Seeking permission to export embryo to surrogate in California; plea in Delhi High Court

A writ petition has been filled in the Delhi High Court, seeking directions to the Indian Council for Medical Research (ICMR) for issuance of a No Objection Certificate to a surrogate mother abroad for export of human embryo

The Counsel, Advocate Parminder Singh filled the petition. The Counsel submitted that while the export of embryos was permissible in the prior regime as per “Guidelines for export of Embryos and Gametes”, however, after the enactment on 25th January 2022, of the Assisted Reproductive Technology (ART) Act, the Act stated that such export has been prohibited in India except for personal use with permission of the National Board.

The Single bench comprising of Justice Yashwant Varma fixed the case for July 20 and issued notice in the matter.

FACTS OF THE CASE:

The petitioner applied to ICMR for the said NOC prior to the ART Act coming in force. Therefore, the Council did not respond to the petitioner. Meanwhile, the ART Act was enacted and it prohibited the sale, transfer or use of gametes and zygotes and embryos or any part or information of the same to any party outside India or within India except in the case of transfer of one’s own gametes and with the permission of the National Board for embryos for personal use.

A reminder letter was sent to the ICMR as well as the Union of India by the petitioner, seeking urgent request to issue the requisite NOC.by the petitioner and through these communications the petitioner also pointed out that since the National Assisted Reproductive Technology and Surrogacy Board had not yet been constituted. The petitioner application was with respect to the ART Act coming into force, was to be governed under the old regime. However, the petitioner received no reply and consequently the original service agreement entered into by the petitioner with the surrogate mother in California had lapsed.

In the present case, it was submitted by the petitioner that the non-adjudication of his application by ICMR contravenes his fundamental right to life as enshrined under Article 21 of the Constitution of India. It was also argued by him that any further delay would continue to violate the due process of law.

It has been stated in the plea that after great effort, the petitioner has been able to re-negotiate an agreement with the surrogate mother and any further delay in the adjudication would cause great prejudice. Further, it was observed that a direction is sought to be issued to the respondent-authority to issue the requisite NOC to the petitioner.

In the present case, it was submitted by the petitioner that the non-adjudication of his application by ICMR contravenes his fundamental right to life as enshrined under Article 21 of the Constitution of India. It was also argued by him that any further delay would continue to violate the due process of law.