The court established that under the ART Act, a married woman's eligibility for ART services does not depend on her husband's age, preventing unconstitutional discrimination.

JUDGMENT :

MURALEE KRISHNA S., J.

1. The 1^st respondent Union of India in W.P.(C)No.37687 of 2024 filed this writ appeal under Section 5(i) of the Kerala High Court Act, 1958, challenging the judgment dated 25.02.2025 passed by the learned Single Judge in that writ petition.

2. W.P.(C)No.37687 of 2024 is one filed by respondents 1 and 2 herein under Article 226 of the Constitution of India seeking a writ of mandamus commanding the respondents therein to permit the writ petitioner No.1 to avail Assisted Reproductive Technology services utilising donor male gametes and a writ of mandamus commanding respondents 1 to 3 therein to take immediate steps, so as to require the 4^th respondent therein to provide ART services to the writ petitioner No.1.

3. Going by the averments in the writ petition, respondents 1 and 2 herein are wife and husband aged 44 years and 55 years respectively. They have been undergoing treatment for infertility for a long time. According to respondents 1 and 2, the 1^st respondent had undergone an In Vitro Fertilisation (IVF) procedure on multiple occasions. The Doctors of the 5^th respondent hospital suggested the 1^st respondent to proceed with another IVF procedure. By that time, the 2^nd respondent attained 55 years of age, and hence respondents 1 and 2 were barred by Section 21 (g) of Assisted Reproductive Technology (Regulation) Act, 2021 ('ART Act' in short). Respondents 1 and 2 contend that the 1^st respondent is eligible under Section 21 (g) of the ART Act to conduct the IVF procedure using donor sperm as she falls under the definition 'woman' under Section 2 (1)(u) of the ART Act. However, the 5^th respondent hospital is hesitant to provide her treatment. Under those circumstances, respondents 1 and 2 approached this Court with the writ petition.

4. The appellant Union of India filed a counter affidavit dated 17.01.2025 in the writ petition opposing the reliefs sought by respondents 1 and 2 and producing therewith Exts.R1(a) to R1(e) documents. In the counter affidavit, it is inter alia contended that the 1^st respondent, being a married woman, falls within the category of 'Commissioning Couple'. Any married woman or married man constituting a commissioning couple wanting to undergo the ART procedure will have to meet both the conditions simultaneously as prescribed under Section 21 (g). There is no indication in the ART Act that only one among the man or woman constituting the commissioning couple undergoing the ART procedure needs to meet the age criterion prescribed under Section 21 (g) of the ART Act. It is further contended by the appellant that Section 21 (a) of the ART Act states that clinics must ensure that the commissioning couple is eligible to avail the assisted reproductive technology procedure. Therefore, the law is clear that the age limit under Section 21 (g)(i) and 21(g)(ii) for a commissioning couple is required to be satisfied together to avail the ART procedure with or without the use of donor gametes. The appellant further relied on Rule 13(1)(f)(iii) of the ART (Regulation) Rules, 2022, whereby a married woman requires the consent of her husband as required in Form-8 for availing the service of the ART procedure. In short, the appellant contended that since the 2^nd respondent has attained the age of 55 years and respondents 1 and 2 approached the 5^th respondent hospital as a commissioning couple, they are not entitled to proceed with ART procedure.

5. After hearing both sides and on appreciation of the materials on record, the learned Single Judge allowed the writ petition by the impugned judgment dated 25.02.2025. The learned Single Judge found that the 1^st respondent's eligibility to apply for the ART procedure operates independ