The Maharashtra government has been asked to consider constituting a regulatory authorities for surrogacy procedures under the new Assisted Reproductive Technology Act (ART) and Surrogacy Act.
A division bench of Justices SV Gangapurwala and SM Modak, on Monday, asked the Maharashtra government to look into constituting the regulatory authorities while hearing a petition by a couple seeking permission to complete their surrogacy procedure which they had begun before the new Assisted Reproductive Technology and Surrogacy Act came into effect. They have sought transfer of their cryo-preserved embryos from a private hospital to any other fertility clinic.
Couple’s advocates – PV Dinosh and Prashant Phophale – argued that the transfer of embryos from one clinic to another wouldn't affect the interest of anyone. Hence sought permission for the transfer of the embryos.
However, the private hospital’s advocates – Anita Castellino and Bruno Castellino – opposed the request contending that it should not be allowed in view of the provisions of the ART Act.
When Dinosh pointed out that mandatory boards under the Act were not formed, the court sought state counsel's response.
The Act mandates constitution of these authorities within 90 days of its coming into force on January 25, 2022. It may be noted that States of Telangana and Punjab have already constituted the boards and appropriate authorities under the Act. On May 4, 2022, the central government constituted the national board. However, the State board is yet to be constituted in Maharashtra.
The judges then asked the government counsels – Poornima Kantharia, AL Patki and Jyoti Chavan – to look into the matter of constituting authorities mandated under the law.
The couple married 14 years ago. They lost both their children and hence opted for surrogacy after being told that the wife would no longer be able to naturally bear kids, following a hysterectomy. They began the procedure for surrogacy in October 2021 and the implantation was to take place in February 2022.
In the meanwhile, on December 25, 2021, the President gave his assent to the new Surrogacy Act and it came into force in January this year. Following this, the hospital was unwilling to transfer the embryo. Hence, the couple approached the HC.