In a significant ruling, the Kerala High Court has held that the right of a frozen embryo to develop into a foetus and then be born cannot be stultified by relying on the provisions of the Assisted Reproductive Technology (Regulation) Act, 2021.
The directive passed by a bench comprising Justice V.G. Arun came on a petition moved by a couple who had been unable to conceive children for a long time and, therefore, opted for assisted reproductive procedure.
The bench observed that the main objective of the Act is to prevent misuse of assisted reproductive technologies, and ensure that the rights of the parents to conceive and beget a child as well as the right of the life in the embryo are not frustrated by any of the provisions of the Act.
“Apart from the aspirations of the first petitioner (mother) to conceive and the second petitioner (father), to beget a child, the right of the life inside the embryo, which is kept frozen for the past 8 years, to develop into a foetus and be born, cannot be stultified by relying on a provision which has no application.
“The primary objective of the Act is the regulation and supervision of the assisted reproductive technology clinics and banks, by preventing misuse and ensuring safe and ethical practice of assisted reproductive technology services. The Act is not intended to create difficulties for persons opting assisted reproductive procedure,” read the order.
The couple had four fertilised embryos stored at a hospital but wanted to transfer them to another hospital of their choice. But the Act came into force and the first hospital refused to transfer the embryos citing the provisions of the Act.
As the couple had no other option but to knock the doors of the judiciary, they approached the high court and sought orders to transfer the embryos and a declaration that the petitioners are entitled to get their own frozen embryos.
The court observed that “life inside a human embryo remains frozen, awaiting its opportunity to be born as a child to its parents, the petitioners. Meanwhile, the state brings out a well-meaning legislation, the Assisted Reproductive Technology (Regulation) Act, 2021. Will the new enactment have an impact on the assisted reproductive procedure, which the petitioners now want to continue, is the question”.
The court directed the hospitals to ensure expeditious and safe transfer and storage of the embryos of the petitioners.