Bombay High Court Directs National ART & Surrogacy Board To Decide Lawyer Couple's Plea For Transfer Of Cryo-Preserved Embryo

The Bombay High Court has directed the National Assisted Reproductive Technology and Surrogacy Board to expeditiously decide a Mumbai based couple's plea to transfer their cryo-preserved embryos from a hospital to an IVF clinic.

This will be the first case to be decided by the National Board, counsel for the Ministry of Health and Family Welfare said.

The lawyer-couple approached the High Court as the hospital was unwilling to transfer their embryos citing the new Act, and also due to the ambiguity around constitution and functioning of the National board and State boards under the ART and Surrogacy Act.

On Wednesday, the division bench of Justices SV Gangapurwala and Shriram Modak directed the couple to appear before the board on August 1, 2022 and their plea for transfer of embryos to be disposed of within two months.

"The National Board is constituted and functional. It would be beneficial that the present matter is decided by the board…In view of the fact that the court has given the date for appearance, parties should appear before the board and co-operate. We request the board to decide the matter expeditiously and within 2 months," the court ordered.

The couple had approached the High Court in May, seeking to complete their surrogacy procedure initiated before the 2021 new Assisted Reproductive Technology Act (ART) and Surrogacy Act came into existence. The couple sought transfer of their cryo-preserved embryos out of PD Hinduja Hospital and Medical Research Centre to any other fertility clinic.

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

The petitioners claimed that soon after both the Acts came into force, the hospital refused to continue with the surrogacy procedure and also refused to transfer the cryo-preserved embryos to any other fertility clinic.

During the previous hearing the court asked the State and the Centre to check if the boards were constituted and functional.

On Wednesday, Advocate Rui Rodrigues for the Centre informed the court that the National Board was constituted and functional. Government Pleader Purnima Kantharia for State also assured the court that the State Board was constituted, and the appropriate authority was also appointed.

Advocate Anita Castellino for the hospital however continued to oppose the petition.

Advocate PV Dinesh who appeared for the couple had earlier argued that the Acts mandated constitution of these authorities within 90 days of its coming into force on January 25, 2022. Today, he submitted that the couple would remain present before the board as and when required.

Since statutory authorities have already been constituted, the court directed the parties to approach the board.

Citation: 2022 LiveLaw (Bom) 251

Click here to read/download the order