in Arun Muthuvel v. Union of India Ors. For

W.P.No.4102 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.02.2024CORAM :THE HONOURABLE DR.JUSTICE ANITA SUMANTHW.P.No.4102 of 2024and WMP No.4414 of 20241.Mr.R.Nandakumar2.Mrs.Shanthi Maadhaven.. Petitionersvs1.State of Tamil Nadu Rep. by its Principal Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai.2.The Director, Directorate of Medical and Rural Health Service, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006.3.The Joint Director of Health Service/ District Medical Board, O/o. Joint Director of Health Service, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006. .. RespondentsPrayer : Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the 2nd and 3rd respondents to permit the petitioners to allow the use of donor oocytes 1/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024for 2nd petitioner's pregnancy treatment under the provisions of Assisted Reproductive Technology (Regulation) Act 2021, the Surrogacy (Regulation) Act,2021, The Assisted Reproductive Technology (Regulation) Rules, 2022 and Surrogacy (Regulation) Rules, 2022 and as per the order of the Supreme Court of India in Writ Petition(s) (civil) No.756 of 2022 in Arun Muthuvel vs Union of India & Ors. For Petitioners:Mr.S.Jim Raj MiltonFor Respondents:Mr.K.Tippu SultanGovernment AdvocateO R D E RW.M.P.No.4414 of 2024, filed seeking permission to file a single writ petition is ordered on payment of separate court fee, if not already paid. 2.This writ petition has been filed by a couple seeking a mandamus directing the second respondent, being the Director, Directorate of Medical and Rural Health Services and the third respondent being the Joint Director of Health Service / District Medical Board to to allow the use of donor oocytes for pregnancy treatment under the provisions of Assisted Reproductive Technology (Regulation) Act, 2021, the Surrogacy (Regulation) Act, 2021 and connected Rules.3. The Act provides for constitution of Boards at the National and 2/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024State level as well as other authorities to regulate the practice and process of surrogacy. The procedure relating to surrogacy is set out in various rules and regulations, including Surrogacy (Regulation) Rules, 2022 (Rules). The Rules, provide, inter alia at Rule 14 that a woman may opt for surrogacy in certain specified medical conditions. Rule 14 reads as follows:-"14. Medical indications necessitating gestational surrogacyA 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 uni-cornuate uterus, T-shaptd 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."4.The form of consent in Form 2 is relatable to Rule 7. Rule 7 deals with consent of a surrogate mother. Form 2 is the form of consent of the surrogate mother and the agreement for surrogacy. It contains inter 3/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024alia various methods of treatment that may be adopted as follows:-(a) stimulation of the genetic mother for follicular recruitment;(b) the recovery of one or more oocytes from the genetic mother by ultrasound-guided oocyte recovery or by laparoscopy;(c) the fertilization of the oocytes from the genetic mother with the sperm of her husband;(d) the fertilization of a donor oocyte by the sperm of the husband;(e) the maintenance and storage by cryopreservation of the embryo resulting from such fertilization until, in the view of the medical and scientific staff, it is ready for transfer;(f) implantation of the embryo obtained through any of the above possibilities into my uterus, after the necessary treatment if any.(emphasis provided)5.Vide Notification dated 14.03.2023, an amendment was proposed to the Form and existing paragraph 1(d), highlighted in bold above, was substituted as follows:-"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......1(d) (I) Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed;(II) Single woman (widow / divorcee) undergoing Surrogacy must use self eggs and donor sperms to 4/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024avail surrogacy procedure."6.This would lead to a situation where Rule 14 would be rendered otiose as it adumbrates several medical conditions where the mother is unable to conceive. 7.When this anomaly was brought to the attention of the Hon'ble Supreme Court, an interim order was passed on 18.10.2023 in W.P.(C) No. 830 of 2023 staying the operation of newly substituted Rule 1(d). The order, reads as follows:-“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 womancentric and relates 8 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 5/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024having a child. We have closely perused the original Paragraph 1 (d) 5 in Form 2 and the substituted Paragraph 1(d). A reading of Paragraph 1 of Form 2 clearly 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 6 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 6/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024scheme 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 7 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 7/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024petitioner Mrs. ABC otherwise fulfils all other conditions mentioned under the Act, she is entitled to proceed with the process of surrogacy.” 