RAKESH BABU JAISWAL S/O SHRI GULAB CHAND JAISWAL vs UNION OF INDIA

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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 6556/2025
CNR: RJHC020366112025 | URN: CW / 15337U / 2025
1. Dr. Arvind Mathur S/o Shri Sobhag Narayan Mathur, Aged About
56 Years, Resident of A-65, Sobhag House, Anand Vihar,
Jagatpura, Jaipur, At Present Posted As Senior Veterinary officer,
Nahargarh Biological Park, Jaipur.
2. Smt. Shweta Saxena W/o Dr Arvind Mathur, Aged About 48 Years,
Resident of A-65, Sobhag House, Anand Vihar, Jagatpura, Jaipur.
----Petitioners
Versus
1. Union of India, Through Principal Secretary, Ministry of Health And
Family Welfare, Govt. of India, New Delhi.
2. Joint Secretary, Ministry of Health And Family Welfare, Govt. of
India, New Delhi.
3. The State of Rajasthan, Through Principal Secretary, Medical And
Health, Govt. of Rajasthan, Secretariat, Jaipur
----Respondents
Connected With
D.B. Civil Writ Petition No. 2224/2023
CNR: RJHC020091692023 | URN: CW / 4313U / 2023
1. Rakesh Babu Jaiswal S/o Shri Gulab Chand Jaiswal, Aged About 56
Years, Resident of Bhajuka Mohalla, Dausa (Rural), District Dausa,
Rajasthan-303303.
2. Geeta Devi W/o Rakesh Babu Jaiswal, Aged About 41 Years,
Resident of Bhajuka Mohalla, Dausa (Rural), District Dausa,
Rajasthan-303303.
----Petitioners
Versus
1. Union of India, Through Its Secretary, Ministry of Health And
Family Welfare, Shastri Bhawan, New Delhi.
2. The State of Rajasthan, Through Its Principal Secretary, Medical
And Health Department, Secretariat, Jaipur.
3. The Superintendent, Mahila Chikatsalya, Sanganeri Gate, Jaipur.
----Respondents
D.B. Civil Writ Petition No. 17086/2026
CNR: RJHC020834242026 | URN: CW / 35720U / 2026
1. Bhawana Chaturvedi W/o Pradeep Kumar Sharma, Aged About 51
Years, Resident of House No. 1483, Loharo Ki Gali, Choura Rasta,
Near Kc Printers, Jaipur, Rajasthan-302003.
2. Pradeep Kumar Sharma S/o A.k. Sharma, Aged About 52 Years,
Resident of House No. 1483, Loharo Ki Gali, Choura Rasta, Near Kc
Printers, Jaipur, Rajasthan-302003.
----Petitioners
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Versus
1. Union of India, Through Principle Secretary, Ministry of Health And
Family Welfare Government of India, Mirman Bhawan, New Delhi.
2. Joint Secretary, Ministry of Health And Family Welfare Government
of India, Mirman Bhawan, New Delhi.
3. The State of Rajasthan, Through Principle Secretary, Medical And
Health, Government of Rajasthan, Secretariat, Jaipur.
----Respondents
D.B. Civil Writ Petition No. 17121/2026
CNR: RJHC020820082026 | URN: CW / 35787U / 2026
1. Tirth Raj S/o Lal Chand, Aged About 63 Years, Resident of Plot
No. 50, Veer Savarkar Nagar, Alwar, Alwar, Po- Alwar, Dist-
Alwar, Rajasthan- 301001.
2. Smt. Asha Rani W/o Dr. Tirth Raj, Aged About 48 Years,
Resident of Plot No. 50, Veer Savarkar Nagar, Alwar, Po- Alwar,
Dist- Alwar, Rajasthan, 301001.
----Petitioners
Versus
1. Union of India, Through Principal Secretary, Ministry of Health
And Family Welfare, Govt. of India, New Delhi.
2. Joint Secretary, Ministry of Health And Family Welfare, Govt. of
India, New Delhi.
3. The State of Rajasthan Through Principal Secretary, Medical And
Health, Govt. of Rajasthan, Secretariat, Jaipur.
