Mumbai: In a legal spill-over of the ban on commercial surrogacy, the Bombay High Court on Wednesday allowed an American couple to make a representation to the Director General of Foreign Trade (DGFT) and Department of Family Welfare to allow them take back to their country eight embryos kept by them in a hospital in Mumbai.
A division bench headed by Justice Shantunu Kemkar allowed the couple to make a representation to the DGFT and the ministry and asked the government to decide on it within three weeks.
The bench gave liberty to the respondents (DGFT and the Ministry) to file an affidavit in case they decide to reject the couple's representation.
Ashutosh Kumbhkoni, lawyer for the petitioners, made a request to the court that the couple may be allowed to submit a representation to the DGFT and the Ministry through the lawyer of the respondents (in this case the Additional Solicitor General Anil Singh, appearing for the Centre).
Kumbhkoni said the embryos had to be kept at a low temperature in cold storage at the couple's own cost every day and thus they had to incur expenditure on this.
Almost a week ago, the court had directed the couple to make DGFT and Ministry of Family Welfare respondents.
The judges were of the view that import and export regulations are governed by DGFT and it should be made a party and since the petition was about embryos, the Family Welfare department should also be heard in this matter.
The petitioner's counsel had argued that the government should not adopt an adversarial approach, and find a solution to the problem instead.
"These are our embryos and what will the government do with them. We had brought them to India in accordance with the laws of this country and after seeking permission of the authorities. Now that surrogacy is banned in India, we want to take them back," the lawyer had argued. The court had earlier asked the respondents to spell out
the government's policy on the issue.
During the hearing of petition last month, the bench had also asked the couple how they could file this petition because the Constitution gave such right only to Indian citizens.
However, their lawyer argued that Article 21 gave such a right to every person, even to a foreign national.
"This is because right to life (under A 21) includes right to have a baby and hence the couple has a right to file such petition in the high court," the lawyer had argued.
The petition said the couple tried to have a baby for many years but failed, and the doctors advised them surrogacy. Accordingly, the American doctors, using the couple's sperms and eggs, created the embryos and advised them to get a surrogate mother.
The couple sent the frozen embryos to India by a special courier. They obtained 'surrogacy visa' and came to India.
In April 2015, the Indian Council for Medial Research had given no objection certificate to the couple to import their frozen embryos from the US.
But in November 2015, the Centre announced a change in the policy and banned surrogacy for foreign couples.
The couple then asked the hospital to return the frozen embryos, but the hospital refused, saying import and export of embryos was now banned.
The couple approached the Indian government, which also refused to allow them take back the embryos citing the new rules.
The couple argued that taking back the embryos did not amount to 'exporting' them out of India, because they were seeking to restore them back to the place from where they had originated.
