Wife's eligibility for ART using donor gametes not barred by husband's age exceeding limit under Section 21(g).

JUDGMENT

Petitioners have approached this Court seeking the following reliefs:

“i) Issue a writ of Mandamus or any other appropriate Writ or order directing commanding the respondents 2 to 5 to accord sanction to provide ART Service to the petitioners.

ii) Issue a Writ of Mandamus or any other appropriate Writ or order directing the respondents 2 to 5 to take immediate steps so as to require the 5^th respondent to provide ART service to the petitioners.

Iii) Declare that the age of the husband cannot operate as a bar to the wife undergoing Assisted Reproductive Technology treatment when she is otherwise eligible and medically fit, and that any such restriction is violative of Articles 14 and 21 of the Constitution of India.

iv) Declare that the provisions of the Assisted Reproductive Technology (Regulation) Act, 2021 cannot be given retrospective effect so as to affect or invalidate Assisted Reproductive Technology procedures initiated prior to the commencement of the said Act.”

2. According to the petitioners, 1stpetitioner/husband is aged 59 years whereas, the 2ndpetitioner wife is aged 43 years. Though they got married in the year 2002, they have no children and they have been undergoing treatment for infertility and they started assisted reproductive technology treatment to have a child of their own. It is contended by the petitioners that since the 2ndpetitioner uses male donor gametes and the 1stpetitioner is not an active participant, she is eligible underSection 21(g) of the Assisted Reproductive Technology Act, 2021 (for short 'the Act') to proceed with the treatment as a woman as defined under Clause 2(u) of the Act.

3. It was contended by the learned counsel for the petitioners that the 5^th respondent has hesitated to provide them necessary services under the Act, citing that the 1^st petitioner has crossed the statutory age limit of 55 years. It is also contended by the petitioners that unless the 2^nd petitioner is permitted to avail ART services by utilising the male donor gametes, they would be put to much hardship.

4. 1^st respondent entered appearance through DSGI.

Respondents 2, 3 and 4 entered appearance through the Government Pleader. 5^th respondent also entered appearance through counsel. 5. Admittedly, the 1^st petitioner has crossed the age limit as stipulated under Section 2 1 (g) of the ART Act. But the 2^nd petitioner is below the age of 50 years. The question is whether the 2^nd petitioner wife, who is aged 43 years can avail the ART services by receiving donor gametes in the status as a woman despite the fact that her husband, who is the 1^st petitioner herein has crossed the age of 55 years as prescribed under the Assisted Reproductive Technology Act, 2021. 6. Section 2 (1)(a) of the ART Act defines ‘Assisted Reproductive Technology’, which reads as under;

"(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."

7. Section 2 (1)(e) defines 'Commissioning Couple' which is read as under;

"(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."

8. The word 'Woman' is defined under Section 2 (1)(u) of the Act, which is extracted hereunder;

"(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."

9. Sections 21 (g) of the Act read thus; Section 21 (g) - the clinics shall apply the assisted reproductive technology services, —

(i) to a woman above the age of