Kerala High Court
A. Vasantha vs Union Of India on 24 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
WP(C) NO. 1477 OF 2023
PETITIONER/S:
1 SASIDHARAN M.V., AGED 53 YEARS
S/O. V.M. SREEDHARAN NAIR, GOKULAM, GANDHI NAGAR,
PERAMBRA, CHALAKKUDI, THRISSUR DISTRICT, PIN - 680689
2 RAJALAKSHMI V. R., AGED 51 YEARS
W/O. SASIDHARAN M.V., GOKULAM, GANDHI NAGAR, PERAMBRA,
CHALAKKUDI, THRISSUR DISTRICT, PIN - 680689
BY ADVS.
N.M.MADHU
C.S.RAJANI
RESPONDENT/S:
1 THE UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND
FAMILY WELFARE, SASTHRI BHAVAN, NEW DELHI, PIN - 110001
2 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND
FAMILY WELFARE , SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE APPROPRIATE AUTHORITY FORMED U/S.12 OF THE ART (R)
ACT, 2021, REPRESENTED BY VICE CHAIRPERSON DR. PREETHI,
ADDITIONAL DIRECTOR OF HEALTH SERVICES (FW), PALAYAM -
AIRPORT ROAD, NEAR GENERAL HOSPITAL ROAD JUNCTION,
THIRUVANANTHAPURAM, PIN - 695035
4 THE DISTRICT REPRODUCTIVE AND CHILD HEALTH (RCH)
OFFICER, DISTRICT MEDICAL OFFICE, ERNAKULAM, PARK
AVENUE, MARINE DRIVE, ERNAKULAM, PIN - 682011
5 SABINE HOSPITAL AND RESEARCH CENTRE (P) LTD.,
REPRESENTED BY ITS DIRECTOR, PEZHAKKAPPILLY POST,
MUVATTUPUZHA, PIN - 686673
SMT.DEEPA NARAYANAN,SENIOR GOVERNMENT PLEADER
SRI. JOSE ANTONY, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.03.2023, ALONG WITH WP(C).10432/2023, 10438/2023, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOS. 1477, 10432 &10438 OF 2023
-2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
WP(C) NO. 10432 OF 2023
PETITIONER/S:
1 A. VASANTHA,
AGED 51 YEARS
WIFE OF K B HARIRAJAN, 'KUNDUMARIL', THENUR PO,
PARLI -I, TENUR, PALAKKAD, PIN - 678612
2 K.B. HARIRAJAN,
AGED 59 YEARS
SON OF BALAN, 'KUNDUMARIL', THENUR PO, PARLI -I,
TENUR, PALAKKAD - 678 612, PIN - 678612
BY ADVS.AKASH S.
GIRISH KUMAR M S
V.S.VARALEKSHMI
DEVIKA JAYARAJ
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH
AND FAMILY WELFARE, SASTHRI BHAVAN, NEW DELHI, PIN
- 110001
2 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH
AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE DISTRICT REPRODUCTIVE & CHILD HEALTH ("RCH")
OFFICER,
DISTRICT MEDICAL OFFICE, ERNAKULAM, PARK EVE,
MARINE DRIVE, ERNAKULAM, KERALA, PIN - 682011
4 SABINE HOSPITAL AND RESEARCH CENTRE PVT. LTD
REPRESENTED BY ITS MANAGING DIRECTOR,
PEZHAKKAPPALLY PO, MUVATTUPUZHA, PIN - 686673
WP(C) NOS. 1477, 10432 &10438 OF 2023
-3-
R1 BY SRI. S.MANU, DSGI
R2 & R3 BY SMT. RESHMI K.M., SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24.03.2023, ALONG WITH WP(C).1477/2023 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOS. 1477, 10432 &10438 OF 2023
-4-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
WP(C) NO. 10438 OF 2023
PETITIONER/S:
1 SUBAIDA N, AGED 48 YEARS
WIFE OF ABUBACKER, 'CHULLIYIL HOUSE', NEAR KINS
PARK, VATTAMAVU, KADAVALLUR, THRISSUR, PIN -
680543
2 ABUBACKER CH, AGED 64 YEARS, SON OF CHULLIYIL
HYDROSE, 'CHULLIYIL HOUSE', NEAR KINS PARK,
VATTAMAVU, KADAVALLUR, THRISSUR, PIN - 680543
BY ADVS.AKASH S.
