US couple fights for custody of embryos brought to India before surrogacy became illegal

The couple came to India in hope of a successful surrogate implantation
The couple came to India in hope of a successful surrogate implantation

An American couple, who unable to conceive a child, came to India in July with the hope that a surrogate will finally help them achieve parenthood, are now instead battling it out with the central government at the Bombay High Court to reclaim their embryos. What went wrong?


Representative pic/Thinkstock

Law of the land
The petitioners, married for over five years, had failed to conceive the traditional way; tried their hand at In Vitro Fertilisation (IVF) and ultimately, with the help of doctors in the US, settled on using a surrogate to plant and fertilise their embryos. However, a month after they made the move to India and brought along eight embryos, the government banned commercial surrogacy by finalising the Surrogacy Regulation Bill, 2016 and effectively, ending their campaign for a child. The change also created an ancillary problem: Along with surrogacy, the government banned the import and export of fetuses, so the embryos are now stored in a laboratory and out of the couple’s reach.

However, after the Bombay High Court heard their petition on Tuesday, it asked the central government to take a humanitarian view of their situation and find a solution considering it was an extraordinary case.

Couple’s stance
Senior counsel Ashutosh Kumbhakoni, who represented the couple, told the bench, “These embryos were brought to the country after following all the norms in the US as well as India. At the time, surrogacy was permitted; later, the law changed mid-procedure. The central government can’t keep on arguing and has to find a solution instead. These embryos belong to us. What is the government doing to do with it?”

While hearing their plea, Justice Shantanu Kemkar and Makranand Karnik asked the petitioners to make the Directorate General of Foreign Trade a party along with Ministry of Health and Family Welfare and Indian Council of Medical Research parties in the petition and instructed the government to find a mutually agreeable solution as it was an extraordinary case.

What is the change?
As per the revised Surrogacy Regulation Bill, 2016, only close relatives are allowed to be surrogate mothers. Additionally, only couples who have been married for at least five years can opt for a surrogate and the surrogate is required to be married and have borne a child of her own first.

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