Delhi HC seeks Centre's response on plea against frozen embryo adoption ban

New Delhi: Challenging the provisions of the Assisted Reproductive Technology (Regulation) Act that completely prohibit the adoption or donation of frozen embryos between infertile couples, a renowned Mumbai-based IVF specialist has filed a public interest litigation (PIL) in the Delhi High Court.

Taking cognisance of the matter, the division bench of the Delhi High Court, comprising Chief Justice D.K. Upadhyaya and Justice Tejas Karia, issued notice to the central government as well as the National ART and Surrogacy Board under the Ministry of Health & Family Welfare, seeking their responses within 6 weeks.

The PIL, filed by Dr Aniruddha Narayan Malpani, who established India’s first sperm bank in 1991 and also initiated Infertility Friends, India’s first support group for infertile couples, challenegd sections 25(2), 27(5), 28(2), 29, and Rule 13(1)(a) of the Assisted Reproductive Technology (Regulation) Act questioning the legality of laws that enforce a blanket ban on the adoption of frozen embryos.

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The petition argued that the "blanket prohibition" on frozen embryo adoption, even when altruistic, voluntary, and consensual, resulted in unequal and discriminatory treatment between similarly placed infertile couples.

The doctor contended that the statutory ban on frozen embryo adoption violates Article 14 (Right to Equality) and Article 21 (Right to Life and Personal Liberty) of the Constitution.

It explained that although embryo adoption was not defined under the law, it referred to the process in which a cryo-preserved embryo, created through in-vitro fertilisation (IVF) by one individual or couple, was voluntarily donated to another woman or couple for gestation and childbirth.

As per a PTI news agency report, the process, the petition added, had two interrelated stages, i.e. the donation of surplus embryos by the genetic parents who no longer required them, and the transfer and gestation of such embryos to another couple to facilitate the creation of a family.

The petition argued that embryo adoption was conceptually indistinguishable from child adoption, and to prohibit embryo adoption while permitting child adoption created an unreasonable and manifestly arbitrary classification based solely on developmental stage, in violation of Article 14 of the Constitution.

The right to make reproductive choices, including the decision to have a child, is an integral facet of the right to life, dignity, autonomy, and privacy guaranteed under Article 21 of the Constitution, argued the plea.

"Such arbitrariness strikes at the heart of Article 14. Further, such absolute prohibition creates an arbitrary and constitutionally untenable distinction between embryos created for IVF using double donor gametes and pre-existing embryos donated altruistically under identical ethical, medical, and regulatory safeguards," the plea states as reported by The Law Advice.

The petitioner further stated that under the current law, thousands of healthy embryos created through IVF have to be destroyed after ten years. This applies even in cases where the couple who created the embryos are willing to donate them, and another infertile couple is ready to adopt them. Dr Malpani argued that forcing the destruction of these embryos unfairly restricts a couple’s right to make reproductive choices and violates their privacy.

He further said that the ban raises serious constitutional concerns, as millions of infertile couples in India are being denied access to embryo adoption. According to the plea, embryo adoption is a medically accepted, scientifically proven, and ethically recognised option for having a child.

Noting the arguments, the Bench scheduled the matter for further hearing on April 27 and asked the government to submit their responses on the same day.

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