Kerala High Court
Mary Josphin Vijila vs Union Of India on 8 April, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:30464
W.P(C)No.9289 of 2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
WP(C) NO. 9289 OF 2025
PETITIONERS:
1 MARY JOSPHIN VIJILA
AGED 48 YEARS
WIFE OF GEORGE M, MARIA BHAVANAM', KUNTHIRICKAL
PO, THALAVADY, ALAPPUZHA, PIN - 689572.
2 GEORGE M
AGED 55 YEARS,
SON OF MARIA MAICHEL, ‘MARIA BHAVANAM',
KUNTHIRICKAL PO, THALAVADY, ALAPPUZHA, PIN -
689572.
BY ADVS.
AKASH S.
GIRISH KUMAR M S
RICHU THERESA ROBERT
RESPONDENTS:
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 AVENUE,
MARINE DRIVE, ERNAKULAM, PIN - 682011.
4 LIFELINE SUPER SPECIALTY HOSPITAL,
REPRESENTED BY ITS MANAGING DIRECTOR, MELOOD PO,
ADOOR, PATHANAMTHITTA, PIN - 691554.
BY ADV K.ARJUN VENUGOPAL
DSGI SRI.DINESH
GOVT.PLEADER SMT.VIDYA KURIAKOSE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.P(C)No.9289 of 2025 2
JUDGMENT
Dated this the 8th day of April, 2025
The 1st petitioner is the wife of the 2nd petitioner.
The petitioners are aged 48 and 55 years, respectively.
They are issueless. The 1st petitioner has undergone in-
vitro fertilisation (IVF) procedures at the 4 th respondent
hospital. Although the doctors have advised the 1st
petitioner to undergo another IVF procedure, the
hospital has declined the procedure for the reason that
the 2nd petitioner has surpassed the age of 55 years as
stipulated under Section 21 (g) (ii) of the Assisted
Reproductive Technology (Regulation) Act, 2021 ('Act',
for brevity) and the petitioners fall within the purview of
the term "commissioning couple" defined under the Act.
Since the 1st petitioner is 48 years of age and she is a
"woman" as defined under Section 2 (1)(u) of the Act,
and further, the 2nd petitioner has given his consent for
the procedure; the 1st petitioner is entitled to undergo
the procedure. The refusal of the hospital to provide
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treatment to the petitioners is an infringement of their
right to life. The age restrictions laid down under the
Act apply only if the man and woman participate in the
Assisted Reproductive Technology ('ART') procedure. In
the present case, only the 1 st petitioner needs to
undergo the procedure. Hence, the respondents may be
directed to permit the 1st petitioner to avail of the ART
procedure using donor male gamete.
2. In W.P(C) No.31161/2024, a case of identical
nature, the 1st respondent has filed a counter affidavit
contending that, as the 2nd petitioner has exceeded the
age criteria prescribed under Section 21(g)(ii)of the Act,
the petitioners are ineligible to avail the ART services.
Merely because the 1st petitioner has not surpassed the
age prescribed under Section 21(g)(i) of the Act, she is
not entitled to proceed with the procedure. In view of
Section 2(1)(e) of the Act, which explicitly defines a
commissioning couple, the petitioners have to fulfil the
conditions under Sections 2(1)(e) and 21(g) of the Act.
The Act has been enacted considering the status of a
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single woman (unmarried, divorcee and widow) and a
married woman. The criteria for selecting the
beneficiaries under the Act was discussed by the
Parliamentary Committee as per Ext.R1(a) report. The
age restrictions in the Act have been laid down after
considering the best interest of the child to be born
through the ART procedure. The petitioners have filed
the writ petition as a couple; therefore, they fall within
the definition of a commissioning couple. Section 21(g)
requires a man and a woman to complete the procedure.
Any married woman or married man constituting a
commissioning couple and wanting to undergo an ART
procedure has to simultaneously qualify the twin
conditions under Sections 21(g)(i) and 21 (g) (ii) of the
Act. There is no indication in the Act that only one
among the men or women constitutes a commissioning
couple. The age restrictions have been imposed on both
parties, keeping in view the social responsibilities of the
father. As per Section 2(1)(e) of the Act, when a woman
approaches an ART clinic with her man as a
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"commissioning couple", they should be married and
infertile as provided under Section 2(1)(j). Moreover, as
per Rule 13(1)(f)(iii) of the Assisted Reproductive
Technology (Regulation) Rules, 2022, a married woman
is required to submit the consent of her husband in
Form 8. If a married woman is permitted to approach
the clinic as a woman, her husband will not come into
the picture, and she will escape the stipulation under
Rule 13(1)(f)(iii), which would defeat the condition
under the Act and the Rules. The Act does not envisage
a married woman approaching a clinic as a woman. In
the process of fulfilling the desire of a couple to become
parents, the rights and welfare of the unborn child
should not be neglected, which is of paramount
importance. To ensure the above matters are addressed,
the 1st respondent has issued Ext.R1(b) instructions. The
constitutional validity of Section 21(g) is under
challenge before the Honourable Supreme Court of
India in W.P(c) No.756/2022 and connected cases. It is
settled law that there is a presumption in favour of the
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constitutionality of an enactment. The petitioners have
failed to plead or show that their fundamental
rights have been infringed. The imposition of an upper
age limit in the Act is only a reasonable restriction and
cannot be said to violate the rights of
individuals/couples. The writ petition is meritless and
may be dismissed.
