Kiran Raj

In a significant judgement, the Kerala High Court has adjudicated in favor of a married woman seeking assisted reproductive technology (ART) services despite her husband's age exceeding the statutory limit. The Court directed an ART clinic to provide in-vitro fertilization (IVF) treatment to the petitioner, affirming that a woman’s eligibility for ART services must be assessed independently of her husband's age.

The petitioners, a married couple aged 46 and 57, sought relief from the court after an ART clinic refused to provide IVF treatment on the grounds that the second petitioner, the husband, had surpassed the upper age limit of 55 years as stipulated under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021. The couple had been married for several years and had unsuccessfully attempted various fertility treatments before considering IVF. Despite medical professionals advising the first petitioner to undergo another IVF cycle, the respondent hospital declined treatment due to statutory restrictions.

The petitioners contended that the refusal violated their fundamental right to reproductive autonomy and was inconsistent with the legislative intent of the ART Act. They argued that since the wife remained within the legally permissible age bracket for ART services, her husband’s age should not serve as a prohibiting factor. Additionally, they sought permission to proceed with the procedure using donor male gametes, stating that the law did not impose a combined age limit on couples but only on individuals undergoing ART procedures.

The Union of India and the State of Kerala opposed the petition, asserting that the ART Act applies to a ‘commissioning couple’ collectively, requiring both partners to satisfy the prescribed age limits. The respondents stated that the age restrictions were instituted to protect the welfare of children conceived through ART procedures, ensuring that both parents remain capable of fulfilling parental responsibilities. The respondents referred to Parliamentary Committee discussions, which considered implementing age-based criteria similar to those applied in adoption regulations. They contended that relaxing these restrictions would contradict the legislative intent and set a precedent that could lead to further legal ambiguities.

The Court examined the legislative framework and definitions under the Assisted Reproductive Technology (Regulation) Act, 2021. It noted that while the Act defines ‘commissioning couple’ under Section 2(1)(e) as an infertile married couple seeking ART services, it separately defines ‘woman’ and ‘man’ under Section 21(g). The Act prescribes an age limit of 50 years for women and 55 years for men but does not impose a combined age restriction for couples.

The Court referred to the Parliamentary Standing Committee reports, which initially suggested a combined age cap for ART services, akin to adoption regulations. However, Parliament ultimately chose not to incorporate such a restriction into the final statute. The Court observed:

“The literature on the subject suggests that ART procedures are generally applied to women and men individually, even when both parties may undergo the procedure.”

The Court examined the definitions outlined in the Act, noting the absence of a statutory definition for ‘man’ despite the presence of a prescribed age limit for male patients. It remarked: “The legislature has treated men and women as distinct legal entities under the Act rather than imposing uniform couple-centric legislation.”

The Court examined the rationale for placing an age limit on ART procedures, particularly concerning married couples. It analysed the disparity between the eligibility criteria for married and single women, stating that an arbitrary distinction would result in inequitable treatment. The Court noted: “If a married woman is ineligible for ART services solely because her husband surpasses the age limit, yet becomes eligible upon legal separation or widowhood, such a classification would be arbitrary and inequitable.”

Further, the Court examined comparable legislative frameworks in other jurisdictions, stating that ART procedures worldwide are typically assessed on an individual basis rather than a couple-based approach. The Court stated the importance of ensuring a legal balance between reproductive rights and statutory safeguards, concluding that the Act did not bar a married woman from accessing ART services independently.

The Court directed the ART clinic to proceed with the first petitioner’s treatment, subject to obtaining the husband’s consent. The order stated: “The 4th respondent is directed to provide ART services to the 1st petitioner as per the provisions of the Act after obtaining the consent of the 2nd petitioner.”

The Court stated that the consent of the second petitioner was required only to fulfill procedural requirements under the ART Act and did not constitute a limitation on the first petitioner's eligibility.

Case Title: Sajitha Abdul Nazar & Anr. v. Union of India & Ors.

Case Number: W.P.(C) No. 31161 of 2024

Bench: Justice C.S. Dias

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