----Respondents
For Petitioner(s) : Mr. R.B. Mathur, Sr. Adv. Assisted by
Mr. Utsav Verma,
Mr. Manish Bhodiwal
Mr. Falak Mathur
Mr. Yug Singh
Mr. Salim Khan Gori
Mr. Nikhil Simlote
Mr. Y. K. Sharma
Mr. Arvind Kumar Arora
Mr. Anil Kumar Jain
For Respondent(s) : Mr. Bharat Vyas, ASG assisted by
Mr. Rakesh Chaudhary,
Mr. Devesh Yadav,
Ms. Niti Jain Bhandari,
Mr. Pulkit Bhardwaj
Ms. Riya Sharma for
Mr. Vigyan Shah, AAG
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HON'BLE MR. JUSTICE INDERJEET SINGH
HON'BLE MR. JUSTICE SANDEEP TANEJA
Judgment
Date of Conclusion of Arguments 01.09.2026
Date on which Judgment was reserved 01.09.2026
Whether the full Judgment or only operative
part is pronounced
Full Judgment
Date of Pronouncement 29.10.2026
REPORTABLE
Per: Sandeep Taneja, J.
1. The present batch of writ petitions challenges the constitutional
validity of Section 21(g) of the Assisted Reproductive Technology
(Regulation) Act, 2021 (for short, ‘ART Act’), which reads as under:
“21. Duties of assisted reproductive technology
clinics and banks.—
…
(g) the clinics shall apply 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; …”
2. The aforesaid provision imposes a statutory duty upon Assisted
Reproductive Technology clinics (for short, 'ART clinics') to provide
Assisted Reproductive Technology services (for short, 'ART services') to a
woman who is above 21 years of age and below 50 years of age, and to a
man who is above 21 years of age and below 55 years of age, thereby
prescribing age-related restrictions for availing ART services.
3. The brief facts of the present writ petitions are as follows:
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Civil Writ Petition No. 6556/2025
3.1 Petitioner No.1-husband remarried Petitioner No.2-wife on
16.01.2025. At the time of their marriage, Petitioner No.1 was aged 55
years, one month and 12 days, while Petitioner No.2 was aged 47 years
and four months. Petitioner No.2 could not conceive, and thereafter, upon
consultation with experts and on the advice of their family members, the
petitioners decided to have a child through the process of IVF. However,
the ART clinic declined to provide the requisite treatment on the ground
that Petitioner No.1 was above 55 years of age and had crossed the
maximum age prescribed under Section 21(g)(ii) of the ART Act.
Civil Writ Petition No. 2224/2023
3.2 Petitioner No.1-husband and Petitioner No.2-wife were married long
ago. As they had no child, Petitioner No.2-wife underwent IVF treatment
at a private clinic in July 2021. At that time, Petitioner No.1 was aged 54
years and Petitioner No.2 was aged 44 years. After undergoing the said
procedure, Petitioner No.2 conceived in October 2021; however, she
suffered a miscarriage in March 2022. In 2022, before the petitioners
could restart IVF treatment, the ART Act came into force with effect from
25.01.2022. By that time, Petitioner No.1 had crossed the age of 55
years, while Petitioner No.2 was aged 45 years. The ART clinic declined to
provide the requisite treatment on the ground that Petitioner No.1 had
crossed the maximum age prescribed under Section 21(g)(ii) of the ART
Act.
Civil Writ Petition No. 17086/2026
3.3 Petitioner No.1-wife and petitioner No.2-husband solemnized their
marriage on 29.04.2016. They have no child out of the said wedlock. As
they were unable to conceive a child, the petitioners consulted experts
and decided to undergo treatment through the process of IVF. Upon
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detailed medical evaluation, the treating doctor advised them to undergo
IVF/ART treatment. Accordingly, the petitioners approached an ART clinic;
however, the said clinic declined to provide the treatment on the ground
that the petitioner No.1 had crossed the age of 50 years, being the
maximum age prescribed under Section 21(g)(i) of the ART Act.
Civil Writ Petition No. 17121/2026
3.4 Petitioner No.1-husband remarried petitioner No.2-wife on
19.04.2026. At the time of their marriage, petitioner No.1 was aged 63
years, while petitioner No.2 was aged 48 years. As petitioner No.2 could
not conceive, the petitioners were advised to undergo treatment through
the ART process. However, the ART clinic declined to provide the
treatment on the ground that petitioner No.1 had crossed the age of 55
years, being the maximum age prescribed under Section 21(g)(ii) of the
ART Act.
3.5 In all the cases before us, either the wife or the husband has
exceeded the upper age limit of 50 years and 55 years, applicable to
them respectively, as prescribed under Section 21(g) of the ART Act.
