IMPORTANT POINT
The Assisted Reproductive Technology Act permits a married couple to utilize donated gametes despite age restrictions on one spouse, affirming individual eligibility under the law.

JUDGMENT :

(Sabyasachi Bhattacharyya, J.)

The petitioners are a married couple. The petitioner no. 1/husband is around 59 years of age, whereas the petitioner no. 2/wife is aged about 46 years. The petitioners' only child Anindya Mondal died at the tender age of 19 years.

2. To fulfill the void, the petitioners attempted to conceive again but failed to so conceive by normal process, when they contacted the respondent no. 4-Clinic which is a licensed clinic under the Assisted Reproductive Technology (Regulation) Act, 2021 (hereinafter referred to as, "the 2021 Act").

3. Upon medical examination, it was found that the petitioner no. 2 is medically fit and eligible to give birth to a child by the process of In Vitro Fertilization (IVF) with ovum donation. Since the petitioner no. 2 is suffering from poor ovarian reserve along with adenomyosis fibroid in uterus, there is no other option for the petitioners to become parents.

4. However, the petitioners were informed by the Clinic that since the petitioner no. 1 had crossed the age of 55, there is a legal wrangle as to their seeking to use such technology. Accordingly, the present writ petition has been filed asserting the right of the petitioners to become parents under the 2021 Act.

5. Learned counsel for the petitioners argues that since one of the petitioners, that is, petitioner no. 2 is still within the permissible age limit under Section 21(g) of the 2021 Act, the petitioners should be permitted to have a child under the said Act.

6. Learned counsel appearing for the respondent-Authorities, in his usual fairness, does not treat the present matter as an adversarial litigation but hands over a para wise comment and a set of instructions issued by the Deputy Secretary of the Government of India to the Principal Secretary (Health)/Secretary (Health) of all States regarding reasons for prescribing the age limits under Section 21(g) of the Act.

7. The limited consideration in the present case is whether the petitioners come within the purview of the Act, since both of them need donations of ovum and gamete respectively to become parents; secondly, whether the petitioners can take advantage of the 2021 Act in view of the petitioner no. 1 having crossed the upper age limit stipulated under the Act.

8. Insofar as the first issue is concerned, the petitioners have annexed to the writ petition a certificate issued by respondent no. 4, which is a licensed clinic under the 2021 Act, dated February 3, 2024, authored by a Doctor of the said Clinic, which indicates that the petitioner no. 2 is 46 years old and the petitioner no. 1 is 59 years of age and they are in desperate need of a child as their only son committed suicide on October 12, 2023. It is indicated therein that the petitioner no. 2 is suffering from poor ovarian reserve along with adenomyosis fibroid in uterus for which they need IVF with ovum donation. It also indicated that due to bar of law, special permission is required.

9. The writ petition also contains as an annexure a certificate separately issued by the concerned Doctor indicating the problem and prognosis explained in detail, which corroborates the certificate of the Clinic.

10. Thus, it is evident that the petitioner no. 2, upon obtaining ovum from a donor as well as gamete from another donor, is capable of giving birth to a baby by the process of IVF which comes within the purview of the 2021 Act.

11. A comprehensive reading of the said Act shows that the statute nowhere prevents both the spouses from taking resort to assistive reproductive technology under the Act in the event both of them are incapable of bearing ovum and gamete respectively.

12. Section 2(1)(a) defines "assisted reproductive technology" as all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman. Thus, as per the above definition, the pregnancy can be obtained by