Estranged Mumbai couple battles in Bombay HC over 16 frozen embryos

Bombay HC

In a rare legal case, sixteen frozen embryos are now at the centre of a sensitive dispute between a separated couple in Mumbai. The case is currently being heard in the Bombay High Court.

According to a report by Hindustan Times, the woman, aged 46, and her husband, now estranged, had married in October 2021. Just a few months later, in January 2022, they visited a fertility clinic in Kemp’s Corner and agreed to freeze embryos created using the woman’s eggs and the man’s sperm. They signed a joint consent form for cryopreservation and agreed to pay an annual fee of Rs 25,000 for storing the embryos. Their plan was to try for a baby using assisted reproductive technology.

However, by 2023, their marriage had started falling apart. The woman claims that her husband abandoned her in August of that year. Since then, the issue of who has control over the frozen embryos has become a serious legal matter. The woman wants to shift the embryos from the Kemp’s Corner clinic to another clinic in Colaba, where she says she feels more comfortable. But according to her, her husband has blocked the transfer by sending an email to the clinic.

The clinic, following the guidelines of the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), has refused to move the embryos without the husband’s written consent. Section 29 of the law says both genetic parents must agree for such a procedure. The woman is now asking the Bombay High Court to allow her to proceed with the transfer without her husband’s permission.

Her petition argues that in situations where a marriage has broken down or the woman has been abandoned, the law should make exceptions. “In matters so intrinsically tied to a woman’s body, health and identity, the law must recognise the primacy of her informed and enduring will,” the petition says. She believes that the current law places too much control in the hands of a spouse who is no longer supportive and is using his consent as a tool to stop her from becoming a mother.

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.

In November 2022, the woman was diagnosed with multiple fibroids in her uterus. She was advised to undergo surgery, known as a myomectomy, before trying for pregnancy. She eventually had this surgery at Breach Candy Hospital in February 2024. Doctors told her that four to five months after the procedure would be a good time for embryo implantation.

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.

During a mediation session in December 2024, as part of a domestic violence case she filed, the woman alleged that her husband demanded Rs 25 lakh in exchange for allowing the embryo transfer. She later filed an FIR at Nagpada police station, accusing him of threatening her and trying to interfere with her reproductive rights. The domestic violence case is still pending in the magistrate’s court, and no action has been taken on the FIR yet, HT reported.