3. Heard; Sri. Akash Sathyanandan S., the
learned counsel for the petitioners, Sri.Dinesh, the
learned counsel for the 1st respondent and Smt.Vidya
Kuriakose, the learned Government Pleader.
4. The question that emerges for consideration is
whether the 1st petitioner can avail of the ART services
in the status as a "woman" despite being married to the
2nd petitioner who has surpassed 55 years of age.
5. The Assisted Reproductive Technology
(Regulation) Bill 2020 was introduced in the Lok Sabha
on 14.09.2020 and referred to the Standing Committee.
The Lok Sabha passed the bill on 01.12.2021, and the
Rajya Sabha passed it on 08.12.2021. The President
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gave assent to the Bill on 18.12.2021, and the Assisted
Reproductive Technology (Regulation) Act 2021 (42 of
2021) came into force on 25.01.2022.
6. To decide the question posed, it is essential to
analyse the relevant provisions in the Act, which are
reproduced below for reference and understanding of
the legislative intention.
(A) Section 2(1)(a) defines "Assisted Reproductive
Technology" as under:
"assisted reproductive technology" with its grammatical
variations and cognate expressions, means 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".
(B) Section 2(1)(e) defines a "commissioning
couple", thus:
"commissioning couple" means an infertile married couple who
approach an assisted reproductive technology clinic or assisted
reproductive technology bank for obtaining the services authorised of
the said clinic or bank".
(C) Section 2(1)(j) defines "infertility" as
follows:
"infertility" means the inability to conceive after one year of
unprotected coitus or other proven medical condition preventing a
couple from conception".
(D) Section 2(1)(n) defines "patients" as
under:
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"patients" means an individual or couple who comes to any
registered assisted reproductive technology clinic for management of
infertility".
(E) Section 2(1)(u) defines woman as follows:
"woman means any woman above the age of twenty-one years
who approaches an assisted reproductive technology clinic or assisted
reproductive technology bank for obtaining the authorised services of
the clinic or bank".
(F). Section 21 deals with the General duties of
assisted reproductive technology clinics and banks,
which reads as follows:
"The clinics and banks shall perform the following duties,
namely:--
"(a) the clinics and banks shall ensure that commissioning
couple, woman and donors of gametes are eligible to
avail the assisted reproductive technology procedures
subject to such criteria as may be prescribed;
*** *** ***
*** ***
(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;
(h) the clinics shall issue to the commissioning couple or
woman a discharge certificate stating details of the
assisted reproductive technology procedure performed
on the commissioning couple or woman....... ........".
(emphasis
supplied)
(G) Section 22(1)(a) of the Act reads as follows:
"22. Written informed consent.
(1) The clinic shall not perform any treatment or
procedure
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without--
(a) the written informed consent of all the parties
seeking assisted reproductive technology..............".
(H). Rule 13(1)(f)(iii) of the Assisted
Reproductive Technology (Regulation) Rules, 2022,
specifies that the consent for Intrauterine Insemination
with donor semen is to be obtained in Form No.8.
7. Taber's Cyclopedic Medical Dictionary defines
Assisted Reproduction Technology as any of the
techniques to assist infertile women to conceive and
give birth. These include hormonal stimulation of
ovulation and operative techniques such as in vitro
fertilisation with embryonic transfer, zygote intra-
fallopian transfer for women whose infertility results
from tubal factors, and gamete intrafallopian transfer
for couples whose infertility stems from semen.
8. In MODIs textbook of Medical Jurisprudence and
Toxicology, 27th Edition, it stated that Assisted
Reproductive Techniques have not only enhanced the
possibility of pregnancy but have also made women
conceive in situations where this would not have been
possible decades ago. In in-vitro fertilisation, the eggs
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are surgically removed from the woman, fertilised with
the available sperms in a dish, and the embryo is
replaced into the womb of the woman who completes
the carriage till delivery. In IVF, the semen samples of
the husband are screened two or three times. In this
process, the oocyte is picked up trans-vaginally.
