Fertile Smuggling

A Malaysian national arrested by the Directorate of Revenue Intelligence for smuggling human embryos could spill the beans on a thriving multi-crore international racket

  

The Directorate of Revenue Intelligence (DRI) that is used to all kinds of smuggling—from gold to jewellery to drugs—increasingly has to deal with smuggling of a different kind of cargo. Last week, the agency began probing an alleged case of smuggling of human embryos after Partheban Durai, a Malaysian national, was arrested at Mumbai International Airport on his arrival from Kuala Lumpur on March 15 with a nitrogen canister containing a single human embryo tucked inside his suitcase.

On questioning, Durai admitted to bringing embryos to Mumbai at least eight to nine times in the past. In the present case, he was allegedly scheduled to deliver the embryo at Indo Nippon Clinic, Bandra, run by embryologist Goral Gandhi. The clinic has so far denied any involvement in the fiasco. The DRI will be conducting a forensic analysis of the seized embryo to establish its nationality and of the DNA to identify the parents.

Import of embryo, ovum and sperm is prohibited in India except for research purposes since 2015. An Indian Council of Medical Research (ICMR) guideline to permit regulated import is under the consideration of the Union government. The Ministry of Commerce and Industry, vide a Directorate General of Foreign Trade (DGFT) notification dated October 26, 2015, on the subject, said: “Amendment in import policy of Human Embryo classified under Exim Code 0511 99 99 of Chapter 05 of ITC (HS),

2012–Sche dule–1 (Import Policy) changed the existing policy of “import of Human Embryo will be free subject to a ‘No Objection Certificate’ from the Indian Council of Medical Research” to revised policy “Import of Human Embryo is ‘Prohibited’ except for research purposes based on the guidelines of the Department of Health Research.”

Durai, who claims to work for Heart to ART IVF centre in Malaysia, was obviously not transporting the embryos for research purposes. The Malaysia centre was registered two years ago in Selangor to exclusively provide surrogacy services and services related to egg donors, surrogate mothers and sperm donors, along with IVF services. Investigators believe he was illegally importing fertilised eggs to be implanted in the wombs of surrogate mothers. In India, the demand for surrogate pregnancies through the commodification of women’s bodies has created a thriving market due to the low costs involved.

All this raises the question: what is a single embryo transfer? The most effective method of avoiding high-order multiple pregnancies is single embryo transfer in IVF. Elective single embryo transfer (eSET) is defined as transfer of one good quality embryo in cases in which at least two good quality embryos are available. Practice committee guidelines of the Society of Assisted Reproductive Technology and the American Society for Reproductive Medicine suggest that eSET is most appropriate for women with a good prognosis for conception: (a) age <35 years; (b) more than one high-quality embryo for transfer; (c) first or second IVF treatment cycle; and (d) recipients of embryos from donated eggs.

Oocyte (egg) donation is an integral part of modern assisted reproductive care and is associated with the highest success rates. Originally offered to women with primary ovarian insufficiency (premature ovarian failure) or those who had genetic diseases and did not want to transmit the gene defect to their offspring, donated oocytes are now used by women with many reproductive disorders and commonly by women in later reproductive years. Approximately 20,000 attempts at pregnancy using in vitro fertilisation (IVF) with donated oocytes or embryos are initiated annually in the United States alone.

It is widely believed that Malaysian couples may be exporting their embryos for illegal surrogacy in India because of the country’s strict Islamic laws. Surrogacy is banned in India for international couples and exit visas for the newborns are not allowed. Indian couples, with permission, may get the embryo frozen in western countries and then bring it to India for implant provided they can prove that the same was not done with the sole intention to get a male child.

Durai was, in all likelihood, importing the embryo into India for commercial purposes, which is an illegal act in India. In December 2018, the Lok Sabha passed the Surrogacy Bill, 2018, which regulates altruistic surrogacy and prohibits commercial surrogacy and import of embryos.

Surrogacy means a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after its birth. A gestational carrier is a woman who agrees to carry a genetically unrelated child on behalf of another individual or couple (intended parent[s]). The intended mother provides the egg and the intended father provides the sperm; rarely, egg donors or sperm donors are involved. In-vitro fertilisation (IVF) is used to create an embryo, which is transferred into the uterus of the gestational carrier. In countries which allow gestational carrier pregnancy, acceptable indications vary but generally include absent or non-functioning uterus, medical conditions that preclude safe pregnancy, and established inability to either conceive and/or carry a pregnancy.

As per the Surrogacy Bill, 2018, “altruistic surrogacy” means surrogacy in which no charges, expenses, fees, remuneration or monetary incentive of whatever nature, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother, are given to the surrogate mother or her dependants or her representative. On the other hand, the Bill defines “commercial surrogacy” as commercialisation of surrogacy services or procedures or its component services or component procedures including selling or buying of human embryo or trading in the sale or purchase of human embryo or gametes or selling or buying or trading the services of surrogate motherhood by way of giving payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind, to the surrogate mother or her dependants or her representative, except the medical expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother.

Under the Bill, the following acts fall under the category of punishable offences: (1) commercial surrogacy; (2) selling human embryo for the purpose of surrogacy; and (3) import of embryo for surrogacy. Further, the import of embryos for surrogacy is a punishable offence with imprisonment upto 10 years and fine upto Rs10 lakh. Durai was importing the embryo, not for research purposes, and without a “no objection certificate” from the ICMR. His fate will be known when the Bombay HC takes up the matter on April 3.

Reproduced from: India Legal, Published April 8, 2019: pg 32-33.

Dr KK Aggarwal

Padma Shri Awardee

President Elect Confederation of Medical Associations in Asia and Oceania   (CMAAO)

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Past National President IMA