8.Following the above order, several other interlocutory applications have been allowed on 05.12.2023 and 09.01.2024 wherein the amendment, i.e., Paragraph 1(d) (i) in Form ‘2’, which is the consent of the surrogate mother and agreement for surrogacy read with Rule 7 of the Surrogacy (Regulation) Act, 2021 under the surrogacy Act has been stayed. The applicant is thus entitled to proceed with the process of surrogacy if she fulfills all other statutory conditions. 9. In the present case, the petitioners have not approached the respondents apprehending rejection of the application in view of the amendment that has been discussed in the paragraphs supra. 10. This Court had an occasion to consider several matters and the Hon'ble Supreme Court had issued directions to the respondents to consider the applications as and when filed by the intending couples, call the couples for requisite medical tests, process their applications and decide the same expeditiously. The intending couple in the present case will be entitled to the benefit of the said order. 11. Thus, the petitioners are permitted to file an application before the authorities seeking issuance of eligibility certificate for undergoing 8/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024the procedure for surrogacy and the authorities, within a period of two (2) weeks from date of receipt of application, shall call the couple to appear for requisite medical tests and their application shall be processed and ordered on the same date. 12.This writ petition stands allowed in terms of this order. No costs. 21.02.2024Index:Yes/NoNeutral Citation:YesSpeakingslTo1.The Principal Secretary to Government, State of Tamil Nadu Health and Family Welfare Department, Secretariat, Chennai.2.The Director, Directorate of Medical and Rural Health Service, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006.3.The Joint Director of Health Service/ District Medical Board, O/o. Joint Director of Health Service, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006.DR. ANITA SUMANTH,J.9/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024SlW.P.No.4102 of 202421.02.202410/10

W.P.No.4102 of 2024IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.02.2024CORAM :THE HONOURABLE DR.JUSTICE ANITA SUMANTHW.P.No.4102 of 2024and WMP No.4414 of 20241.Mr.R.Nandakumar2.Mrs.Shanthi Maadhaven.. Petitionersvs1.State of Tamil Nadu Rep. by its Principal Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai.2.The Director, Directorate of Medical and Rural Health Service, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006.3.The Joint Director of Health Service/ District Medical Board, O/o. Joint Director of Health Service, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006. .. RespondentsPrayer : Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the 2nd and 3rd respondents to permit the petitioners to allow the use of donor oocytes 1/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024for 2nd petitioner's pregnancy treatment under the provisions of Assisted Reproductive Technology (Regulation) Act 2021, the Surrogacy (Regulation) Act,2021, The Assisted Reproductive Technology (Regulation) Rules, 2022 and Surrogacy (Regulation) Rules, 2022 and as per the order of the Supreme Court of India in Writ Petition(s) (civil) No.756 of 2022 in Arun Muthuvel vs Union of India & Ors. For Petitioners:Mr.S.Jim Raj MiltonFor Respondents:Mr.K.Tippu SultanGovernment AdvocateO R D E RW.M.P.No.4414 of 2024, filed seeking permission to file a single writ petition is ordered on payment of separate court fee, if not already paid. 2.This writ petition has been filed by a couple seeking a mandamus directing the second respondent, being the Director, Directorate of Medical and Rural Health Services and the third respondent being the Joint Director of Health Service / District Medical Board to to allow the use of donor oocytes for pregnancy treatment under the provisions of Assisted Reproductive Technology (Regulation) Act, 2021, the Surrogacy (Regulation) Act, 2021 and connected Rules.3. The Act provides for constitution of Boards at the National and 2/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024State level as well as other authorities to regulate the practice and process of surrogacy. The procedure relating to surrogacy is set out in various rules and regulations, including Surrogacy (Regulation) Rules, 2022 (Rules). The Rules, provide, inter alia at Rule 14 that a woman may opt for surrogacy in certain specified medical conditions. Rule 14 reads as follows:-"14. Medical indications necessitating gestational surrogacyA 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 