The ART Act restricts assisted reproductive technology services to women aged 21 to 50, despite the general definition of 'Woman' lacking an upper age limit.

ORDER :

The Writ Petition is filed challenging the order passed by the 7^th respondent rejecting the representation of the petitioner dated 02.07.2024 requesting him to permit the petitioner to use gametes of donors and avail services under the Assisted Reproductive Technology (Regulation) Act, 2021 (hereinafter referred to as 'ART Act' for the sake of brevity) by citing Section 21(g) of ART Act.

2. The learned counsel appearing for the petitioner vehemently contended that the word 'Woman' is defined under Section 2(u) of ART Act as any woman above the age of 21 years, who approaches an ART Clinic or ART Bank for obtaining the authorised services and hence, in the absence of any upper age limit for the word 'Woman' as defined under the Act, the 7^th respondent committed a serious error in rejecting the request of the petitioner for availing ART services by citing her age. The learned counsel in support of his contention had taken this Court to definition of the word 'Woman' under Section 2(u) of ART Act and the definition of the expression 'commissioning couple' under Section 2(e) of ART Act and emphatically submitted that in the absence of upper age limit in the definition section, a restrictive meaning cannot be given to the word 'Woman' or expression 'commissioning couple' by excluding woman aged above 50 years. The learned counsel also submitted that under the sister legislation, the Surrogacy (Regulation) Act, 2021, the expression 'intending woman' has been given restrictive meaning by prescribing upper age limit, however in ART Act, no such upper age limit is prescribed in the definition section. The learned counsel further submitted that as per the definition of the word 'Woman' under the Act, any woman above the age of 21 years is entitled to ask for services of ART Clinic or Bank and the 7^th respondent erred in applying Section 21(g) of ART Act. He further submitted that Section 21(g) of the Act only makes it mandatory for the ART Clinic to apply ART services to a woman between the age of 21 years to 50 years and it does not mean woman above the age of 51 years is not entitled to seek services of ART.

3. In order to decide the issue raised by the learned counsel appearing for the petitioner in this writ petition, a reference to following provisions of the ART Act are essential.

“(i) Section 2(e) - 'Commissioning Couple' means an infertile married couple who approach an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the services authorised of the said clinic or bank.

(ii) Section 2(u) – 'Woman' means any woman above the age of twenty-one years who approaches an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the authorised services of the clinic or bank.

(iii) Section 21(g) the clinics shall apply the assisted reproductive technology services,-

(i) to a woman above the age of twenty-one years and below the age of fifty years;

(ii) to a man above the age of twenty-one years and below the age of fifty-five years;

(iv) Section 27. Sourcing of gametes by assisted reproductive technology banks. - (1) The screening of gamete donors, the collection, screening and storage of semen; and provision of oocyte donor, shall be done only by a bank registered as an independent entity under the provisions of this Act.

(2) The banks shall-

(a) obtain semen from males between twenty-one years of age and fifty-five years of age, both inclusive;

(b) obtain oocytes from females between twenty-three years of age and thirty-five years of age; and (c) examine the donors for such diseases, as may be prescribed.

(v) Clause 5(d) of Statement of Objects and Reasons of ART Act, reads as follows:-

5(d) to provide that the assisted reproductive technology services shall be available to a woman above the legal age of marriage and below the age of fifty years and a man above the legal age of marriage and below the age of fifty-five years.”

4. A perusal of Section 21(g) of ART