The Bombay High Court Wednesday directed an American couple, who has been unable to take back their embryos which are currently stored in a hospital in Mumbai due to changes in surrogacy laws in India, to approach the Directorate General of Foreign Trade (DGFT). The court directed the DGFT to take a “reasoned” decision taking into consideration the “humanitarian aspects” of the case within three weeks.
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A bench of Justice Shantanu Kemkar and Justice M S Karnik was hearing a plea filed by the couple through their lawyer A A Kumbhakoni, who had come to India last year looking for a surrogate after they failed at conceiving a child biologically.
One of the couple had made eight embryos and sent them to India by a special courier (in a frozen state). All the embryos are currently at Hiranandani Hospital in Powai. In April 2015, the Indian Council of Medical Research had given a no objection certificate to the couple to import their frozen embryos from USA. Accordingly, they were sent to India. But when the Indian government announced a change in policy in November, 2015, and banned surrogacy for foreign couples, the couple requested the hospital authorities to return their embryos. However, the hospital refused to part with the embryos saying that import and export of embryos was banned in India under the new policy rules.
Additional Solicitor General Anil Singh informed the court that the couple had approached a private organisation that looks after surrogacy in India but had not made a representation before DGFT.
He said the petitioners should approach the DGFT regarding their case.
“The petitioner should expeditiously make a representation before DGFT through their lawyer and DGFT should pass appropriate orders on all aspects including the humanitarian aspects. An order shall be passed within three weeks,” said Justice Kemkar.
The matter has been kept for further hearing on November 30. Stating that this was an exceptional case, the court said, “If export is done illegally, interrogation has to be made but they are not in the business of export.”