MUMBAI: Yesterday, the Bombay High Court directed the National Board which was constituted under Assisted Reproductive Technology Act (ART), 2021, and Surrogacy Act to decide on a couple’s plea to import their cryo-preserved embryo to India which was stored in the United States since 2016.
A division bench of Justices SV Gangapurwala and SM Modak directed the couple to appear before the board on August 1, 2022 and directed the board to decide the matter on its own merits.
The couple informed the Court that after a number of failed attempts at pregnancy, Intro Vitro Fertilization (IVF) abroad and in India, a spontaneous abortion, the wife’s epilepsy, and a three-week coma. Later, the couple said they were not fit to conceive the baby. Their five preserved embryos were their only hope of a child through surrogacy.
Last year, the couple moved to Court for legal aid. At that time there was a 2015 notification by which the Director-General of Foreign Trade moved the import of human embryos from the ‘restricted category to the ‘prohibited’ category except for scientific research.
In a recent hearing, of the Bombay High Court, the bench headed by ASG Anil Singh for the Union submitted that the new Act completely bars the import of embryos and strongly opposed the petition.
In Assisted Reproductive Technology Act (ART) under section 29, the Act gives permission to the transfer of one’s own embryos for personal use within India but restricts the sale, transfer, or use of embryos within or outside India directly or indirectly.
Advocate Niteen Pradhan along with Advocate Shubhada appearing for the petitioners informed the court that there was no explicit bar on the import of embryos. Significantly, these were the couple’s own embryos and the transfer wasn’t a sale transaction.
The Court gives the next date of hearing on August 1, 2022, and states that “The National Board is constituted. The parties may remain present on 01/08/2022. The board may consider the case of the Petitioners and defense of the Respondents and take a decision on its own merits,” the bench said in the order.
The Couple got married in the year 2010 and came back to India in 2019. They attempted IVF for the first time in 2014, and the embryos were preserved in 2016. The petitioners claim they have been communicating with authorities in India for their embryos since 2018 but in vain.
Earlier the ICMR had Informed the couple that NOC was only being issued for the export of embryos, and guidelines for import have not been finalized. Their plea contended that there could not be a dual policy for import and export of embryos, where their use for foreign couples is taken care of; however, the import by infertile Indian couples is prohibited.
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