Consequently, being aggrieved by the refusal by the ART clinics to provide
the requisite ART services, the petitioners have challenged the
constitutional validity of Section 21(g) of the ART Act before this Court.
4. Learned counsel for the petitioners submitted that prescribing a
maximum age limit for a married couple is arbitrary. It was further
submitted that couples such as the petitioners, who are well-educated
and have sufficient financial capacity, are capable of understanding their
responsibilities and are willing to discharge such responsibilities towards
the child and, therefore, cannot be denied access to ART services merely
on the ground of age. It was also submitted that the age limits prescribed
under Section 21(g) may be applied individually to a woman and a man;
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however, the same cannot be applied to a commissioning couple. Learned
counsel also submitted that the ART Act came into force on 25.01.2022
and that, in some of the cases before this Court, one of the parties had
already attained the maximum permissible age before the Act came into
force. The ART Act, however, does not contain any saving provision
dealing with such transitional cases.
4.1 Learned counsel for the petitioners further submitted that there are
several ambiguities in the statutory scheme with regard to a
commissioning couple, which is defined under Section 2(1)(e) of the ART
Act. Learned counsel also submitted that the expression ‘commissioning
couple’ has a distinct legal connotation from the expressions ‘woman’ and
‘man’. It was, therefore, contended that, since the expression
‘commissioning couple’ has not been used in Section 21(g), the said
provision cannot be applied to a commissioning couple and the age limits
prescribed therein would not apply to such a couple.
4.2 It was further submitted that the Act creates an unequal
classification between an unmarried or single woman, on the one hand,
and a married woman who is part of a commissioning couple, on the
other. Learned counsel submitted that an unmarried or single woman is
eligible for ART services if she falls within the age bracket of 21 to 50
years; however, a married woman falling within the same age bracket
may be denied access to ART services solely on the ground that her
husband or male partner has crossed the age of 55 years. This
classification is arbitrary and unreasonable and, therefore, violates the
fundamental right to equality guaranteed under Article 14 of the
Constitution of India.
4.3 It was further submitted that the right to give birth to a child is an
important aspect of reproductive autonomy, being a matter of personal
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liberty, and that the impugned provision stipulating age-related
restrictions is also violative of Article 21 of the Constitution. Based on the
aforementioned submissions, it was prayed that the writ petitions be
allowed and Section 21(g) of the ART Act be declared unconstitutional.
4.4 In support of the submissions, learned counsel placed reliance upon
the judgments passed in the cases of Shyja T.K. and Anr. Vs. Union of
India and Ors., WP(C) No.9349/2025, decided on 08.04.2025 by Kerala
High Court, Sanchita Ghosh and Anr. Vs. Union of India and Ors., reported
in 2024 SCC OnLine Cal 12155, Shyamoli Saha and Anr. Vs. State of West
Bengal and Ors., reported in AIR 2025 Cal 55, Union of India Vs.
Devayani S & Ors., reported in 2025 SCC OnLine Ker 11786, Sarbjit Kaur
and Anr. Vs. State of Punjab and Ors., CWP No.6818/2025, decided on
22.01.2026 by Punjab & Haryana High Court, Neeru Singh and Anr. Vs.
State of Chhattisgarh and Ors., reported in 2026 SCC OnLine Chh 7387,
Jayanta Dasgupta and Anr. Vs. State of West Bengal and Ors., reported in
2026 SCC OnLine Cal 5931.
5. On the other hand, learned counsel appearing for the Union of India
opposed the writ petitions and submitted that the petitioners have failed
to make out any case for holding the aforesaid provision unconstitutional
or invalid. It was further submitted that the ART Act has been enacted by
Parliament within its legislative competence. It was also submitted that
the provision is regulatory in nature and that mere hardship caused to an
individual cannot, by itself, be a ground for declaring a statutory provision
unconstitutional or ultra vires the Constitution of India.
5.1 It was also submitted that the age-related restrictions for ART
services have been carefully prescribed to prioritize the best interests of
the child to be born, and that the intent behind the regulation is to ensure
the child’s welfare, safety and well-being, which are given paramount
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importance. Learned counsel further submitted that the age-related
restrictions are essential to prevent situations in which the child might be
exposed to risks associated with the age-related concerns of the parents,
such as health complications or an inability to provide adequate parental
care. It was also submitted that, by implementing age restrictions, the
law helps to uphold the child's right to grow in an environment in which
the child is not disadvantaged by the age of the parents or their inability
to provide adequate parental care.
