Stuti Rakesh Painter vs State Of Gujarat

Nikhil S. Kariel, J

Heard learned Advocate Shri Nilay H. Patel for the petitioner, learned GP Ms. Manisha Lavkumar Shah, learned AGP Ms. Aishwarya Gupta and

learned AGP Ms. Surbhi Bhati for respondent No.1 State and learned Advocate Shri Rajesh K. Kanani for the respondent No.2.

By way of this petition, the petitioner has invoked extra-ordinary jurisdiction of this Court praying that appropriate direction may be issued to the

respondent to conduct the procedure for collection of sample from the body of Shri Dhruv Kumar Patel, husband of the petitioner No.1 and son of the

petitioner Nos.2 and 3. It was contended at the relevant point of time that Shri Dhruv Kumar Patel had been admitted in Critical Care Unit of the

respondent No.2 hospital on account of acute COVID 19 symptom since 10. 05.2021 and since out of extreme love and affection, the petitioner No.1

wants a child of her husband through IVF procedure for which purpose, sperms had to be collected from the husband of the petitioner No.1 and since

the husband of the petitioner No.1 was not in a condition to give consent and more particularly, since the condition of the husband of the petitioner

No.1 was stated to be critical at that relevant point of time, therefore, interference of this Court had been sought for. By an order dated 20.07.2021,

the Coordinate Bench of this Court (Coram: Ashutosh J. Shastri, J.) has directed as thus:

“1. This petition was to be circulated during the course of the day upon mentioning at 2.30 p.m., in view of extraordinary circumstances of

condition of husband of petitioner No.1, which has stated to have been deteriorated and few hours are stated to be crucial. Keeping in view such

extraordinary circumstance to avoid creation of irreversible situation, the Court has permitted the petition to be circulated.

Heard learned advocate Mr.Nilay H. Patel appearing for the petitioners.

3.Notice, returnable on 23rd July, 2021. Learned Assistant Government Pleader Ms.Aishwarya Gupta waives service of Notice on behalf of

respondent-State authority.

In the meantime, the respondent No.2 is directed to conduct IVF/ART procedure for collection of samples from the body of Shri Dhruv Kumar

Patel, the husband of petitioner No.1 and the said sample shall be stored at an appropriate place as per the medical advice.

This ad interim relief is granted in an extraordinary urgent situation before the Court and the same shall be subject to the outcome of the petition.

It is open for the petitioner to communicate this order telephonically to respondent No.2 and simultaneously, learned AGP Ms.Aishwarys Gupta is

also requested to communicate the same to respondent No.2

Direct service qua respondent No.2 is permitted today.â€​

In compliance of the said order, the respondent No.2 has filed an affidavit inter alia submitting that on the date of order itself i.e. 20.07.2021, the

procedure had been undertaken by Urologist and Embryologist, Dr. Haresh Thummar and Dr. Abhishek Shah respectively and whereas through

procedure namely Testicular Sperm Extraction TESE, sperm had been extracted from the body of the husband of the petitioner No.1. It is further

informed that since the sperm so extracted, could not be stored with respondent No.2, since the respondent No.2 did not have an appropriate facility,

the same had been shifted to one M/s. OASIS Fertility Center, Vadodara. It is further informed that unfortunately, the husband of the petitioner No.1

and son of the petitioner Nos.2 and 3 had expired on 22. 07.2021. The petitioner No.1 has also filed a further affidavit on 22. 07.2021, confirming the

facts as stated by the respondent No.2 hospital, as hereinabove.

The request of the petitioner having been considered by this Court and procedure having been undertaken, the question before this Court now is to

decide as to what further course of action is to be undertaken or permitted. Attention of this Court has been drawn to a proposed law being “The

Assisted Reproductive Technology (Regulation) Bill, 2020â€, which is stated to be under the consideration of the Parliamentary Standing Committee

on Health and Family Welfare and whereas the Bill has not been assented to by the Parliamentary and has not attained the form of a Law. As such

there is nothing pointed out before this Court, which would be in the nature of restraining the petitioner No.1 to undertake IVF/ART procedure for

getting herself impregnated using sperm of her late husband. It appears that at the relevant point of time, issue had reached this Court on account

position of the husband of the petitioner No.1, who could not take and informed consent with regard to the procedure to be undertaken.

In view of the fact that there is no legal impediment which would prevent the petitioner No.1 to undergo the procedure as recorded hereinabove and

more particularly, in view of the fact that parents of the late husband of the petitioner No.1 are also party petitioners to the present petition and who

also were supporting the decision of the petitioner No.1, who wants a child through the sperm of her late husband, this Court is of the opinion that

nothing further is required to be done at this stage by this Court. Suffice it to state that it would be open for the petitioner No.1 to utilise the sperms of

her late husband which are as now kept at OASIS Fertility Center, Vadodara for undergoing IVF/ART procedure, as and when the petitioner No.1 so

desires.

In view of the aforesaid observations, the petition stands disposed of as allowed.