Recently, the Gauhati High Court upheld the constitutional validity of the age-based eligibility criteria prescribed for availing Assisted Reproductive Technology (ART) services under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), while dismissing a writ petition filed by an age-ineligible married couple. While recognising reproductive choice as part of personal liberty, the Court firmly held that such autonomy operates within the bounds of permissible legislative regulation aimed at protecting the well-being of the mother and the child.
The case arose from a writ petition filed under Article 226 of the Constitution challenging the constitutional validity of Section 21(g) of the ART Act, 2021, which permits ART services only for women aged between 21 and 50 years and men aged between 21 and 55 years. The petitioners, a married couple unable to conceive naturally, had initiated medical consultations for assisted reproduction in 2020, which were disrupted by the COVID-19 pandemic. After an unsuccessful ART procedure at one hospital, the petitioners approached Indira IVF Fertility Centre in March 2024. The hospital declined treatment on the grounds that the petitioners did not meet the age-eligibility criteria under the ART Act. Aggrieved, the petitioners sought a direction to permit ART services notwithstanding the statutory bar, contending that the provision violated their fundamental rights under Article 14 and Article 21 of the Constitution of India.
Counsel for the Petitioners argued that the right to make reproductive choices is an intrinsic facet of personal liberty protected under Article 21, as recognised by the Supreme Court in Suchita Srivastava v. Chandigarh Administration. It was contended that a rigid age-based exclusion disregards individual medical fitness and disproportionately curtails reproductive autonomy, rendering the provision arbitrary and violative of Article 14. The petitioners further submitted that having commenced ART treatment prior to the enactment of the 2021 Act, the subsequent statutory restriction ought not to be applied to them.
On the other hand, the Respondents defended the provision as part of a comprehensive regulatory regime enacted to address ethical, medical, and societal concerns surrounding ART. It was submitted that the age limits are grounded in medical science, maternal health risks, foetal outcomes, and child welfare, and that courts must exercise restraint while examining policy choices in social welfare legislation. The respondents asserted that no vested right accrued to the petitioners merely because an earlier attempt at ART had been undertaken before the statute came into force.
The Division Bench comprising Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury undertook a careful constitutional analysis, beginning with the acknowledgement that reproductive autonomy forms part of personal liberty under Article 21. However, the Court emphasised that constitutional protection does not place every personal choice beyond regulation, particularly in areas involving public health and social welfare. Drawing from precedent, the Bench observed that “the impugned provision must, therefore, be assessed not on the touchstone of absolute autonomy but within the well-established limits of constitutional review of social legislation.”
The Court explained that Section 21(g) is based on “considerations of medical science, ethical standards, and the welfare of both the woman undergoing treatment and the child to be born,” matters that fall squarely within the legislative domain. Rejecting the arbitrariness challenge, the Bench held that age fixation is a policy decision and cannot be termed arbitrary unless it is “picked out from a hat.” It further reiterated the settled principle that a statute enacted by Parliament carries a presumption of constitutionality and that the burden to establish unconstitutionality “lies heavily upon the challenger.”
Addressing the plea for individual exemptions, the Court cautioned that granting relief on grounds of hardship or medical fitness would amount to “substituting judicial discretion for legislative policy,” an exercise impermissible within constitutional adjudication. The Bench concluded that the age-based classification applies uniformly, rests on an intelligible differentia, and bears a direct nexus with the object of regulating ART services in a safe, ethical, and socially responsible manner
The Court ultimately dismissed the writ petition, holding that Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 withstands constitutional scrutiny and does not infringe Articles 14 or 21 of the Constitution of India.
Case Title: ABC and Anr vs. Union of India and Ors.
Case No.: WP(C) No. 2344 of 2024
Coram: Hon’ble Chief Justice Ashutosh Kumar and Hon’ble Justice Arun Dev Choudhury
Advocate for the Petitioner: Advs. B. K. Gogoi, N. D. Sarma
Advocate for the Respondent: Advs. D. J. Das and B. Chakravarty
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