WP/26921/2025 of Dr. M Vs The Union of India on 3 March 2026

1. Dr. [Vl, W/o Shri Sl aged 32 yrs., Occ. Doctor,

2. S, S/o Shri V., aged 31 yrs., Occ.Business Both are residents of Flat No.403, Kolan Veera Reddy Space, Near tt/unicipal Office, Nizampet, Kukatpally, Hyderabad. ...PETITIONERS AND

The Union of lndia, Represented by its Secretary [Vlinistry of Health and Family Welfare (tt/oHFW) Room No. 156-A, Nirman Bhavan, New Delhi- 1 1 0001 Email .secvhfirugnic.in Appropriate Authority, Through - its Chairperson (Commissioner, Health and Family Welfare), Opposite Dt\4E Building, DIM and H5 Campus, .Opp. .Koti Wom5n's College Road, KutbiGuda, Sultan Bazar, Koti, Hyderabad, Telengana - 500095. ...RESPONDENTS Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or Direction more particularly one in the nature of a WRIT OF MANDAMUS or any other order or writ aggrieved by the action of the 2t respondent in passing the impugned order's vide proceedings Rc.No.228lART and Surrogacy/Govl.lnstt2024-1 dated 18-08-2025 thereby declining to consider petitioner's application for issuance of certificate of essentiality and eligibility for Surrogacy on the ground that the Cytogenetic report from the Institute of Genetics and Hospitals for Genetic Diseases lndicates Chromosome Analysis 46 KY Karyotype being illegal irregular and in violation of articles 14, 21of Constitution of lndia and consequently set-aside the 2' respondent proceedings Rc.No.228

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.E; ..,1:; ART and Surrogacy/Govt.lnsU2124-1 dated 18-08-2025 by directing them to issue , certificate of essentiality and eligibility in favour of the Petitioners. lA NO: 2 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased direct the 2nd respondent to consider the case of the petitioner and issue certificate of essentiality anc eligibility pending disposal of the main writ petition. Counsel for the Petitioner : SRI P.D.VINEELA counser ror th' Respondent No'1 ' 3I.'.tt."T,::H:*Xt?i"r,, counser ror th* Respondent No'2 'iXJ f"t#,fE$,ttr1fiHflLa'rH The Court macle the foliowing: ORDER l ! j ,l I I

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i{C IN THE HIGH COURT OF'JUDICATURE FOR THE STATE OF TELANGANA HON'BLE SRI JUSTICE NAGESH BHEEMAPAI(A

o.3.o3.20/26 Between: Dr. M & another Petitioners And The Union of India, Rep. by its Secretary, Ministry of Health & Family Welfare (MoHFW) & another Respondents OR ER: The Hindu marriage (Sanskrit: fuqf6 romanized: Vivaha lit 'Marriage') is the most important of all the samskaras, the rites of passage described in the Dharmashastra texts. variously defined, it is generally described to be a social institution for the establishment and regulation of a proper relationship between the sexes, as stated by 'Manu'. Marriage is regarded to be a sacrament by Hindus, rather than a form of social contract, since they believe that all men and women are created to be parents, and practise dharma together, as ordained by the Vedas.

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1.1. For centuries, marriage in India has been more than jur;t a union between two individuals; it has been a cornerstone of stlcietr,z, deeply rooted in tradition and scripture' while ar.ranged marriages are often seen as the typical form of matrimony in India, historical texts reveal a far more nuanced picture.

1.2. ConcePtion: The ideal conception of marriage that was laid dou'n by the ancient Indians is one in which it is a ceremonial gift of a bride (Vadhir) by her father, or another appropriate family member, to a bride-groom (Vara), so that they may fulfil the purposes of human existence together. In such a conception, vivaha, which originally meant the wedding ceremony, but has to acqrrire the definition of marriage as a whole, is meant for procre:rtion, and the establishment of a famity (kutumba). After one's rved<ling, one is believed to have entered the second stage of life, the grihastha ashrama, performing the duties of a house eolder.

1.3. Goals: In Hinduism, the four goals of life (Purusarthas) are regarcled to be righteousness (dharma), wealth (artha), pleasure *[ke,meJ, zrnd liberation (moksha). Marriage is generally not consirlered necessary to fulfil these goals because following i ', ,.., l #ii*-l aa .,i.1 righteousness (dharma) applies to a person since birth and wealth (artha) and liberation (moksha) are again one's personal goal as dharma and need not to be aligned with marriage as they can be practiced with or without it. The three goals of marriage include allowing a husband and a wife to fulfil their dharma, bearing progeny (praja), and experiencing pleasure (rati). Sexual intercourse between a husband and wife is regarded to be important in order to produce children, but is the least desirable purpose of marriage in traditional Hindu schools of thought. L.4. Ase: The Naradasmrti states a daughter should be given away for once and all, as soon as her menses appear. The Mdnusmriti states that following menarche, a maiden may wait for three years, after which she may marry. Girls are usually considered to have achieved puberty when they are 12 years old, and are allowed to choose their own husbands if a suitable groom is not procured for them.

1.5. There are several types of marriages in Hindu religion. Brahma vivah (The Divine Marriaqel: ''i \ Brahma marriage is the most pious and ideal form of marriage. In this form, parents of the bride choose a groom '4=4 : I I I

'l ii il ii i J I i ii lr rl it,j I ! l for the girl based on his goodness, education and good charactr:r' The marriage is conducted with vedic ceremonies, and the'e is no dowry exchange. The father of the bride gives his daughter as a gift to the bridegroom who is a rearned and virtuous person' This type of marriage stresses dharma, duty and hor:or' which forms the basis for a stable, furfilring and happy nrarried rife. In modern Hindu societ5r, the practice of arranged marriages is mainl,y based on Brahma marrlage norms, u'ith speciar emphasis on the acceptance of both families and beinl3 compatible. Apatyam Children o Lord of ihe home, best fi.nder of riches for our chldren qre aou. Grant to us spler,dor and. strengtlt, O Master of our home. Sukla yajur Ved.a 3.59. ue, 343

1.6. What is the Fulfilment of a Marriage? SLOI(A 8.I: Children are the greatest source of happiness in marriage' Househorder life is made rich and comprete when sons and daughters are born, at which time the marriage becomes a family and a new generation begins. Aum. (. l1 ;J il BHASTIYA:

tii The total fulfilment of the grihastha dharma, family life, is children. Marriage remains incomplete until the first child is born or adopted. The birth of the first child cements the family together. At the birth itself, the community of guardian devas of the husband, wife and child are eminently present. Their collective vibration showers blessings upon the home, making of itafultplace,awarmplace.ItistheduWofthehusbandand q,ife to become father and mother. This process begins prior to conception with prayer, meditation and a conscious desire to bringahighsoulintohumanbirthandcontinueswith providing the best possible conditions for its upbringing. Raisingseveralchildrenrewardstheparentsand their'offspring as well. Large families are more cohesive, more stable, and are encouraged within the limits of the family's ability to care for them. Parents, along with all members of the extended family, are responsible to nurture the future generationthroughchildhoodintopubertyandadulthood.

1.7. Tlrc Vedas exclaim: ,, Blessed with sons and daughters, mag theg enjoy their full ertent of ltfe, d.ecked' with ornaments of gold"' Attm Namah SiuaYa.

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When Brahmanas know that Self, and have risen above t,e desire for sons, wearth, and (new) worlds, they wander about as mendicants. For a desire for sons is desire for wealth, a desire for u'earth is clesire for worlds. Both these are indeed desires. (Brihacla rang aka Upanishad) Through a son he conquers the worlds, through a grandson he obtains immortalit5r, but through his son,s grandsor he ascends to the (highest) heaven. (Ail that) has been declared in rhe Veda. (Baud"hayana Sutras 2_9_16.3) The son of a wife wedded, according to the Brahma rite, if he performs meritorious acts, riberates from sin ten ancestors, ten descendants and himself as the twenty_first. (Manusntiti 3:37). 1'8' Hindus rove their children dearly. They berieve that their chi,dren are gifts from GoD and products of their previous karma. I\dany presume that their children were rerated to them in their past lives or were their close friends. According to Manu, a man recreates himself through his own children. Since a Hindu firmry berieves in rebirth, he views his own rife from a wider pe'spective that encompasses not just this rife but many other liv'-s that preceded it as we, as succeed it, and his individual existence ae a narr ^r '- *- ""-"ince as a part of a great cosmic cycle. Endowed with the r:erief that his rerationships repeat themselves and that -r_illrl :lirl :l:ll l'l i,i l:i iti:i :lli .ll ,!|t' i

'i3 his life is intricately intertwined with many others who share the same destiny, he acts with a greater sense of duty and responsibility towards himself and all those who depend upon him and are related to him. Since he sincerely _believes in the continuity of his life and relationships, he works for the welfare of his family and their financial security through a policy of self denial and austerity in personal expenditure.

1.9. Orthodox Hindus do not approve childlessness and consider it to be very inauspicious. Women without children have to face social discomfort and questioning looks from friends and relations. Newlv-married couple have to deal with peer pressure if they fa,, to produce children within a reasonable time after their marriage. Childlessness causes great hardship for both men and women in Hindu families, despite the fact that over population is a major problem of present-day India. While for men it is mostly a problem of their virility and manhood for women it is the stigma of barrenness and the absence of the pleasures of motherhood. Barren women are not allowed to participate in certain rituals and on Some occasions their very presence is considered inauspicious, which add to the stigma of infertility.

1.10. A son is generally preferred because he upholds the family values and ensures its continuity. The Vedas clearly state i!

li' I I I I I i that a ,,ran lives through his son. Before passing away, a father welr-vers;ed in the Vedas transmits his quarities and powers to his eldest son performing a special transmission ceremony, which gives the son the right to head the family and continue the famity tradition in the footsteps of his father and ancestors. Hence, the birth of a son in the family is cruciar for the lineage to continue. The Vedic people performed different rituals to obtain different types of sons. The Bihad"aranyaka tlpanishad. (6.4) suggests what procedures coupres shourd foilow to obtain a son of fair complexion, or brown complexion, or dark complexicn with specific knowledge of the vedas and rifespan. 1'11' According to Gaurama Sutras (2g:1g), if a person does not have male children, he may ask his daughter to raise a sop for him. A family without a mare chilct is considered accursed Male children are preferred for many reasons. Financially a male child is an asset. socially he stands for the continuiQr and the exarted image of the family. spiritualry he helps his parents in their afterrife, by performing their funeral rites whe:e they die and saving them from the heil of punnama where pe,:ple without sons are believed to go. Thereafter, he performs the shradda ceremonies at regular intervars to ensure their welt being in the heavens. The female children are excluded from participating in funeral ceremonies and are not i.\ I I I I I I

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- ffl r" even allowed to visit the cremation grounds. If a couple has more than one son, the elder one and the younger one would lit the funeral pyres of their father and mother respectively.

1. L2. Hindu law books do not ignore the rights of illegitimate children. According to Gautama Sutras (28:33-3a) the son of an unmarried damsel, the son of a pregnant bride, the son of a twice-married woman, the son of an appointed daughter, a son self-given, and a son bought belong to the famity of their fathers. In the absence of a legitimate son or other heirs, they receive a fourth of the estate. The law books also laid down elaborate rules of inheritance for children born out of inter-caste marriages and polygamy.

