Point of Law : Impact of prescription of upper age limit on liberty of individuals is a matter which the National Board should bring to notice of Central Government, so as to effectuate a detailed discussion on subject and pave way for necessary amendments.

JUDGMENT :

The writ petitions are filed by couples undergoing or intending to undergo assisted reproductive services, driven by the desire to have children. The petitioners challenge the upper age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 ('the ART Act' for short), which prohibits the application of ART services to persons above the prescribed age limit. According to the petitioners, prescription of the upper age limit under Section 21 (g) of the ART Act is irrational, arbitrary, unreasonable and violative of their right to reproduction, acknowledged as a fundamental right. They therefore want Section 21(g) of the ART Act, to the extent it prescribes an upper age limit for availing assisted reproductive technology services, to be declared unconstitutional.

2. Heard Advs.Akash Sathyanandan and Alex Scaria for the petitioners, S.Manu, the Deputy Solicitor General assisted by V. Girish Kumar, for the Central Government, Government Pleader Riyal Devassy for the State Government, N.Raguraj for the Kerala State Medical Council and Ramola Nayanpally, the amicus curiae.

3. Learned Counsel for the petitioners contended that there is no rationale in prescribing an upper age limit of 55 for men and 50 for women. It is submitted that, prior to the introduction of the ART Act, the ‘National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India' ('the National Guidelines' for short), prepared by the Indian Council for Medical research ("ICMR") and National Academy of Medical Sciences (NAMS) was in force. Chapter 3 of the National Guidelines dealt with the 'Code of Practice, Ethical Considerations and Legal Issues". Therein, under the head 'General Considerations' the prescription was only with respect to the minimum age for ART. As no upper age limit was prescribed in the guidelines, the petitioners had opted for ART services, without being unduly worried about their age. Some of the petitioners were in the midst of their treatment when the ART Act came into effect on 25.01.2022, bringing the treatment came to a sudden halt. This has put the petitioners under extreme emotional stress and some are in the verge of mental breakdown.

4. It is pointed out that, while the Surrogacy (Regulation) Act introduced with a similar objective contains a transitional provision, the ART Act contains no such provision. It is contended that the rights of individuals to found a family is recognised as a human right by the United Nations and reproductive rights has been recognised as an aspect of personal liberty under Article 21 of the Constitution of India by the Honourable Supreme Court also. In support of this contention reliance is placed on the decisions in Suchita Srivastava and Anr. v. Chandigarh Administration [(2009) 9 SCC 1], K.S. Puttuswamy and another v Union of India [(2017) 10 SCC 1]

5. Responding with alacrity to this Court's request for assistance, learned amicus curiae has submitted a detailed report after exhaustive reference to statutes, judgments, parliamentary debates, journal articles and interviews with doctors practicing infertility and reproductive medicine. According to the amicus curiae, the issue of limiting access to assisted reproductive techniques ought to be addressed from the psychological, ethical and social perspectives. From the psychological point of view, being restricted from accessing ART may lead to increased frustration of families who are unable to reproduce naturally. Ethically, objections may arise by measuring the value of life of the newborn against the risks associated with the mothers' advanced age. On the social perspective, it is to be noticed that, with the increased use of ART, administration of such technologies has gained a social value with demographic relevancy. Certain studies have shown that later parenthood is associated with a more stable family environment, a higher socio-economic position, high