Surrogacy law: US couples seek return of embryos, Bombay High Court tells Centre to ‘apply mind’

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.

Written by Ruhi Bhasin | Mumbai | Published:October 19, 2016 5:13 am
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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.


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.

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  1. R
    Oct 31, 2016 at 1:28 pm
    Of course adoption is also must be. Children need parental care and love most of all. I read that in European countries there are more than two million orphans. And more than a half of these children have various kinds of disabilities. Many couples who faced infertility adopt children from orphanages. A lot of families from Europe prefer to adopt children from Ukrainian or Russian orphanages. It is because in Europe process of adoption is extremely complex and long-running. Citizens of Spain, Italy, Israel, France and the United States most often adopt Ukrainian children. As in Russia the process is also rather complicated. Because of corruption it`s also expensive. But there are also many of those ones who use surrogate motherhood. People have own reasons to choose one way or another. Every family has own individual thoughts and decisions. In addition today one can choose the best variant of some different options. Both variants have positive and negative sides.
    1. A
      Oct 31, 2016 at 1:29 pm
      We are married for 2 years. Like most couples having children was something we planned to do in the future. I didn’t know what a long journey it was going to be. After being married for a couple of years or so we began to think about children. As I had very irregular periods we thought it may take a little longer to have a child. I had about 3-4 periods a year. We went to fertility doctor. She dismissed our problems carefully. Finally she said she thought I was working too hard and stress caused irregular periods. Well I had had irregular periods for many years. Even before trying to conceive. After long years of tests, fertility pills, hormone injections, IVF, we still wasn`t pregnant. The reason given was that I had PCOS. I did not ovulate without medication. Surrogacy was suggested as a solution. Now we are looking for a clinic in the East Europe. Hope to find something good.
      1. L
        Leslie Waller
        Nov 14, 2016 at 11:08 am
        I know a lot about surrogacy. And it is a really complicated process. It requires responsibility from both sides. Some years ago I was diagnosed infertility. It was a difficult time for us. I was not old. Although I wasn`t able to carry a baby. Doctor said I can try surrogacy. In Germany it`s completely forbidden. We had to look for another country. My husband is from Spain. I devoted a lot of time to study the legislation of this country. I read a lot about all aspects of surrogacy process there. But I wasn`t satisfied. Finally I decided on Ukraine. They offered an all-inclusive package. We were very happy with. The w package was about 30 00 euro. Accommodation, meals, transfer from airport, interpreter are included. There`s no such prepositions in other countries. With such prices I mean. We were worried so much. Still we decided to try. And I do not regret. Workers of the clinic supported me on each stage. Thanks to them we grow up our daughter.
        1. M
          Mandy Jones
          Oct 31, 2016 at 1:27 pm
          For a long time, Ukraine was unfamiliar and unexplored country for Europeans. But football championship in 2012 was a great opportunity for them to be seen from a new side. Europeans were really impressed with the beauty of Ukrainian cities. Today, many foreigners come to Ukraine as medical tourists. Reproductive medicine is very por among European patients. Europeans come to Ukraine because of the low prices for these services. The reproductive medicine attracts crowds of infertile foreigners to have legal and qualitative treatment. So their clinics offer good surrogacy packages. As far as I know, surrogacy package costs about 30000 euros. It`s really great. So many people from Spain, Germany, and France come there each year. Legislation in this sphere is also very good. I was there 2 years ago. And I don`t regret. It was one of the best decisions in my life.
          1. R
            Oct 19, 2016 at 1:58 am
            the kid who will be formed with this embryo should be named as: Red Tap Acchedinwala...
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