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Objective of ART Act is not to prevent a couple from using their own embryo to develop it into a fetus: Kerala High Court

The Kerala High Court ruled that the Assisted Reproductive Technology (Regulation) Act, 2021 is intended to prohibit/restrict the sale of human gametes, zygotes, and embryos through Justice V.G. Arun in the case of Rakhi Bose v. Union of India (W.P.(C) No.19184 of 2022)

FACTS OF THE CASE:
The petitioners-couple married in 2007, and although being married for fifteen years, the first petitioner was unable to conceive. As a result, the couple chose infertility treatment at the Craft Hospital and Research Centre.

On 02-09-2014, the first petitioner underwent an Oocytes Retrieval procedure as part of the protocol. Four of the six eggs that were injected following retrieval were fertilized. At the Craft Hospital, the embryos were then preserved. However, the treatment was halted in 2016 on the advice of the Chief Consultant since the desired uterine wall thickness could not be reached.

Later, the couple resumed their treatment at the Sabine Hospital and Research Centre Pvt. Ltd., where the doctors asked the pair to request that the frozen embryos be transferred from the Craft Hospital to the Sabine Hospital. During the interregnum, the ART Act went into effect, imposing limits on matters related to Assisted Reproductive Technology. As a result, the seventh respondent (Sabine Hospital) sent a response claiming that embryo transfer is no longer permitted following the passage of the Act.

JUDGEMENT:

The Court looked into the preamble of the Act, 2021 shows that the objective of the Act is the regulation and supervision of the assisted reproductive technology clinics and the assisted reproductive technology banks, prevention of misuse, safe and ethical practice of assisted reproductive technology services for addressing the issues of reproductive health where assisted reproductive technology is required for further use due to infertility, disease or social or medical concerns and for regulation and supervision of research and development and for matters connected therewith or incidental thereto.

Furthermore, Section 29 prohibits the sale, transfer, or use of gametes, zygotes, and embryos, or any part thereof, or information linked thereto, to any party within or outside India, except for the transfer of own gametes and embryos for personal use with authorization from the National Board.

The Court stated that the aim of the Act, 2021 is to prevent/restrict the sale, etc. of human gametes, zygotes, and embryos and that there is no such transfer in the instance at hand because no donor or third party is involved, and the embryos are the commissioning couple’s. As a result, the Court determined that Section 29 did not interdict such a transfer. 

Given that the maximum duration for which embryos can be preserved is ten years, given that eight years have already passed, the Court determined that the petitioners would face undue prejudice and misery if the transfer was not approved.

The Court issued the following interim directives, stating that the Act is not meant to create obstacles for anyone who chooses assisted reproductive technology:

  1. Petitioners shall pay the amounts owed to the Craft Hospital for preserving the embryos beginning on 02-09-2014, and upon such payment, the hospital shall immediately facilitate the transfer of the embryos to the Sabine Hospital.
  2. The Sabine Hospital will collect the embryos and transfer them to its Assisted Reproductive Technology Bank, where they will be preserved with care and safety.
  3. Within five days, Sabine Hospital must provide an affidavit confirming that it possesses all of the facilities required by the Act.

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JUDGEMENT REVIEWED BY REETI SHETTY

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