Bombay High Court Asks Maharashtra Govt To Look Into Constitution Of State Board & Regulatory Authorities For Surrogacy

A division bench of Justices SV Gangapurwala and Shriram Modak was hearing a couple's plea seeking to complete their surrogacy procedure initiated before the new Acts. The couple sought transfer of their cryo-preserved embryos out of PD Hinduja Hospital and Medical Research Centre to any other fertility clinic.

During the hearing, the court told the state's counsel to look into the matter of constituting authorities mandated under the law.

After losing both their children, the petitioners, both lawyers, opted for surrogacy and were under the treatment of Dr Arati Adhe at Hinduja Hospital, Mumbai. Mid-way through the petitioner's treatment, in January 2022, the new Assisted Reproductive Technology Act (ART) 2021 and Surrogacy Act 2021 was notified.

The petitioners have claimed that soon after both acts were enacted, the hospital refused to continue with the surrogacy procedure and also refused to transfer the cryo-preserved embryos to any other fertility clinic.

Since the hospital was unwilling to transfer the embryo and also owing to the non-constitution of various authorities, particularly National board and State boards under the Art Act, the couple approached the Bombay High Court.

It may be noted that the Act mandates constitution of these authorities within 90 days of its coming into force on January 25, 2022. The High Court issued notice and sought the Hospital's response.

On Monday the couple's counsel submitted that the transfer of embryos from one clinic to another wouldn't affect the interest of anyone and limited relief to that extent be allowed. The advocate appearing for the hospital vehemently opposed the transfer of the embryos and argued that the transfer should not be allowed in view of the section 29 of the ART Act.

Since the case involves questions of law, the bench posted the writ petition for detailed hearing on July 7, 2022. However, when the petitioner's counsel pointed out that mandatory boards under the Act were not formed, the court sought state counsel's response.

The court said that it was not passing any written order for constitution of the authority, but the state should look into this issue before the next date of hearing.

States like Telangana and Punjab have already constituted the boards and appropriate authorities under the Act. The national board has also been constituted by the central government on 4th May, 2022. However, the State board is yet to be constituted in Maharashtra.