5.2 In support of the reasons for prescribing the age limits under
Section 21(g) of the ART Act, learned counsel principally relied upon the
judgment passed by the learned Single Judge of the Kerala High Court in
the case of Nandini K. & Anr. Vs. Union of India & Ors., reported in 2022
SCC Online Ker 8235, wherein the constitutional validity of Section 21(g),
insofar as it prescribes age limits for availing ART services, was upheld. It
was submitted that, although the age-related restrictions were upheld,
directions were issued in the said case permitting the petitioners therein
to continue ART treatment, as they had commenced such treatment
before the ART Act came into force. Learned counsel further submitted
that, pursuant to the said judgment, the matter concerning the age-
related restrictions and transitional provision was referred to an expert
member of the National Board, who, after detailed deliberations and
discussions, was of the view that the age restrictions under the Act were
valid and required no interference.
5.3 Learned counsel, in support of his submissions, also placed reliance
on the judgments passed in the cases of Pankaj Kumar Das and Anr. Vs.
Union of India, reported in 2025 SCC OnLine Gau 5083, Union of India Vs.
Nandini K. & Ors., WA No.696/2024, decided on 19.12.2025 by a Division
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Bench of Kerala High Court, Kavitha Anand Vs. State of Tamil Nadu, Writ
Petition No.35158/2024, decided on 07.02.2025 by Madras High Court.
6. Heard learned counsel for the parties and perused the material
available on record.
7. It is well settled that there is a presumption of the constitutional
validity of a statute, as the legislature is presumed to have acted within
the limits of its legislative competence and in conformity with the
provisions of the Constitution. The burden lies on the person challenging
the constitutional validity of a statute to establish that the impugned
provision suffers from a constitutional infirmity. A Court, while examining
such a challenge, must proceed on the basis of this presumption and
determine whether the provision violates any constitutional limitation.
Legislative action may, however, be challenged on the grounds of lack of
legislative competence, violation of fundamental rights or other
constitutional provisions, or manifest arbitrariness. In this regard,
reference may be made to the judgment passed by the Hon’ble Supreme
Court in the case of Shayara Bano Vs. Union of India , reported in
(2017) 9 SCC 1 .
8. In the instant case, the challenge to the vires of the impugned
provision has been laid on the premise that prescribing age limits under
Section 21(g), which have the effect of curtailing the rights of a married
couple, is not only grossly arbitrary but also violates their personal liberty.
It is further the petitioners’ case that the classification sought to be made
between an unmarried or single woman, on the one hand, and a woman
who is part of a commissioning couple, on the other, is arbitrary.
According to the petitioners, an unmarried or single woman falling within
the age bracket of 21 to 50 years is eligible to avail herself of ART
services, whereas a married woman falling within the same age bracket is
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denied the benefit of such technology solely on the ground that her
husband has crossed the maximum age of 55 years.
9. To examine the petitioners' contentions, it is relevant to note that
the objects of the ART Act, inter alia , include regulating and supervising
ART clinics and ART banks, preventing misuse, and ensuring the safe and
ethical practice of ART services for addressing issues of reproductive
health. In furtherance of these objects, and keeping in view the interests
and welfare of the child to be born and the mother, age limits have been
prescribed to optimize the chances of successful and healthy pregnancies
and births and to mitigate potential risks to both the mother and the
child.
10. The aforesaid purpose is also evident from the instructions issued
by the Government of India, Ministry of Health and Family Welfare, vide
its letter dated 31.03.2023, regarding the reasons for prescribing age
limits under Section 21(g) of the ART Act for application of ART services,
which are as follows:
“Bringing up a child at least upto 18 years, to
•
take care of the responsibility to provide care and
financial support while the child is growing up needs
parents with reasonable good health status and able
to be financially stable.
Most important factor which justifies the upper
•
age limit is the Life expectancy in India which is
around 70 years.
For all rules about ART, the desire to help the
•
infertile couples is important but more important is
the child to be brought into this world is loved, cared
for and gets the best option and should get all family
care and family life similar to any average child born
to biological parents within the realms of normal
biology.
In the process of fulfilling the desire of a couple
•
to become parents, the rights of the unborn
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child/child brought in this world by ART should not be
neglected. The life available to the child should have
similar parental care like children born by normal way
of reproduction.
The upper age of male and female undertaking
•
ART is based on these considerations.
