I Want To Put A Baby In You: Stuck Embryos
It is absurd to bar individuals from simply retrieving their own embryos and using them in another country.
Until last year, India had a booming surrogacy industry. With costs at a fraction of those of other countries such as the United States, many individuals and couples traveled to India to build their families when efforts at home had failed or were beyond their means. Taking advantage of the reproductive medicine specialists in the country—and yes, local women willing to be surrogates for lower compensation—India saw thousands of surrogacy arrangements every year. According to one Indian survey, between 2012 and 2015, Israelis led the way in foreign surrogacies, with 2,404 surrogacies. Australians came in second with 2,048, and Americans with 1,940.
Banning the Transport of Embryos Out of India. As I’ve written about recently, the Indian government put a moratorium on certain surrogacy arrangements in October 2015. But to complicate the situation further, the government also forbade the transport of eggs, sperm, or embryos from India by foreigners. That put a lot of people in a uniquely bad position. They had brought their genetic material to India, but now couldn’t use it, and couldn’t take it out of the country to use it somewhere else.
The New Law. Last month, India introduced the new Surrogacy Bill, banning commercial surrogacy and all surrogacy in India by foreigners, and limiting surrogacy to the most narrow of circumstances. The bill did not address the ban on exporting embryos. As a result, it leaves foreigners just as stuck as they have been.
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Special Permission? Some foreign couples with cryopreserved embryos in India have attempted to approach the government to seek permission to export their embryos. Such requests are supposed to be considered on a case-by-case basis. Unfortunately, according to the president of the Indian Society for Third-Party Assisted Reproduction (INSTAR), Dr. Himanshu Bavishi, foreign couples have generally been denied permission.
One Maldivian woman, prior to the ban, reportedly had her embryos moved to India with the hopes of using a surrogate after learning she had serious uterus fibroids. Once the ban was implemented and she discovered that she could not hire a surrogate or remove her own embryos from the country, she asked an Indian doctor to implant the embryos in her. Despite the extreme medical risk from fibroids, the woman believed she had little other chance (albeit minuscule) to have a child.
An American Couple’s Plea. One American couple has petitioned the Bombay High Court for the right to export their eight cryopreserved embryos from India.
The couple had previously jumped through all required hoops. After being together for more than five years and attempting several failed IVF cycles, they legally brought their eight frozen embryos to India, seeking for their child to be born using the specialized doctors in India. They had even been matched to a surrogate in India and signed a contract with her. When the law changed, they were no longer allowed to move forward with the planned surrogacy. Now the couple merely wants to take their embryos back with them to the United States or move them to another country that permits surrogacy.
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Can’t We Agree on This? Regardless of one’s opinion about embryos—whether they are living entities or merely a form of property—we should all be very concerned about India’s actions in this context. Individuals with frozen embryos in the country moved them there in order to legally enter surrogacy arrangements. While the law has changed, it is absurd to bar individuals from simply retrieving their genetic material and using it in another country. Worse, these individuals tend to be those who have struggled for years with infertility, and often painful and expensive fertility treatments. Of course, any sovereign country has the right to decide whether surrogacy should be permitted within its borders or not, but other governments ought to call on India to at least release the genetic material of non-Indians stored within its borders.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at [email protected].
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