1.13. [n many families, girl children are subjected to gender bias. Having too many girls in a family is considered a great financial burden since the parents have to pay large dowries for their marriages. The girls have no right of inheritance. The ancestral property of the family invariably goes to the male children. Parents have the right to distribute their own wealth (swarjitam) to their daughters. But generally, they do not do so unless they do not have male children. After marriage, a girl child becomes the sole property of her husband and cannot stay with her parents however strong might have been their relationship. While the birth of a son is still welcome stl

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l0 in alrrrost every Hindu family, now a days the birth of baby girr is alsc welcomed by many educated parents, who consider it as an ausrpicious sign, as if a goddess is born in their house. 1'14' Hindus are very possessive about their ch,dren and spend a great deal of their time and ener$/ in bringing them up. Becausre of orthodox sentiments and moral values, the parents are al.ways concerned about their children,s upbrinl;ing and expect them not to bring a themsetves or to their families. Compared to societies, the Hindus are sentimentally and emotionalry more attacherr to their ch,dren and experience a greater warmth and intimacrr in their rerationships. The bond between the parents and children remains intact even after the children grow up and welfare and bad name to the r,r,estern get married. 1'15' In a Hindu fam,y, it is an obrigatory rerigious duty of the sons to lookafter their aged parents and provide them with decent means of riving. Many do so. But Iike in other societies, aged peopre are increasingry suffering from probrems of alienation, isolation and their children,s indifference and negrect. ()Id-age homes which were non_existent a few decades ago are now coming up in many parts of India system ir; undergoing radical transformation. Hindu family But a great I I I I

,,3 majority of Hindu families still consider their children as products of their past deeds (purvajanma sukrutam). If a child strays and brings bad name, they blame it upon themselves and their previous karma.

1.16. The social and cultural consequences of being childless: Approximately 7O-8O million couples worldwide are currently infertile (Bos et al., 1995; Boivin et al., 2OOT) and it can be estimated that tens of millions of couples are primary infertile or childless. For most people, having children is immensely important; not being able to have children is a major life problem. There is also a large group of women and men, who have children, possibly form a previous relationship, who desperately wants to have another child. A considerable body of research in Western countries has shown that involuntary childlessness has strong psychological consequences (see for reviews: Greil, 1997; Brokvich and Fisher, 1998). Most of the studies carried out in this domain are quantitative and some are qualitative. Both kind of studies, point in the same direction: there are various psychological and psychosomatic effects, and especially women are affected. The most frequently mentioned effects are distress, raised depression and anxiet5r levels, lowered self-esteem, feelings of blame and guilt, somatic 'ii I

liilii t2 complaints, and reduced sexual interest. For a small minorit5r of women and men in the western worrd these effects are at a clinical lever or can be considered extremely serious (Greil, 7997).

1.17. lit-. consequ3nces are seldom mentioned in the reports on these studies' when these aspects are considered, they are often related to studies about erderry people wirhout children, regardler;s of the reason for being childress. [t is stressed in the reports .f these studies that frail ord people without children have lesl; social support (cf., Johnson, 2006) and a less robust network for independent living compared to ord people with children (cf', wenger et al-, 2oogr- wirtberg and co-workers (2Qorl h.wever, carried out a study that is unique in the sense that it ztims at erderry invoruntarily chirdless women. They reported on 14 women, and described that in ail cases but one sexual life was affected negatively and that harf of these elderry childless women were separated. 1'18' some studies report the difficurty that childless couples have in communicating with friends who do have children. They describe negative (although sometimes welr_ meant) remarks within the coupres sociar worrds, for instance at birthday parties and other sociar gatherings: however, It is interesting that social and cultural I I I I I ti H

,4 l3 supportive reactions are also mentioned very often (Greil, 1991; van Balen et &1., 1996; Schmidt, 2006). It is possible for childless couples to participate in the 'world of children', especially if couples have good friends or relatives who have children. They are able to participate in the lives and activities of the children of their friends and relatives by, for instance taking care of the children for a part of the week or when the parents are on holiday; taking the children to school, music lessons or sports activities; or going to games or shorvs in which the children participate. An early study on childlessness found that about ten per cent of couples had chosen this strates/ as a way of coming to terms with their childless life (van Balen, 1991) Also, recently wirtberg and colleagues (2OO7l described this as typical coping strategr for childlessness. It appears that in the West childless people are not formally excluded from being involved with raising children. In this background of Marriage in Hindu Dharma and humiliation to a childless couple in the society, now I will consider the merits of the case on hand. Factual Matrix:

2. Challenging the order of the Commissioner, H&Fw, chairperson, sAA, ART & Surrogacy uide Rc.No. 228IART & surrogacy/Govt. lnstl 2024-1, dated L8.O8.2O25, rejecting the .: -- -il l! .;il iijil I it: I : ri ,,1'I t;li :l

t4 ( Application of petitioner, for issuance of Certificate of Essentie-lity and Eligibility under the provisions of the Surrogacy (Regulation) Act, 2O2I (the 2021 Act), this Writ Petition is {iled.

2.1. Petitioners got married according to Hindu Rites and Ceremonies on 24.11.2021 and their marriage is duty registerr:d in accordance with law uide Certificate of Marriage dated CI3.1O.2O22 of Registrar Hindu Marriages, Kukatpally, Medchal-Malkajgiri District. The wife (petitioner No.1) is suffering from Complete Androgen Insensitivity Syndrome (CAIS meaning missing uterus and ovaries), otherwise she has been leading a normal life, but in view of the fact that the wife- intending mother has a chromosomal disorder namely CAIS, she cannot conceive. Hence, she opted for surrogacy method and applied to the District Medical Board under Regulation l4(a) of the 2A2L Act. The District Medical Board, which is the prescril:ed authority under Regulation a(iii) (a) (1) of the 2O2I Act for issuance of Medical Indication certificate has considered the case of petitioners and issued Medical Indication certificate (MIC) <lated 22.10.2023, which was extended on 23.08.2024. Therealter, petitioners approached the II Additional Junior civil Judge-cum-X Addl. Metropolitan Magistrate, Ranga Reddy Distric - at Kukatpally, seeking an order of parentage and custody ol the child to be born through surrogacy. The court by 'i.!3 l5 order dated 26.07.2024 in S.R. No. 3927 of 2024 granted an order concerning parentage and custody of the child to be born through surrogacy.

