Bombay HC seeks PD Hinduja's reply over couple's embryo transfer plea

Mumbai: The Bombay High Court has directed P D Hinduja Hospital here to file a reply to a petition by a couple seeking permission to complete a surrogacy procedure they had initiated before the new Assisted Reproductive Technology and Surrogacy Act came into effect. 

A vacation bench of Justices N W Sambre and Anil Pansare directed the hospital's counsel Anita Castellino to file a reply clarifying the current legal position on cases like that of the petitioner couple.

The couple informed that the wife cannot give natural birth to a child due to a medical issue so they approached the private hospital for a surrogacy procedure.

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The bench further asked the hospital to clarify if the court can pass any orders on their interim prayer seeking to transfer their cryopreserved embryos from the said hospital to another fertility clinic.

The petitioners' counsel P V Dinesh informed the court that while the couple's fertilised embryo had been preserved by the hospital for transfer to a surrogate, the new Act came into effect in January this year. And at present, there was no clear set legal procedure to even permit the transfer of embryos from one fertility facility to another.

Castellino said the Act prohibits surrogacy unless it is purely altruistic. And among other stringent provisions, the Act mandates that only a married relative with a child of her own can act as one's surrogate.

Hence, the respondent hospital put the couple's procedure on hold stating that they will need a court order to resume the process, she said.

Castellino further told the bench that as per the new Act, a state board was the competent authority to grant permissions for surrogacy procedures.

The Indian Express reports that the hospital's lawyer stated that the ART Act stipulated setting up of regulatory authorities such as national or state boards within 90 days of the law coming into force and that pleas can be addressed to such boards. The petitioners said that such a board has not been constituted as yet and, therefore, they had no other option than moving HC.

After the new Act came into effect, a National Surrogacy Board and state-level boards were constituted as the appropriate authorities for regulating surrogacy procedures.

"The state board has started accepting applications for surrogacy procedures. They (the petitioners) can approach the board," she said.

The court, however, said it did not wish to pass any orders before taking the hospital's reply on record.

The court will hear the matter further in June.

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