Hospital asks Bombay High Court to quash a couple's plea seeking transfer of embryos

A private hospital in Mumbai has asked the Bombay High Court to dismiss a couple's petition seeking the transfer of embryos.

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File photo of the Bombay High Court.

Mumbai's Hinduja Hospital and an In vitro fertilisation (IVF) consultant affiliated with the hospital submitted affidavits before the Bombay High Court on Tuesday and sought dismissal of a plea by a couple.

The couple were seeking directions to allow them to complete a surrogacy procedure which commenced prior to the publication of the Assisted Reproductive Technologies (ART) Act and the Surrogacy (Regulation) Act.

However, IVF specialist Dr Arati Adhe said the couple were misleading the court and, therefore, the plea should be dismissed.

Dr Suganthi Iyer, deputy director of the private hospital, stated in her reply that the petitioners were counselled and explained the complete process of IVF and surrogacy and were informed about the procedure, including a complete evaluation, before starting any treatment. As per her reply, the couple was further informed that only if good quality endometrium is confirmed will the candidate be considered medically fit for the implantation of embryos for surrogacy.

Iyer further denied that the surrogacy procedure commenced before both laws came into force. The hospital also said that all IVF procedures are not surrogacy procedures and the same was explained to petitioners.

"(The) IVF procedure conducted on December 24 last year was under the then prevailing ICMR guidelines. However, the potential candidate to be considered for being a surrogate mother was not found to be medically fit for implantation and hence it cannot be said that the surrogacy procedure had in any case commenced before the Acts came into force," Iyer's affidavit stated.

It added that it was merely following the rules and procedures mentioned in the Acts, which have strict penal provisions in case of any default by a clinic and/or hospital.

The plea by the couple was heard by the vacation bench, but with the court resuming work, the plea came up for hearing before the division bench of Justices SV Gangapurwala and MJ Jamdar. While the affidavits were brought to court, Justice Jamdar recused himself from hearing the plea. Due to this, the lawyers will now have to move an alternate bench, which will hear the case in due course.

The couple, in their plea, sought directions from the hospital to transfer their cryopreserved embryos to a fertility centre in Thane or any other ART clinic in Mumbai and continue the surrogacy procedure.

The plea said the wife had lost both her children and could no longer give birth naturally due to a medical issue and had, therefore, approached the Hinduja Hospital to undergo a surrogacy procedure, which began in October last year.

The plea added that after completion of the fertilisation procedure, the resulting embryos were cryo-preserved in the hospital’s custody.

The ART Act and Surrogacy Act came into force in January this year, and the petitioners began requesting the hospital to transfer the embryo to the fertility clinic, the plea said. The hospital initially said that the couple could not transfer the embryos to the surrogate carrier as the new law was passed because of which the hospital, in turn, could not treat the surrogate carrier.

The petitioners said they went ahead with the procedure for surrogacy in the fertility clinic, which sent a letter to Hinduja Hospital asking the authorities to transfer the embryos. However, the hospital did not give any response for two weeks and later said that they could not transfer the embryos due to conflicting legal views.