2.2. As prescribed under law, the intending couple have also obtained an insurance coverage of such amount in favour of the surrogate mother. Later, petitioners applied for Eligibility Certificate to the Commissioner, H&FW, Chairperson, SAA ART & Surrogacy. However, the Commissioner/Chairperson rejected the said Application by the impugned order dated 18.08.2025. It reads as under: " With reference to the subject cited, it is submitted that the application of Smt. Maryada Sravani and Sri Seethareddy Pradeep Reddy (Application No. 60) seeking issuance of certilicate of Essentiality and Eligibility for undergoing surrogacy procedure was placed before the State Appropriate Authority (SAA) for consideration. - As per the provisions of the Surrogacy (Regulationl Act 2021, under Section 2(h), the term "couple" refers to a legally-married Indian man and woman above the age of 21 years and 18 years respectively. Further, uide reference 2"d cited (U llOl9/50/2O24-HR of Under Secretary to the Govt. MoHFW, DHR, New Delhi dt. 05.03.2025) the Department of Health Research, Government of India, has informed that in pursuance of ongoing cases before the Hon'ble Supreme court, the matter was referred to the Legislative Department, Ministry of Law & Justice, which has opined that transgender persons are not covered under the Surrogacy (Regulationl Act, 2O2 l. In view of the reference 3rd cited (Cytogenetic report from Institute of Genetics and Hospital for Genetic Diseases dt: 16.O6.2008i wherein the Cytogenetic report from Institute of Genetics and Hospital for Genetic Diseases with Regd. No. 2O8 dated: 16.06.2008 indicated Chromosome analysis 46KY karyotype of the intending couple Smt. Maryada

Sravani, the application cannot be considered for issue of Certificate of Essentialily and Eligibility under the provisions of the Act. The communication is issued with due regard to the directions of the Governrnent of India and in compliance vi,ith the statutory provisions in force."

2.3. It is stated, the Governnrent of India vide Notification dated 21.O2.2024 clarified that if either the husbanrl of the wife constituting the intending couple suffers from arry rnedi<:al condition, then use of donor gemete for surroga,ry proceriure is allowed. In view of the same, petitioner submitted representation dated 22.1O.2024 to the 2nd responcent to c:onsider their case for issue of certificates of Essenti;rlity and Eligibility. Since there is no response, they are stated to have filed Writ Petition No..16281 of 2025 wherein this Court directed the 2nd respondent to dispose of the representation within four weeks. Thereafter, petitioners again submit-ed representation dated 27.06.2025 and the 2"d responrlent considering the order passed by this Court, passed the impugned order. According to petitioners, the impugned order is contrary to the provisions of the 2O2l Act and also violative of Article 2l of the Constitution.

3. Respondent No.2 filed counter affidavit mainly contending that the impugned ord.er was passed on the ground that C:ytogenetic report from the Institute of Genetics and l a- t7 Hospital for Genetic Diseases indicating Chromosome analysis 46 YY karyotype of petitioner which does not satisfy the said Rules of the Act as it does not confirm to Sec. 2(ixh) which defines couple as 'legally married Indian man and woman'. It is further submitted that man is genetically identilied with XY genotype and woman with XX genotype. The petitioners are not fitting into the definition of the couple to issue the Certificate of Essentiality and Eligibility and hence the further requirement of donor gamete for surrogacy procedure does not stand.

3.1. tt is stated, subsequent to the orders of the Magistrate dated 26.07.2024, State Appropriate Authority Committee conducted a meeting on 28.08.2024 with intending couple application bearing NO. 60 where the Committee members have detailedly examined the documents and in view of the Karyotype report required clarification and decision was taken to put in abeyance. i

3.2. [t is contended that in view of the findings observed by the State Appropriate Committee members, clarification was sought from the Director, Department of Health and Research, Government of [ndia, for taking a decision regarding issuance of Certificate of Essentiality and Eligibility uia mail dated 23.11.2024 for which Government of India has given response I I : Iil i'i Irl iti it! 1l l I i uia mail U.11019/5O12O24-HR of Under Secretary to the Gol MoHFW. DFIR, New Delhi, dated 05.03.2025.

3.3. [t is also contended that as per Section a(iii)(a) of the 2O2l Act, the intending couple must be in possession of a certificalion of essentiality issued by the State Appropriate Authoriry having satisfied itself for the reasons to be recorded in writing. As per Section 2(h), the 'couple' definition is legally- married [ndian man and woman where man is genetically identifie d '*,ith XY genotype and woman with XX genotype, the evidence of which is as per the cytogenetic report from Institute of Geretics and Hospital for Genetic Diseases indicated Chromosome analysis 46 XY karyotype of the lst petitioner which loes not satisfy the said Rules of the Act. It is finally stated that the State Appropriate AuthoritSr has rejected the Application of petitioner No.l based on the report of SAA Committee as per G.O.Ms.No. 68, dated 15.06.2022, it is apposir.e to merntion that one ofi the committee memebrs is Profess'or of oBG and has given an opinion as expert regarding absence of Uterus investigated and conducrted as male genotype.