GIRISH KUMAR M S
V.S.VARALEKSHMI
DEVIKA JAYARAJ
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH
AND FAMILY WELFARE, SASTHRI BHAVAN, NEW DELHI, PIN
- 110001
2 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH
AND FAMILY WELFARE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 THE DISTRICT REPRODUCTIVE & CHILD HEALTH ("RCH")
OFFICER,
DISTRICT MEDICAL OFFICE, ERNAKULAM, PARK EVE,
MARINE DRIVE, ERNAKULAM, KERALA, PIN - 682011
4 SABINE HOSPITAL AND RESEARCH CENTRE PVT. LTD
REPRESENTED BY ITS MANAGING DIRECTOR,
PEZHAKKAPPALLY PO, MUVATTUPUZHA, PIN - 686673
R1 BY SIR. MANU S., DSGI
WP(C) NOS. 1477, 10432 &10438 OF 2023
-5-
R2 & R3 BY SMT. RESHMI K.M., SR. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24.03.2023, ALONG WITH WP(C).1477/2023 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOS. 1477, 10432 &10438 OF 2023
-6-
JUDGMENT
[WP(C) Nos.1477/2023, 10432/2023, 10438/2023]
The captioned writ petitions are materially connected in respect
of a challenge made to Section 21(g) of the Assisted Reproductive
Technology (Regulation) Act, 2021 (for short 'the Act, 2021'). The case
of the petitioners in common are that, though they are living as
husband and wife, they are suffering from infertility issues and
therefore, their only alternative is to seek refuge for Assisted
Reproductive Technology by undergoing treatment. In so far as
Section 21(g) of the Act, 2021 is concerned, it prescribes an age limit to
undergo the treatment for a woman aged above 50 years and a man
aged above 55 years. The petitioners' case is that, either of them have
exceeded the prescribed age limit. The validity of the above provision
was considered by a learned Single Judge of this Court in Nandini K.
v. The Union of India and Others [2023 (1) KLT 426] and has
rendered a judgment dated 19.12.2022, and disposed of the writ
petitions holding as follows:-
"14. As rightly pointed out by the amicus curiae,
Section 5 of the Act confers the National Assisted
WP(C) NOS. 1477, 10432 &10438 OF 2023
Reproductive Technology and Surrogacy Board
with the power to advice the Central Government
on policy matters relating to assisted reproductive
technology. In my opinion, the impact of the
prescription of upper age limit on the liberty of
individuals is a matter which the National Board
should bring to the notice of the Central
Government, so as to effectuate a detailed
discussion on the subject and pave the way for
necessary amendments.
Based on the above discussions, the following
directions are issued;
(i) Those among the petitioners who were
undergoing ART services as on 25.01.2022 shall
be permitted to continue their treatment.
(ii) The National Board shall alert the Central
Government about the need for having a re-look at
the upper age limit prescribed in Section 21(g) of
the Act.
(iii) The National Board shall also bring to the
notice of the Central Government the requirement
of including a transitional provision in the ART
Act.
(iv) The above directions shall be complied by the
National Board within three months of receipt of a
copy of this judgment.
WP(C) NOS. 1477, 10432 &10438 OF 2023
(v) Those among the petitioners who are yet to
commence their ART treatment shall await the
decision of the Central Government on the upper
age limit and the transitional provision.
(vi) The liberty of the petitioners to approach this
Court at a later stage, if so necessitate, is
reserved."
2. Therefore, the submission made by the learned Counsel for
the petitioners is that they are all undergoing treatment and they may
be permitted to do so, failing which, irreparable loss and mental
distress would be suffered by them.
3. On the other hand, learned Central Government Counsel has
submitted that the issue with respect to the constitutionality of the age
limit fixed under Section 21(g) of the Act, 2021, is under consideration
before the Hon'ble Apex Court and therefore, the writ petitions may be
kept pending, till such time a decision is taken by the Apex Court.
4. In my considered opinion, since already similar writ petitions
are disposed of by issuing directions as extracted above, these writ
petitions can be disposed of in similar lines, failing which, the
petitioners would be put to serious prejudice. Therefore, petitioners
WP(C) NOS. 1477, 10432 &10438 OF 2023
who are undergoing treatment for Assisted Reproductive Technology
as on 25.01.2022 shall be permitted to continue their treatment. In all
other respects, the directions contained in the above cited judgment
would squarely apply to the facts and figures of these cases also.
The writ petitions are allowed to the above extent.
