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The Assisted Reproductive Technology (Regulation) Act of 2021 prohibits the sale of human gametes, zygotes, and embryos but does not forbid a couple from using their own embryo to conceive a child: Kerala High Court

The Assisted Reproductive Technology (Regulation) Act of 2021 prohibits the sale of human gametes, zygotes, and embryos but does not forbid a couple from using their own embryo to conceive a child is upheld by the Kerala High Court in the case of Rakhi Bose v. Union of India through Justice V.G. Arun.

FACTS OF THE CASE

The petitioners’ marriage began in 2007, and despite their attempts to conceive for fifteen years, the  petitioner was unable to do so. In order to treat their infertility, the couple decided to go to the Craft Hospital and Research Centre. The first petitioner underwent an Oocytes Retrieval procedure as part of the process on February 9, 2014. Four of the six eggs that were injected after being retrieved became fertile. The Craft Hospital then saved the embryos. On the Chief Consultant’s recommendation, the therapy was abandoned in 2016, nonetheless, because the uterus’ requisite wall thickness could not be attained.

The doctors asked the Couple to request a transfer of the frozen embryos from the Craft Hospital to the Sabine Hospital when they resumed therapy for the couple at the Sabine Hospital and Research Centre Pvt. Ltd. later on. The Assisted Reproductive Technology (Regulation) Act, 2021, which placed constraints on issues relating to assisted reproduction, went into effect on January 20, 2022, during the interim. As a result, the Craft Hospital declined to transfer the embryos, claiming that it is now against the law due to the passage of the Act.

JUDGEMENT

The Court said that close examination of the clause reveals that the objective is to forbid or restrict the sale of human gametes, zygotes, and embryos, among other things. Additionally, Section 29 forbids the sale, transfer, or use of gametes, zygotes, and embryos, or any portion of them, or information relating to them, to any party inside or outside of India, and not the transfer of one’s own gametes and embryos for one’s own use with the National Board’s approval.

The court pointed out that the Act of 2021’s purpose is to forbid or restrict the sale of human gametes, zygotes, and embryos, and that this is not the case in this instance because there is no donor or other party involved and the embryos are those of the commissioning couple. The Court concluded that Section 29 does not prohibit such a transfer as a result.

The Court stated that the right of the life inside the embryo, which has been kept frozen for the past 8 years, to develop into a foetus and be born, cannot be stultified by relying on a provision that has no application, aside from the aspirations of the first petitioner to conceive and the second petitioner, to beget a child. The Court determined that the petitioners would suffer undue harm and suffering if the transfer was not allowed because the greatest time an embryo can be kept is ten years, and eight years have already passed.

As a result, the Court came to the conclusion that the main goal of the Act 2021 is to regulate and supervise assisted reproductive technology clinics and banks by avoiding misuse and ensuring the safe and moral use of such services.

The Court concluded that the Assisted Reproductive Technology (Regulation) Act of 2021 prohibits the sale of human gametes, zygotes, and embryos but does not forbid a couple from using their own embryo to conceive a child. Accordingly, the Court allowed the couple to transfer their frozen embryo to another hospital for infertility treatment.

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JUDGEMENT REVIEWED BY NISHTHA GARHWAL

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