WP/34895/2023 of Sri V. Naga Venkata Krishna Vs The Union of India on 29 December 2023

HIGH COURT FOR THE STATE OF TELANGANAAT HYDERABAD(Special Original Jurisdiction)

FRIDAY, THE TWENTY NINTH DAY OF DECEMBERTWO THOUSAND AND TWENTY THREE

PRESENT

THE HONOURABLE THE CHIEF JUSTICE ALOK ARADHEANDTHE HONOURABLE SHRI JUSTICE ANIL KUMAR JUKANTI

WRIT PETITION NO: 34895 OF 2023

Between:

1. Sri V. Naga Venkata Krishna, S/o. Sri V Subba Rao, Aged. 46 years,Occ. Employed, R/o LIG 8440. 2n"Floor, Dream Nest Residency, A.S. RaoNagar, Hyderabad - 500062.Occ. Employed, R/o LIG 8440. 2n"Floor, Dream Nest Residency, A.S. RaoNagar, Hyderabad - 500062.

2Qmt Y. [Vijaya ][Sree, ][W/o ][V. ][N.aga ][Venkata ][Krishna, ][Aged. ][46 ][years,]Occ. house wife, Ri/o LIG 8440, 2"o Floor, Dream Nest Resitency, n.S.RaoNagar, Hyderabad - 500062.Occ. house wife, Ri/o LIG 8440, 2"o Floor, Dream Nest Resitency, n.S.RaoNagar, Hyderabad - 500062.

...PETITIONERS

AND

1The Union of lndia, Rep. by its Secretary, Ministry of Law and Justic.,,e, 4hFloor, A-Wing, Shastri Bhawan, New Delhi - 11001 1.Floor, A-Wing, Shastri Bhawan, New Delhi - 11001 1.

2Ministry of Health and Family Welfare, Rep. by its Secretary, Nirman Bhawan,New Delhi - 1 1001 ['1 ].New Delhi - 1 1001 ['1 ].

3. The State of Telangana, Rep. by its Principal Secretary, Health, Medical andFamily Welfare Departmenl, Secretariat, Hyderabad.Family Welfare Departmenl, Secretariat, Hyderabad.

4. The Additional Director, ART and Surrogacy, DME Building, Third Floor, Koti,Hyderabad.Hyderabad.

5. The District Medical Health Officer, lVedchal-Malkajgiri District Hyderabad

...RESPONDENTS

Petition under Article 226 of the Constitution of lndia [praying ]that in thecircumstances stated in the [affidavit ][filed ][therewith, ][the ][High ][Court ][may ][be]pleased to issue a writ, order or orders more [particularly ]one [in ][the nature ][of ][writ]of Mandamus to set aside [the ][amendment made ][to ][Form-2 ][1 ][((dXl)) ][of ][The]Surrogacy (Regulation) [Rules ][2022 ][of ][the ][corresponding ][Rule ][7 of ][The]Surrogacy [(Regulation) ][Act ][2021 ][vide ][notification ][No. ][GSR ][1 ][79 ][(F) ][dt.1 ][4{3-]2O23, prescribing and substituting [the ][words "Couple undergoing Surrogacy ][must]

have both gamete from the intending coupre and donor gametes is not a owed.,,which, prior to substitution read as: "(d) the .fertilization of a donor oocyte by thesperm of the husband." as it is arbrtrary and in violation of the principles ofnatural justice under Article 14 of the constitution of lndia and in violation of thepetitioners' right to parenthood under Article 21 of the constitution or lndia andconsequently allow the petitioners to use a donor oocyte/Egg for the fertilizationby the sperm of the Petitioner No. [.l ]for surrogacy.

lA NO: 1 OF 2023

Petition under Section 151 cpc praying that in the circumstances statedin the affidavit filed in support of the petition, the High court may be preased togrant stay o[ the amendment i.e., paragraph 1(d) in Form 2 which is the consentof the surrogate mother and Agreement for surrogacy (Reguration) read withRule 7 of the Surrogacy (Reguration) Rures 2022 made under the Surrogacy Actand allow the Petitioners to proceed with the process of surrogacy using a donoroocyte/Egg in the interest of justice pending disposar of the above writ petition.

Counsel for the Petitioners: MS. RACHNA S WADDEPALLI

Counsel for the Respondent No.1 and 2: GADI PRAVEEN KUMAR, Dy. SOL|C|TOR GEN. OF tNDtA

Counsel for the Respondent No.3 to 5: MS. K. MAHALAKSHMI, ASSTSTANT

GOVERNMENT PLEADER FOR HEALTH,MEDICAL AND FAMTLY WELFAEDEPARTMENT

The Court made the following: ORDER

THE HON'BLE THE CHIEF JUSTICE AI.OK ARAI)HEANDTHE HON'BLE SHRI JUSTICE ANIL KT'MAR JITKANTI

WRIT PETITION No.34895 of 2023

ORDER: eer LtLe llotl bte thc Chef Justica) AIok AraAhe)

Ms. Rachna S. Waddepa-lli, learned counsel for thepetltloners.

Mr. Gadi Praveen Kumar, learned Deputy SolicitorGeneral of India for respondents No.1 and 2.

Ms. K.Mahalakshmi, learned Assistant GovernmentPleader lor Health, Medical & Family Welfare Departmentfor respondents No.3 to 5.

2.

2. Learned Deputy Solicitor General of India has invitedthe attention of this Court to the order dated 05. 12.2023passed by the Supreme Court in W.P (Civil).No.756 of 2022and submits that the issue with regard to the validity of theamendment to thc Surrogacy {Regulation) Ru1es, 2022, isalready pending adjudicertion before the Supreme [Court]

3.

In view of the fact that the vaJidity of the amendment to the Surrogacy (Regulation) Rules, 2022, is underchallenge before the supreme court, Iearned counsel forthe petitioners seeks leave of this Court to withdraw thewrit petition with the liberty to approach the SupremeCourt.

4. Accordingly, the writ petition is dismissed asn,ithdrawn with the liberty as aforesaid.

Miscellaneous applications pending, if any, shallstand closedHowever, there shall be no order as to costs SD/- K.AMMAJIASSISTANT RFGISTRARl/SECTION OFFICER

//TRUE COPYII

To,

To,I ils 33 3 #lB*?"#r [t ]ryeoo"pa,i, [Advocate ]^ [sorrc(or cenerat ]'opucr, ,lyo u{_:s to cp for Health, Medical "f [t"diJ?fp[Elar, ]and [Dy. Soticitor ]Familv We[benlo-t,rndia, ][Deputy]_ 9ourt [for ][the State ]of TeDepartment' Hish4 r wo cD rffil+it" copies [ra'isani, ][lt ][fivi"## ]TJGJ\)- HIGH COURT

DATED:2911212023