB

Ashvini Narwade

IN THE HIGH COURT OF JUDICATURE AT BOMBAY


CIVIL APPELLATE JURISDITION

WRIT PETITION NO. 10108 OF 2023

1. XYZ
2. ABC … Petitioners
Versus
1. The Union of India
through its Ministry of Health & Family
Welfare, Department of Health Research

2. The State of Maharashtra


through the Public Health Department

3. National Assisted Reproductive Technology


and Surrogacy Board, through the Department of
Health Research.

4. State Assisted Reproductive Technology


and Surrogacy Board, through Public Health Dept.

5. The Appropriate Authority


through the Assistant Health Officer,
Health Department of Pune. …Respondents

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO. 22674 OF 2023

1. XYZ
2. ABC … Petitioners
Versus
1 The Union of India
through its Ministry of Health & Family
Welfare, Department of Health Research

2 The State of Maharashtra


through the Public Health Department.

3 National Assisted Reproductive Technology

Page 1 of 18
9 February, 2024
907-WP-10108-2023.ODT

and Surrogacy Board, through the Department of


Health Research.

4 State Assisted Reproductive Technology


and Surrogacy Board, through Public Health Dept.

5 The Appropriate Authority


through the Assistant Health Officer,
Health Department of Pune. …Respondents

Mr. Tejesh Dande with Mr. Vishal Navale, Mr. Bharat Gadhavi, Ms. Trusha
Shah, Mr. Vikrant Khare,Mr. Pratik Sabrad, Mr. Chinmay Deshpande, Mr.
Sarvesh Deshpande & Ms. Janaki Patil i/b. Tejesh Dande & Associates, for
the Petitioners.
Mr. Y. R. Mishra with Ms. Anusha P. Amin, for Respondent No.1-UOI.
Mrs. Jyoti Chavan a/w. Mr. Sachin H. Kankal. AGP for Respondent No.2
in WP/10108/2023.
Mrs. Jyoti Chavan, Addl. G. P. for State in WPL/22674/2023
Mr. Rishikesh M. Pethe for Respondents in WPL/22674/2023.
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 9 February, 2024
_______________________

Judgment : (Per G. S. Kulkarni):-

Writ Petition No. 10108 OF 2023

1. Rule. Returnable forthwith. Respondents waives service. By consent of

the parties, heard finally.

2. The Petitioners, who are husband and wife got married on 29 th April

2013. The Petitioners contend that they could not achieve parenthood due to

serious medical issues suffered by the wife. Between the period of 2011 to

2023, the wife underwent surgeries. Confronted with several ailments arising

from genetic abnormalities, the petitioners were advised that it would not be

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907-WP-10108-2023.ODT

possible for the wife to bear a child in the natural course and the only option

for them, was to have a child by surrogacy.

3. When the Petitioners intended to take recourse to the procedure of

surrogacy under the provisions of the Surrogacy (Regulation) Act, 2021 ( for

short “the Surrogacy Act”) and under the Rules framed thereunder, they were

confronted with what was prescribed by the impugned notification dated 14 th

March 2023, issued by the Government of India, Ministry & Family Welfare.

By such notification issued in exercise of powers conferred under Section 50 of

the Surrogacy Act, the Central Government framed the following Rules to

amend the Surrogacy (Regulation) Rules 2022 as contained in Form-2 under

Rule 7, whereby amending existing para 1(d) (I), a new stipulation as

contained in Rule 1(d)(I) & (II) came to be prescribed. The said notification

prescribing the amending Rules reads thus:

“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, namely :-

1. (1) These rules may be called the Surrogacy (Regulation)


Amendment Rules, 2023.

(2) They shall come into force on the date of their publication in
Official Gazette.

2. In Form 2 under rule 7 of the Surrogacy (Regulation) Rules,


2022, the existing Para 1(d) stands omitted and shall be substituted as
under:

1.(d)(I) Couple undergoing Surrogacy must have both gamete


from the intending couple & donor gametes is not allowed.

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907-WP-10108-2023.ODT

(II) Single woman (widow/divorcee) undergoing surrogac y


must use self-eggs and donor sperms to avail surrogacy
procedure.”
(emphasis supplied)

The impugned rules in paragraph 1(d)(I) hence prohibit donor gametes. The

petitioners are aggrieved by such condition as imposed by the impugned rules.

