Two US couples have filed a petition at the High Court of Bombay to reclaim embryos they transferred into the country before India's ban on international surrogacy arrangements was introduced last year.
In November 2015, the Indian Ministry of Health and Family Welfare issued a circular to prohibit the use of Indian surrogates by foreign nationals and the import or export of embryos. Since then, many couples who had started the surrogacy process before the new policy was published – including one UK and two US couples – have been prevented from shipping their embryos out of India.
The petitioners' lawyer, Ashutosh Kumbhankoni, argued: 'These are our embryos … We had brought them to India in accordance with the law of this country. Now that surrogacy is banned in India, we want to take them back.'
One of the couples bringing the petition had eight embryos prepared in the US and shipped to a hospital in Powai, India, in April 2015 for surrogacy. However, citing a draft bill prohibiting international and commercial surrogacy arrangements that was introduced by the Indian government last August (see BioNews 866), the hospital has now refused to return the embryos, reports The Indian Express.
Dr Duru Shah, a fertility doctor in Mumbai, explained that since the bill was announced fertility clinics in India have been complying with the November 2015 policy and refusing to return embryos to foreign nationals because they still 'do not know what [the bill] says on import and export'.
The Narendra Modi government says that it introduced the ban because fertility treatment centres had failed to protect surrogates from exploitative practices. India has gained a reputation among some for becoming a hub of commercial surrogacy arrangements because of the relatively low costs compared with fertility treatment in the US and Europe.
Rekha Patel, who is campaigning against the ban, criticised the move saying that 'policymakers simply do not understand what surrogacy is and how it works' and asks why a situation which benefits both surrogates and commissioning couples should be banned.
'Many surrogates have been robbed of their chance of a better life and are devastated. Many couples were part way through their treatment and had to stop,' she told the Hindustan Times.
The High Court is due to hear the case on 26 October. In the meantime, the presiding judge, Justice Shantanu Kemkar, has asked the petitioners to add the Director General of Foreign Trade to the proceedings given the issue of exportation in the case.
The court has also asked the Indian government to 'take a humanitarian stand' and to 'apply their mind' to resolve the issue. Kumbhankoni argues that, since the couple had received the necessary permission to transfer their embryos into India, their return is 'not [an] export but merely restoration'. But he adds that the ban has led to uncertainty concerning how to deal with foreign embryos brought into India.