Age restrictions for Assisted Reproductive Technology services unfairly discriminate between married and unmarried women.

JUDGMENT

The writ petition is filed seeking the following prayers:-

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

b)to declare that Section 21 (g)(ii) of the Assisted Reproductive Technology (Regulation) Act, 2021 is inapplicable to cases involving IVF using donor sperm, where the husband’s gametes are not used, and consequently to hold that the age of the husband is irrelevant for availing ART services in such cases;

c)to issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents 1 to 3 to take immediate steps so as to require the 4^threspondent to provide ART Services to the petitioners;

2. The issue involved in this case is whether the first petitioner-wife now aged 43 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. The main prayer in this writ petition 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 consent for the procedure to avail ART services by utilising donor male gametes. According to the petitioners, 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. The learned counsel for the petitioners submits that he is not pressing the challenge regarding Section 21 (g) made in the writ petition. The relief is confined to availing service by using donor sperm to the first petitioner.

5. The very similar issue was considered by the Single Bench of this Court in Devayani.S. v. Union of Indian and others [ 2025 KHC OnLine 11164 ] 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 to avail ART service using donor sperm.

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. 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 spou