W.P.(C)/1636/2017 of RAMANPREET SOKHI & ANR Vs UNION OF INDIA & ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+W.P.(C) 1636/2017

RAMANPREETSOKHI& ANR

Petitioners

Through;MrRavi Chaturvedi,Advocate.

versus

UNIONOF INDIA& ORS

Through:

RespondentsMr TusharMathur, Advocatefor MsSupamaSrivastava,CG.SC for R-1 &2.

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU

ORDERo/o29.11.2017

--1.The petitioners v^ho are foreign nationalsofIndian origin havefiled the present petition, inter alia, praying that directionsbe issued torespondentnos.l & 2 to give appropriatedirectionsto respondentno.3 totheofwhichtheclaimwas initiatedcomplete processsurrogacy, petitionerspriortothe issuanceofthe letterdated04.11.2015.

2.The controversy involved in the present petition is whether theofcan be statedto havebeencommissionedin theprocesssurrogacy presentcase, as is claimedby the petitioners,so as to escapethe applicabilityoftheletterdated04.11.2015issuedby the MinistryofHealth&FamilyWelfare,Government of India.

3.Brieflystated,the relevantfacts are that the petitionerswere marriedin April, 2002, however,petitionerno.1was unableto conceivebecauseof

bilateraltubal Thestate that several were blockage. petitioners attemptsmade by the petitioners for IVF, however, the said attempts were notsuccessful. Finally, the petitioners decided to go through surrogacy and Sir Ram same. Theprocess approached Ganga Hospital for thePetitionersvisited India in July, 2015 to get permissionfor the surrogacyprocess. And, on 27.07.2015,the petitionerswere finally permittedto gothroughwiththe surrogacyat SirGangaRam Hospital,DelhibytheForeignRegional Registration Office (FRRO).

4.The petitioners state that, thereafter, semen samples were frozen and semen. It is stated thatafter retrieval,the eggs were fertilizedusing frozenembryos developed are currently lying in frozen state..

5.While, the petitioners were undergoing the said process, respondentno.l issued Notification dated 04.11.2015,which, inter alia, proscribes theimport for surrogacy services.In terms of that notification, it is furtherdirected that no visa 'would be issued by Indian Missions/Posts to foreignnationals intending to visit India for commissioning surrogacy. It has beenfurther directed that no permission should be granted by the FRRO toOverseas Citizens of India (which the petitioners claim to be) to commissionsurrogacy in India. However, the said notification also expressly providesthat the said notification would not be applicable to cases wherecommissioning of surrogacy has already commenced.

6.The relevant extract of the said notificationis as under:-

"iv)However there may be cases where - prior to issueof this letter action might have been initiated/taken bysurrogacyClinics/ARTClinics/I VFClinics/GeneticCounselling Centres/Genetic Cabpratories/ARTBanks or

suchothercHnicalestablishmenttocommissionsurrogacy, mcluding import of Human Embryo andthereofintomotherorimplantationsurrogatechild/childrenbom from it. Such cases will be allowed tocomplete the processes already started to avoid medicalcomplications. However,all such cases will approachtheState Health Authorities for permission. The State HealthAuthoritieswill decide such cases on case to case basis."

7.The petitioners claim that they fall within the exclusionaryprovision(paragraph l(iv) of the Notification ) as reproduced above, since in theircase the surrogacy process has already begun.

8.The respondents, on the other hand, dispute the above and contend^ that as on the date of the petition,the petitionershad not even identifiedthesurrogate mother and have not entered into any agreement for the saidpurpose. It is contended on their behalf that mere laboratory procedurecannot be interpreted to mean commission of surrogacy within the meaningof paragraph 1(iv) of the circular dated 04.11.2015.

The respondents, on the other hand, dispute the above and contend

9.Learned counsel for the respondents also drew the attention of thisCourt to paragraph 12 of the counter affidavit, which indicates the currentstatus of the process initiated in the case of the petitioners. The relevantextract of the counter affidavit indicating the sequence of events in respectof the petitioners' surrogacy case is as under:-

6.Providedate-wideDate-wise complete sequence ofcomplete sequenceevents in respect of surrogacyof events in respectcase of Ms RamanpreetKaurof surrogacycaseand Shri Sandeep Singh Dab isof Ms Ramanpreetas follows:KaurSokhiandDateEvents

Sh. Sandeep Singh25.07.2015FirstSemenDab?sample frozen27.07.2015PermissiongrantedbyFRROforIVFwith surrogacy03.08.2015Secondsemensample frozen21.09.2015Collectionofdonor eggs26.09.2015EmbryoBiopsyforprenatalgeneticscreeningandEmbryo frozen.02.11.2015EmbryoBiopsyreportreleasedbytheGeneticLab(IGENOMIX)

10.In the givencircumstances,this Courtis of the view that thecontention that the commission of surrogacy had commenced is notpersuasive.A plain reading of paragraph l(iv) of the notification dated04.11.2015circular indicates that an exclusion was carved out for the caseswhere action had been initiated to commissionsurrogacy, including importof "human embryo and implantation thereof into surrogate mother". It wasfurtherclarifiedthat such cases would be allowedto cohipletethe processesalready started "to avoid medical complications". It is apparent from theabove, the plain language of paragraph l(iv) of the notification that entirepurpose of carving out the exception was to avoid medical complications.

11.Clearly, no foreseeablemedical complicationsarise where the process

themotherhas not even commenced.theinvolving surrogate Admittedly,surrogacy process is only at the laboratory stage and there are no foreseeablemedical complications.The provisions of paragraph I(iv) of the circularmust be given purposiveinterpretation.The intentionin introducingtheclausewas to save the commencedexclusionary surrogacyprocessthat hadso as to avoid possibility of medical complication.Thus, the cases,wherethe surrogacy process involving the surrogate mother has not commencedand the process is still at the laboratory stage, would not be saved from therigors of the notification dated 04.11.2015.

12.In view of the above, this Court is unable to accept that the case ofthe petitioners falls within the exception of paragraph l(iv) of the circular'dated 04.11.2015.

13.The petition is, accordingly, dismissed. No order as to costs.

VIBHU BAKHRU, J

NOVEMBER 29,2017