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The petition also sought flexibility in the Assisted Reproductive Technologies regulations to allow the third party to adopt unused and frozen gametes, which are either destroyed or allocated for research purposes. It was also contended that 'as altruistic surrogacy is allowed, in a similar manner, embryo adoption may be allowed in a regulated manner'.
The Delhi High Court, on Monday, dismissed a writ petition challenging Rule 13(1)(a) of the Assisted Reproductive Technologies (Regulation) Rules, 2022. Rule 13(1)(a) mandates the preservation of unused gametes or embryos only for the original recipient, thereby prohibiting third-party embryo adoption.
The bench of Acting Chief Justice Manmohan and Justice Tushar Rao Gedela, refusing to determine such policy, remarked, ‘We cannot determine state policy; such decisions are reserved for elected representatives. We cannot permit it’.
Dr Aniruddha Narayan Malpani, through Advocate Mohini Priya, sought the rationale behind certain regulatory measures imposed by the state. The petition questioned why the state established a rule that appears to lack applicability in a global context, particularly when altruistic surrogacy is permitted under similar frameworks.
It was observed that while the use of donor gametes—both male and female—for in vitro fertilization (IVF) was allowed, the state imposed restrictions specifically on the use of frozen gametes. This inconsistency raised critical questions about the medical rationale underpinning such regulations.
Advocate Mohini Priya informed the court that individuals could freeze two to three embryos, often utilizing only one throughout their reproductive lifetime. Consequently, the fate of the remaining embryos, which could either be destroyed or allocated for research purposes, becomes a point of contention.
Furthermore, Advocate Mohini Priya addressed scenarios where the couple might now want to use the frozen gametes like scenarios involving the death of one spouse. In such cases, the transfer of embryos registered in the name of the deceased spouse raised additional ethical and emotional considerations. It was posited that the surviving spouse might not be in an appropriate emotional or financial position to carry a pregnancy to term. Therefore, stakeholders urged the government to reconsider these regulations, especially in light of the unique circumstances faced by commissioning couples.
Despite previous representations made to the state regarding these matters, Advocate Mohini Priya contended that response was absent, leading to frustration among those advocating for clearer guidelines. The community expressed a desire for the state to engage in constructive dialogue and to provide comprehensive explanations regarding its regulatory stance on ART.
Case Title: Dr Aniruddha Narayan Malpani v The Union Of India (W.P.(C)-13290/2024 CM APPL. 55508/2024)
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