uni-cornuate uterus, T-shaptd 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."4.The form of consent in Form 2 is relatable to Rule 7. Rule 7 deals with consent of a surrogate mother. Form 2 is the form of consent of the surrogate mother and the agreement for surrogacy. It contains inter 3/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024alia various methods of treatment that may be adopted as follows:-(a) stimulation of the genetic mother for follicular recruitment;(b) the recovery of one or more oocytes from the genetic mother by ultrasound-guided oocyte recovery or by laparoscopy;(c) the fertilization of the oocytes from the genetic mother with the sperm of her husband;(d) the fertilization of a donor oocyte by the sperm of the husband;(e) the maintenance and storage by cryopreservation of the embryo resulting from such fertilization until, in the view of the medical and scientific staff, it is ready for transfer;(f) implantation of the embryo obtained through any of the above possibilities into my uterus, after the necessary treatment if any.(emphasis provided)5.Vide Notification dated 14.03.2023, an amendment was proposed to the Form and existing paragraph 1(d), highlighted in bold above, was substituted as follows:-"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......1(d) (I) Couple undergoing Surrogacy must have both gamete from the intending couple & donor gametes is not allowed;(II) Single woman (widow / divorcee) undergoing Surrogacy must use self eggs and donor sperms to 4/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024avail surrogacy procedure."6.This would lead to a situation where Rule 14 would be rendered otiose as it adumbrates several medical conditions where the mother is unable to conceive. 7.When this anomaly was brought to the attention of the Hon'ble Supreme Court, an interim order was passed on 18.10.2023 in W.P.(C) No. 830 of 2023 staying the operation of newly substituted Rule 1(d). The order, reads as follows:-“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 womancentric and relates 8 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 5/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024having a child. We have closely perused the original Paragraph 1 (d) 5 in Form 2 and the substituted Paragraph 1(d). A reading of Paragraph 1 of Form 2 clearly 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 6 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 6/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024scheme 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 7 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 7/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024petitioner Mrs. ABC otherwise fulfils all other conditions mentioned under the Act, she is entitled to proceed with the process of surrogacy.” 8.Following the above order, several other interlocutory applications have been allowed on 05.12.2023 and 09.01.2024 wherein the amendment, i.e., Paragraph 1(d) (i) in Form ‘2’, which is the consent of the surrogate mother and agreement for surrogacy read with Rule 7 of the Surrogacy (Regulation) Act, 2021 under the surrogacy Act has been stayed. The applicant is thus entitled to proceed with the process of surrogacy if she fulfills all other statutory conditions. 9. In the present case, the petitioners have not approached the respondents apprehending rejection of the application in view of the amendment that has been discussed in the paragraphs supra. 10. This Court had an occasion to consider several matters and the Hon'ble Supreme Court had issued directions to the respondents to consider the applications as and when filed by the intending couples, call the couples for requisite medical tests, process their applications and decide the same expeditiously. The intending couple in the present case will be entitled to the benefit of the said order. 11. Thus, the petitioners are permitted to file an application before the authorities seeking issuance of eligibility certificate for undergoing 8/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024the procedure for surrogacy and the authorities, within a period of two (2) weeks from date of receipt of application, shall call the couple to appear for requisite medical tests and their application shall be processed and ordered on the same date. 12.This writ petition stands allowed in terms of this order. No costs. 21.02.2024Index:Yes/NoNeutral Citation:YesSpeakingslTo1.The Principal Secretary to Government, State of Tamil Nadu Health and Family Welfare Department, Secretariat, Chennai.2.The Director, Directorate of Medical and Rural Health Service, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006.3.The Joint Director of Health Service/ District Medical Board, O/o. Joint Director of Health Service, No.359, DMS Complex, 361, Anna Salai, Chennai - 600 006.DR. ANITA SUMANTH,J.9/10 https://www.mhc.tn.gov.in/judis W.P.No.4102 of 2024SlW.P.No.4102 of 202421.02.202410/10