The Kerala High Court has observed that the right of a frozen embryo to develop into a foetus and then be born cannot be stultified by relying on provisions in the Assisted Reproductive Technology (Regulation) Act, 2021.
Justice V.G. Arun made the observation while allowing a petition by a couple from Perumbavoor seeking to transfer the embryos kept at a hospital in Kodungalloor to another hospital in Muvattupuzha.
The court said that the primary objective of the Act was the regulation and supervision of the assisted reproductive technology clinics and banks by preventing misuse and ensuring the safe and ethical practice of assisted reproductive technology services. The Act was not intended to create difficulties for persons opting for such procedures.
The couple had opted for infertility treatment and underwent an oocyte retrieval procedure (a process in which eggs are taken from ovaries)on September 2, 2014. Out of the six eggs injected after retrieval, four got fertilized. The embryos were then preserved at the hospital in Kodungalloor. However, their treatment was put on hold at the doctor’s advice in 2016.
When another couple in their family who had undergone the same process and conceived after 10 years of marriage and gave birth to twins, the petitioners’ hope of having a child got rekindled. The couple then re-commenced their treatment at another hospital in Muvattupuzha and requested the first hospital to transfer the embryos. However, it was rejected by the hospital, citing Section 29 of the Act.
The court pointed out that Section 29 did not interdict such transfer. Close scrutiny of the provision showed that the intention was to prevent/restrict the sale and so on of human gametes, zygotes, and embryos. In the case at hand, there was no such transfer since no donor or third party was involved, and the embryos were that of the commissioning couple.
The court ordered the hospital in Kodungalloor to permit the transfer of the embryos to the hospital in Muvattupuzha on the payment of the amount due to the first hospital for preserving the embryos from September 2, 2014.
