With India's Ban On Commercial Surrogacy, US Couples Approach Bombay HC To Take Back Embryos

After the recent prohibition on commercial surrogacy in India, two US couples have now approached the Bombay High court asking to take back eight frozen embryos that they had imported and are currently at a hospital in Mumbai. Court has asked the central government to take a “humanitarian view” and allow the petitioners’ request.

This matter came up before the division bench of Justice SS Kemkar and Justice MS Karnik on Tuesday. The bench directed the petitioners to implead Director, Ministry of Health and Family Welfare and Deputy Director General of Foreign Trade, Ministry of Commerce and Industry, Directorate General of Foreign Trade as parties.

Appearing for the petitioners, Senior Advocate AA Kumbhakoni argued that his clients followed the law and obtained an NOC from the Indian Council of Medical Research in April 2015 for importing these embryos. However the Ministry of Health and Family Welfare in its notification dated November 2015 communicated that a policy decision to ban import of human embryo has been taken. The Surrogacy(Regulation) Bill was approved by the union cabinet in August this year. Although a draft of the bill is yet to be made public, according to the press release by PIB –

“The Bill will regulate surrogacy in India by establishing National Surrogacy Board at the central level and State Surrogacy Boards and Appropriate Authorities in the State and Union Territories. The legislation will ensure effective regulation of surrogacy, prohibit commercial surrogacy and allow ethical surrogacy to the needy infertile couples. “

The 228th law commission report had also recommended prohibition of commercial surrogacy.

The two US couples who had already entered into a written contract with their surrogates, are now in a precarious situation. They filed the writ petition in September this year after they were not allowed to take back their embryos. Their lawyer argued that this was not a case of export but “restoration” as these embryos belonged to his clients.

This case will now come up for hearing on October 26.

This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation.