Woman within ART Act age limit eligible for IVF using donor sperm despite husband's age exceedance; no composite age criteria for couples.

JUDGMENT

The petitioners are wife and husband. 1^st petitioner is aged 49 years, whereas the 2^nd petitioner/husband is aged 55 years. According to them they are parents of a 25 years old differently abled daughter who is diagnosed to be autistic. The petitioners, who wanted to have another child, have been seeking treatment for a long time. On approaching the 4^th respondent hospital, the petitioners were told that the only option for them to conceive is through In Vitro Fertilisation (IVF) procedure using donor sperm. According to the petitioners, though the 1^st petitioner who is aged 49, is eligible under the Assisted Reproductive Technology (Regulation) Act 2021 (for short ‘ART Act’) to undergo the said procedure as she is a ‘woman’ defined under Clause 2(u) of the ART Act, the 4^th respondent hospital is hesitant to provide them the necessary treatment, citing that the 2^nd petitioner has crossed the statutory age limit of 55 years. The case of the petitioners is that though the 2^nd petitioner has crossed the age, since the 1^st petitioner uses donor sperm and the 2^nd petitioner is not an active participant, she is eligible under Section 21(g) of the ART Act to proceed with the treatment as a “woman”, as defined in Clause 2(u) of the ART Act. It is contended by the petitioners that unless the 1^st petitioner is permitted to avail ART services by utilising donor male gametes, much hardships would be caused to them.

2. Heard both sides.

3. The grievance of the petitoiners is that though the 1^st petitioner who is aged 49 and is eligible under Section 21(g) of the ART Act to proceed with the treatment as a “woman” as defined in Clause 2(u) of the ART Act under the 4^th respondent hospital is not providing the treatment on the ground that the 2^nd petitioner who is her husband has crossed the age limit.

Section 2(1)(a) of the ART Act reads as under:

2. Definitions. — (1) In this Act, unless the context otherwise requires, —

(a) “assisted reproductive technology” with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman;

(b) “assisted reproductive technology bank” means an organisation which shall be responsible for collection of gametes, storage of gametes and embryos and supply of gametes to the assisted reproductive technology clinics or their patients; XXXXX XXXXXX XXXXX XXXXXX (e) “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; XXXXX XXXXX (u) “woman” means any woman above the age of twenty-one years who approaches an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the authorised services of the clinic or bank.

4. The Assisted Reproductive Technology (Regulation) Act, 2021 came into force on 25.1.2022. It is an Act for the regulation and supervision of the assisted reproductive technology clinics and the assisted reproductive technology banks, prevention of misuse, safe and ethical practice of assisted reproductive technology services for addressing the issues of reproductive health where assisted reproductive technology is required for becoming a parent or for freezing gametes, embryos, embryonic tissues for further use due to infertility, disease or social or medical concerns and for regulation and supervision of research and development and for matters connected therewith or incidental thereto.

5. Section 2(u) defi