Saswati Mohury & Anr vs The Union Of India & Ors
2023 Latest Caselaw 1978 Cal

24.03.2023
 sayandeep
 Sl. No. 02
 Ct. No. 05




                                       WPA 1592 of 2023

                                    Saswati Mohury & Anr.
                                        -Versus-
                                   The Union of India & Ors.

                      Ms. Deblina Lahiri
                      Mr. Mrinmoy Chatterjee
                                                      ....for the petitioners

                      Mr. Siddhartha Lahiri
                      Ms. Mary Dutta
                                                            .....for the UOI


                      The petitioner nos. 1 and 2 are married to each

              other and are keen to have a child through Assisted

              Reproductive Technology (ART) as defined in The

              Assisted Reproductive Technology (Regulation) Act,

              2021.     The    petitioners    underwent       Intra-uterine

              Insemination     (IUI)    procedure    and    similar     other

              procedures from 2010 onwards in specialist fertility

              clinics in Chennai, Odisha and Chattisgarh. The

              petitioners explored ART in 2019 after successive

              failures in conceiving a child through IUI. The petitioner

              no. 1 was advised to undergo In vitro Fertilization (IVF)

              in December, 2019 but was unable to continue with the

              IVF by reason of the lockdown from March, 2020. The

              petitioners visited a fertility centre in Howrah in April,

              2022 and were advised to undergo certain medical

              procedures.     In   July,   2022,    the   petitioners   were
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informed that petitioners were ineligible for undergoing

ART as the petitioner no. 2 had crossed 55 years of age.

      The present writ petition was filed in January,

2023 for declaration that section 21(g) of The Assisted

Reproductive Technology (Regulation) Act, 2021 is ultra

vires Articles 14 and 21 of the Constitution of India.

      Section 21(g) of the Act requires a woman to be

above the age of 21 years and below 50 years and a

man to be above 21 years and below 55 years for being

eligible for assisted reproductive technology services.

      The first petitioner (wife) is now 46 years old and

the petitioner no. 2 (husband) is 56 years.

      According to learned counsel appearing for the

petitioners, although the petitioner no. 1 is within the

age limit of section 21(g), the petitioner no. 2 has

crossed the age limit by just a year. Counsel submits

that the petitioner no. 2 / husband was 52 years when

the petitioners first tried for IVF in 2019 but crossed the

age limit in July, 2022. Counsel submits that the

petitioners   have   suffered   emotional     trauma     and

depression due to consecutive failures in conceiving a

child. Counsel submits that section 21(g) offends Article

14 of the Constitution since a commissioning couple

has been prohibited from seeking ART by reason of an

artificial age bar between a man and woman without

the support of any medical or expert evidence in the
                             3




matter. Counsel relies on the 129th Report on The

Assisted Reproductive Technology (Regulation) Bill,

2020 which was presented before the Parliament on

19th March, 2021 to submit that the age-limit was

recommended by the Parliament without any discussion

in support of the recommendation. Counsel seeks an

interim order pending a decision on the challenge to the

vires of the Act.

      Learned counsel appearing for the Ministry of

Health and Family Welfare, Government of India, relies

on three orders of the Supreme Court dated 26.9.2022,

9.1.2023

and 7.2.2023 to submit that the Supreme

Court is considering a similar issue; namely a challenge

to the vires of the 2021 Act including section 21(g)

thereof.

The orders placed show that the Supreme Court

requested the Board constituted by the Government

Notification dated 4.8.2022 to examine the individual

applications made before the Supreme Court and made

the matter returnable in March 2023. The orders do not

reflect that the Supreme Court requested the High

Courts not to entertain writ petitions involving a similar

issue. The Supreme Court has also not transferred

matters pending before the High Courts to itself to

decide on the vires of the 2021 Act. The judgment

passed by the learned Single Judge of the Kerala High

Court on 19.12.2022 in a batch of writ petitions

involving a similar question whereby the petitioners

were permitted to continue their treatment under the

ART Act is a case in point.

