[Cites 7, Cited by 0]
Gauhati High Court
Page No.# 1/8 vs The Union Of India And 4 Ors on 18 December, 2025
Page No.# 1/8
GAHC010081752024
2025:GAU-
AS:17579-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2344/2024
PANKAJ KUMAR DAS AND ANR
SON OF MADHU RAM DAS, RESIDENT OF HOUSE NO.6, 1ST BYE LANE,
UDAYAN NAGAR, PRAGATI NAGAR UDAYAN VIHAR, P.S. NOONMATI,
DISTRICT- KAMRUP (METRO), ASSAM, GUWAHATI- 781171
2: SMTI. DIPTI HAZARIKA
WIFE OF SRI PANKAJ KUMAR DAS
RESIDENT OF HOUSE NO.6
1ST BYE LANE
UDAYAN NAGAR
PRAGATI NAGAR UDAYAN VIHAR
P.S. NOONMATI
DISTRICT- KAMRUP (METRO)
ASSAM
GUWAHATI- 78117
VERSUS
THE UNION OF INDIA AND 4 ORS
REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH AND FAMILY
WELFARE DEPARTMENT NEW DELHI- 110001
2:THE CHAIRMAN
NATIONAL MEDICAL COMMISSION
POCKET-14
SECTOR 8
DWARAKA PHASE-1
NEW DELHI- 110077
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
Page No.# 2/8
DISPUR
GUWAHATI-06
4:THE DIRECTOR OF HEALTH AND FAMILY WELFARE DEPARTMENT
ASSAM
HENGRABARI
GUWAHATI-36
5:THE DIRECTOR
INDIRA IVF FERTILITY CENTRE
3RD FLOOR
ACHYUT AND CHOUDHURY COMPLEX
GS ROAD
LACHIT NAGAR MAIN ROAD
ULUBARI
ASSAM
GUWAHATI- 78100
Advocate for the Petitioner : MR. B K GOGOI, MR. N D SARMA
Advocate for the Respondent : DY.S.G.I., MR. D J DAS.(R-2),SC, HEALTH
BEFORE
HON'BLE THE CHIEF JUSTICE ASHUTOSH KUMAR
HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Petitioners : Mr. B. K. Gogoi, learned Adv.
For the Respondents : Mr. D.J.Das, learned Adv.
Mr.B.Chakravarty, learned CGC.
Date on which judgment is reserved : 12.12.2025
Date of pronouncement of judgment : 18.12.2025
Whether the pronouncement is of the
operative part of the judgment : No
Whether the full judgment has been pronounced : Yes
Page No.# 3/8
JUDGMENT & ORDER (CAV)
Date:18-12-2025
(Arun Dev Choudhury, J)
1. Heard Mr. B. K. Gogoi, learned counsel for the petitioners and Mr. D.J. Das,
learned counsel, as well as Mr. B. Chakravarty, learned Central Government counsel,
for the respondents.
2. This writ petition under Article 226 of the Constitution of India raises a
challenge to the constitutional validity of Section 21(g) of the Assisted Reproductive
Technology (Regulation) Act, 2021 (for short, the Act, 2021). The petitioners seek a
direction to the respondent authorities to permit them to avail Assisted Reproductive
Technology (for short, ART) services, notwithstanding their ineligibility under the
impugned provision. Since the validity of a parliamentary enactment is assailed, the
matter has been heard by this Division Bench.
3. The petitioners are a married couple who have been unable to conceive
naturally. In 2020, they commenced medical consultations for an Assisted
Reproductive procedure. The onset of the COVID-19 pandemic interrupted their
course of treatment.
4. Thereafter, the petitioners underwent an Assisted Reproductive Procedure at
Pratiksha Hospital, which did not result in a successful outcome.
5. On 13.03.2024, the petitioners approached Indira IVF Hospital to avail ART
Page No.# 4/8
services. However, the hospital declined to treat the petitioners on the ground that
they did not meet the age-eligibility criteria prescribed under the Act, 2021.
6. The grievance of the petitioners is that the statutory prescription of an upper
age limit under Section 21(g) violates their fundamental rights under Articles 14 and
21 of the Constitution of India by foreclosing access to ART services despite their
individual medical fitness and by disproportionately denying them reproductive
autonomy.
7. For the sake of completeness, the statutory provision under challenge is
quoted herein below.
21. General duties of assisted reproductive technology clinics and banks.
--The clinics and banks shall perform the following duties, namely:--
.....................................................................................
