The Delhi High Court on Monday refused to entertain a petition challenging the rule that bars use of unused gametes or embryos for any person other than the original recipient [Dr. Aniruddha Narayan Malpani v/s The Union Of India]
The petitioner, Dr. Anirdudha Naryan Malpani, had sought striking down of Rule 13(1)(a) of the Assisted Reproductive Technologies (ART) Rules which mandates that unused gametes or embryos shall be preserved by the ART clinics exclusively for the same recipient.
The division bench of Acting Chief Justice Manmohan and Justice Tushar Rao Gedela said the prayer was not within the purview of the Court's judicial power.
"It is a legislative policy of the State. Policy of the State is decided by elected representatives. We do not interfere with the policy of the State," the Court said.
The Rule 13(1)(a) of the ART Rules, 2022 that was challenged reads as under,
“Other duties of clinics.— (1) The ART clinic shall- (a) ensure that all unused gametes or embryos shall be preserved by the assisted reproductive technology clinic for use on the same recipient and shall not be used for any other couple, or as the case may be, woman;”
It was submitted in the writ petition that this Rule is “arbitrary, unreasonable, excessive, and violative of the fundamental rights enshrined under Articles 14 and 21 of the Constitution.”
Right to equality under Article 14 is violated as the Rule discriminates against couples who might benefit from donated embryos, the plea contended.
Advocate Mohini Priya, representing Malpani, prayed that the State may be directed to explain the rationale behind the Rule.
The petitioner highlighted that “though fresh gametes are allowed to be used, frozen gametes are not allowed to be used.”
“I could be a good substitute for adoption in light of rising infertility. We are only asking for altruistic adoption of the embryos with the consent of the parent just like how altruistic surrogacy is allowed,” the counsel said.
However, the Court was not convinced, leading to withdrawal of plea by Malpani. While disposing of the matter, the Court gave Malpani the liberty to make representation to the Centre instead.