The Delhi high court on Friday declined to entertain a petition filed by a 46-year-old woman seeking directions to the National ART and Surrogacy Board to approve the inter-clinic transfer of her 16 cryopreserved embryos and their subsequent implantation without her estranged husband’s consent.
A bench of Justice Purushaindra Kumar Kaurav noted at the outset that the woman had earlier approached the Bombay high court with the same grievance but had withdrawn her plea in September 2025 to directly seek the National Board’s consent.
The court observed that following the National Board’s refusal on February 3, the woman ought to approach the Bombay HC, which would be the appropriate forum to consider both her plea and her challenge to the Board’s decision.
“Earlier madam you filed a petition in Maharashtra (Bombay) high court. We understand that you’re aggrieved by the decision passed by the national board but that does not mean that the Bombay high court cannot exercise jurisdiction. The Bombay high court can also examine this,” the bench told the woman’s lawyer, Mohini Priya.
The court added, “When the petitioner earlier moved the Bombay high court, then withdrew and then decided to come to the Delhi high court…you should have approached the Bombay high court and should not have come all the way from Mumbai to Delhi.”
With the court indicating its view, the woman’s counsel chose to withdraw the petition and approach the Bombay HC. The court accordingly dismissed the matter as withdrawn.
“The petitioner seeks liberty to withdraw the petition to approach the jurisdictional high court, where the petitioner has earlier raised the grievance. Leaving all contentions open, the petition is dismissed as withdrawn,” the court said in its order.
In the case, the woman and her husband, residents of South Mumbai, had in 2022 cryopreserved embryos created using the husband’s sperm and the woman’s ova. However, in 2023, their marriage ended.
The dispute later reached the Bombay HC, where the woman sought directions to a fertility clinic in South Mumbai to transfer the embryos to another clinic. Her husband opposed the transfer, citing provisions of the Assisted Reproductive Technology (Regulation) Act, 2021, which require the consent of both parties.
Section 22 of the Act mandates spousal consent for the use of embryos created during marriage for IVF procedures, while Section 29 requires permission from the National Board for inter-clinic transfer of embryos, even for personal use.
In September 2025, the woman withdrew her plea from the Bombay High Court to approach the National Board in New Delhi. The Board, however, rejected her request on February 3, following which she moved the Delhi High Court.
In her petition, the woman not only sought approval from the National Board but also challenged Sections 22 and 29 of the Act, to the extent that they require spousal consent even in cases where consent is withheld in bad faith following desertion, cruelty or complete marital breakdown.
The petitioner argued that while the Act mandates written consent of both parties at the stage of undertaking IVF procedures, it remains silent on contingencies such as marital breakdown, absconding spouses, domestic violence and mala fide refusal of consent.
“The absence of a corrective or remedial mechanism in such exceptional situations reveals a legislative vacuum that cannot be allowed to defeat constitutional guarantees. The requirement of spousal consent under Section 22 of the Assisted Reproductive Technology (Regulation) Act, 2021 is textually and contextually confined to the stage of undertaking assisted reproductive treatment, including the creation and cryopreservation of embryos and their implantation. Section 29, which exclusively governs inter-clinic transfer, does not prescribe any independent, fresh, or continuing mandate of joint spousal consent for transfer simpliciter,” the petition stated.