Petitioners filed reply affidavit stating that the case of Petitioner No. 1 falls squarely within the ambit of Rule la(a) of the surrogacy (Regulation) Rules, 2022. Accordingly, the a i I i J

ir'.{f T9 District Medical Board, being the competent authority under Section +(iii)(a)(I) of the Surrogacy (Regulation) Act, 2021, rightly issued the Medical [ndication Certificate. Owing to a chromosomal disorder, Petitioner No. 1 does not possess a uterus and is, therefore, covered under Rule 1a(a). The Appropriate Authority has transgressed its jurisdiction in refusing to accept the said Certificate duly issued by the competent authority.

4.1. The record clearly establishes that petitioners meet the definition of "cotrple" under the statute. The contrary observation of the Appropriate Authority is arbitrary and devoid of legal basis. The object of the Surrogacy (Regulation) Act, 2021, is to safeguard family values and facilitate parenthood for infertile couples. The action of the Appropriate Authorit5r runs counter to this object and, if allowed to stand, would render the Act otiose. The generalized statement made by the respondents that XY genotSrpe denotes a man and XX genot5rpe denotes a woman ignores universally recognized exceptions. Relevant scientific literature on this subject is annexed herewith in the Material Papers.

4.2. In the present case, the documents fiIed establish that petitioners are duly married and fall within the prescribed I

at I I il ii ii .l age limits. Therefore, rejection of their Application by the Appropr.ate Authority is arbitrary and contrary to the statute.

5. Learned counsel for petitioners Ms. PD Vineela submits that the Appropriate Authority being a statutory authority under law, is duly bound to pass appropriate orders, in terms; of the procedure prescribed under Section a(iii) (a) & (c) of the 2O2L Act. however, it failed to do so. According to her, the im1>ugned rtrder is contrary to the Statutory Guidelines issued b). the Government of India uide Gazette Notification dated '.2L.O2.2O24 with reference to District Medical Board Certifying Intending Couple either husband or wife suffer from medical condition and in contravention of the judgment of the Hon'ble, Supreme Court in ABC vs Lfnion of India (order dated 1'8.10.11023) and failed to issue Eligibility/Essentiality Certificate to the petitioners. The Appropriate Authorit5r, instead of exercising powers vested in it by law, without jurisdiction, sought clarification from the Ministry of Health & Family Welfar,:, GOI, who gave opinion detailing the position reiterated in all the above stated sources of law, but no whisper was made specific to the facts of the case of petitioners.

5. 1. It is further contended that the 2'd respondent, ignoring the certificate of Medical Indication issued by the Distrir:t Mediczrl Board and the order of parentage and custody 2t passed by the II AJCJ-cum-X Addl. MM, as prescribed under section 4 of the 2o2l Act, has proceeded to rely upon the e mail received from the l"t respondent on the ground that the Cytogenetic report from the Institute of Genetics and Hospitals for Genetic Diseases indicates that the l"t petitioner (wife) has chromosome analysis 46 XY karyotype. This action of the 1"1 respondent is completety arbitrary and without jurisdiction' It is also contended that due to the acts and deeds of the )nd respondent, the 1st petitioner (wife) has been suffering/facing a social stigma of 'lnfertility' due to Androgen Insensitivity Syndrome (AIS -missing uterus and ovaries) as it is'

6. HeardlearnedGovernmentPleaderforMedical& Health.

7. For better understanding of the case' the relevant provisions of the 2O2l Act are extracted below: CHAPTER III REGULATIoNoFsURRoGAcYANDSURRoGACY PROCEDURES

4. Regulation of surrogacy and surrogacy procedures - onandfromthedateofcommencementofthisAct,- (i}noplaceincludingasurrogacyclinicshallbeusedorcause.tobe used by any person for conducting surrogacy or surrogacy procedures' exceptforthepurposesspecifiedinclause(ii)andaftersatisfyingallthe conditions specified in clause (iii); e''*"

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(ii) no surrogacy or surrogacy procedures shall be conducted, undertakee, performed or availed of, except for the following purposes, namely:

(a) when an rntending couple has a medical indication necessitating gestationaI surrogacv: Provided that a couple of Indian origin or an intending woman who intends tc avail surrogacy, shall obtain a certificate of recommendation from the Boarc on an application made b-y the said persons in such iorm and manner as may be prescribed. Esplanation For the purposes of this sub-clause and item (I) of sub- clause (a) of clause (ii ) the exprr:ssion 'gestational surrogacy'means a practice whereby a surrogate mother carries a child for the intending couple through implantat.ion of embryo in her womb and the child is not genetically related to the sulrogate mother, (b) when it is only for altruistic surrogacy purposes;

(c) when it is not for commercial purposes or for commercialisation of surrogacr' or surro€{acy procedures;

(c) when it is not for producing children for sale, prostitution or any other forn of exploitation; and (e ) an.y other condition or disease as may be specified by regulations made by the Board; ' (iiil no surrogacy or surrogacy procedures shall be conducted, undertal<en, performed or initiated, unless the Director or in-charge of the surroga(y clinic and the person qualified to do so are satisfied, for reasons to be recorded in writing, that the following conditions have been fullilled, namely:

(e) the intending couple is in possession of a certificate of essentialit5r issued try the appropriate authorit5r, after satisfying itself, for the reasons to be recorded in writing, about the fulfilment of the following conditions, namely:-

(l) a certificate of a medical indication in favour of either or both members of the intending couple or intending woman necessitating gestational surrogac-v from a District Medical Board. Dxplanation - For the purposes of this item, the expression "District Medical Board" means a medical board under the Chairpersonship of Chief Medical Officer or Chief Civil Surgeon or Joint Director of Health Services of

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the district and comprising of at least two other specialists, namely, the chief ginaecologist or obstetrician and chief paediatrician of the district; (II) an order concerning the parentage and custody of the child to be born through surrogacy, has been passed by a court of the Magistrate of the first class or above on an application made by the intending couple or the intending woman and the surrogate mother, which shall be the birth affrdavit after the surrogate child is born, and

