IMPORTANT POINT
The Assisted Reproductive Technology Act allows individual eligibility for ART services, independent of a spouse's age, provided consent is given.

JUDGMENT :

1. The 1^st petitioner is the wife of the 2^nd petitioner. The petitioners are aged 47 and 56 years, respectively. They are issueless. The 1^st petitioner has undergone in-vitro fertilisation (IVF) procedures at the 4^th respondent hospital. Although the doctors have advised the 1^st petitioner to undergo another IVF procedure, the hospital has declined the procedure for the reason that the 2^nd petitioner has surpassed the age of 55 years as stipulated under Section 21 (g) (ii) of the Assisted Reproductive Technology (Regulation) Act, 2021 ('Act', for brevity) and the petitioners fall within the purview of the term “commissioning couple” defined under the Act. Since the 1^st petitioner is 47 years of age and she is a “woman” as defined under Section 2 (1)(u) of the Act, and further, the 2^nd petitioner has given his consent for the procedure; the 1^st petitioner is entitled to undergo the procedure. The refusal of the hospital to provide treatment to the petitioners is an infringement of their right to life. The age restrictions laid down under the Act apply only if the man and woman participate in the Assisted Reproductive Technology (‘ART’) procedure. In the present case, only the 1^st petitioner needs to undergo the procedure. Hence, the respondents may be directed to permit the 1^st petitioner to avail of the ART procedure using donor male gamete.

2. The 1^st respondent has filed a counter affidavit contending that, as the 2^nd petitioner has exceeded the age criteria prescribed under Section 21(g)(ii)of the Act, the petitioners are ineligible to avail the ART services. Merely because the 1^st petitioner has not surpassed the age prescribed under Section 21(g)(i) of the Act, she is not entitled to proceed with the procedure. In view of Section 2(1)(e) of the Act, which explicitly defines a commissioning couple, the petitioners have to fulfil the conditions under Sections 2(1)(e) and 21(g) of the Act. The Act has been enacted considering the status of a single woman (unmarried, divorcee and widow) and a married woman. The criteria for selecting the beneficiaries under the Act was discussed by the Parliamentary Committee as per Annexure R1(a) report. The age restrictions in the Act have been laid down after considering the best interest of the child to be born through the ART procedure. The petitioners have filed the writ petition as a couple; therefore, they fall within the definition of a commissioning couple. Section 21(g) requires a man and a woman to complete the procedure. Any married woman or married man constituting a commissioning couple and wanting to undergo an ART procedure has to simultaneously qualify the twin conditions under Sections 21(g)(i) and 21 (g) (ii) of the Act. There is no indication in the Act that only one among the men or women constitutes a commissioning couple. The age restrictions have been imposed on both parties, keeping in view the social responsibilities of the father. As per Section 2(1)(e) of the Act, when a woman approaches an ART clinic with her man as a “commissioning couple”, they should be married and infertile as provided under Section 2(1)(j). Moreover, as per Rule 13(1)(f)(iii) of the Assisted Reproductive Technology (Regulation) Rules, 2022, a married woman is required to submit the consent of her husband in Form 8. If a married woman is permitted to approach the clinic as a woman, her husband will not come into the picture, and she will escape the stipulation under Rule 13(1)(f)(iii), which would defeat the condition under the Act and the Rules. The Act does not envisage a married woman approaching a clinic as a woman. In the process of fulfilling the desire of a couple to become parents, the rights and welfare of the unborn child should not be neglected, which is of paramount importance. To ensure the above matters are addressed, the 1^st respondent has issued Annexure R1(d) instructions. The constitutional validity of Section 21(g) is under challenge before the Honourable Supreme C