Average age of menopause in females is 46.2
•
years in India.
Women older than 50 has higher chances of
•
high-risk pregnancy in terms of increased risk of
Pregnancy Induce Hypertension (PIH). Gestational
Diabetes, cardiovascular complications as well as risk
of preterm delivery and increased chances of
Caesarean delivery. These are the health hazards for
the older pregnant women.
Women older than 50 have higher chances of
•
chromosomal conditions such as Down’s syndrome
and increased risk of pregnancy loss.
• Even men sperm quality is also compromised in
above 55 years age, the number of mutations in the
father’s genome increases that leads to an increased
in the incidence of congenital malformations in
offspring. Older paternal age may be harmful to the
offspring’s health in terms of genetic mutation and
epigenetics.”
11. A perusal of the aforesaid reasons indicates that the prescription of
the upper age limit is based, inter alia , on the consideration that
parenthood entails a continuing responsibility to provide care, support
and a stable environment to a child during the course of upbringing. The
material also refers to life expectancy in India and the health hazards to
both the mother and the child. It emphasizes that, while the desire of an
infertile couple to become parents is an important consideration, the
interests of a child born through ART services cannot be overlooked. The
legislative framework, therefore, seeks to balance the desire to attain
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parenthood through medical assistance with the need to ensure the
welfare and well-being of the child.
12. The welfare of a child has always been given paramount
importance, as reflected in various judicial precedents dealing with
adoption and child custody. In Gaurav Nagpal Vs. Sumedha Nagpal ,
reported in (2009) 1 SCC 42 , the Hon’ble Supreme Court held that, in
matters concerning the custody of a minor child, the welfare of the child
is the paramount consideration. The Court explained that the concept of
welfare extends beyond financial means and includes the moral and
ethical welfare, physical well-being, and emotional needs of the child.
Although the said judgment was delivered in the context of child custody,
it underscores the importance of considering the overall welfare of the
child rather than limiting the inquiry to the financial capacity of the
parents.
13. Similarly, in Jeshy C O Vs. Union of India and Ors. , reported in
2018 SCC OnLine Ker 8250 , the Kerala High Court, while examining the
validity of the maximum composite age prescribed for prospective
adoptive parents under the Adoption Regulations, 2017, framed under the
Juvenile Justice (Care and Protection of Children) Act, 2015, observed
that the right to adopt is regulated by the Regulations framed under the
said Act and that the rights of prospective parents have to immediately
give way to the best interest of the child. It was further observed that it is
not the rights of the parents that are paramount, but the best interests of
the child sought to be adopted that have to be considered in any matter
concerning adoption. The Court, while upholding the aforesaid maximum
composite age, also observed as follows:
“In a matter of adoption, what is to be looked into
is the welfare of the child and where it is stated
that the maximum age is prescribed keeping in
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mind the probability of the prospective adoptive
parents surviving the formative years of the child,
this Court cannot, in exercise of its powers of
judicial review, say that such a guideline is
violative of the right of the prospective adoptive
parents or that it is discriminatory. It is not for this
Court to consider the reasons behind the fixing of
a particular age or to substitute it's own wisdom
for that of the executive by fixing a criteria for
adoption at variance with those provided in the
impugned guidelines.”
Although the aforesaid decision concerns adoption, the broader
principle emerging therefrom is that the desire of prospective parents
must remain subservient to the welfare of the child.
14. Besides the above, a statutory provision cannot be declared ultra
vires merely because it prescribes a disqualification, provided that the
disqualification has a nexus with the object sought to be achieved. The
Hon’ble Supreme Court, in the case of Javed Vs. State of Haryana and
Ors. , reported in (2003) 8 SCC 368 , rejected the challenge to the vires
of Sections 175(1)(q) and 177 of the Haryana Panchayati Raj Act, 1994,
which prescribe disqualification from contesting elections for a person
having more than two living children. The Hon’ble Supreme Court upheld
the validity of the provision on the premise that the impugned
disqualification had a nexus with the purpose sought to be achieved by
the Act. By following the above judgment, this position has been
reiterated by the Hon’ble Supreme Court in the case of Ramji Lal Jat Vs.
State of Rajasthan , reported in 2024 SCC OnLine SC 217 , wherein
the provision disqualifying candidates for having more than two living
children was non-discriminatory and intra vires the Constitution.
