Manmohan JUDGMENT
N.V. Ramana, C.J.
1. This writ petition is filed by two petitioners, residents of Sydney, Australia. The first petitioner is the wife and the second is the husband. It appears that due to some medical problem the first petitioner cannot physically conceive a child. After medical examination by best doctors and taking medical advice, they found that the cause is some 'Lupus' and it is an Immuno-Suppressive Stipulation which does not physically and practically allow the embryos of the mother to thrive and properly flourish in her body. The doctors therefore advised her to proceed with a Gestational Surrogacy. It is a procedure by which one woman, the surrogate mother, carries a fertilized donor egg or embryo for the petitioner No. 1. It basically involves In-Vitro Fertilization (IVF), which involves mixing of eggs and sperms outside the uterus, followed by implanting the fertilized eggs into the uterus, where the embryo will grow and develop into a baby. This is available, apart from India, in only two countries, i.e., Thailand and America, throughout the world, which offer an assured and medically secure IVF process. For a long time, the petitioners had a desire to have a child but because of the medical problem they could not conceive. Now they thought of using the above technique to get a child. However, for the sake of family balancing they intend to have one girl child and one boy child and for this purpose, in the surrogacy procedure for the petitioners, the prenatal techniques play an essential and important role. According to the petitioners, though they want a child, yet they do not want two children of the same sex in view of their principle of balanced family and accordingly they want to control the birth of same sex by using the advanced prenatal techniques. For this purpose, it appears that the petitioners made an application to respondent No. 1 seeking to forward it to the concerned department and in that application they made a request that the provisions of The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as 'the said Act') cannot be made applicable to them and it is also further stated that couples who have no children and wish to have a male or female children should be allowed to make use of the pre-natal diagnostic techniques to have a child of both sex to balance their family. So these couples cannot be treated at par with the couples, who choose the sex of foetus in order to have a male child leading to imbalance in male to female ratio.
2. It is further stated that the unconstitutionality of the said Act is visible to the class of couples who are not having child/children and wish to have both male and female babies. Even though they made an application seeking exemption of these couples from the said Act, there is no response from the respondent authorities. The present writ petition is, therefore, filed seeking following reliefs:-
i Issue a writ of mandamus or any other appropriate writ, order or direction directing the Respondent No. 1 to grant a 'No Objection' to the petitioners with reference to their application pending disposal in their office.
ii Issue a writ of mandamus or any other appropriate writ, order or direction thereby directing that the Pre-Natal Diagnostic Techniques Act as ultra vires with respect to its applicability to surrogacy process.
3. When the matter came up for admission, the learned counsel for the respondent No. 1 furnished a letter dated 17.09.2013 which is a reply to the representation submitted by the petitioners. Vide the said letter the request made by the petitioners has been declined stating that the said Act does not permit Sex selection on the pretext of family balancing as it would result in restricti........