A month after the Union government banned ‘commercial surrogacy’ by okaying the introduction of the new Surrogacy Bill, a couple from the United States has approached the Bombay high court seeking permission to “take back” the eight frozen embryos that they had brought along to India last year but could not use due to the new regulations.
As per the plea filed through their counsel, senior advocate Ashustosh Kumbhakoni, the couple that has been together for five years, after failing at conceiving a child biologically, tried twice to get pregnant through in vitro fertilization (IVF) while in the US, but failed at that too. The US doctors then certified that it was “impossible” for them to have a child biologically and that theirs was a “fit case for surrogacy.” “The couple subsequently came to India looking for a surrogate and brought along the eight frozen embryos. All this was done while following complete legal procedures mandated by the US and India and they had all requisite permission from the Indian Medical Council,” advocate Kumbhakoni said.
Once in India, the couple found a surrogate and entered into a written contract with her as per the then rules. However, before the embryos could be ‘implanted’ into the surrogate’s womb, the rules on surrogacy in India changed—The Surrogacy (Regulation) Bill, 2016. Now only allows ‘altruistic’ surrogacy for childless Indian couples who have been married for at least five years and mandates that the surrogate mother should be a “close relative” of the couple, should be married and have borne a child of her own.
Worse still, in order to ensure implementation of the new rules, the new rules also ban the import and export of frozen embryos. Thus, when the couple decided to return to US, they weren’t allowed to the embryos with them.
They argued in order to make attempts at surrogacy now in the “US or the UK whose laws still permit commercial surrogacy.” However, having failed to make any headway with the government, they then approached the HC.
A bench of Justices Shantanu Kemkar and M S Karnik have now issued notices to the union government seeking its response on the plea. The bench has granted 10 days’ time to the government to “clarify its position” on the same.