MUMBAI -- In an interim order, the Bombay High Court has stayed a Government decision to ban surrogacy for foreign couples who have already reached the end of the process or are in the crucial stage of treatment.
The interim order was delivered on November 3 by vacation bench of Justice Ravi Deshpande on a petition filed by Dr Mrs Kaushal Kadam and some fertility clinics.
The petition had challenged a communication issued on October 27 by Indian Council for Medical Research addressed to all the doctors having fertility centers informing that as per the stand of Ministry of Health and Family Welfare, surrogacy will be limited to Indian married couples only and not to foreigners.
The communication requested the doctors not to entertain foreigners for availing surrogacy services in India.
The court ruled that the interim relief granted by it shall be restricted only to the cases which are in the midst of treatment for a period of 15 to 20 days.
The HC also asked the petitioners to disclose the details of such cases to the authorities in a sealed envelope and asked them not undertake the process of commissioning surrogacy in respect of foreign nationals which has not yet commenced.
The Judge, while posting the matter for hearing on December 15, also directed that such sealed covers would not be opened without prior permission of the Court.
Asking the Union Government to file an affidavit within four weeks, the HC rejected its contention that there was no urgency for hearing the matter.
"From the avernments made in the petition, it is apparent that petitioners are seeking protection in respect of the process which has already been completed and in cases where the process of commissioning of surrogacy has reached the crucial stage of 15 days ahead of menstrual cycle. They shall therefore be entitled for grant of interim relief," the judge held.
The court also observed that in case of making a change in policy by the Government, prior notices to the parties should have been given, which was not done in this case.
Surrogacy is a form of Assisted Reproductive Technology (ART) adopted by infertile couples who are unable to conceive a baby for various reasons. It is an arrangement where a woman lends her womb as surrogate mother for commissioning embryo of infertile couple or commissioning parents, the petition said.
The surrogate mother carries pregnancy which is genetically unrelated to her and her husband and develops embryo in her womb till delivery of a full grown child. The child, after delivery, is handed over to the genetic parents, according to the petition.
The judge said, "the imposition of complete ban on commercial surrogacy is a matter exclusively within the province of policy makers and it may be applauded. There would hardly be any scope for interference by the court in these matters."
"However, a sudden change in the policy should take into consideration the operation of the previous policy and the representation by the government to the public at large who were induced to take the benefit of it and have altered the position to their detriment," the judge observed.
The change in the policy with previous notice would be more desirable and in the absence of it the doctrine of legitimate expectation would operate to save the time, energy and cost spent and the physical and mental sufferings and pain undergone by the parties, the judge said while staying the ban on surrogacy for foreigners.
The court felt that such parties cannot be deprived of the ultimate benefits which they have sought to avail in accordance with the policy of the Government of India which was in force for a period of about 10 years.
The judge opined that the policy of banning commercial surrogacy can be more effective if it acts prospectively so as not to affect the commissioning of surrogacy which has reached the stage of completion.
"The preparatory steps to commission surrogacy consumes time, energy and cost apart from pain and suffering by the individuals. The complete process is required to be observed and monitored on day-to-day basis. Once such process is set in motion, it becomes very difficult to abandon or postpone it at the crucial stage. In such cases, extreme urgency is involved to protect the process from a sudden change in the policy," the judge noted.
The HC, therefore, rejected the contention of the Union Government and other respondents that no urgency is involved in the matter, so as to take the hearing during vacation and pass an interim order.
The HC said, "the Government of India is expected to fix the stages to which its ban shall not apply. Registration and Recognition of the fertility centers for the purpose of commissioning surrogacy at the instance of foreign nationals has not been cancelled or suspended. In such a situation, if this Court fails to interfere in the matter at the crucial stage, it shall result in travesty of justice."
The HC clarified that its order is being passed only to protect the cases of commissioning surrogacy which are at the crucial stage and it is not intended to grant a blanket protection in all cases of commissioning surrogacy.
"Without prejudice to the above, in any event, the impugned letter (of Indian Council for Medical Research) be quashed to the extent that it restrains the petitioners from completing already commissioned cases where the patient have executed the agreement or Visa has been issued and FRRO approval are obtained," the Judge said.
The HC held that the petitioners are permitted to complete the surrogacy process in respect of those patients who have already begun the surrogacy process.
It accepted the argument that irreparable loss and injury will be caused to the petitioners if the interim relief was not granted to them.
The court also rejected the contention of the Union Government that the petitioners (who are doctors having fertility centers) have no locus in the matter.
It may be a commercial venture, but in commercial matters also the principles of promissory estoppel and legitimate expectation can be invoked, the court said.
"The parties are vitally interested in concluding the process within the stipulated period. The contention of the learned counsel for the respondents that it is commercial interest of the petitioners who have no locus to file this suit is therefore rejected," said the Judge.
The HC also took note of the submission made by the respondents that as of this date there is no ban imposed by the Government of India on commercial surrogacy.
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