The Bombay high court stepped in on Tuesday to help two couples based in the US caught in the midst of changes to India’s surrogacy laws.
The court suggested the Union government consider treating the two cases as exceptions and adopt a humanitarian approach to help them take their frozen embryos out of India, despite the newly imposed ban on the export of embryos.
The situation is “extraordinary,” said a bench of justice Shantanu Kemkar and justice MS Karnik. The bench has asked the government why these embryos can’t be returned to their genetic owners.
The bench was hearing a plea by two San Francisco couples who came to India last year looking for a surrogate, after they failed to conceive a child biologically. They brought eight frozen embryos, found surrogates and entered into a written contract with them, according to the rules in place at the time.
Before the embryos could be ‘implanted’ into the surrogates’ wombs through IVF, the surrogacy rules in India changed with the introduction of the Surrogacy (Regulation) Bill, 2016. The rule now only allows ‘altruistic’ surrogacy for childless Indian couples who have been married for at least five years and mandates the surrogate mother should be a “close relative” of the couple, should be married and have borne a child of her own.
To ensure implementation of the new rules, there is also a ban on the import and export of frozen embryos. So when the two couples decided to return to their country, the government disallowed their plea of taking back their eight embryos.
They approached HC through their counsel, senior advocate Ashustosh Kumbhakoni.
On Tuesday, Kumbhakoni argued while bringing the embryos to India, the petitioners followed “complete legal procedures mandated by the US and India and they had all requisite permission from the Indian Medical Council”.
Kumbhakoni argued the petitioners wanted to take home something they “owned rightfully” and “this wasn’t a case of export, but of restoration”. He said the petitioners wanted to take back the embryos in order to make attempts at surrogacy now in the “US or UK, whose laws still permit commercial surrogacy”.
The HC has sought the Union’s response by October 26 this year.