9. What is in vitro fertilisation has been succinctly
explained by the Mayo Clinic in the following manner:
"In vitro fertilization, also called IVF, is a complex series of
procedures that can lead to a pregnancy. It's a treatment for
infertility, a condition in which you can't get pregnant after at
least a year of trying for most couples. IVF also can be used to
prevent passing on genetic problems to a child. During in vitro
fertilization, mature eggs are collected from ovaries and fertilized
by sperm in a lab. Then a procedure is done to place one or more
of the fertilized eggs, called embryos, in a uterus, which is where
babies develop. IVF can be done using a couple's own eggs and
sperm. Or it may involve eggs, sperm or embryos from a known or
unknown donor. In some cases, a gestational carrier -- someone
who has an embryo implanted in the uterus -- might be used.
IVF may be an option if a partner has fallopian tube damage or
blockage, ovulation disorders, endometriosis, uterine fibroids,
previous surgery to prevent pregnancy, issues with sperm,
unexplained infertility or genetic disorder".
10. The contention of the petitioners' is that,
given that only the 1st petitioner (the wife) has been
advised to undergo the IVF procedure using donor male
gamete, and she is under the age of 50, the age
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restriction imposed under Section 21 (g) of the Act does
not apply to her, although the 2 nd petitioner has
exceeded 55 years of age.
11. Conversely, the respondents contend that both
petitioners must satisfy the age criteria set forth in
Section 21 (g), as they are recognised as a
"commissioning couple."
12. The terms "commissioning couple" and
"woman" are defined under Sections 2(1)(e) and 2 (1)
(u). However, the term "man" is notably not defined in
the Act, even though age restrictions are distinctly laid
down for both "woman" and "man" in Section 21 (g).
Likewise, there is no specific age restriction for a
'commissioning couple". This omission poses a
significant question of whether the legislature has
excluded a composite age criterion for "commissioning
couples". The literature on the subject suggests that
ART procedures are generally applied to women and
men individually, even when both parties may undergo
the procedure jointly.
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13. To gain further insight into the legislative intent
behind Section 21 (g), it would be meaningful to refer to
Ext.R1(a) produced in W.P(C) No.31161/2024, Report
No.129 of the Parliamentary Standing Committee on
Health and Family Welfare Suggestions on Clause 21 (g)
of the Bill, which ultimately shaped into Section 21 (g).
The relevant portion of the report reads thus:
"SUGGESTIONS:
4.14.14 One stakeholder has informed that the complications of
IVF (Ovarian hyperstimulation syndrome, OHSS) are higher in
younger woman. The earlier guideline had kept the cut off at 21 years.
It has been suggested to keep the lower age limit for woman more
than 20 years to ensure safety their safety. The upper age limit for
women/man should be decided based on factor viz (i) risk to maternal
health due to pregnancy at advanced maternal age (ii) care of child
until 18 years and average life expectancy in India.
4.14.15 The upper limit for woman should not be beyond
45 years and for man, it should be not be beyond 50 years. The
combined age of the couple (woman and man) should not be
beyond 90 years (this requirement is same as for adoption in
India)
DEPARTMENT'S RESPONSE:
4.14.16 The criterion of age limit for a man and woman to avail
ART services has been drafted in consonance with the provisions of
the Surrogacy Bill 2019.
OBSERVATIONS/RECOMMENDATIONS:
4.14.17 The Committee observes that the DHR has agreed to the
stakeholders' suggestions to remove the phrase "legal age or
marriage" from the definition of woman for approaching an ART
centre as lower age of marriage is acceptable in some religions. The
Committee observes that the ICMR Guidelines stipulates minimum of
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20 years of age for woman availing ART services. The Committee has
already recommended removal of the term "legal age of marriage"
and prescribed that the specific age i.e. 21 years in definition of
"woman" as mentioned in the Bill under clause 2(x), therefore, the
Committee reiterates the minimum of 21 years for woman and man for
availing ART services. The upper age limit for woman and man may be
50 and 55 years, respectively, as recommended by the Select
Committee on Surrogacy (Regulation) Bill 2020.
4.14.18 Subject to the above recommendation, the clause is
adopted".
(emphasis supplied)
14. A careful reading of the above suggestions
reveals that the Parliamentary Standing Committee had
suggested the upper age limit for women and men not
to exceed 45 and 50 and the couple's combined age
(woman and man) not to surpass 90 years to draw a
parallel with the age restrictions in the Adoption
Regulation. Nevertheless, the Parliament has
consciously omitted incorporating any age criteria for a
"commissioning couple", possibly recognising the
distinct nature of ART services and the procedures for
adopting a child.
