Two US-based couples face an “extraordinary” situation in India, having been forced to wage a legal battle to get back possession of their frozen embryos from a Mumbai hospital. While Bombay High Court has asked the central government to take a humanitarian view and “apply their mind” to solve the problem, at the heart of the issue seems to be some confusion over the government’s move to ban surrogacy for foreign couples.
How did the couples reach the court?
After obtaining a No Objection Certificate from the Indian Council of Medical Research (ICMR) in April 2015, the couples had couriered their frozen embryos to India, with the intention of commissioning Indian surrogate mothers. However, on October 27, 2015, the Ministry of Health and Family Welfare (MoHFW) issued a circular to all Assisted Reproductive Technology (ART) clinics to stop surrogacy for foreign nationals. This August, the Union Cabinet approved the Surrogacy (Regulation) Bill, 2016 seeking to ban the procedure in all cases except for altruistic reasons for Indian couples. With surrogacy denied, the couples moved the court to have their embryos back, after the Powai-based hospital refused to return them, citing the new draft Bill.
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What does the Surrogacy (Regulation) Bill say on this and similar cases?
According to experts, there is still no clarity on what the Bill states on the import and export of embryos, ova and sperm. The entire Bill is yet to be made public. However, a circular issued by the Department of Health Research (DHR), MoHFW, in 2015, immediately prohibited the import and export of embryos for foreign nationals in India. “All the ART clinics are following that order. Since the surrogacy Bill has still not been passed in Parliament and is yet to become law, we do not know what it says on import and export,” said Dr Duru Shah, an IVF expert in Mumbai. After the DHR’s order, major IVF clinics in Gujarat, Delhi and Mumbai — which had emerged as hubs for surrogacy for foreign nationals — continue to store the frozen embryos of couples. In certain cases, foreign couples have been forced to give up their embryos.
How have doctors reacted to this issue?
Under the Indian Council of Medical Research (ICMR), there are 385 registered IVF centres. Mumbai leads with 46, followed by Delhi, with 43. In 2012, when the government banned surrogacy for single parents, doctors had sought a breather for those who had already frozen their embryos. The government had then provided interim relief to ART clinics to export the frozen embryos of single parents so that the procedure could be carried out in another country. No such relief was given in 2015 when the ban was extended to cover foreign nationals. The Indian Society for Assisted Reproduction (ISAR), an association of infertility experts, has protested to the government. The major demand is to allow commercial surrogacy for Indian couples along with altruistic surrogacy.
And what does ISAR have to say on the import and export of embryos?
After studying the key features of the draft Bill, the ISAR believes that like commercial surrogacy, the import and export of embryos may be banned as well. “But with ICMR’s clearance, embryos frozen before November 2015 can be taken back,” ISAR president Dr Narendra Malhotra pointed out.
What is the context in which the Bill has been drawn up?
India has attained global prominence in surrogacy mainly because the procedure is cheap here. What in the US costs more than Rs 50 lakh can be got for less than Rs 30 lakh in India. According to ICMR data, approximately 2,000 babies are born every year in India through commercial surrogacy. The first attempt to regulate the process was made in 2005, through the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India. Subsequent amendments were carried out in 2008, 2010 and 2013. A surrogate mother is paid in the range of Rs 3,00,000 to 5,00,000. The government has said that the exploitation of surrogate mothers has forced it to completely ban the procedure. It was observed that in certain IVF centres, the checks while recruiting surrogate mothers was poor, and they were often not provided with healthcare facilities once they had delivered the baby.
So, what has the court said in the ongoing case?
It has asked the petitioners to make the Export Cell of the Directorate General of Foreign Trade and the MoHFW parties in the matter. It has also told the union government to take a humanitarian stand. The next hearing is on October 26. The petitioners’ lawyer, A A Kumbhankoni, has pointed out that the import had been done legally, after taking permission from ICMR.