And now it’s the turn of the embryos. The flawed and hastily-prepared proposed surrogacy bill, which plans to put a total ban on commercial surrogacy has now claimed one more set of potential victims: "foreign" embryos floating in liquid nitrogen in various fertility clinics across the country. The proposed regulatory bill has chosen to remain silent on the fate of these embryos, which are already in the country and have no way of going out.
In 2014, India allowed the import of human embryos for artificial reproduction. This meant foreign couples could bring in their own frozen embryos and hire Indian surrogates to carry their babies. The Central Board of Excise and Customs and the Directorate General of Foreign Trade (DGFT) announced this decision through separate notifications. Foreign nationals as well as Indian couples settled abroad could now bring in their frozen embryos for further treatment in India provided they had a 'no objection certificate' from the ICMR which was, at that point of time, responsible for issuing guidelines in this field. Until then, although the ICMR had allowed the import of properly frozen and packed human embryos for ART procedures, the intending parents ran into problems with the DGFT. With the ironing out of these glitches, the parents could expect a smooth transition through the process, provided they had all the necessary clearances. In other words, a protocol had been put in place taking into account all the issues involved.
A viable nascent embryo is the very nucleus of human origin. It is a cluster of cells which bears absolutely no resemblance to the human who can ultimately emerge from it. But it offers hope beyond measure to the infertile couple who created it. To have reached this point in their quest for a biological child, the parents could have spent years and years on expensive and painful fertility treatment. They could have gone through great physical, mental and emotional trauma. The embryos therefore are of great economic as well as emotional value to them. It is their property which they have a right to use as they wish.
As news of the new proposed bill spread, the IVF clinics started firefighting. The babies already growing inside the surrogates were safe.
But what about the embryos that were waiting to find a home? There were several problems there. While commercial surrogacy is not yet technically banned, there is an imminent possibility of it happening soon, in which case the embryos which are ready for implantation would be stuck in their containers of liquid nitrogen for an indeterminate period of time. Since importing of frozen embryos was banned, couples who were already far into their IVF process with Indian clinics would also be put in a quandary. And the final blow was that the embryos already frozen and preserved in IVF clinics in India for future use by the couples could not be sent back to them because the export of frozen embryos was also banned.
Dr Samit Sekhar, Director of the Kiran Group of Fertility Clinics, which is one of the largest groups in the country, said that they do have the frozen embryos of foreign patients. These belong to couples who want to have one more child or have frozen the embryos for future use because of some other issues. He said they were unable to help these couples now because even exporting the embryos was banned.
"So basically the government is holding precious lives for ransom," he rued. "We continue to keep them frozen. It costs us money. But we cannot destroy them. They are live. Who knows we could be holding a future president or a famous sportsperson in those cans."
Dr Nayana Patel of the Akanksha Fertility Centre in Anand, Gujarat echoed his sentiments. "You are dealing with life here," she said. "Not something dead. For us doctors, it is an ethical concern to preserve this life."
In her clinic there are several frozen embryos belonging to foreign patients who were either still in their IVF process or had frozen their embryos for future use. A patient with breast cancer or another who has had some unsuccessful attempts might all be in the process of completing their IVF procedures. This kind of sudden ban, she said, can play havoc with their lives and with the lives they are in the process of creating.
The proposed regulatory bill has chosen to remain silent on the fate of these embryos, which are already in the country and have no way of going out.
Dr Patel, who has quite a number of embryos from all over the world, has been receiving calls from frantic parents asking her to at least ship them back. She is now trying to follow it up with government officials. Other big clinics like Rotunda in Mumbai also have more than 100 embryos stuck with them.
While it is certainly not easy to regulate the import, preservation, use and disposal of these nuclear life forms, imposing unthinking bans is not a solution.
For instance have the framers of such bills thought through the process of what happens to an embryo after it is created in a petri dish?
An embryo that is created in the womb is not visible, and hence most of us don’t know how many were created, how many were viable and how many got aborted without even knowing. But, when the creation of embryos is a technically-enabled process, the fate of every one of them has to be accounted for.
Non-viable embryos are usually discarded as biological waste just as the body might have discarded them. Of the viable embryos, some are implanted either in the womb of the wife herself, or in a surrogate. Some might take and grow well and some might not. Therefore, the extra-healthy embryos are frozen and kept on standby. These could be used in case of failure of the first round or could be kept for producing more children at a later date. Unlike in natural pregnancy, the IVF route can be much longer and more complicated, as the doctors and parents have to account for failures, which could happen at any stage.
A proper understanding of the process of IVF and surrogacy viewed through a dispassionate scientific and ethical lens would go a long way towards creating a just regulatory law. Arbitrary bans can be disastrous especially when human lives are at stake.