Kerala High Court
Nisha P.P vs Union Of India on 25 February, 2025
Author: C.S.Dias
Bench: C.S.Dias
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W.P(C) NO.38586 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 25TH DAY OF FEBRUARY 2025 / 6TH PHALGUNA, 1946
WP(C) NO. 38586 OF 2024
PETITIONERS:
1 NISHA P.P
AGED 47 YEARS
WIFE OF RAVEENDRAN G C, ‘THATTEEKKUNNUMMAL',
NADERI, ARIKKULAM, KOZHIKODE, PIN - 673620
2 RAVEENDRAN G.C
AGED 62 YEARS
SON OF GOVINDAN, ‘THATTEEKKUNNUMMAL', NADERI,
ARIKKULAM, KOZHIKODE, PIN - 673620
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 N-CARE IVF AND FETAL MEDICINE,
REPRESENTED BY ITS MANAGING DIRECTOR, ERANHIPALAM, MINI
BY-PASS ROAD, KOZHIKODE, PIN - 673006
BY ADV U.R.HARSHAKUMAR
DSGI SRI.T.C KRISHNA
SMT.VIDYAKURIAKOSE, GOVT. PLEADER
SRI.B.S.SYAMANTHAK GOVT.PLEADER
SMT.M.SAJNA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.02.2025, THE COURT ON 25.02.2025 DELIVERED THE FOLLOWING:
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W.P(C) NO.38586 OF 2024
2
C.S.DIAS,J
-------------------------------------------
W.P.(C) No.38586 of 2024
-------------------------------------------
Dated this the 25th day of February, 2025
JUDGMENT
The 1st petitioner is the wife of the 2 nd petitioner. The
petitioners are aged 47 and 62 years, respectively. They are
issueless. The 1st petitioner has undergone in-vitro fertilisation
(IVF) procedures at the 4th 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 47 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
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the procedure; the 1 st
petitioner is entitled to undergo the
procedure. The refusal of the hospital to provide 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
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has been enacted considering the status of a 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
"commissioning couple", they should be married and infertile as
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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 1 st 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
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
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reasonable restriction and cannot be said to violate the rights of
individuals/couples. The writ petition is meritless and may be
dismissed.
3. When the writ petition came up for admission, this
Court declined to grant an interim relief because, in W.A.No.768
of 2024 and connected cases, a Division Bench of this Court has
stayed the operation of interim orders passed in identical
matters.
4. Aggrieved by the refusal to grant an interim relief, the
petitioners filed W.A.No.1381 of 2024. By common judgment
dated 21.10.2024, the Division Bench has clarified that as the
fact situation in the above appeal was not under consideration in
W.A.No.768 of 2024 and connected cases, it was open to the
appellants to request for an early consideration of the present
writ petition. Accordingly, the writ petition and connected cases
are taken up for disposal.
5. Heard; Sri. Akash Sathyanandan S., the learned
counsel for the petitioners, Smt.M.Sajna, the learned counsel for
the 1st respondent and Smt.Vidya Kuriakose, the learned
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Government Pleader.
6. 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 2 nd petitioner who has
surpassed 55 years of age.
7. 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 gave assent to the Bill on 18.12.2021,
and the Assisted Reproductive Technology (Regulation) Act 2021
(42 of 2021) came into force on 25.1.2022.
8. 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",
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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:
"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
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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
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.
9. 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.
10. In MODIs textbook of Medical Jurisprudence and
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Toxicology, 27 th
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 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.
11. 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".
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12. 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 restriction imposed under Section 21 (g) of the
Act does not apply to her, although the 2nd petitioner has
exceeded 55 years of age.
13. 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."
14. 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
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undergo the procedure jointly.
15. 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 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
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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)
16. 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.
17. 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 as follows:
"5. Eligibility criteria for prospective adoptive parents.―
*** *** *** ***
(4) The age of prospective adoptive parents, as on the date of registration,
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shall be counted for deciding the eligibility of prospective adoptive parents for
children of different age groups as under:-
Age of the Maximum composite Maximum age of
Child age of prospective single prospective
adoptive adoptive parent
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.
18. 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 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
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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.
19. In the context of the case at hand, the 2 nd petitioner has
attained 62 years of age, rendering him ineligible to avail of the
ART procedure. However, the couple still intends to pursue
parenthood through the 1st 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.
20. A holistic understanding of the Act and the associated
ART procedures and services reveals 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
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consent in Form 8, undertaking that he would acknowledge the
child born through the procedure as his legal heir.
21. In essence, the 1st petitioner's eligibility to apply for the
ART procedure operates independently despite the 2 nd petitioner's
ineligibility, provided the 2nd 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 rather than imposing uniform couple-
centric legislation.
22. 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
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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 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 1st petitioner. The
experience of childlessness is a silent anguish known to only
those who walk that path.
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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 1 st
petitioner as per the provisions of the Act after obtaining the
consent of the 2nd petitioner.
Sd/-C.S.DIAS,JUDGE
ma/24.2.2025
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APPENDIX OF WP(C) 38586/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AADHAAR CARD OF THE 1ST
PETITIONER BEARING NO.4223 4873 5173
Exhibit P2 TRUE COPY OF THE AADHAAR CARD OF THE 2ND
PETITIONER BEARING NO.9029 2005 2433
Exhibit P3 TRUE COPY OF THE TREATMENT SUMMARY OF THE 1ST
PETITIONER ISSUED BY THE 4TH RESPONDENT
HOSPITAL DATED 20.08.2024
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