(lll) an insurance coverage of such amount and in such manner as may be prescribed in favour of the surrogate mother for a period of thirty- six months covering postpartum delivery complications from an insurance company or an agent recognized by the Insurance Regulatory and Development Authority estabtished under the Insurance Regulatory and Development Authority Act, 1999 (41 of 1999l,; (b) the surrogate mother is in possession of an eligibility certificate issued by the appropriate authority on fulhlment of the following conditions, namely:-

(l) no woman, other than an ever married woman having a child of her own and between the age of 25 to 35 years on the day of implantation, shall be a surrogate mother or help in surrogacy by donating her egg or oocyte or otheru,ise; (II) a willing woman shall act as a surrogate mother and be permitted to undergo surrogacy procedures as per the provisions of this Act: Provided that the intending couple or the intending woman shall approach the appropriate authority with a willing woman who agrees to act as a surrogate mother, (ltl] no woman shall act as a surrogate mother by providing her own gametes (IV) no woman shall act as a surrogate mother more than once in her lifetime: Provided that the number of attempts for surrogacy procedures on the surrogate mother shall be such as may be prescribed; and (V) a certificate of medical and psychological fitness for surrogacy and surrogacy procedures from a registered medical practitioner,

(c) an eligibility certificate for intending couple is issued separafetA\-by the appropriate authority on fulfilment of the following conditions, namely:- the intending couple are married and between the age of 23 to 5O years in case of female and between 26 to 55 years in case of male on the day of cer:ification,

(ll) the intending couple have not had any surviving child biologicaily or through adoption or through surrogacy earlier: Prrvided that nothing contained in this item shall alfect the intending couple who have a child and who is mentally or physicall-v challenged or suffers frrlm life threatening disorder or fatal illness with no permanent cure and apprrved by the appropriate authority with due medical certificate from a District Medical Board; and

(lll) such other conditions as may be specified b-y the regulations. Appeal - The surrogacy clinic or the intending couple or the intending \.voman rray, within a period of thirtl' days from the date of receipt of the communication relating to order of rejection of application, suspension or cancellation of registration passed by the appropriate authorit-y under section 13 and (,ommunication relating to rejection of the certificates under section 4, prefer an appeal against such order to- the State Government, where the appeal is against the order of the appropriate authority of a State; (1, the Central Government, where the appeal is against the order of the appropriate authority of a Union territory. in such manner as may be ;lrescribed. What is meant by Chromosome analysis 46 XY karyoQrpe? 46 XJK|46 )ff is either a chimeric or mosaic genetic condit.on characterized by the presence of some cells that express a 46 XX karyotype and some cells that express a 46 ){Y karyotype in a single human being. Individuals with these conditions are classified as intersex. Tetra gametic chimerism ",'

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The cause of the condition lies in conception or utero with the aggregation of two distinct 4ygotes or blastocysts (one of which expresses 46 XX and the other of which expresses 46 XYI into a single embryo which subsequently leads to the development of a single individuat with two distinct cell lines, instead of a pair of fraternal twins.

8.1. In humans, sexual dimorphism is a consequence of the XY sex-determination system. In typical prenatal sex differentiation, the male and female embryo is anatomically identical until week 7 of the pregnancy, when the presence or the absence of the SRY gene on the Y chromosome causes the undetermined gonadal tissue to . undergo differentiation and eventually will become either a pair of testes or ovaries respectively. The cells of the developing testes produce Anti- Mullerian hormone, causing the regression of the Mullerian ducts. As individuals with 46 XXl46 XY partially dxpress the SRY gene, the normal process by which an embryo normally develops a phenotypic male or phenotypic female may be significantly affected causing variation in the gonads, the reproductive tract, and the genitals. Despite this, there have been cases of completely normal sex differentiation occurring in 46 XXl46 XY individuals reported in the medical literature. 46 X./.l46 XY chimerism can be identified during pregnancy bv I i i r prenatal screening or in early childhood through genetic testing and direr:t observation.

8.2. Mosaicism The cause of this condition happens in early developrnent resulting from a single fertilized 4rgote's cell line divided into two cell lines; a genome that contains a charactt:rized by the presence of some cells that express a 46 XX karyotype and some cells that express a 46 XY karyotype.

8.3. Si.gns and symptoms Physice.l 4ti XX/46 XY chimeric or mosaic is associated with a wide spectrum of different physical presentations, with cases ranging from having a completely normal male or female phenotype to some ,lases having ovotesticular syndrome". Due to this variaticn, genetic testing is the only way to reliably make a diagnor;is. *Ovotesticular syndrome (also known as ovotesticular disorder or OT-DSD| is a rare congenital condition where an individual is born with both ovarian and testicular tissue. It is one of the rarest disorders of sex developnent (DSDs), with only 5oo reported cases. commonly, one or both gonads js an ovotestis containing both types of tissue. Although it is similar in somr) lvays to mixed gonadal dysgenesis, the conditions can be distingu ished histologically. 46 XX/46 Xy is possible if there is direct observ.etion of one or more of the following:

1. sma.ll phallus midway in size between a clitoris and a penis r-. R.. ,l

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2. lncomptetely closed urogenital opening (shallow vagina)

3. Abnormal urethra opening on the perineum 8.4. There have been no reported cases of both gonads being functional in the same person; the functional tissue is usually the ovarian tissue. A mix of male and female characteristics may emerge at puberty. Some individuals will experience secondary characteristics, such as breast development during puberty in a male phenotype, while others may experience deepening of the voice, secondary hair development, and Srnecomastia' g.5. Segmentation of skin (distinct patches of skin) has also been observed. However, this trait is not unique to 46 XXl46 XY chimerism nor mosaicism. tt has also been observed in other types of chimerism.