Sd/-
SHAJI P.CHALY
JUDGE
uu
25.03.2023
WP(C) NOS. 1477, 10432 &10438 OF 2023
APPENDIX OF WP(C) 10432/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AADHAAR CARD OF THE 1ST
PETITIONER
Exhibit P2 TRUE COPY OF THE AADHAAR CARD OF THE 2ND
PETITIONER
Exhibit P3 TRUE COPY OF THE MEDICAL RECORDS OF THE
TREATMENT OF THE 1ST PETITIONER AT THE
RAJIV GANDHI DISTRICT CO-OPERATIVE
HOSPITAL ON 07.03.2021
Exhibit P4 TRUE COPY OF THE MEDICAL RECORDS AT
RAJIV GANDHI DISTRICT CO-OPERATIVE
HOSPITAL, MONITORING THE PROGRESS OF THE
1ST PETITIONER'S ENDOMETRIUM, LAST DATED
20.01.2022
Exhibit P5 TRUE COPY OF THE MEDICAL CERTIFICATE
ISSUED BY THE DOCTOR AT RAJIV GANDHI
DISTRICT CO-OPERATIVE HOSPITAL DATED
18.03.2023
Exhibit P6 TRUE COPY OF TEH RELEVANT PAGES OF THE
'NATIONAL GUIDELINES FOR ACCREDITATION,
SUPERVISION AND REGULATION OF ART
CLINICS IN INDIA' ("NATIONAL
GUIDELINES"), PREPARED BY THE INDIAN
COUNCIL FOR MEDICAL RESEARCH ("ICMR")
AND NATIONAL ACADEMY OF MEDICAL SCIENCES
(NAMS), ON BEHALF OF THE UNION MINISTRY
OF HEALTH AND FAMILY WELFARE, OF THE
YEAR 2005
WP(C) NOS. 1477, 10432 &10438 OF 2023
APPENDIX OF WP(C) 10438/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AADHAAR CARD OF THE 1ST
PETITIONER
Exhibit P2 TRUE COPY OF THE AADHAAR CARD OF THE 2ND
PETITIONER
Exhibit P3 TRUE COPY OF THE MARRIAGE CERTIFICATE OF
THE PETITIONERS, BY THE SAMASTHA SUNNI
MAHAL FEDERATION, WAYANAD, DATED
18.10.2017
Exhibit P4 TRUE COPY OF THE USG SCAN ON THE
ABDOMINAL AND PELVIC AREA OF THE 1ST
PETITIONER, ISSUED BY ANSAR HOSPITAL,
THRISSUR, DATED 11.05.2021
Exhibit P5 TRUE COPY OF THE USG SCAN ON THE PELVIC
AREA OF THE 1ST PETITIONER AT THE OXYGEN
HEALTHCARE, KECHERI, DATED 26.05.2021
Exhibit P6 TRUE COPY OF THE USG SCAN ON THE PELVIC
AREA OF THE 1ST PETITIONER AT THE OXYGEN
HEALTHCARE, KECHERI, DATED 26.10.2021
Exhibit P7 TRUE COPY OF THE MEDICAL RECORDS ISSUED
BY THE OXYGEN HEALTHCARE, KECHERI DATED
27.10.2021
Exhibit P8 TRUE COPY OF THE DISCHARGE SUMMARY OF
THE 1ST PETITIONER ISSUED BY MOTHER
HOSPITAL, THRISSUR, DATED 01.11.2021
Exhibit P9 TRUE COPY OF THE RELEVANT PAGES OF THE
'NATIONAL GUIDELINES FOR ACCREDITATION,
SUPERVISION AND REGULATION OF ART
CLINICS IN INDIA' ("NATIONAL
GUIDELINES"), PREPARED BY THE INDIAN
COUNCIL FOR MEDICAL RESEARCH ("ICMR")
AND NATIONAL ACADEMY OF MEDICAL SCIENCES
(NAMS), ON BEHALF OF THE UNION MINISTRY
OF HEALTH AND FAMILY WELFARE, OF THE
YEAR 2005
WP(C) NOS. 1477, 10432 &10438 OF 2023
APPENDIX OF WP(C) 1477/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPIES OF THE MEDICAL REPORTS
ISSUED BY THE AMRITA INSTITUTE OF
MEDICAL SCIENCE AND RESEARCH CENTRE,
KOCHI
Exhibit P2 TRUE COPY OF THE CERTIFICATE DATED
02.11.2022 ISSUED BY THE SABINE HOSPITAL
AND RESEARCH CENTRE (P) LTD,
MUVATTUPUZHA
Exhibit P3 TRUE COPY OF THE CERTIFICATE DATED
23.01.2023 ISSUED BY THE FIFTH
RESPONDENT