4. The petitioners contend that prescribing of such condition in the Rules

is illegal inasmuch as such condition would be violative of and/or in-congruent

to the provisions of the Surrogacy Act. According to the Petitioners, imposing

of such condition would in fact defeat the entire purpose, for which, the

petitioners would intend parenthood by surrogacy. They contend that it

cannot be the intention of the legislation to achieve surrogacy inter alia by

using genetically defective gametes or for other several medical reasons, when

it is not possible for the couple to use their gametes and in such circumstances,

it is impossible nay improbable that such conditions be imposed on the

petitioners, when to have a child by surrogacy is the only option available to

the couple. The petitioners have set out various grounds of assail to the rules,

as stipulated by the impugned notification, to contend that such conditions, as

incorporated by the impugned notification, apart from being contrary to the

provisions of the Surrogacy Act are arbitrary, illogical as also violative of

Articles 14 and 21 of the Constitution of India.

5. Mr. Dande, learned Counsel for the Petitioner has taken us though the

memo of the Petition to show the bona fides of the petitioner to the effect that
Page 4 of 18
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907-WP-10108-2023.ODT

the medical condition of the wife, has been declared by the experts, to be such

that there is no alternative for the Petitioners but to have a child, by the

procedure of surrogacy. It is submitted that the challenge to the impugned rules

stipulated by the notification dated 14 March 2023 are subject matter of assail

and consideration before the Supreme Court in the proceedings of Writ

Petition(Civil) No. 756 of 2022 (Arun Muthuvel Vs. Union of India) and

other proceedings. Our attention is drawn to a detailed interim order dated

18th October 2023 passed by the Supreme Court whereby considering the

scheme of the Surrogacy Act and the impugned rules, the Supreme Court has

observed that prima facie the amendment which was brought into force by the

impugned notification dated 14 March 2023, was contrary to what was

intended by the provisions of the Surrogacy Act both in form as well as in

substance. It was observed that such amendment was impeding the intending

couples and preventing them to have a child through surrogacy. The Supreme

Court accordingly stayed para 1(d) in Form 2 being the Consent of the

Surrogate Mother and Agreement for surrogacy read with Rule 7 of the

Surrogacy Rules made under the Surrogacy Act, in so far as the Petitioners

before the Supreme Court were concerned, and subject to the Petitioners

fulfilling all other conditions as prescribed under the Surrogacy Act, they were

permitted to proceed with the process of surrogacy.

Page 5 of 18
9 February, 2024
907-WP-10108-2023.ODT

6. On behalf of the petitioner, it is submitted that the case of the

Petitioners in the present proceedings is not different, considering the clear

mandate of what has been observed by the Supreme Court, the petitioners also

need to be granted such protection, so that they can proceed to undertake

surrogacy procedure by not being impeded, with the condition as prescribed in

para 1(d) in Form-2, as set out in the impugned rules dated 14 th March 2023.

7. Our attention has also been drawn to a decision of the learned Single

Judge of the Karnataka High Court in the case of Smt. XXX Vs. Union of India

& Anr. deciding a batch of petitions, to contend that in similar circumstances

noting the facts in each of the cases and considering the Orders passed by the

Supreme Court as also the impugned rules dated 14 March 2023, the learned

Single Judge had partly allowed the Writ Petitions holding that the Petitioners

were entitled to opt for surrogacy in similar terms as directed by the Supreme

Court in its orders in Arun Muthuvel case (supra).

8. It is thus submitted that considering the wife’s medical condition as seen

from the Medical Reports placed on the record of the present proceedings, it

would amount to denial of the Petitioners of their legal right to achieve

parenthood, if the conditions as contained in the impugned notification are

made applicable. It is thus submitted that the reliefs be granted to the

petitioners keeping open the challenge to the impugned rules dated 14 March

Page 6 of 18
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907-WP-10108-2023.ODT

2023 which the petitioner would not press at this stage, being subject matter of

consideration before the Supreme Court.

9. On the other hand Ms. Chavan, learned Assistant Government Pleader

would not dispute as to what is clearly the consequence of the observations of

the Supreme Court in the case of Arun Muthuvel (supra), as also as to what

has been held by the Karnataka High Court. She submits that under the

provisions of Section 12 of the Surrogacy Act, the State of Maharashtra has

constituted a board by notification dated 14 March 2023 to look into such

issues. She submits that it would have been appropriate for the petitioners to

approach the said board whose function would be to assist surrogacy in terms

of the Assisted Reproductive Technology Regulation Act, 2021 and the

provisions of the Surrogacy Act. The notification to that effect which is dated

5th October 2023 is placed on record.

