Government to weigh in on couple’s embryo appeal

Americans were told taking them back would amount to exporting embryos, which is illegal

The Bombay High Court has asked the Union Commerce Ministry and Indian Council of Medical Research (ICMR) to take a stand on a plea of an American couple to take back their embryos, kept in a hospital lab here, after the Indian Government recently banned commercial surrogacy.

An embryo is an unborn offspring in the process of development. A division bench of Justices Shantanu Kemkar and M S Karnik, hearing a petition filed by the American couple, has served notices to both respondents and asked them to spell out the policy of the Government on the issue on October 4.

During the hearing of the writ petition two days ago, the bench wondered how the couple could file it because the Constitution of India gives such a right only to Indian citizens.

However, their counsel, senior lawyer Ashutosh Kumbhkoni, argued that article 21 of the Constitution gave such a right to every person, even to a foreign national. This is because right to life includes right to have a baby and hence the couple has a right to file such a petition in HC, he said.

The petition said that the couple had tried to have a baby for many years but failed. The doctors had advised them to undergo surrogacy. Accordingly, American doctors, with the help of the couple’s sperms and eggs, created the embryos and advised them to get a surrogate mother to carry them to term. The couple made eight embryos and sent them to India by a special courier (in a frozen state). All the embryos are currently lying in a hospital at Powai. The couple had also obtained a surrogacy visa and came to India by following procedure.

In April 2015, the ICMR had given them a no objection certificate to import their frozen embryos from US.

Meanwhile, in November of the same year, the Government of India announced a change in policy and banned surrogacy for foreign couples.

No return policy

The couple then asked hospital authorities to return their embryos but they refused to part with them, saying the import and export of embryos is banned in India as per the new rules. Thereafter, the couple approached the Indian Government, which also refused to allow them take the embryos, stating the same argument.

Kumbhkoni argued that taking back their embryos did not amount to exporting them and the authorities should not interpret or make policy decisions that are against the basic tenets of fairness, law and human rights.

Kumbhkoni said technically taking back the embryos was not an export because they were seeking to restore them back to the place from where they had originated.