Husband within ART Act age limit eligible for services despite wife's exceedance; no composite age bar for commissioning couples.

JUDGMENT

Petitioners-a married couple have approached this Court with a grievance that 4^th respondent hospital is refusing to provide assistant reproductive technology to them on the ground that 2^nd petitioner wife has crossed the age limit prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 (in short ‘ART Act’).

2. According to the petitioners, 1^st petitioner who is the husband is aged 54 and 2^nd petitioner wife is aged 50. They are issueless. 2^nd petitioner has undergone In Vitro fertilisation (IVF) procedures at the 4th respondent hospital. Although the doctors have advised the 2^nd petitioner to undergo another IVF procedure, the hospital has declined the procedure for the reason that the 2nd petitioner has surpassed the age of 50 years as stipulated under Section 21(g)(i) of the Assisted Reproductive Technology (Regulation) Act, 2021, though the 1^st petitioner/husband is within the age limit. Since the 1^st petitioner is within the age limit, he alone needs to undergo the procedures under the Act. The refusal of the hospital to provide treatment to the petitioners is an infringement of their right to life. Hence a direction may be issued to the respondents to provide ART services to the petitioners. Though in the writ petition a further relief is also sought to declare that (g) of the ART Act prescribing the maximum age limit for men and women to avail ART services as unconstitutional and liable to be struck down, at the time of hearing, the learned counsel for the writ petitioner submitted that they would be satisfied by a direction permitting the 1^st petitioner, who is within the age limit, to avail ART services, through donor gametes.

3. Heard the learned counsel for the petitioners, the learned Central Government Standing Counsel for R1, the learned Government Pleader for R2 and R3.

4. The point for consideration is whether the 1^st petitioner who is within the age limit prescribed under the ART Act is entitled to avail the ART services though his wife has surpassed the 50 years of age.

5. Section 2(1)(e) of the ART Act defines a “commissioning couple”, thus:

“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”.

6.Section 21deals with the general duties of assisted reproductive technology clinics and banks.

7. Section 21(g) reads as follows:

(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;

8. The contention of the petitioners is that 1^st petitioner (husband) who is aged 54 is within the age limit and therefore he is entitled to avail ART services by using female gametes and the age restriction imposed under Section 21(g) of the Act does not apply to him although the 2^nd petitioner has surpassed the age limit.

9. In Devayani S. v. Union of India (WP© No.37687/2024) this Court 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 if the contention of the Union of India that both spouses must satisfy the age criteria it would create an unconstitutional classification, treating married women and single women as separate and distinct classes. Take, for example, a hypothetical situation where a married woman is ineligible for an ART procedure solely because her husband has surpassed the age li