8.6. Cognitive Individuals with the condition do not experience cognitive impairment. Genetic mechanism 46, XX/46,XY is an example of tetragametic chimerism because it requires four gametes-two sperm and two ova.

46 XXl46 XY is most commonly explained during in conception combination of two fertilized eggs zygotes. TWo ova from the mother are fertilized by tu,o sperm from the father. One sperm contains an X chromosome; the other contains a Y chromosomc. The result is that a zygote with an XY genotype and a 4'gote with an XX genot5rpe are produced. Under normal circumstances, the two resulting zygotes would have gone on to become fraternal twins. However, in 46 yrxl46 XY, the two 4rgotes merge shortly before or after fertilization to become a tw'o-cell zygote made up of two different nuclei. The zygotes merge r:arly enough that there is no risk of them developing into conjoined twins. Variations of this mechanism include fertllizetion of an ovum and its first or second polar body by two sperm. 46 yJ/46 XY can also be explained by a mosaic- based mechanism. A single zygote is formed from the fertilization of a normal X ovum. The resulting XX/>CY zygote divide,; to give two cell lines: 46 XXI 46 XY. The 46 XXl46 XY cell lirres remain and go on to become a chimeric individual. 46 XXl46 XY can also arise when a haploid ovum undergoes a round of mitosis, and the subsequent daughter cells are fertilized by an X and a Y sperm, respectively. ,f , ..:i : l ; I i j I I I I i I ! Ip I I I : i

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8-7. Diagnosing chimerism or mosaicism is particularly difficult due to the random distribution of 46 XX and 46 YY cells within the body. In a chimeric human, an organ might be made up of a mix of 46 XX and 46 XY, but is made up entirely only one genot5rpe. When that is the case, no abnormalities are noted and other types of tissues need to be analyzed,. Blood tests might contain both or red blood cells of different blood types.

8.8. Before birth, ambiguous genitalia might be observed through ultrasound. The karyotype might also be observed through amniocentesis or cord blood sampling.

9. From the above, it is clear that in Chromosome analysis 46 KY karyotype the woman was otherwise healthy and did not have menarche or menstrual period as expected but was able to be sexually active and enjoy sex through her vagina. XY DSD can be caused by defects in androgen action typically due to dysfunction of the androgen reception (AR). DSD due to complete loss of function of the AR is called Complete Androgen Insensitivity Syndrome (CAIS) whereas mutations that retain some residual function result in Partial Androgen Insensitivity Syndrome (PAIS). CAIS typically presents in adolescence as primary amenorrhea despite normal breast development. Alternatively, CAIS may present in childhood with palpable u. inguinal masses in an individual with a 46 XY karyotype and a typicat J'emale appearance to the external genitalia. The phenotyJre in PAIS i,ariable depending on the degree of androgen sensitivity and there may be associated grnecomastia due to the peripheral conversion of testosterone to estradiol. Individuals rvith inzrctivating mutations of the LH receptor (Leydig cell hypopla:;ia) have a variable appearance ranging from completely female F,henotype to a variable degree of virllization, very similar to patients with AIS. Fertility is impaired in the majority of individuals with disorders of androgen action as a result of germ cell loss anri/or failure of spermatogenesis.

10. DSD are defined as congenital conditions in which development of chromosomal, gonadal, or anatomic sex is atypicat and a oonsensus statement has been issued that calls for patient-and-family centered care delivered by an integrated, interdir;ciplinary team. The primary role of that team would be to assr:ss all of these perspectives and provide care that is founded on a patient-and family-centered model. Variability exists across stakeholder groups in the key concerns affecting young children/family with DSD. Interdisciplinary DSD healthcare team development should account for varying perspe ctives when counselling families and planning treatment. <t

;, -J 3l 1 1. Whereas the resulting recommendations for holistic, multidisciplinary care seem to have been implemented rapidly in speciatized pediatric services around the world, adolescents often experience difficulties in finding access to expert adult care and gradually or abruptly cease medical follow-up. May adults with a DSD have health related questions that remain unanswered owing to a lack of evidence pertaining to the natural evolution of the various conditions in later life stages. L2. From the above analysis, it clear that Chromosome analysis 46 XY karyotype of the wife (first petitioner) cannot abridge her chances to beget a child through Surrogacy.

13. Begetting of children, as outlined in Dharmashastra, encompasses various essential aspects of pfocreation. It is viewed as a means to continue lineage and repay debts to the Pitrus, highlighting the responsibilities tied to fatherhood. The act of having children carries significant cultural and religious implications, promoting familial and social duties crucial for societal continuity. Additionally, it emphasizes the importance of offspring in Hindu texts, particularly regarding the responsibilities of men in the process of reproduction and family life. L4- Keeping in view the humiliation of childless parents, the legislature in its wisdom enacted the Surrogacy (Regulation)

Act, 2O2.- which is a beneficial piece of legislation to help the infertile couple to get rid of the social taboo of infertility. The Act is actually a tool for women suffering from rare disorders, to develop z. family and lead a normal married life.

15. Undisputedly, the marriage certificate of the petitioners shows that they are married; their Aadhar cards show thrtt they are within the prescribed age bracket; they do not have any surviving child either biologically or through adoptiorL or through surrogacy earlier. Therefore, the action of the 2nd respondent in refusing to issue Certificate of Essentiudity and Eligibility in favour of petitioners by the impugnr:d order on the ground of some chromosome defect in the first petitioner is unwarranted.