10. A reply affidavit is filed by Respondent No. 1 justifying the legality of

the impugned rules, however, the contents of the affidavit are completely

contrary to what has been observed by the Supreme Court in Arun Muthuvel’s

case (supra).

11. We have heard learned counsel for the parties. We have also perused the

record. At the outset, we may observe that petitioner no. 1-wife has been

diagnosed to be a known case of Von Hippel-Lindau Syndrome (VHL).

Learned counsel for the petitioner has contended that her medical record
Page 7 of 18
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907-WP-10108-2023.ODT

indicates that there is a “genetic disorder”, as the mother and younger brother

of the wife have lost vision in the Left Eye. She was operated on the

complications which have arisen from the illness on more than one occasion.

The medical condition of the wife has also been described in paragraph 9 and

10 of the Petition. The medical documents are annexed at Exhibit-C of the

Petition. The wife’s medical condition is described to be a rare medical

condition which is a genetic abnormality having a high possibility of passing on

the rare medical condition to the fetus, if the wife is to carry pregnancy. It is

stated in the Petition that the several family members of the wife are having

similar genetic issues. The details of which are set out in paragraph 11 of the

Petition and for such reason, the Petitioners were advised to go for surrogacy to

achieve parent hood. The IVF experts also opined that the oocytes of the wife

would lead to the genetics defects to be passed on the child. It was also advised

that even in normal cases, if a woman crosses the age of 35, the doctors do not

prefer the mother’s oocytes for fertilization. It is in these circumstances, the

petitioners had no alternative but to opt for surrogacy.

12. In the above circumstances, in our opinion, it is imperative for the

petitioners to proceed to achieve parenthood by surrogacy, however, in doing

so, the petitioners cannot be foisted with the compliance of the impugned

rules, namely, Rule 1(d)(I), as set out in the notification dated 14 March, 2023,

the reasons we would discuss hereafter. Also, the petitioners case would fall

Page 8 of 18
9 February, 2024
907-WP-10108-2023.ODT

within the parameters of what fell for consideration before the Supreme Court

in Arun Muthuvel (supra), and the circumstances in which the Supreme Court

directed that the rules as stipulated in the notification dated 14 March 2023,

insofar as they prescribe the impugned conditions in Form 2, be not made

applicable.

13. It is well settled that the reproductive health is a facet of personal liberty

under Article 21 of the Constitution of India. However, when such right is

required to be exercised by taking recourse to the procedure of Surrogacy, the

Parliament has regulated the same by enactment of the Surrogacy Act. The

Surrogacy Act makes provisions to regulate surrogacy clinics inter alia by

prescribing strict conditions in regard to surrogacy clinics and the surrogacy

procedures. It also makes provisions for prohibition of conducting surrogacy, as

also makes a provision for “written informed consent of surrogate mother”;

provision for prohibition to abandon child born through surrogacy, rights of

surrogate child, number of oocytes or human embryos to be implanted,

prohibition of abortion and several other aspects in relation to surrogacy. There

are rules which are framed under the Act being “The Surrogacy (Regulation)

Rules, 2022” under which Rule 7 provides for ‘consent of a surrogate mother’

and ordains that the consent of a surrogate mother shall be as specified in Form

2. It is under Rule 7, Form 2 has been amended under the impugned

notification dated 14 March 2023, prescribing the conditions as noted above.

Page 9 of 18
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907-WP-10108-2023.ODT

Rule 14 provides for medical indications necessitating gestational surrogacy.

Rule 7 and Rule 14 of 2022 Rules reads thus:

“7. Consent of a surrogate mother. - The consent of a surrogate mother shall


be as specified in Form 2.

14. Medical indications necessitating gestational surrogacy. - A woman may


opt for surrogacy if;

(a) she has no uterus or missing uterus or abnormal uterus (like hypoplastic
uterus or intrauterine adhesions or thin endometrium or small unicornuate
uterus, T-shaped 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 fertilization or Intracytoplasmic sperm injection attempts.
(Recurrent implantation failure);

(c) multiple pregnancy losses resulting from an unexplained medical reason.


unexplained graft rejection due to exaggerated immune response;

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

14. Thus, the statutory scheme under the Surrogacy Act read with the Rules

prescribe a complete code on all matters governing surrogacy. It is clear that

the intention of the legislation is to regulate surrogacy as also seen from the

Statement of object and reasons leading to the enactment of the Surrogacy Act,

which is to weed out incidents of unethical practices, exploitation of surrogate

mother, abandonment of children born out of surrogacy and import of human

embryos and gametes, which had led to widespread condemnation of

commercial surrogacy in India.