Moreover, the Constitution Bench decision of the

Supreme Court in State of West Bengal vs The

Committee for Protection of Democratic Rights; (2010) 3

SCC 571 can meaningfully be referred to. In that case,

the Supreme Court upheld the constitutional scheme

framed for the judiciary whereunder the Supreme Court

and the High Courts were held to be courts of record.

The Supreme Court also referred to the wide powers

vested in the High Courts under Article 226 of the

Constitution.

The Assisted Reproductive Technology (Regulation) Act,

The ART (Regulation) Bill was introduced in the

Lok Sabha on 14.9.2020 and was referred to the

Parliamentary Standing Committee on Health and

Family Welfare. The Standing Committee sought for the

views of stakeholders and presented the 129th Report on

the ART (Regulation) Bill, 2020 before the Parliament on

19.3.2021.

The 129th Report on the ART (Regulation) Bill,

2020 reveals that the recommendation of the upper-age

limit for a woman and a man of 50 and 55 years,

respectively, was made without a detailed discussion.

The relevant part of the Report only refers to

recommendations made by a Select Committee on the

Surrogacy (Regulation) Bill, 2020. There is no

discussion of the upper-age limit followed in countries

outside India which shows varying limits and more

significantly of countries like Germany, Spain, Portugal

and UK where no upper-age limit has been prescribed

at all. The Report also does not mention the impact of

any Pre-implantation Genetic Testing for embryos or

screening of the sperm cells taken from a man of

advanced years or the perceived apprehension relating

to sperm health of older men justifying fixing of the

upper-age limit for a man under section 21(g)(ii).

The object of the Act, 2021 is to regulate and

supervise the assisted reproductive technology clinics

and the assisted reproductive technology banks and to

prevent the misuse of reproductive technology services

as also for addressing the issues of reproductive health

where assisted reproductive technology is required for

becoming a parent due to infertility, disease or social or

medical concerns. Section 2(1)(a) defines "assisted

reproductive technology" to mean 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.

The Act has several 'silences' which do not provide any

answers:

There are three other aspects which do not find

any mention in the observations / recommendations of

the Standing Committee Report.

First, the absence of any stop-gap measures for

men, women and commissioning couples who availed of

ART Services before the Act came into force on

25.1.2022 and were consequently caught within the

age-bracket prohibition of section 21 (g) of the Act. In

the present case, for instance, the petitioner no. 2

(husband) was 52 years old in 2019 when the

petitioners visited the particular Fertility Clinic for

treatment. The Act came into force on 25.1.2022 when

the petitioner no. 2 was 55 years old and hence became

ineligible under section 21(g) of the Act. The Standing

Committee recommendations do not address the point

as to what happens to this category of cases where

persons who had undergone fertility procedures before

the Act came into effect suddenly found themselves

disqualified under section 21(g) during the course of

their treatment. The Act does not make any saving

provisions for these transitional cases.

Second, the Recommendations are also silent on

the anomalous situation which may result where one of

the individuals of the married couple (commissioning

couple) may be within the permissible age-limit but

would nonetheless not be entitled to ART if his/her

partner crosses the age- limit.

Third, there is also no discussion on individual

risk factors to pregnancy at an advanced maternal age

against the increase in average life expectancy in India.

Further, on a prima facie assessment of the

relevant provisions of The Assisted Reproductive

Technology (Regulation) Act, 2021, there appears to be

several ambiguities with reference to a "commissioning

couple" as defined under section 2(1)(e) of the Act.

The ambiguities in the 2021 Act; those relevant

for the instant adjudication are stated below :

1) Section 21(g) provides that the clinic shall

apply assisted reproductive technology services (i) to a

woman between 21 and 50 years of age and (ii) to a man

between 21-55 years of age. Section 21(g) simply

mandates the respective age limits of a 'woman' and a

'man' for ART as 2 separate entities without treating the

'man' and the 'woman' as a unit in the sense of being a

"commissioning couple".

2) The omission to specify "commissioning couple"

in section 21(g) is striking in its continued silence in the

scheme of the Act.

