Kerala High Court
Sreedevi vs The Union Of India on 29 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 29TH DAY OF MARCH 2023 / 8TH CHAITHRA, 1945
WP(C) NO. 11119 OF 2023
PETITIONERS:
1 SREEDEVI
AGED 49 YEARS
DAUGHTER OF G. ANANDAVALLY AMMA,
'PLATHOTTIL VEEDU,
KANNIMEL CHERRY,
KAVANAD PO,
KOLLAM,
PIN - 691003
2 RAJASEKHARAN P.V.
AGED 56 YEARS
SON OF VIKRAMAN PILLAI,
'PLATHOTTIL VEEDU',
KANNIMEL CHERRY,
KAVANAD PO,
KOLLAM,
PIN - 691003
BY ADVS.AKASH S.
GIRISH KUMAR M S
V.S.VARALEKSHMI
DEVIKA JAYARAJ
RESPONDENTS:
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
W.P.(C.) NO. 11119 OF 2023
-2-
3 THE DISTRICT REPRODUCTIVE & CHILD HEALTH ("RCH")
OFFICER
DISTRICT MEDICAL OFFICE,
ERNAKULAM, PARK EVE,
MARINE DRIVE,
ERNAKULAM,
KERALA,
PIN - 682011
4 LIFELINE SUPER SPECIALTY HOSPITAL
REPRESENTED BY ITS MANAGING DIRECTOR,
MELOOD PO,
ADOOR,
PATHANAMTHITTA,
PIN - 691554
R1 BY SRI.S.MANU, DEPUTY SOLICITOR GENERAL OF
INDIA
R2 AND R3 BY SMT.DEEPA NARAYANAN,SENIOR GOVERNMENT
PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C.) NO. 11119 OF 2023
-3-
JUDGMENT
The subject matter of this writ petition is 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 is 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
W.P.(C.) NO. 11119 OF 2023
follows:-
"14. As rightly pointed out by the amicus
curiae, Section 5 of the Act confers the National
Assisted 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
W.P.(C.) NO. 11119 OF 2023
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.
(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 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
W.P.(C.) NO. 11119 OF 2023
Court and therefore, the writ petition 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, this writ petition can be disposed of in similar lines,
failing which, the petitioners would be put to serious
prejudice. Therefore, petitioners 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 this case also.
The writ petition is allowed to the above extent.
Sd/-
SHAJI P.CHALY
JUDGE
DCS/29.03.2023
W.P.(C.) NO. 11119 OF 2023
APPENDIX
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 TREATMENT CERTIFICATE
ISSUED BY THE CONSULTING DOCTOR AT THE
LIFELINE FERTILITY AND WELL WOMAN CENTRE
DATED 23.03.2023
EXHIBIT P4 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
