The Case of Human Embryo Smuggling: What Do Laws and Experts Say?

India has banned the import of human embryo except for research purposes.

Embryos can be preserved in nitrogen vapour or liquid nitrogen at extreme temperatures.

(Photo: iStock)

A recent case has highlighted assisted reproductive technology (ART) and the hazy laws surrounding it in India. Authorities busted an alleged racket when a Malaysian man was arrested while “smuggling” a live human embryo in India.

Officials say the embryo was on its way to an in-vitro fertilisation (IVF) clinic in Mumbai run by a top specialist. They suspect the embryos were meant to be used for surrogacy through Indian women. This may be since Malaysia does not permit surrogacy and India may also be a cheaper option.

India, however, has banned the import of human embryos except for research purposes. As for surrogacy, a Bill passed in 2018, bans commercial surrogacy but permits altruistic surrogacy in the country.

What Is the Case?

On 15 March, Partheban Durai, a passenger, was arrested at Mumbai international airport on his arrival from Kaula Lampur with a nitrogen canister containing a single human embryo. He is said to have made eight to nine such trips in the past 18 months.

After the Directorate of Revenue Intelligence (DRI) detained the man, it led to a larger probe leading to a top IVF clinic in Mumbai. Officials allege that the embryo was being taken to Dr Goral Gandhi’s clinic to be transferred and used for surrogacy, and that this was a frequent operation that the clinic took part in.

Embryos can be preserved in nitrogen vapour or liquid nitrogen at temperature below -190 degree Celsius. They can later, even after years, be used to conceive a pregnancy by placing it in the uterus through IVF.

Liquid nitrogen cryogenic tank at laboratory. Image is for representational purposes only.(Photo: iStock)

Gandhi, the co-founder and scientific director of Indo Nippon IVF, has denied the allegations and approached the Bombay High Court against DRI. Meanwhile, the agency reportedly had carried a search at her clinic and found “incriminating documents”, according to The Indian Express. The court has asked DRI not to take any coercive steps against Gandhi till 3 April.

What Does the Law Say?

The illegality starts with import of embryos being banned in India. In 2015, India prohibited the import of embryo, ovum or sperm other than for research purposes. Prior permission has to be taken from Indian Council of Medical Research (ICMR) for any related activity.

The Council only allows export of embryos in cases where foreign nationals started their IVF procedure in India but continued the process abroad.

When it comes to surrogacy, a Bill came into effect last year. The Surrogacy (Regulation) Bill, 2016, passed by the Lok Sabha in 2018, bans commercial surrogacy but permits altruistic surrogacy for needy infertile couples, that too only within the family with close relatives.

So if the alleged racket is working as the officials say it is, it’s illegal on both accounts. One – importing the embryo, two – using it for commercial surrogacy.

What do Industry Experts Say?

When FIT contacted IVF specialists, all of them either refused to comment or be directly quoted because it’s a “controversial” topic. But they say that this is the first time a case of smuggling has come to light like this.

Experts say illegally importing embryos from foreign countries to use for surrogacy is not that widespread, while others think this is feeding the market for surrogacy or for IVF procedures in which the parents want a child with “non-Indian looks”. The DRI believes there are other IVF clinics which may be involved in the alleged racket and have widened their probe.

IVF experts do think that there’s a gap in regulations and the need for framing laws is urgent. The Indian Express quoted Dr Jaideep Malhotra, president of Indian Society for Assisted Reproduction, as saying that:

A law is required to regulate import in certain cases. Several Indian couples freeze their egg or embryos abroad. Once they move to India, they wish to continue IVF and bring it back.

Another specialist reiterated the need for guidelines and said “it is one’s own property and own tissues. They should have free choice to take it wherever they want for IVF.”

What Should be Done Going Ahead?

The ART Bill as well has been in the works for the past few years but has not seen the light of day. (Photo: Public Domain Pictures)

A few months ago, ICMR submitted guidelines to the Health Ministry to permit regulated import of embryos and gametes with strict checks. However, they haven’t been implemented and are still under consideration.

Once that is done, it may clear some of the haze around the issue and address concerns that experts have.

Assisted reproductive technologies (ART) have gained massive interest in a time when infertility is growing. But there’s a lack of laws surrounding it. The ART Bill as well has been in the works for the past few years but has not seen the light of day. When the Surrogacy Bill was passed in 2018, the call for ART to be regulated as a whole was made again.