(a) The expression "commissioning couple" has

been defined in section 2(1)(e) as an infertile

married couple who approaches an ART clinic or

ART bank for obtaining authorised services.

Hence, "commissioning couple" has been treated

as a separate unit and an entity distinct from a

'woman' (or a man) in the statutory scheme.

(b) This would further be evident from the

expression 'woman' which has been given a

specific definition under section 2(1)(u) to mean

any woman above the age of 21 years who

approaches an ART clinic or ART bank for

obtaining authorised services. Therefore, the

separate identity given to a "commissioning

couple" in section 2(1)(e) has not been carried to

its logical conclusion in section 21(g) where the

qualifying age of only a man and a woman has

been described.

(c) Section 21 - "General duties of assisted

reproductive technology clinic and banks" -

makes repeated reference to "commissioning

couple" and 'woman' through the gamut of the

duties. The reference to these two entities is

found in section 21(c)(ii) and (iii), section 21(d), (e)

and continues through section 21(j).

(d) Section 21(j) is significant since an obligation

has been cast on the clinics and banks to provide

all information related to "enrollment of the

commissioning couple, woman and gamete donors"

[section 21(j)(i)]. Here, apart from "commissioning

couple" and "woman", "gamete donors" have also

been given a separate identity.

(e) Section 22 - "Written informed consent" - sub-

section (4) entitles any of the "commissioning

couple" to withdraw his or her consent under

section 22(1) at any time before the human

embryos or gamete are transferred to the

concerned woman's uterus. Hence, under section

22(4), a "commissioning couple" has further been

dissected into two individuals for withdrawing

consent before the ART advances to the next

stage. Remarkably, explanation (iii) to section

22(4) defines "parties" as including the

commissioning couple or woman and the donors.

(f) Section 25(2)(a) mandates that the donation of

an embryo after the Pre-implantation Genetic

Diagnosis to an approved research laboratory for

research purpose shall only be done with the

approval of the commissioning couple or the

woman.

Therefore, the importance given to the individual

identity of a "commissioning couple" as a unit

separate and distinct from a "woman" or a

"gamete donor" is curiously jettisoned in section

21(g) which ignores the combined entity of a

commissioning couple altogether.

3) Although section 21(g) prescribes the eligible

age-band of a man for availing ART services [21(g)(ii)],

the Act does not define a 'man' anywhere within the

statutory scheme. Further, section 21 mentions the

categories of "commissioning couple", "woman" and

even a "gamete donor" several times without any

reference to a "man" except in section 21(g)(ii).

Significantly, the definition of a "commissioning couple"

refers to an infertile married couple without any

reference to whether a couple would consist of a man-

woman, man-man, woman-woman or transgender

persons.

4) The exclusion of "man" is all the more

noticeable since a "gamete donor" has been defined in

section 2(1)(h) as a person who provides sperm or

oocyte with the objective of enabling an infertile couple

or woman to have a child. Despite the omission, 'sperm'

in section 2(1)(r) has been defined as "mature male

gamete".

5) Although, the age of a man under section

21(g)(ii) has been capped at 55 for being eligible for ART

services, the Act does not specify the age of a "gamete

donor". This omission is significant when viewed with

reference to the definition of a "gamete donor" under

section 2(1)(h) as a person who provides sperm or

oocyte for enabling an infertile couple or woman to have

a child.

If the above omissions are read together it

appears that the Act has discounted the relevance of a

man as a part of a commissioning couple and even as a

necessary part of ART altogether!

Hence, the omission to treat a commissioning

couple as a separate unit coupled with the omission to

prescribe an age for a gamete donor leads to the

compelling argument : that of a woman's age being the

only relevant factor for a commissioning couple for

availing of ART services.