16. In similar circumstances, the Hon'ble Supreme Court in Antn Muthiuel as tfnion of India [W.p.(s) (Civil) Nos, 756/20221 observed that 'it is stated that the petitioners, being marriec, women, have a congenital disorder which is known as Mayer-llokitansky-Kuster-Hauser (MRKH) syndrome, also referrecl to as Mullerian Aplasia, characterized by aplasia of the uterus and upper part of the vagina of the female with normal secondary sex characteristics and a normal female karyotype (46, xx). It is a condition which is stated to affect the reprodrrctive system of the female and is caused by abnormal development of the Mullerian ducts which are structures in the embryo that develop into uterus, fallopian tubes, cervix and the upper part of the vagina. tt is stated that the MRKH syndrome involves absolute uterine factor infertility and the only option for the persons with such disability to achieve biological motherhood is through gestational surrogacy. on an elaborate analysis of the Act, arguments of both sides, medical history etc., the Hon'ble Supreme court opined that nothing can override what is stipulated under Rule la(a) of the 2o2l Act'' The Hon'ble Supreme Court held as under: " We Iind substance in the arguments of the learned counsel for the petitioner inasmuch as Rule 14 which is extracted above clearly refers to the rvife 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 pregnancylife-threatening.Thejustificationfornecessitatinggestational surrogacy in Rule 14 is all related to the intending woman or the wife anddoesnotrefertotheman/husbandatall.Thesaidprovisionsis woman-centric and relates to the medical or congenital condition of a woman which impedes her from becoming a mother' Tlrerefore,thewholeschemeoftheActrevolvesaroundthe ,.inability,,ofthewomantoconceiveandtogivebirthtoachildandthe medical indication necessitating gestational surrogacy in Rule 14 explainsthevariouscircumstanceswhichincapacitateordisablewomen from having a normal pregnancy and having a child'"

17. Apart from the above, in the case on hand' the District Medical Board for surrogacy [U/sec' +(iii)(a)(l) of the

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2O2I Act] consisting of three members: Gynecologist, Pediatrician and the District Medical and Health oflicer as chairpersion, examined petitioners and has given a certificate of Medical Indication dated 23.o8.2o24. In para-1(d) of the Certificate it is stated: "1. Medical inclications necessitating gestational surrogacy, as per Rule 14 of the Surrogacy (Regulationl Act,2021 & its Rules Dt. 21.06.2022:- A woman ma)'opt for surrogacy if; - (dl Any illness that makes it impossible for woman to carr5r a pregnanc5'to viability or pregnancy that is life threatening: il Cer:tificate for Donor Oocyte iu Surrogacy: As per nerv amendment GST I l9(E) in exercise of power conveyed by Section 5o o{' Surrogac_y (Regulation) Act the District Medical Board certificate that Wife constituting the intending couple suflfers from Androgen Insensitivity Syndrome, Karyotype xy absent ovaries and absent uterus necessitating use of donor oocyte to avail the Surrogacy procedure."

18. Following the above certilicate, the II AJCJ-cum- AMM, F:.R. District at Kukatpally, allowed the Application of petitionr:rs in s.R. No. 3927 of 2024 by order dared 26.0r.2024 holding "the application is allowed and the intending couple shall hzrve the parentage and custody of the child to be born through surrogacy."

19. The l"t petitioner, as per the writ affidavit, is having all phys;ical features of a woman; she is not a transgender and she is Jit to lead conjugal life. To her ill-luck, she is suffering from (lomplete Androgen Insensitivity syndrome (cAIS).

Because she is having CAIS problem and unable to give birth to a child, she opted for surrogacy. otherwise, she would have given birth to a child in the normal method. To extend a helping hand to such a woman, the Government has enacted the Surrogacy (Regulation) Act, 2021. Denying her an opportunity to get a child by Surrogacy method on the ground that she is not a perfect weman is contrary to the letter and spirit of the 2o2l Act and is nothing but denting the very purpose of ilne 2021 Act itself.

In view of the above, more particularly in view of the certilication of the District Medical Board constituted under the 2021 Act that the wife-the first petitioner herein is suffering from Androgen Insensitivity Syndrome, Karyotype Xy absent ovaries and absent uterus necessitating use of donor oocyte to avail the Surrogacy procedure, the impugned order of the 2"d respondent dated 18.08.2025 rejecting the Application of petitioners for issuance of certificate of Essentiality and Eligibilily under the provisions of the 2021 Act, is not justiliahle and is liable to be set aside, even on humanitarian grounds too.

21. In the result, the Writ Petition is allowed and the impugned order dated 18.O3.2025 is set aside. The 2nd respondent is directed to issue Certificate of Essentiality and A , I I I

a': Eligibility lo petitioners under the provisions of the Surrogacy (Regulatiotr) Act, 2021. No costs.

22. Consequently, the miscellaneous Applications, if any shall stand closed. SD/- AHMED ABDULLA KHAN ANT REGISTRAR //TRUE COPY// ECTION OFFICER To,

1. The Secretary Ministry of Health and F lndia, Room No. 156-4, Nirman Bhava .secvhfiargnic.in amily ( HFW), Union of n, New Delhi- 1 Email

2. The ch;rirp^erson (commissioner, Health and Family welfare), Appropriate Authorit'^ opposite DN/E Building, Dtv and H5 canipus, opp. Koti women's _C-ollggq [oad, KutbiGuda, Sultan Bazar, Koti, Hyderabad, Telengana - 500095. Email . md-nhm-chflru@telanRana. gov. in

3. One CC to M/s.P.D.VINEELA, Advocate. [OPUC]

4. One GC; to SRI N.BHUJANGA RAO, Deputy Solicitor General of lndia, High Court fc'r the State of Telangana at Hydera6ad. [OPUC]

5. Two cc;s to GP for fi/edical, Health and Family welfare Department,, High Court fcrr the State of Telangana at Hyderabad. [OUT]

6. Two CD Copies. BSK GJP /-- ,W

ri{r& :.1 .!-H |s - /! <f't HIGH COTIRT DATED:0:3/03/2026

ORDER

WP.No.2Gg21 of 2O2S ALLOWING THE WRIT PETITION WITHC,UT COSTS ,(S t(tlx I THE.> i.i '..J