RAKHI BOSE Vs. UNION OF INDIA

JUDGEMENT

(1.) 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 viz, the Assisted Reproductive Technology (Regulation) Act, 2021 ('the Act' for short). Will the new enactment have an impact on the Assisted Reproductive procedure, which the petitioners now want to continue, is the question. The essential facts are as under; The marriage of the petitioners was solemnized on 10/7/2007. Even after 15 years of marriage, the first petitioner was not able to conceive. Hence, the couple opted for infertility treatment at the 7th respondent hospital. As part of the procedure, the first petitioner underwent an Oocytes Retrieval procedure on 2/9/2014. Out of the six eggs injected after retrieval, four fertilised. The embryos were then preserved at the 7th respondent hospital. The petitioners continued treatment at the 7th respondent hospital and later, at the hospital's branch in Dubai, where they are employed. The treatment was stopped in 2016 on the advice of the Chief Consultant, since the required wall thickness of the uterus could not be obtained. Some time later, the first petitioner's sister, who had undergone the same process, conceived after ten years of marriage and gave birth to twins. This rekindled the petitioners' hope of having a child. The couple therefore re-commenced their treatment at the 8th respondent hospital. As advised by the Doctors at the 8th respondent, the petitioners requested for the 7th respondent's permission to transfer the frozen embryos to the 8th respondent. During the interregnum, the Act came into force on 20/1/2022, bringing in restrictions with respect to matters connected to the Assisted Reproductive Technology. The 7th respondent therefore sent a reply stating that, transfer of the embryos is not permissible after the introduction of the Act. The writ petition is hence filed seeking the following reliefs;

(2.) Learned Senior Counsel appearing for the petitioners, submitted that the petitioners' hope of having a child is trampled upon by the 7th respondent by its refusal to transfer the embryo to the 8th respondent hospital. It is submitted that, since the National and State Boards envisaged under the Act are not constituted, the petitioners or the 8th respondent cannot approach the Board seeking permission for effecting the transfer. The maximum period for which embryos can be preserved is ten years and eight years having elapsed already, the petitioners will be put to undue prejudice and misery if the transfer is not permitted.

(3.) In spite of service of notice, the 7th respondent has not appeared.