The (In)equality Argument:

Article 14 of the Constitution, which prohibits the

State from denying equal rights to any person before the

law, is a grey area when viewed in the backdrop of The

Assisted Reproductive Technology (Regulation) Act,

2021. The Act creates an unequal division between an

unmarried, single woman and a married woman who is

a part of a "commissioning couple" as defined in section

2(1)(e). While the former is eligible for ART services from

21 to 50 years, a married woman whose

husband/counterpart crosses 55 years would fall within

the mischief - and the grey area - of section 21(g) of the

Act. The Act foists an indefensible fetter on a married

woman with regard to ART while disentangling the

statutory stranglehold from an unmarried woman.

Indeed, the inequality thus created is absurd and defies

logic.

The argument of Article 14 of the Constitution

falling by the wayside is therefore completely

reasonable. The constitutional safeguards cannot also

be permitted to be overridden rough-shod. Men and

women are entitled to equal rights to marriage and to

have a family as articulated in Article 16(1) of the

Universal Declaration of Human Rights. Suchita

Srivastava v. Chandigarh Administration; (2009) 9 SCC 1

reiterated a woman's right to make reproductive choices

as a dimension of personal liberty as understood under

Article 21 of the Constitution. Needless to say, a woman

can exercise her reproductive choice to procreate as well

as to abstain from procreating. The right cradles a

woman's freedom to choose birth-control methods as

well as the right to carry a pregnancy to its full term.

A legislative enactment seeking to curb a woman's

right to reproductive choices and means for parenthood,

must be founded on clear medical evidence of domain

experts. The curtailment must in any event be tested on

the benchmarks of legislative competence, manifest

arbitrariness, irrational considerations and violation of

fundamental rights.

This Court also wishes to add that the framers of

the law must not be presumed to have enacted a statute

which will operate inequitably and result in harsh

consequences. The aforesaid gives rise to the

presumption that if the law operates unjustly in a given

case, the legislature must have intended to exempt such

cases from the scope of the statute. After all, the

legislature lays down broad and general rules to govern

and leaves the determination of specific cases to the

courts to do justice.

The Act contemplates interim relief

 Under section 2(1)(f) of the Act "embryo" means a

developing or developed organism after fertilization

till the end of 56 days from the day of fertilization.

Section 22(2) debars the clinic from cryo-preserving

any human embryos or gamete without specific

instructions and consent in writing from all the

parties seeking ART. Explanation (i) of section 22

defines "cryo-preseve" as freezing and storing of

gametes, zygotes, embryos, ovarian and testicular

tissues.

 Section 28(2) provides that the gamete of a donor or

embryo shall be stored for a period of not more than

10 years after which period the gamete or embryo

shall be allowed to perish or be donated to a

research organisation registered under the Act for

research purposes with the consent of the

commissioning couple.

 Section 29 prohibits sale, transfer or use of gametes,

zygotes and embryos or any part thereof or any

information related thereto, directly or indirectly to

any party within or outside India except transfer of

own gametes or embryos for personal use with the

permission of National Board.

 Section 42(2)(v) and (w) empowers the Central

Government to make rules for the standards for the

storage and handling of gametes, human embryos

and the manner for obtaining the consent of the

commissioning couple for perishing or donating of a

gamete or embryo under section 28(2) of the Act.

 Rule 16 of the Assisted Reproductive Technology

(Regulation) Rules, 2022 requires the consent of the

commissioning couple or individual for perishing or

donating the gamete of a donor or embryo in the

format as specified in Forms 9 and 10 of the Rules.

Forms 9 and 10 relate to "Consent for Freezing of

Embryos" and "Consent for Freezing of

Gametes/Sperm/Oocytes", respectively.

The above provisions indicate that cryo-

preservation of any human embryo is permissible with

the written consent of all the parties seeking ART. As

stated above, cryo-preservation includes freezing and

storing of embryos. Storage of an embryo is also allowed

for a period of 10 years beyond which the embryo may

either be permitted to perish or be donated to a

registered research organisation for research purposes

with the consent of the commissioning couple.

Therefore, the Act contemplates grant of interim order

for preservation of the embryo.