(g) the clinics shall apply the assisted reproductive technology services,
(i) to a woman above the age of twenty-one years and below the
age of fifty years;
(ii) to a man above the age of twenty-one years and below the age
of fifty-five years;
8. The petitioners urged that the reproductive choice and aspiration to
parenthood are integral to the right to life and personal liberty under Article 21 of the
Constitution of India.
9. It is contended that a rigid age-based exclusion fails to account for individual
medical assessments and is, therefore, arbitrary and disproportionate, offending
Article 14 of the Constitution of India. It is also urged that since the petitioners had
Page No.# 5/8
commenced treatment prior to the enactment of the Act, 2021, the subsequent
statutory restriction ought not to be applied to them.
10. The respondents, on the other hand, contend that the Act, 2021 constitutes a
comprehensive regulatory framework governing ART enacted to address ethical,
medical, and societal concerns.
11. It is argued that the age limits are founded on scientific evidence relating to
the maternal health risks, fetal outcomes, and child welfare, and that the Court must
accord due deference to legislative policy in such matters.
12. We have given our thoughtful consideration to the materials available on
record and have also heard the learned counsels for the parties.
13. There can be no serious dispute that the right to make reproductive choices
forms part of personal liberty under Article 21 of the Constitution of India. In Suchita
Srivastava & Anr. Vs. Chandigarh Administration reported in [(2009) 13 (ADDL.) S.C.R
989], the reproductive autonomy was recognised as an aspect of bodily integrity
and decisional privacy.
14. Yet, the Apex Court has consistently held that the protection of Article 21 of
the Constitution of India does not render every personal choice immune from
regulation. The Constitutional rights, particularly in the domain of social welfare and
public health, operate within a framework of permissible regulation. In Javed and
Others Vs. In State of Haryana and Ors. reported in [(2003) 8 SCC 369], the statutory
restrictions impacting reproductive choices were upheld on the ground that a
reasonable regulation in pursuit of legitimate state objectives does not infringe
Page No.# 6/8
Article 21 of the Constitution of India.
15. 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.
16. Section 21(g) prescribes an upper age limit based on considerations of
medical science, ethical standards, and the welfare of both the woman undergoing
treatment and the child to be born. These considerations fall squarely within the
legislative domain.
17. The Court does not evaluate the wisdom of legislative choices but examines
whether the choice made transgresses the constitutional boundaries. Fixation of the
age limit has consistently been held to be a matter of policy. Such fixation can be
said to be arbitrary when it is a case of "picked out from a hat"; in the present
provision, the same is based on the well-being of the mother and child. In the Union
of India and Another Vs Sudhir Kumar Jaiswal, reported in [(1994) 4 SCC 212], the
age-based classifications were upheld where they were founded on rational
considerations and applied uniformly.
18. A statute enacted by the Parliament carries a presumption of
constitutionality. The burden of establishing unconstitutionality lies heavily upon the
challenger. It is by now too well settled that the economic and the social welfare
legislations are entitled to the judicial deference, particularly where the classification
adopted has a rational nexus with the object sought to be achieved.
19. The age-based classification under Section 21(g) applies uniformly to all
Page No.# 7/8
intending couples. It is founded on an intelligible differential and bears a direct nexus
to the regulation of ART services in a manner that is safe, ethical, and socially
responsible. The provisions do not suffer from manifest arbitrariness and do not violate
Article 14 of the Constitution of India.
20. The submission that the petitioners had initiated the ART prior to the coming
into force of the Act, 2021, does not create any vested right to continue such
treatment contrary to the statutory prescription. The law applicable on the date
when eligibility is considered must govern access to the statutory benefits, even if the
earlier attempt failed prior to the enactment of the Act, 2021, and was not a
continuing process.
21. To carve out, the individual exemptions on the grounds of hardship or medical
fitness would amount to substituting judicial discretion for legislative policy. Such an
exercise would traverse beyond the permissible limit of constitutional adjudication.
22. On a careful evaluation of the statutory scheme, the constitutional principle
governing judicial review and the precedence holding the field, we are of the
considered view that Section 21(g) of the Assisted Reproductive Technology
(Regulation) Act, 2021 withstands the constitutional scrutiny and does not infringe
Articles 14 or 21 of the Constitution of India.
23. The writ petition is devoid of merit and, accordingly, stands dismissed.
24. There shall be no order as to cost.
JUDGE CHIEF JUSTICE
Page No.# 8/8
Comparing Assistant
