Referring to the “extraordinary situation” in which two American couples seeking to take back embryos stored in a Mumbai hospital are caught in the middle of changes in India’s surrogacy laws, the Bombay High Court Tuesday asked the Union of India to take a humanitarian view and “apply their mind” to find a solution.
A bench of Justice Shantanu Kemkar and Justice M S Karnik was hearing a plea filed by the couples through senior counsel A A Kumbhankoni. The couples had come to India last year looking for a surrogate after they failed to conceive.
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One of the couples had sent eight frozen embryos to India by special courier. All the embryos are currently in a hospital in Powai, suburban Mumbai.
In April 2015, the Indian Council of Medical Research had given its no-objection certificate to the couple to import their frozen embryos from the USA. Accordingly, these were sent to India.
Subsequently, in November 2015, the Government of India announced a change in the policy and banned surrogacy for foreign couples in India.
The couple then asked the hospital authorities to return their embryos. Permission was, however, refused by the hospital stating that import and export of embryos were banned in India as per the new policy rules.
“This is an extraordinary situation. You should apply your mind as it was earlier permissible but was no longer allowed due to change in law. Take a humanitarian view of the matter,” said Justice Kemkar.
Based on the petition, notices have been sent to the Directorate General, Foreign Trade, Export Cell and the Ministry of Health and Family Welfare.
Kumbhakoni argued that the couples had brought the embryos into India with permission. “If it is sent to our country, does it become an Indian product? This is not export but merely restoration, and is not unauthorised. Even if we are trying to export it, how can you prevent it, it is the embryo of the couples and you can’t prevent them from doing what they want with it,” he said.
Kumbhakoni further questioned what would be done with the embryos if it was not returned. “The petitioners just want to ensure everything is being done legally. When it was permitted, the embryos were brought here. They don’t want an issue once the child is born,” he argued.
The matter has now been listed for hearing on October 26.