HC asks US couple to approach Indian govt to take back embryos

In a legal spill-over of the ban on commercial surrogacy, the Bombay High Court on Wednesday allowed an American couple to make a representation to the Director General of Foreign Trade (DGFT) and Department of Family Welfare to allow them take back to their country eight embryos kept by them in a hospital here.

A division bench headed by Justice Shantunu Kemkar allowed the couple to make a representation to the DGFT and the ministry and asked the government to decide on it within three weeks.

The bench gave liberty to the respondents (DGFT and the Ministry) to file an affidavit in case they decide to reject the couple's representation.

Ashutosh Kumbhkoni, lawyer for the petitioners, made a request to the court that the couple may be allowed to submit a representation to the DGFT and the Ministry through the lawyer of the respondents (in this case the Additional Solicitor General Anil Singh, appearing for the Centre). Kumbhkoni said the embryos had to be kept at a low temperature in cold storage at the couple's own cost every day and thus they had to incur expenditure on this.

Almost a week ago, the court had directed the couple to make DGFT and Ministry of Family Welfare respondents.

The judges were of the view that import and export regulations are governed by DGFT and it should be made a party and since the petition was about embryos, the Family Welfare department should also be heard in this matter.

The petitioner's counsel had argued that the government should not adopt an adversarial approach, and find a solution to the problem instead. 

"These are our embryos and what will the government do with them. We had brought them to India in accordance with the laws of this country and after seeking permission of the authorities. Now that surrogacy is banned in India, we want to take them back," the lawyer had argued.