15. It may however observed that in the present proceedings what falls for

consideration is something which lies within the domain of the Surrogacy Act,

Page 10 of 18
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907-WP-10108-2023.ODT

namely, as to whether the petitioners could be foisted with condition in

paragraph 1(d)(I) as contained in the impugned rules dated 14 March, 2023.

This more particularly, considering the observations of the Supreme Court in

Arun Muthuvel (supra), when the medical condition of the wife does not

support parenthood to be achieved by the couple by surrogacy by utilizing the

wife’s gamete.

16. In Arun Muthuvel (supra) considering the contentions of the petitioners

that the substitution of para 1(d)(I) in Form 2 would impede the process of

surrogacy intended by the Petitioners, the Supreme Court observed that the

justification for necessitating gestational surrogacy in Rule 14 was all related to

the intending women or the wife, which does not refer to the man/husband at

all. It was observed that such provision was woman-centric and related to the

medical or congenital condition of women which impedes her from become a

mother. It was observed that the whole scheme of the Surrogacy Act revolved

around the inability of the women to conceive and to give birth to a child and

the medical intention necessitating gestational surrogacy in Rule 14, explained

the various circumstances, which incapacitate or disable women from having a

normal pregnancy and having child. The Supreme Court in these

circumstances illustratively referring to Rule 14(a) observed that the intending

couple would necessarily have to have a surrogate child through donor’s

oocytes because in such a condition, it is not possible for the woman to

Page 11 of 18
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907-WP-10108-2023.ODT

produce oocytes. Otherwise Rule 14 which has to be read as part of Section

2(r), [which defines “intending couple” means ‘ a couple who have a medical

indication necessitating gestational surrogacy and who intend to become

parents through surrogacy’], cannot be given effect at all, even having regard to

the scheme of the Surrogacy Act, which permits surrogacy subject to certain

conditions being complied. It was further observed that when an intending

woman avails of surrogacy, naturally she would have to use her own oocytes or

eggs and donor’s sperm and conversely, when the woman in the intending

couple is unable to produce oocytes or eggs, then donor oocytes or eggs are

necessarily required to be made use of. It is in such context, the Court

permitted that the impugned conditions as set out in the Notification dated 14

March, 2023 were required to be stayed, insofar as the petitioners before the

Court were concerned. The relevant observations as made in this behalf in such

context are required to be noted which read thus:-

“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 life-
threatening. The justification for necessitating 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 woman-centric and
relates to the medical or congenital condition of a woman, which impedes
her from becoming a mother.
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.
We have closely perused the original Paragraph 1 (d) in Form 2 and
the substituted Paragraph 1(d). A reading of Paragraph 1 of Form 2 clearly
Page 12 of 18
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907-WP-10108-2023.ODT

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

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.

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.”

Page 13 of 18
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907-WP-10108-2023.ODT

17. It would also be necessary to refer to the observations of the learned

Single Judge of the Karnataka High Court and more particularly on the

perception of the Ministry of Health and Family Welfare, Government of India

in the context of the impugned notification dated 14 th March 2023. The

relevant observations in that regard are in the paragraph 19 of the said decision,

which reads thus:-

“ 19. If the medical conditions quoted of all the 1st petitioners in


these cases are considered on the bedrock of the provisions quoted
hereinabove, it would clearly indicate that they are entitled to opt for
gestational surrogacy. The Act permits; the Rules permit; the Form
appended to the Rules takes away the right of intending couple. In the
light of the impugned amendment generating certain obfuscation,
clarifications in the nature of instructions regarding non-genetic relation to
the surrogate mother was sought for and a communication from the
Ministry of Health and Family Welfare to all the States and Union
Territories steered clear such obfuscation. After considering the issues that
were necessary to be resolved the communication insofar as the present
petition is concerned reads as follows:

“Accordingly, it is reiterated that any willing woman can act as


surrogate mother on fulfillment of above conditions and
hence it is not mandatory that the surrogate mother is
genetically related to the Intending Couple or Intending
Woman (as defined in the Surrogay (Regulation) Act, 2021).”

