MUMBAI: The Bombay High Court today directed that Director General of Foreign Trade and Department of Family Welfare of the Centre be made parties to a petition filed by a US couple who want to take back their eight embryos kept in a city hospital following a recent ban by the Indian government on commercial surrogacy. Giving this direction, a bench headed by Justice Shantanu Kemkar posted the matter for hearing on October 24.
The judges were of the opinion that import and export regulations are being governed by Director General of Foreign Trade and it should be made a party. Moreover, the petition concerns embryos and hence Family Welfare department should be heard in this matter. Counsel for the petitioner Ashutosh Kumbhkoni argued that the government should not adopt an advertorial approach and must find out a solution to the problem.
"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 argued. Earlier, hearing a petition filed by the American couple who wants to take back the embryos to their country, the high court had served notices to the respondents and asked them to spell out the policy of the government on the issue.
During the hearing of the writ petition last month, the bench had asked the couple how they could file this petition because the Constitution gave such a right only to Indian citizens. However, Kumbhkoni argued that Article 21 of the Constitution gave such a right to every person, even to foreign national. "This is because right to life includes right to have a baby and hence the couple has a right to file such a petition in the high court," the lawyer had argued.
The petition said the couple tried to have a baby for many years but failed. The doctors had advised them surrogacy. Accordingly, the American doctors, with the help of the couple's sperms and eggs, created the embryos and advised them to get a surrogate mother. The couple sent the embryos to India by a special courier (in a frozen state). All the embryos are currently lying in a hospital at Powai in Mumbai.
The couple had also obtained surrogacy visa and came to India by following the procedure. In April 2015, the Indian Council for Medial Research had given no objection certificate to the couple to import their frozen embryos from USA. Accordingly, they were sent to India. Meanwhile, in November 2015, the Centre announced a change in policy and banned surrogacy for foreign couples.
The couple then asked the hospital authorities to return their embryos but they refused to part with the embryos saying that import and export of embryos was banned in India as per the new policy rules. Thereafter, the couple approached the Indian government which also refused to allow them take back the embryos saying that while banning surrogacy it had also banned import and export of foetus also.
The couple argued that taking back their embryos did not amount to exporting them and the authorities should not interpret or make policy decisions that were against the basic tenets of fairness, law and human rights. Their lawyer submitted that technically taking back the embryos was not an export because they were seeking to restore them back to the place from where they had originated.