IMPORTANT POINT
The court emphasized the need for legislative enactments to be founded on clear medical evidence and to prevent unjust operation of laws, especially in matters concerning reproductive choices and personal liberty.

JUDGMENT :

MOUSHUMI BHATTACHARYA, J.

1. The petitioner nos. 1 and 2 are married to each other and are keen to have a child through Assisted Reproductive Technology (ART) as defined in The Assisted Reproductive Technology (Regulation) Act, 2021. The petitioners underwent Intra-uterine Insemination (IUI) procedure and similar other procedures from 2010 onwards in specialist fertility clinics in Chennai, Odisha and Chattisgarh. The petitioners explored ART in 2019 after successive failures in conceiving a child through IUI. The petitioner no. 1 was advised to undergo In vitro Fertilization (IVF) in December, 2019 but was unable to continue with the IVF by reason of the lockdown from March, 2020. The petitioners visited a fertility centre in Howrah in April, 2022 and were advised to undergo certain medical procedures. In July, 2022, the petitioners were informed that petitioners were ineligible for undergoing ART as the petitioner no. 2 had crossed 55 years of age.

2. The present writ petition was filed in January, 2023 for declaration that section 21(g) of The Assisted Reproductive Technology (Regulation) Act, 2021 is ultra-vires Articles 14 and 21 of the Constitution of India.

3. Section 21(g) of the Act requires a woman to be above the age of 21 years and below 50 years and a man to be above 21 years and below 55 years for being eligible for assisted reproductive technology services.

4. The first petitioner (wife) is now 46 years old and the petitioner no. 2 (husband) is 56 years.

5. According to learned counsel appearing for the petitioners, although the petitioner no. 1 is within the age limit of section 21(g), the petitioner no. 2 has crossed the age limit by just a year. Counsel submits that the petitioner no. 2/husband was 52 years when the petitioners first tried for IVF in 2019 but crossed the age limit in July, 2022. Counsel submits that the petitioners have suffered emotional trauma and depression due to consecutive failures in conceiving a child. Counsel submits that section 21(g) offends Article 14 of the Constitution since a commissioning couple has been prohibited from seeking ART by reason of an artificial age bar between a man and woman without the support of any medical or expert evidence in the matter. Counsel relies on the 129th Report on The Assisted Reproductive Technology (Regulation) Bill, 2020 which was presented before the Parliament on 19th March, 2021 to submit that the age-limit was recommended by the Parliament without any discussion in support of the recommendation. Counsel seeks an interim order pending a decision on the challenge to the vires of the Act.

6. Learned counsel appearing for the Ministry of Health and Family Welfare, Government of India, relies on three orders of the Supreme Court dated 26.9.2022, 9.1.2023 and 7.2.2023 to submit that the Supreme Court is considering a similar issue; namely a challenge to the vires of the 2021 Act including section 21(g) thereof.

7. The orders placed show that the Supreme Court requested the Board constituted by the Government Notification dated 4.8.2022 to examine the individual applications made before the Supreme Court and made the matter returnable in March 2023. The orders do not reflect that the Supreme Court requested the High Courts not to entertain writ petitions involving a similar issue. The Supreme Court has also not transferred matters pending before the High Courts to itself to decide on the vires of the 2021 Act. The judgment passed by the learned Single Judge of the Kerala High Court on 19.12.2022 in a batch of writ petitions involving a similar question whereby the petitioners were permitted to continue their treatment under the ART Act is a case in point.

8. Moreover, the Constitution Bench decision of the Supreme Court in State of West Bengal vs. The Committee for Protection of Democratic Rights, (2010) 3 SCC 571 can meaningfully be referred to. In that case, the Supreme Court upheld the constitutional scheme framed for the judiciary whereunde