Thus, even according to the Ministry of Health and Family Welfare of the
Government of India, it is not mandatory for the surrogate mother to be
related to the intending couple. It stands to reason as, if, the intending
couple have a medical condition that becomes impossible for the woman to
conceive for a child, opting for surrogacy by a gamete which is not of the
woman naturally would not be genetically related to the intending couple.
To a pointed query to the battery of counsels representing the Union of
India lead by the Deputy Solicitor General as to the rationale behind the
amendment, no convincing answer has come about, nor is in print in the
statement of objections. Therefore, in the considered view of the Court,
though this Court finds the amendment blatantly contrary to law, is not
answering the challenge, as the challenge is pending before the Apex Court.
Therefore, I deem it appropriate not to annihilate the same.”

(emphasis supplied)

Page 14 of 18
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907-WP-10108-2023.ODT

18. Our attention is also drawn to a subsequent Order dated 5.02.20254.

passed by the Supreme Court in Arun Muthuvel (supra), wherein the Supreme

Court has observed that persons like Petitioners would be at liberty to approach

the jurisdictional High Courts seeking reliefs of the nature as prayed for in the

present Petition and such Writ Petitions be considered having regard to the

interim orders passed by the Supreme Court and in accordance with law. The

Petitioners are thus justified in invoking the jurisdiction of the Court by filing

the present Petition.

19. In the light of the above discussion, we are of the clear opinion that if

the protection as prayed for is not granted to the Petitioners it would certainly

prejudice their legal rights to achieve parenthood through surrogacy which they

ought to be permitted without the insistence on the compliances of condition

as stipulated under the impugned notification dated 14 March 2023.

20. Hence the following Order:-

a) It is ordered that the impugned notification dated 14


March 2023 shall not to be applied in the case of the
Petitioners and the Petitioners would be entitled to opt for
surrogacy, subject to the Petitioners fulfilling other conditions
and requirement under the 2021 Act and Rules except the
notification dated 14 March 2023.

Page 15 of 18
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907-WP-10108-2023.ODT

b) The challenge to the impugned notification dated 14


March 2023 is kept open as the same is subject matter of
consideration before the Supreme Court.

c) It is clarified that the present order is applicable only


insofar as the petitioners are concerned.

d) Rule is made absolute in the aforesaid terms.

e) No costs.

Writ Petition (L) No. 22674 of 2023

21. Rule. Returnable forthwith. Respondents waives service. By consent of

the parties, heard finally.

22. The petitioners in this petition are similarly placed as in the aforesaid

petition wherein we have permitted the petitioners to carry forward the

surrogacy procedure without being foisted with the impugned rules as

stipulated in the notification dated 14 March, 2023 (supra). The case of the

petitioners is that the wife/petitioner no. 1 could not conceive due to various

medical complications as set out in the writ petition. The petitioners

approached various fertility clinics between the period 2015 to 2022 and

experts in the field, for proper treatment, fertility study etc. with a hope of

pregnancy. However, the petitioners failed to get any positive results out of the

IUI as well as IVF procedures undergone. The petitioners have stated that

there were two earlier pregnancies, out of which the first birth was a still birth

Page 16 of 18
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whereas the second birth was born alive and when sent to neonatal intensive

care unit, the child did not survive. Because of persistent failures of the earlier

procedures, the experts have opined the wife not to use her own eggs for

having a child as the chances of having similar consequences, cannot be

overruled out, which would be detrimental to the mental and emotional health

of the petitioners. This also for the reason that the genetic changes would also

occur in the mother’s egg and which escalate by age. Hence, the petitioners

contend that they were left with no option but to achieve parenthood by

surrogacy.

23. In our opinion, considering such facts, the petitioners need to adopt the

surrogacy procedure and in doing so, they cannot be foisted with the impugned

rules (paragraph 1(d)(I) as contained in the notification dated 14 March, 2023.

The petitioners would also be entitled to similar reliefs as granted in the

aforesaid Writ Petition.

24. The petition is thus required to be allowed. It is, accordingly, allowed in

terms of the following orders:-

a) It is ordered that the impugned notification dated 14


March 2023 shall not to be applied in the case of the
Petitioners and the Petitioners would be entitled to opt for
surrogacy, subject to the Petitioners fulfilling other conditions
and requirement under the 2021 Act and Rules except the
notification dated 14 March 2023.

Page 17 of 18
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907-WP-10108-2023.ODT

b) The challenge to the impugned notification dated 14


March 2023 is kept open as the same is subject matter of
consideration before the Supreme Court.

c) It is clarified that the present order is applicable only


insofar as the petitioners are concerned.

d) Rule is made absolute in the aforesaid terms.

e) No costs.

(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI, J.)

Signed by: Vidya S. Amin


Page 18 of 18
Designation: PS To Honourable Judge
9 February, 2024
Date: 10/02/2024 16:18:13

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