Mumbai: The Bombay High Court has asked the Union Commerce Ministry and Indian Council of Medical Research (ICMR) to take a stand on a plea of an American couple to take back their embryos, kept in a hospital lab here, after the Indian Government recently banned commercial surrogacy.

An embryo is an unborn offspring in the process of development.

A division bench of Justices Shantanu Kemkar and M S Karnik, hearing a petition filed by the American couple which wants to take back its embryos to USA, has served notices to both the respondents and asked them to spell out the policy of the Government on the issue on October 4.

During the hearing of the writ petition two days back, the bench asked the couple how they could file this petition because the Constitution of India gave such a right only to Indian citizens.

However, their counsel and senior lawyer Ashutosh 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 HC.

The petition said that the couple had tried to have a baby for many years but failed. The doctors had advised them to undergo 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 for the same.

The couple made eight embryos and sent them to India by a special courier (in a frozen state). All the embryos are currently lying in a hospital at Powai here. The couple had also obtained surrogacy visa and came to India by following the procedure.

In April 2015, the ICMR 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 Government of India 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’s lawyer Ashutosh Kumbhkoni 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.

The 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.

The bench asked the Government to spell out its policy on surrogacy and place on record the policy and laws which ban import and export of embryos. The matter would be heard on October 4.