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Synopsis

The Kerala High Court has held that a married woman is entitled to undergo in-vitro fertilisation (IVF) using a donor gamete even if her husband exceeds the age limit prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act). The court, however, clarified that the woman still requires her husband to give his consent for the procedure.

A Single judge bench of Justice C.S. Dias, emphasised that the ART Act does not prescribe a collective age criterion for a ‘commissioning couple.’ Instead, the Act adopts an individual-centric approach, setting separate age limits for men (55 years) and women (50 years) rather than imposing a combined age requirement for the couple.

The court observed: “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.”

The court’s observation came in a case involving a 46-year-old wife (the first petitioner) and her 57-year-old husband (the second petitioner) who had previously undergone IVF treatments. Following medical advice for another attempt, the couple approached a hospital for Assisted Reproductive Technology (ART) services. However, the hospital denied treatment, citing the husband’s age, which exceeded the 55-year limit under Section 21(g) of the ART Act.

The wife, intending to use donor sperm for the IVF procedure, approached the court, arguing that since only she would undergo the procedure and as she was under the age limit of 50 years, her husband’s age should not affect her eligibility. The petitioners maintained that the refusal of ART services violated their fundamental right to life under Article 21 of the Constitution of India.

On the other hand, the respondents, including the hospital and the Central and State government, argued that both spouses needed to meet the age criteria as they qualified as a ‘commissioning couple’ under Section 2(1)(e) of the ART Act. It was contended that allowing the procedure without the husband meeting the eligibility criteria would undermine the purpose of the Act, which aims to promote responsible parenthood and consider the welfare of the child. The respondents also highlighted Rule 13(1)(f)(iii) of the Assisted Reproductive Technology (Regulation) Rules, 2022 (ART Rules), which mandates a married woman to obtain her husband's consent for ART procedures. The respondents sought the dismissal of the petition terming it meritless, stating that the imposition of an upper age limit in the Act is only a reasonable restriction and cannot be said to violate the rights of individuals or couples.

Examining the provisions of the ART Act, the court observed: “the Act does not contain the concept of combined age for commissioning couples analogous to the composite age criteria applicable to prospective adoptive parents. Instead, the Act adopts an individual-centric approach, whereby the age eligibility criteria are separately laid down for women and men rather than collectively for a couple.”

The court noted that denying ART services based on the husband's age would lead to an unconstitutional classification, treating married women differently from single women.

“Such a classification would be a fallacy and would put married women at an unfair disadvantage when compared to single women to access ART procedures. It can never be presumed that the Parliament intended such an inequitable classification within a benevolent statute like the Act. It is a well-established legal principle that no one can supplement conditions not explicitly provided in the statute,” the court stated.

The court further clarified that the only legal requirement for a married woman to access ART services, apart from satisfying the age criteria, is to obtain her husband’s consent in Form 8 under Rule 13(1)(f)(iii) of the ART Rules. It noted that the wife had already fulfilled this requirement.

The court ruled, “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.”

Conclusively, the court stating that “the experience of childlessness is a silent anguish known to only those who walk that path,” allowed the writ petition and directed the hospital to proceed with the IVF procedure for the wife using donor sperm.

 

Cause Title: Sajitha Abdul Nazar v Union of India [WP(C) NO. 31161 OF 2024]

Appearance: The petitioners were represented by advocates Akash S, Girish Kumar MS, and Richu Theresa Robert. Advocate M Sajna appeared for the Central government, while Government Pleader Vidya Kuriakose represented the State.