Estranged Mumbai couple wage a legal battle over 16 frozen embryos
In 2022, a couple from south Mumbai who were married the previous year decided to freeze embryos grown from the man's sperm and the woman's eggs. But in 2023, their marriage soured. Now, the legal battle over the embryos has reached the Bombay High Court.
The woman wishes to have a child, and wants the fertility clinic currently storing them to transfer them to another clinic . Her husband has allegedly blocked the transfer. The 46-year-old woman is now before the Bombay High Court urging it to direct the concerned authorities to allow her to proceed with the transfer of her cryopreserved embryos to another clinic without the consent of her estranged husband. 'In matters so intrinsically tied to the woman's body, health and identity, the law must recognise the primacy of her informed and enduring will over procedural hurdles grounded in outdated patriarchal notions of spousal dominion,' her petition says.
In her petition filed through lawyer Jamshed Mistry, the woman contended that a provision under the Assisted Reproductive Technology (Regulation) (ART) Act, 2021 that requires the consent of both spouses for transfer of the embryos, needs to make an exception for marital abandonment, separation and irretrievable breakdown of marriage. On Thursday, a division bench of Justice Revati Mohite Dere and Justice Neela Gokhale issued notices to respondents including the husband, the clinic and the National ART and Surrogacy Board in and adjourned the case till August 21.
The petitioner also argued that while the ART Act allows single women to avail assisted reproductive services, it imposes 'rigid barriers' on married women deserted by their husbands.
The couple married in October 2021 when the woman was 42 and her husband was 46. On January 22, 2022, they signed a joint consent form for freezing of embryos -- comprising the woman's eggs and the man's sperm -- at an IVF clinic in Kemp's Corner. They also agreed to pay an annual storage fee of ₹25,000 for the cryopreservation of the embryos.
In November, 2022, the woman was found to have multiple uterine fibroids and was advised to undergo a myomectomy to remove the fibroids. In December, 2022, the woman wrote to the clinic in Kemp's Corner asking them to transfer her 16 preserved embryos to another clinic at Colaba. 'She felt more comfortable there,' her lawyer told HT. But caught up in a range of procedures, the woman did not follow up.
Around the same time, the couple's relationship soured and the woman's husband allegedly deserted her on August 6, 2023. She initiated proceedings against him under the Domestic Violence Act before a magistrate. On August 9, 2023, the woman was informed by the clinic storing her embryos that her husband had, through an email, asked the clinic to put a hold on all procedures regarding the embryos. The woman claims the clinic at Kemp's Corner referenced Section 29 of the ART Act and said that consent of both the genetic contributors would be required to allow the transfer of embryos.
The woman, who still needed a myomectomy, underwent the procedure in February 2024 at Breach Candy Hospital. She says she sought a written assurance from her doctors that four-five months after the myomectomy would be a good time to implant the embryos in her womb.
During a mediation in their domestic violence case before a magistrate court in Mazgaon in December 2024, the woman alleged her husband demanded ₹25 lakh to allow the embryo transfer. On May 29 this year, she filed an FIR at Nagpada police station against her husband for threats, endangerment to her bodily integrity, reproductive rights and conspiracy to obstruct her medically sanctioned fertility procedure. The case is pending before the magistrate's court. No action has been taken on the FIR yet.
The woman filed a petition before the Bombay high court earlier this month.
The woman contended before the high court that the mandatory spousal consent required under the ART Act needs a rethink in case of marital abandonment. She stated that a woman physically and emotionally prepared for motherhood is being denied that experience by her estranged husband by his unilateral withdrawal of consent. 'Such a rigid and literal interpretation of statutory consent requirements reduces a woman's autonomy to the wilful inertia of an absconding spouse,' her petition stated.
Amit Karkhanis, a lawyer who specialises in medico-legal cases, said that there is no precedent in the law for such cases but the woman may have some remedies.
'The clinic is right to ask for the consent of the husband because the genetic material with them belongs to both parties. There is an option to file an application before the family court. The woman can state before the court that her husband is refusing to give consent for transfer or embryos. If he does not come before the court, the court may even give an ex-parte order in her favour,' said Karkhanis. He said if she gets a divorce, she can get a sperm donor and create new embryos too.
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