‘Every woman has right to conceive, naturally or through surrogacy’

The classification in the 2015 notification is arbitrary, irrational and violative of Article 21 of the Constitution, the couple said in their plea.

A couple in their 40s has approached the Bombay High Court to import their cryopreserved embryo to India, stored in a laboratory in the United States since 2016. 

A division bench of Justice Ujjal Bhuyan and Madhav Jamdar issued notices to the Centre, Indian Council of Medical Research and other departments following arguments by the petitioner’s counsel on Monday.

In their petition under Article 226 of the constitution, the couple has questioned 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.

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The classification in the 2015 notification is arbitrary, irrational and violative of Article 21 of the Constitution, the couple said in their plea. 

“The citizens’ right to have their biological child, as per their desire and cannot be curtailed or violated by an executive fiat. Such reasonable expectation is not illegal or immoral. Therefore, entitled to bring their embryos cyro preserved in Reprotech Ltd., a Minnesota Corporation, in USA,” the plea states.

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 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, the couple represented by Advocate Nitin Pradhan said. 

Therefore, they have sought directions to the respondents to issue a no-objection certificate for the import of their embryos and decide on their representation in the interim. 

ICMR had Informed them that no-objection Certificates were only being issued for the export of embryos, and guidelines for import have not been finalized. The plea contends that there cannot 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.

The petitioners have claimed that perusal of both the Bills viz. the Surrogacy (Regulation) Bill 2019 and the Assisted Reproductive Technology (Regulation) Bill 2020, do not prohibit surrogacy. However, none of them clarifies the aspect where the embryo is cultivated out of the couple’s sperm and ovary for use in the near future. 

Lastly, the couple contends that the right to have their own children is a part of the Fundamental Right to live a meaningful life. However, their fundamental rights are being “trampled” upon by the various Government Authorities by not issuing No Objection Certificates. 

“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 matter will now be heard on September 13

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