Age limits in Section 21(g) of ART Act upheld as constitutional, based on medical and reproductive considerations.

JUDGMENT

This writ petition has been filed by the petitioners, challenging the constitutional validity of Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 ( for short ' the Act') to the extent it prescribes the maximum age limit for men and women to seek ART services from licenced clinics and also seek a direction to the respondents to take steps to provide ART services to the petitioners.

2. Petitioners are husband and wife. 1stpetitioner/wife is aged 43 and 2ndpetitioner husband is aged 57. They have a child, who is now aged 11 years. They are desirous of having another child and therefore from 2019 onwards they are undergoing treatment for infertility at Naha's Centre for Assisted Reproduction and Endoscopy, Nahas Hospital, Malappuram. Frozen embryo transfer procedure was performed on 10.12.2021 and was thereafter performed on 7.3.2022. However, the treatment was unsuccessful. In the light ofSection 21(g) of the ART Act, prescribing the age limit, the petitioners who were eligible under the erstwhile laws have now been disqualified from availing ART services since the 2ndpetitioner/husband has crossed the age limit. InNandini K. v. Union of India(2023(1) KHC 149) and other connected matters, this Court had permitted the petitioners therein who were undergoing ART services as on 21.1.2022 to continue the treatment. The petitioners herein had also commenced ART services prior to the date of introduction of the ART Act ie. prior to 25.1.2022. Disqualifying the petitioners by virtue of (g) of the ART Act, which was introduced after the petitioners had commenced the ART services, would amount to an unreasonable and unjustified restriction on the reproductive choice of the petitioners and would militate against the liberty guaranteed under Article 21 of the Constitution of India. Hence, this writ petition, challenging the constitutional validity of the age limit prescribed under (g) of the ART Act.

3. Heard the learned counsel appearing for the petitioners, the learned CGC and the learned Government Pleader.

4. As per the order dated 28.5.2024, this Court had passed the following order:

“Admit. CGC takes notice for the 1st respondent.

Government Pleader takes notice for respondents 2 and 3.

In view of interim orders passed in similar set of facts, where one of the spouses is within the prescribed age for getting the benefit of Assisted Reproductive Technology (for short ‘ART’), the petitioners in this case shall be allowed to apply for ART services, however, for only one cycle.

Post on 10.06.2024 along with WP(C) No.34687/2023 and connected cases.”

5. Petitioners challenge the constitutional validity of Section 21(g) of the ART Act and also seek directions to permit them to avail the ART service from the licensed clinics.

6. The case canvassed by the petitioners and the reliefs made in this writ petition challenging the constitutional validity are similar to the facts of the case inUnion of India v. Nandini.Kreported in 2025 KHC 2087.

7. In Union of India v. Nandini.K (cited supra), the learned Division Bench of this Court considered in detail the challenge regarding the age limit prescribed under Section 21(g) of the Act and upheld the age limit.

8. In para 13 of the judgment cited supra, the Division Bench held as follows:

“13. The aims and objectives of the Act are based on expert reports, age expectancy, and the reproductive stages of both women and men. Once the aforementioned age limit, i.e., the provisions of S.21(g), was under challenge and upheld, in our considered view, the learned Single Bench ought not to have issued the directions (supra). There was no requirement to issue such directions directing the appellant to incorporate the aforementioned provisions in