It is also of significance that the petitioners have

affirmed their consent for freezing of embryos in Form 9

which is the statutory form recording consent under

Rules 13(1)(f)(iv) and 16 of the 2022 Rules. The consent

in Form 9 is part of the affidavit filed by the petitioners.

Are the petitioners entitled to interim relief?

The balance of convenience for grant -or refusal-

of interim relief weighs in favour of the petitioners for

the following reasons. The petitioners started their first

treatment in 2006 at Apollo Hospitals, Chennai. Since

this procedure was unsuccessful, similar procedures

were repeated in 2010-2011 in other fertility clinics in

Odisha and Chhattisgarh. The petitioners sought to

avail of ART in 2019 whereupon the petitioner no. 1 was

made to undergo further tests and thereafter advised to

undergo IVF in December, 2019. The petitioners

however could not proceed with the treatment by reason

of the lockdown from March, 2020 onwards. The

disruption caused by the Covid-19 Pandemic continued

till March, 2022 after which the petitioners again visited

the particular Fertility Centre in April, 2022. The

petitioners were informed of the age-bar under section

21(g) of the Act when the petitioners returned to the

Fertility Centre in July, 2022 for continuation of the

procedure.

The narration of the above chain of events would

show that the petitioner no. 1 (wife) was 42 years old

and the petitioner no. 2 (husband) was 52 years when

they first visited the fertility clinic in 2019. Therefore,

the petitioner no. 2 was well within the age limit of a

"man" under section 21 (g)(ii) of the Act which

prescribes a age-cap of 55 years. The petitioner no. 2

crossed the upper-age limit of 55 years only recently

and is now 56 years old. The question of giving any kind

of interim relief to the petitioners will become more of a

challenge with each passing day as the ineligibility of

the petitioner no. 2 would increase with a possible delay

in the adjudication of the present writ petition. Simply

put, the petitioners cannot afford to wait for availing of

ART services until the final adjudication on the vires of

the 2021 Act. This Court is therefore of the view that

the petitioner no. 2, as the male counterpart of the

commissioning couple and having crossed the

prescribed age by just a year, has established a case for

interim relief.

This Court is alive to the fact that grant of interim

relief may amount to final relief in the present facts.

However, such an apprehension would be allayed on the

ground that the ultimate relief claimed is for declaring

section 21(g) of the Act as ultra vires Articles 14 and 21

of the Constitution. The interim order is only in aid of

the final relief and in consideration that time is of the

essence in the matter. The petitioners may not be in a

position to sustain a long-drawn litigation on purely

physiological constraints. There is hence every reason to

consider the prayer for interim relief in light of the

peculiar attending factors which have been brought to

the attention of the Court.

Thus, the material placed before the Court and

the balance of convenience unmistakably show that the

petitioners have made out a case for interim relief. The

preparation for Assisted Reproductive Technology

should be permitted to start as further delay may

frustrate the petitioners' long-standing wish to have a

child. There shall accordingly be an interim order

permitting collection of the sperm of the petitioner no. 2

for preparation of the embryo with a donor egg. The

embryo shall be preserved till disposal of the writ

petition. The direction is given on Dr. Shiuli Mukherjee

of the Fertility Center mentioned in paragraph 13 of the

writ petition. Dr. Mukherjee is permitted to conduct

requisite tests and procedures in aid of the interim

order.

Further, the constitutionality of section 21(g) of

the Assisted Reproductive Technology (Regulation) Act,

2021 raises important issues on identity, fragmentation

of social units and certain inalienable rights and must

be decided after the respondents are given an

opportunity to file their affidavits. The respondent

Ministry of Health and Family Welfare shall bring its

objection on record by way of an affidavit-in-opposition

within 3 weeks from date; reply within 2 weeks

thereafter. The affidavit shall also address the challenge

to section 21(g) of The Assisted Reproductive

Technology (Regulation) Act, 2021 as being ultra vires

Articles 14 and 21 of the Constitution.

List this matter after 5 weeks. Parties shall be at

liberty to mention the matter any time before that.

(Moushumi Bhattacharya, J.)