'Assisted Reproductive Technology Act Doesn't Apply' : Kerala HC Allows Development Of Embryo Kept Frozen By Couple For 8 Years

The Kerala High Court on Wednesday ruled that the right of a frozen embryo to develop into a foetus and then be born cannot be obstructed by relying on provisions in the Assisted Reproductive Technology (Regulation) Act, 2021.

Justice V.G Arun observed that the main objective of the Act was to prevent abuse of assisted reproductive procedures and not to pose hurdles in the way of aspiring parents. 

"Apart from the aspirations of the first petitioner to conceive and the second petitioner, to beget a child, the right of the life inside the embryo, which is kept frozen for the past 8 years, to develop into a fetus and be born, cannot be stultified by relying on a provision which has no application. The primary objective of the Act is the regulation and supervision of the assisted reproductive technology clinics and banks, by preventing misuse and ensuring safe and ethical practice of assisted reproductive technology services. The Act is not intended to create difficulties for persons opting assisted reproductive procedure."

A couple, being unable to conceive children for over 15 years, had opted for infertility treatment and thereby had four fertilized embryos stored in a hospital way back in 2014. However, their treatment was put on hold upon doctor's advice. 

Later, they recommenced the treatment at another hopistal, and requested the first hopsital to transfer the embryos therein. 

Meanwhile, the Act came into force bringing in restrictions on matters connected to Assisted Reproductive Technology and citing the same, the first hospital refused to transfer the embryos.

Aggrieved by the same, the couple moved the High Court seeking a directive to transfer the embryos and a declaration that they were entitled to get their own frozen embryos.

Senior Advocate Abraham Vakkanal appeared for the petitioners and argued that since the National and State Boards envisaged under the Act are not constituted, the petitioners could not approach the Board seeking permission for the transfer.

Moreover,  it was pointed out that the maximum period for which embryos could be preserved is ten years and eight years having elapsed already, the petitioners would be put to undue prejudice and misery if the transfer is not permitted.

The question before the Court was if the well-intended Act could have a detrimental effect on Assisted Reproductive procedures. 

"Life inside a human embryo remains frozen, awaiting its opportunity to be born as a child to its parents; the petitioners. Meanwhile, the State brings out a well meaning legislation viz, the Assisted Reproductive Technology (Regulation) Act, 2021 . Will the new enactment have an impact on the Assisted Reproductive procedure, which the petitioners now want to continue, is the question."

It was also found that the petitioners' request was likely to have been refused on the basis of Section 29 which prohibits the sale or transfer of embryos to any party within or outside India, except of own embryos for personal use with the permission of the National Board. 

It was found that the provision, therefore, does not prohibit the kind of transfer that the petitioners requested for.

"A close scrutiny of the provision shows that the intention is to prevent/restrict sale etc of human gametes, zygotes and embryos. In the case at hand, there is no such transfer, since no donor or third party is involved and the embryos are that of the commissioning couple." 

As such, the Court directed the hospitals to provide efficient and safe transfer and storage of the embryos of the petitioners.

The Court passed an interim order with the following directions :

i) Petitioners shall pay the amounts due to the 7th respondent hospital for preserving the embryos from 02.09.2014 onwards.

(ii) On such payment being effected and a copy of this order being produced, the 7th respondent shall forthwith permit transfer of the embryos to the 8th respondent hospital.

(iii) The 8th respondent shall collect the embryos and transfer it to its Assisted Reproductive Technology Bank and preserve the embryos with due care and protection.

(iv) The 8th respondent shall, within 5 days, file an affidavit before this Court affirming that it has all the requisite facilities envisaged under the Act.

Case Title: Rakhi Bose & Anr. v Union of India & Ors.

Citation: 2022 LiveLaw (Ker) 298

Click Here To Read/Download The Order