intervene in this matter was the plea of the learned counsel for the petitioner
that earlier the National Guidelines for Accreditation, Supervision and
Regulation of ART Clinics in India (Annexure P-4) were in force. There
appeared to be some conflict between the guidelines issued under the
Foreigners Act by the Ministry of Home Affairs (Annexure P-2) and the
guidelines of the ICMR. However, the conflict for the interim period is
resolved by all the respondents being in unison that in the interregnum
period the arrangement which would prevail would not permit the single
parent foreign citizen surrogacy. The final version would only emerge as
stated aforesaid after the Parliament debates on the law.
In view of the aforesaid position, we are not inclined to issue a writ
in favour of the petitioner, a foreign citizen, who seeks single parent
surrogacy as the law in this behalf itself is sought to be enacted and it is at a
final stage.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-15490-2013 (O&M)
Date of decision:-23.04.2014
Shihabeldin
Versus
Union of India and others
CORAM: HON'BLE MR. JUSTICE SANJAY KISHAN KAUL, CHIEF JUSTICE
HON'BLE MR. JUSTICE ARUN PALLI
Leave is granted to place on record the affidavit of the Secretary,
Ministry of Law & Justice and the application is allowed.
Leave is granted to place
on
record
the affidavit of
Mr. Vikas Srivastava, Under Secretary (Foreigners), Ministry of Home
Affairs in pursuance to our last order dated 02.04.2014 and the application is
allowed.
For the reasons set out in the affidavits, exemption is granted from
personal appearance for today qua the officers concerned and the affidavit
sought to be placed on record on behalf of respondents No. 6 and 7 is taken
on record and the application stands disposed of.
The affidavit filed by Mr. Vikas Srivastava is not wholly
satisfactory to the extent that once the example of the judgement of the
Gujarat High Court had been given to buttress the plea of complexities of
issue involved, it was his bounden duty to have also referred to the fact of
the matter pending before the Hon’ble Supreme Court and that too on a
Special Leave Petition filed by the Union of India. Be that as it may, in view
of the regret and apology tendered, we would not like to proceed further in
this matter.
The affidavit filed by the Secretary, Department of Legal Affairs,
Ministry of Law & Justice shows that action has been taken and the final
view is that the concerned Administrative Ministry would be the Ministry of
Health and Family Welfare which would lead the matter in the Court.
The detailed affidavit of Mr. S.K. Rao, Joint Secretary, Department
of Health Research, Ministry of Health & Family Welfare has been filed. It
has been explained that various versions of the Bill are put in public domain
for opinions; once the opinions are obtained and the inter-ministerial
discussions take place resulting in a Cabinet note being prepared, the final
version of the Bill being an annexure to the Cabinet note also becomes top
secret. This is stated to be on the basis of a hand book on writing Cabinet
notes of the Government of India, Cabinet Secretariat. We are not at the
moment commenting on the advisibility of such a process whereby even the
proposed final version of the Bill becomes top secret because it is not really
the issue before us. The relevant fact, however, is that the final draft form of
legislation is now before the Cabinet. The Cabinet is yet to deliberate on it.
The stand taken before us on behalf of the Health Ministry is that in the
interregnum period the concerned Ministry would stand by the guidelines
issued by the Ministry of Home Affairs under Section 3 of the Foreigners
Act, 1946.
We are, thus, confronted with a situation where undoubtedly
there is a complex issue at hand of surrogacy qua single parents who are
foreign citizens. It cannot be lost site of that there would have to be checks
and balances in such a situation. As to what would be the final version of the
Act and what are the checks and balances would in turn depend on the final
proposal of the Cabinet which would in turn have to be placed before the
House and only thereafter would it be known. What had persuaded us to
intervene in this matter was the plea of the learned counsel for the petitioner
that earlier the National Guidelines for Accreditation, Supervision and
Regulation of ART Clinics in India (Annexure P-4) were in force. There
appeared to be some conflict between the guidelines issued under the
Foreigners Act by the Ministry of Home Affairs (Annexure P-2) and the
guidelines of the ICMR. However, the conflict for the interim period is
resolved by all the respondents being in unison that in the interregnum
period the arrangement which would prevail would not permit the single
parent foreign citizen surrogacy. The final version would only emerge as
stated aforesaid after the Parliament debates on the law.
In view of the aforesaid position, we are not inclined to issue a writ
in favour of the petitioner, a foreign citizen, who seeks single parent
surrogacy as the law in this behalf itself is sought to be enacted and it is at a
final stage. This is not a matter where the stated vacuum can be filled in by
the Court in the interregnum period, moreso when there is now a unanimous
view of the different Ministries of the Government of India as to what
should prevail as an interim arrangement.
The petition is accordingly disposed of with a hope that the final
view would be available with the constitution of the new House which
would have the benefit of debating the matters pertaining to the law post the
Cabinet having scrutinized the same.
The draft Bill, 2013 produced in a sealed cover has been returned
to the Joint Secretary, Department of Health Research, Ministry of Health &
Family Welfare.
(SANJAY KISHAN KAUL)
CHIEF JUSTICE
(ARUN PALLI)
JUDGE
23.04.2014
Amodh
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