Plea In Delhi High Court Seeks Permission To Export Embryo To Surrogate In California

A writ petition has been moved in the Delhi High Court seeking directions to the Indian Council for Medical Research (ICMR) for issuance of a No Objection Certificate for export of human embryo to a surrogate mother abroad.

The petition filed through Advocate Parminder Singh states that while the export of embryos was permissible in the prior regime as per "Guidelines for export of Embroys and Gametes", however, after the enactment of the Assisted Reproductive Technology (ART) Act on 25th January 2022, such export has been prohibited in India except for personal use with permission of the National Board.

A single bench comprising Justice Yashwant Varma issued notice in the matter and fixed the case for July 20.

The case of the Petitioner herein is that he had applied to ICMR for the said NOC prior to the ART Act coming in force. However, the Council did not respond to the petitioner. Meanwhile, the ART Act was enacted and it prohibited the sale, transfer or use of gametes, zygotes and embryos or any part or information of the same to any party within or outside India except in the case of transfer of one's own gametes and embryos for personal use with the permission of the National Board.

The petitioner sent reminder letters to the ICMR as well as the Union of India, seeking urgent request to issue the requisite NOC. Through these communications, the petitioner also pointed out that since the National Assisted Reproductive Technology and Surrogacy Board had not yet been constituted, the petitioner's application, being prior to the ART Act coming into force, was to be governed under the old regime. However, no reply was received by the petitioner and consequently the original service agreement entered into by the petitioner with the surrogate mother in California had lapsed.

In this backdrop, the Petitioner submitted that non-adjudication of his application by ICMR contravenes his fundamental right to life as enshrined under Article 21 of the Constitution of India. He also argued that any further delay would continue to violate the due process of law.

The plea states that after great effort, the petitioner has been able to re-negotiate an agreement with the surrogate mother and any further delay in the adjudication would cause great prejudice. Thus, a direction is sought to be issued to the respondent-authority to issue the requisite NOC to the petitioner.