Age restrictions under the ART Act apply solely to the woman seeking services, with no composite age criterion for couples.

JUDGMENT

The writ petition is filed seeking the following prayers:-

a)declare the sub-clause(f) of S.21 of the ART Act to the extent it defines the maximum age for men and woman to seek ART services from licensed clinics as unconstitutional and liable to be struck down;

b) issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents 1 to 3 to take immediate steps to see the petitioners and provided with ART services;

2. The issue involved in this case is whether the first petitioner- wife now aged 46 years, can avail the ART services by receiving donor gametes in the status as a ‘woman’ despite being married to the second petitioner- husband, who has crossed the age of 55 years, prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 ('Act' for brevity).

3. In this case, the prayer is to permit the wife, who is within the age prescribed under the Act to avail Assisted Reproductive Technology services using donor male gametes at the fourth respondent- hospital. The wife is within the age limit prescribed under the Act for availing ART services and the husband has given the consent for the procedure to avail ART services by utilising donor male gametes. According to the petitioner, the refusal of the hospital to provide treatment to them 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.

4. Here, the prayer sought for is to avail ART services by availing donor gametes even if the husband has crossed the age limit.

5. The very similar issue was considered by the Single Bench of this Court in Devayani.S. v. Union of Indian and others [W.P(C) No.37687/2024][2025:KER:16074] wherein this Court as per judgment dated 25.02.2025, held that when a woman wants to undergo an IVF procedure, only her age is considered relevant, irrespective of her husband’s age, and the same principle applies conversely to men. It was further held that the above interpretation leads to an inevitable conclusion that the legislature has treated men and women as distinct legal entities under the Act rather than imposing uniform couple-centric legislation. It was further held that without any express provision in the Act restricting commissioning couples on the basis of their composite age, there is no legal bar in a woman who is otherwise eligible under Section 21 (g)(i) from applying the ART procedure even if her husband has surpassed the age limit as prescribed under the Act. In Devayani (supra), this Court directed the hospital authorities to provide ART services to the petitioner wife as per the provisions of the Act after obtaining the consent of the husband.

6. Aggrieved by the judgment of the single bench in Devayani (supra), the Central Government filed an appeal before this Court. The Division Bench of this Court by judgment dated 06.11.2025 in Union of India vs Devayani.S. /b>. and others [W.A.No. 2009 of 2025] [2025:KER:83955] failed to interfere with the judgment of the learned single judge and held as follows:-

“30. As rightly noticed by the learned Single Judge, the contention of the appellant that if the spouses approached the clinic for availing the ART service as a commissioning couple, both of them must satisfy the age criteria as stipulated under Section 21 (g) of the ART Act, if accepted, it will be a discrimination among the married woman and unmarried woman and divorced woman. The learned counsel for respondents 1 and 2, during the course of arguments submitted that the respondents 1 and 2 herein are even gone to the extent of expressing readiness to avail the status of divorced persons, so as to make r