JUDGMENT

MANMOHAN, ACJ: (ORAL)

CM APPL. 31491/2024 (for exemption)

1. Allowed, subject to all just exceptions.

2. Accordingly, the present application stands disposed of.

W.P.(C) 7565/2024 & CM APPL. 31490/2024

3. Present petition has been filed seeking a direction for relaxing the age criteria as provided under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 (‘ART Act’) and directing the Respondents to permit the Petitioners to continue with their In Vitro Fertilization treatment (‘IVF’). It is further prayed that Section 21(g) (‘impugned provision’) of the ART Act be declared as ultra vires and unconstitutional being violative of Articles 14 and 21 of the Constitution of India.

4. The Petitioners, who are a married couple are desirous of having a child through the process of IVF and find themselves, restrained due to the age bar introduced under Section 21(g) of the ART Act, despite having initiated the process in 2011, before the date of enforcement of the ART Act, i.e. 25th January, 2022.

5. Through this petition, the Petitioners seek a declaration that Section 21(g) of the ART Act, which imposes an age restriction in respect of intending parents, infringes their right to reproductive autonomy, protected by Article 21 of the Constitution of India, 1950.

6. It is stated that since 2011, the Petitioners, have had several procedures at various facilities around India. It is stated that the Petitioners had underwent IVF process at AIIMS in 2011 and 2012, but with negative results. It is stated that the Petitioners had also underwent Intracytoplasmic Sperm Injection treatment (‘ICSI’) at AIIMS in 2013, but with no success. It is stated that the Petitioners were also under the medical treatment at AIIMS till 2017.

7. It is stated that between the years 2018-2021, the Petitioners consulted with doctors at Lilawati Hospital, Mumbai and P.D. Hinduja National Hospital, Mumbai, where again they underwent ART process with no success.

8. It is stated that thereafter, the Petitioners consulted Birla Fertility and IVF Centre i.e., Respondent No. 3 herein in the year 2022 for the IVF process. It is stated that Petitioners, are presently under the care of Respondent No. 3 herein, and had their embryos frozen on 02nd December, 2022, at the ages of 44 years (wife) and 54 years (husband). The sperm of the husband was frozen on 4th October, 2022. The embryology record shows that blastocysts were frozen on 2nd December, 2022.

9. It is stated that subsequently, the Petitioners opted for Embryo Transfer on 18th March, 2023 and 09th June, 2023, however, both their attempts were unsuccessful.

10. It is stated that thereafter, Respondent No. 3 has refused the Petitioners’ request to undergo Embryo Transfer, as Petitioner No. 2/husband has crossed the upper age limit of 55 years, fixed under Section 21 (g) of the ART Act on 28th June, 2023. Even though, Petitioner No. 1 is still eligible for ART, as she is below the age of 50.

11. It is stated that Petitioners have written to Respondent No. 2 vide representation dated 12th February, 2024 for granting permission to continue their treatment; however, the said representation has not been considered.

12. Aggrieved by Respondent No. 3’s decision to discontinue the Petitioners treatment, the Petitioners have filed the present petition.

13. Learned counsel for the Petitioners, contends that the age bar fixed under the ART Act, is irrational, arbitrary and without any scientific backing and goes behind the whole objective of the ART Act, which intends to aid infertile couples desirous of parenthood. She further draws the attention of this Court to various judgements passed by this Court and other High Courts whereby, the Courts considering the facts of each case and balancing the equities have provided interim relief to the couples desirous of parenthood and who have initiated the process of IVF before the provisions of ART Act, came into force.

14. She relies upon the order dated 10th October,