15. In this context, it is relevant to refer to Clauses
5 (4) and 5(5) of the Adoption Regulations 2022, which
lays down the age criteria to adopt a child and it reads
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as follows:
"5. Eligibility criteria for prospective adoptive parents.―
*** *** *** ***
(4) The age of prospective adoptive parents, as on the date of
registration, shall be counted for deciding the eligibility of
prospective adoptive parents for children of different age groups as
under:-
Age of the Maximum Maximum age of
Child composite single prospective
age of prospective adoptive parent
adoptive
parents (couple)
Upto 2 years 85 years 40 years
Above 2 and 90 years 45 years
upto 4 years
Above 4 and 100 years 50 years
upto 8 years
Above 8 and 110 years 55 years
upto 18 years
Provided that the minimum age difference between the child
and either of the prospective adoptive parents shall not be less than
twenty five years.
(5) In case of a couple, the composite age of the prospective
adoptive parents shall be counted.
16. Conspicuously, the Act does not contain the
concept of combined age for commissioning couples
analogous to the composite age criteria applicable to
prospective adoptive parents. Instead, the Act adopts an
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individual-centric approach, whereby the age eligibility
criteria are separately laid down for women and men
rather than collectively for a couple. This interpretation
is further supported by Section 2 (1) (n) of the Act,
which defines "patients" as both individuals and
couples seeking infertility treatment at a clinic.
Additionally, Section 21 casts duties on the ART clinics
and banks to ensure adherence to the statutory
requirements. Notably, under Section 21 (g) the
mandate is for the clinics to apply ART services to a
woman only if she is above 21 and below 50 years of age
and to a man if he is above 21 and below 55 years of
age. The provision reinforces that the age restriction is
gender-specific rather than couple-specific, reinforcing
that eligibility depends on the individual's age rather
than the couple's combined age.
17. In the context of the case at hand, the 2 nd
petitioner has attained 55 years of age, rendering him
ineligible to avail of the ART procedure. However, the
couple still intends to pursue parenthood through the 1 st
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petitioner, who desires to avail of the ART procedure of
intrauterine insemination using donor male gamete, as
she falls within the legally permissible age range.
18. A holistic understanding of the Act and the
associated ART procedures and services reveal that the
only legal requirement that the 2nd petitioner has to
comply with to enable the 1st petitioner to apply the ART
procedure is to give his consent in Form 8, undertaking
that he would acknowledge the child born through the
procedure as his legal heir.
19. In essence, the 1st petitioner's eligibility to
apply for the ART procedure operates independently
despite the 2nd petitioner's ineligibility, provided the 2 nd
petitioner gives his consent for the procedure. Hence,
when a woman wants to undergo an IVF procedure, only
her age is considered relevant, irrespective of her
husband's age, and the same principle applies
conversely to men. The above interpretation leads to an
inevitable conclusion that the legislature has treated
men and women as distinct legal entities under the Act
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rather than imposing uniform couple-centric legislation.
20. On the contrary, if the respondents' contention
is accepted that both spouses must satisfy the age
criteria, it would create an unconstitutional
classification, treating married women and single
women as separate and distinct classes. Take, for
example, a hypothetical situation where a married
woman is ineligible for an ART procedure solely because
her husband has surpassed the age limit; the woman
would become eligible immediately on her legal
separation or becoming a widow. Such a classification
would be a fallacy and would put married women at an
unfair disadvantage when compared to single women to
access ART procedures. It can never be presumed that
the Parliament intended such an inequitable
classification within a benevolent statute like the Act. It
is a well-established legal principle that no one can
supplement conditions not explicitly provided in the
statute. Without any express provision in the Act
restricting commissioning couples on the basis of their
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composite age, there is no legal bar in a woman who is
otherwise eligible under Section 21 (g) (i) from applying
the ART procedure even if her husband has surpassed
the age limit. The same rationale applies to men,
ensuring that single and married individuals enjoy
equitable access to reproductive assistance. The above
discussions conclude that there is no legal bar for the
4th respondent to apply the ART procedure on the 1 st
petitioner. The experience of childlessness is a silent
anguish known to only those who walk that path.
In light of the above discussions, I answer the
question in favour of the 1st petitioner by allowing the
writ petition and directing the 4th respondent to provide
ART services to the 1st petitioner as per the provisions of
the Act after obtaining the consent of the 2nd petitioner.
Sd/- C.S.DIAS, JUDGE
ma/08.04.2025
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APPENDIX OF WP(C) 9289/2025
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AADHAAR CARD OF THE 1ST
PETITIONER, BEARING NO.3075 7504 9523
Exhibit P2 TRUE COPY OF THE AADHAAR CARD OF THE 2ND
PETITIONER, BEARING NO.2868 9777 7850
Exhibit P3 THE TRUE COPY OF THE TREATMENT SUMMARY
OF THE 1ST PETITIONER ISSUED BY THE 4TH
RESPONDENT HOSPITAL DATED 05.03.2025
