Kerala High Court
Vanaja vs Union Of India on 25 February, 2025
Author: C.S.Dias
Bench: C.S.Dias
2025:KER:16115
W.P(C) 42059 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. 42059 OF 2024
PETITIONERS:
1 VANAJA
AGED 46 YEARS
WIFE OF RAVEENDRAN, ‘THAYYIL, KEEZHPAYYUR,
MEPPAYYUR, KOZHIKODE, PIN - 673524
2 RAVEENDRAN
AGED 58 YEARS
SON OF RAYARAPPAN NAIR ‘THAYYIL,
KEEZHPAYYUR, MEPPAYYUR, KOZHIKODE, PIN - 673524
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 SABINE HOSPITAL AND RESEARCH CENTRE PVT. LTD
REPRESENTED BY ITS MANAGING DIRECTOR,
PEZHAKKAPPALLY PO, MUVATTUPUZHA, PIN - 686673
BY ADV K.K.SETHUKUMAR
DSGI SRI.T.C.KRISHNA
GOVT.PLEADER SMT.VIDYA KURIAKOSE
GOVT.PLEADER SRI.B.S.SYAMANTHAK
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) 42059 OF 2024
2
C.S.DIAS,J
-------------------------------------------
W.P.(C) No.42059 of 2024
-------------------------------------------
Dated this the 25th day of February, 2025
JUDGMENT
The 1st petitioner is the wife of the 2nd petitioner.
The petitioners are aged 46 and 58 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 2 nd
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 46 years of age and she is a "woman" as
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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 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
1st petitioner needs to undergo the procedure. Hence, the
respondents may be directed to permit the 1 st petitioner to
avail of the ART procedure using donor male gamete.
2. 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
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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 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
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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 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
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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 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
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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 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
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force on 25.01.2022.
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", 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:
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"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
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
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W.P(C) 42059 OF 2024
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
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 are
surgically removed from the woman, fertilised with the
available sperms in a dish, and the embryo is replaced into
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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".
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) (i) of the Act does not apply to her,
although the 2nd petitioner has exceeded 55 years of age.
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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
undergo the procedure.
15. To gain further insight into the legislative intent
behind Section 21 (g), it would be meaningful to refer to
Ext.R1 (a) Report No.129 of the Parliamentary Standing
Committee on Health and Family Welfare Suggestions on
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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 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".
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(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, shall be counted for deciding the eligibility of prospective
adoptive parents for children of different age groups as under:-
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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.
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
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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.
19. In the context of the case at hand, the 2 nd
petitioner has attained 58 years of age, rendering him
ineligible to avail of the ART procedure. However, the
couple still intends to pursue parenthood through the 1 st
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 reveal that the
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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.
21. 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 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
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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 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
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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.
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/24.02.2025
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W.P(C) 42059 OF 2024
APPENDIX OF WP(C) 42059/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE AADHAAR CARD OF THE 1ST
PETITIONER, BEARING NO.8978 4458 1652
Exhibit P2 TRUE COPY OF THE AADHAAR CARD OF THE 2ND
PETITIONER, BEARING NO.5559 7162 4213
Exhibit P3 TRUE COPY OF THE TREATMENT SUMMARY OF
THE 1ST PETITIONER ISSUED BY THE 4TH
RESPONDENT HOSPITAL DATED 18.11.2024
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
RESPONDENT EXHIBITS
Exhibit R1(a) A true copy of the relevant pages of the
129th Report on the ART Bill, 2020
presented by the Department -Related
Parliamentary Standing Committee on
Health and Family Welfare, Rajya Sabha
Exhibit R1(b) A true copy of the email dated
19.01.2023 sharing the minutes of
virtual meeting held on 18.01.2023 of
Expert Members of National Board and
accepting the same by its members vide
their different dates emails
Exhibit R1(c) True copy of the above Letter
No.U.11021/01/2023-HR dated 09.03.2023
along with its annexure
Exhibit R1(d) True copy of the Judgment in WP C 24058
of 2022 in the case of Nandini K and Anr
Vs UOI and Ors
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Exhibit R1(e) A true copy of the letter no.
U.11021/01/2023-HR (Part-I) dated
31.03.2023, issued by the Ministry of
Health and Family Welfare, Government of
India
