Bombay High Court Directs National Board To Decide Couple's Plea To Import Cryo-Preserved Embryos From US Lab

A division bench of Justices SV Gangapurwala and SM Modak asked the couple in their 40s to appear before the board on August 1, 2022 and directed the board to decide the matter on its own merits.

After several failed attempts at pregnancy, Intro Vitro Fertilization (IVF) abroad and in India, a spontaneous abortion, the wife's epilepsy and a three-week coma, the couple said they were not fit to conceive. Their five preserved embryos were their only hope of a child through surrogacy, they said.

The couple approached the court last year before the Acts came into force. Back then there was a 2015 notification by which the Director-General of Foreign Trade moved the import of human embryos from the 'restricted category to the 'prohibited' category except for scientific research.

However, during a recent hearing in the matter ASG Anil Singh for the Union submitted that the new Act completely bars the import of embryos and strongly opposed the petition.

Section 29 of the ART Act permits the transfer of one's own embryos for personal use within India but restricts the sale, transfer or use of embryos within or outside India directly or indirectly.

Advocate Niteen Pradhan along with Advocate Shubhada for the petitioners said there was no explicit bar on import of embryos. Significantly, these were the couple's own embryos and the transfer wasn't a sale transaction.

In response to the court's suggestion that the National Board can look into the matter, the ASG said that the application won't be maintainable.

However, the bench noted that the National Board will already be looking into another matter on August 1, 2022 and the petitioners could appear for their hearing on the same date.

"The National board is constituted. The parties may remain present on 01/08/2022. The board may consider the case of the Petitioners and defence of the Respondents and take decision on its own merits," the bench said in the order.

The petitioners who left for the US in the early 2000s were hitched in 2010 and returned to India in 2019. They attempted IVF for the first time in 2014, and the embryos were preserved in 2016. The petitioners claim they have been communicating with authorities in India for their embryos since 2018 but in vain.

The embryos, which are their "own creation" and "personal property," cannot be used by anyone else without their consent, they said.

Before the board was constituted, the couple sought directions to the respondents to issue a no-objection certificate for the import of their embryos.

Earlier the ICMR had Informed the couple that no-objection Certificates were only being issued for the export of embryos, and guidelines for import have not been finalized. Their plea contended that there could not be a dual policy for import and export of embryos, where their use for foreign couples is taken care of; however, the import by infertile Indian couples is prohibited.

"Every woman has the right to have her own child either naturally or through IVF or through surrogacy. By imposing a ban on having a child, is violating the Petitioners Fundamental Rights and Constitutional Guarantees," the plea had said.