Delhi High Court Refuses To Entertain Plea Challenging Rule Mandating Preservation Of Unused Embryos Solely For Original-Recipient

The Delhi High Court on Monday refused to entertain a plea challenging the Rule which mandates that all unused gametes or embryos shall be preserved by the assisted reproductive technology clinic for use on the same recipient and shall not be used for any other couple or woman.

A division bench comprising Chief Justice designate Manmohan and Justice Tushar Rao Gedela said that it is the policy of the State and the Court cannot interfere with the same.

“We cannot decide the policy of the State. It is decided by the elected representative…. We cannot allow it,” the bench remarked.

The plea was moved by Dr. Aniruddha Narayan Malpani challenging Section 24 of the Assisted Reproductive Technology (Regulation) Act, 2021, read with Rule 13(1)(a) of the Assisted Reproductive Technologies (Regulation) Rules, 2022.

It was Malpani's case that allowing embryo adoption in a regulated manner could address the significant demand for adoption, while simultaneously reducing the burden on fertility clinics to store unused embryos indefinitely.

“It is the policy of the State. We don't interfere with the policy of the State. We are not the elected representatives…. It is for them (elected representatives) to decide, not us,” the bench remarked as it refused to entertain the plea.

Accordingly, the plea was withdrawn with the liberty to file a representation with the Union Government.

While disposing of the plea, the court clarified that it did not comment on the merits of the case and that the rights and contentions of the parties will remain open.

The plea contended that the impugned Rule, by restricting the use of unused gametes or embryos, infringes upon the reproductive rights of couples, which are intrinsic to the right to life under Article 21 of the Constitution of India.

Malpani said that the enforced preservation of unused gametes or embryos solely for the original recipient can lead to the unnecessary destruction of viable biological material, which could otherwise benefit other couples or individuals facing infertility issues.

“The Petition highlights that the impugned Rule fails to recognize the growing acceptance of embryo or in-utero adoption internationally. Embryo adoption allows embryos to be donated by one couple to another for implantation, a process that begins the adoption from the moment of conception and fosters a deep connection between the adoptive parents and the child,” the plea said.

It added that the impugned Rule is “overly restrictive” and fails to account for specific circumstances where the recipient no longer needs or is unable to use the preserved gametes or embryos.

“There is no compelling state interest that justifies such a prohibition, especially when the primary objective of ART is to assist couples in overcoming infertility. The Rule, as it stands, is disproportionate and fails the test of reasonableness as laid down by this Hon'ble Court as well as the Hon'ble Apex Court in a catena of judgments concerning the right to life and reproductive autonomy,” the plea read.

Title: Dr. Aniruddha Narayan Malpani v. Union of India 

Citation: 2024 LiveLaw (Del) 1045