The Bombay High Court today allowed a US couple to make a representation to the Director General of Foreign Trade (DGFT) and Department of Family Welfare of the Centre to allow them to take back to their country eight embryos kept by them in a city hospital following a recent ban by India on commercial surrogacy. A division bench headed by Justice Shantunu Kemkar allowed the couple to make a representation to the respondents and asked the Centre to decide on it within three weeks.
The bench gave liberty to the respondents to file an affidavit in case they decided to reject the representation.
The lawyer of the US couple Ashutosh Kumbhkoni made a request on their behalf to the bench urging that they may be allowed to submit a representation to the DGFT and the concerned Ministry through the lawyer of the respondents.
Since Additional Solicitor General Anil Singh is appearing on behalf of the Centre, the representation to the government would be forwarded through him.
Kumbhkoni also informed that the embryos had to be kept at a low temperature in cold storage at their (US couple’s) own cost every day and thus they had to incur expenditure on this.
Almost a week ago, the same bench had directed the US couple to make DGFT and Ministry of Family Welfare as party respondents to their petition.
The Judges were of the view that import and export regulations are governed by DGFT and it should be made a party. Moreover, the petition concerned embryos and hence Family Welfare department should be heard in this matter.
Kumbhkoni had argued that the government should not adopt an adversarial approach and must find out a solution to the problem.
“These are our embryos and what will the government do with them. We had brought them to India in accordance with the laws of this country and after seeking permission of the authorities. Now that surrogacy is banned in India, we want to take them back,” the couple’s lawyer had argued.
Earlier, hearing a petition filed by the American couple, the court had served notices to the respondents and asked them to spell out the government policy on the issue.
During the hearing of petition last month, the bench had asked the couple how they could file this petition because the Constitution gave such right only to Indian citizens.
However, Kumbhkoni argued that Article 21 of the Constitution gave such a right to every person, even to foreign nationals.
“This is because right to life includes right to have a baby and hence the couple has a right to file such petition in the high court,” the lawyer had argued.
The petition said the couple tried to have a baby for many years but failed. The doctors had advised them surrogacy. Accordingly, the American doctors, with the help of the couple’s sperms and eggs, created the embryos and advised them to get a surrogate mother.
The couple sent the embryos to India by a special courier (in a frozen state). All the embryos are currently lying in a hospital at Powai in Mumbai.
The couple had also obtained surrogacy visa and came to India by following the procedure.
In April 2015, the Indian Council for Medial Research had given no objection certificate to the couple to import their frozen embryos from USA. Accordingly, they were sent to India.
Meanwhile, in November 2015, the Centre announced a change in policy and banned surrogacy for foreign couples.
The couple then asked the hospital authorities to return their embryos but they refused to part with the embryos saying that import and export of embryos was banned in India as per the new policy rules.
Thereafter, the couple approached the Indian government which also refused to allow them take back the embryos saying that while banning surrogacy it had also banned import and export of foetus also.
The couple argued that taking back their embryos did not amount to exporting them and the authorities should not interpret or make policy decisions that were against the basic tenets of fairness, law and human rights.
Their lawyer had submitted that 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.
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