15. In the present case as well, having regard to the purpose reflected
in the material placed on record, the upper age limit prescribed under
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Section 21(g) of the ART Act has a nexus with the object sought to be
achieved, i.e., the welfare of both the mother and the child. A similar view
has also been taken by the Gauhati High Court and the Kerala High Court
in Pankaj Kumar Das (supra) and Nandini K. (supra), respectively.
Therefore, merely because age-related restrictions have been imposed on
persons seeking to avail themselves of ART services, the restrictions do
not, by themselves, render the provision manifestly arbitrary or constitute
a violation of the personal liberty of an intending married couple.
16. The next contention raised by the petitioners is that the ART Act
imposes age-related restrictions on a married woman but does not
impose similar restrictions on an unmarried or single woman seeking to
avail ART services through a male gamete donor, thereby creating an
arbitrary classification. In this regard, reference may first be made to the
definitions of ‘commissioning couple’, ‘gamete donor’, ‘patient’ and
‘woman’ contained in Section 2 of the ART Act:
Section 2(1)(e) – “commissioning couple”
“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;
Section 2(1)(h) – “gamete donor”
“gamete donor” means a person who provides
sperm or oocyte with the objective of enabling an
infertile couple or woman to have a child;
Section 2(1)(n) – “patient”
“patient” means an individual or couple who
comes to any registered assisted reproductive
technology clinic for management of infertility;
Section 2(1)(u) – “woman”
“woman” means any woman above the age of
twenty-one years who approaches an assisted
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reproductive technology clinic or assisted
reproductive technology bank for obtaining the
authorised services of the clinic or bank.
17. A careful reading of the aforesaid definitions indicates that an
individual or a couple may fall within the definition of ‘patient’ for the
purpose of availing themselves of the services of a registered ART clinic.
Further, a ‘commissioning couple’ means an infertile married couple that
approaches an ART clinic or ART bank to avail itself of the services
provided by such clinic or bank. The expression ‘woman’ means any
woman above the age of 21 years who approaches an ART clinic or ART
bank to avail herself of ART services. It is pertinent to note that the
definition of ‘woman’ does not make any distinction between a single or
unmarried woman and a married woman. Further, the expression ‘patient’
refers to an individual or a couple and is not confined to a commissioning
couple, as an individual or a couple may approach an ART clinic for the
management of infertility. Moreover, Section 21(g) of the ART Act does
not expressly prescribe a composite age limit for a commissioning couple.
Instead, the provision prescribes separate age limits for a woman and a
man seeking to avail themselves of ART services.
18. Furthermore, we find that the petitioners’ contention that there is
no age-related restriction on an unmarried or single woman lacks
substance in view of the specific provision contained in Section 27 of the
ART Act, which deals with the sourcing of gametes by ART banks. While
Section 21(g) prescribes age limits for a woman and a man seeking to
avail themselves of ART services, the Act separately regulates the age of
male and female gamete donors under Section 27. The relevant portion of
Section 27 reads as under:
“27. Sourcing of gametes by assisted reproductive
technology banks.—
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(2) The banks shall—
(a) obtain semen from males between twenty-one
years of age and fifty-five years of age, both
inclusive;
(b) obtain oocytes from females between twenty-
three years of age and thirty-five years of age;
and
(c) examine the donors for such diseases, as may
be prescribed.”
19. From a bare perusal of the above provision, it is evident that the
age of a semen donor shall not exceed 55 years. The said provision, read
with Section 21(g) of the ART Act, makes it clear that a man, whether
acting as a donor of male gametes or seeking ART services as a member
of a commissioning couple, cannot be above 55 years of age.
20. An issue may, however, arise as to whether the ineligibility of a
husband on account of having crossed the prescribed upper age limit
would also render his wife, who is below the age of 50 years, ineligible to
avail herself of ART services. In this regard, we have already observed
that the expression ‘woman’ does not distinguish between a married
woman, on the one hand, and an unmarried or single woman, on the
other. Meaning thereby, a married woman can also avail herself of ART
services individually.
21. This position is also fortified by Rule 13 of the Assisted Reproductive
Technology (Regulation) Rules, 2022 (for short, ‘the Rules of 2022’),
which deals with the maintenance of consent forms for undergoing ART
procedures. The said Rule recognises that ART procedures may be
undertaken by a couple or by a woman. This assumes significance in
determining whether the ineligibility of a husband on account of having
crossed the prescribed upper age limit would, by itself, render his wife
ineligible to avail herself of ART services, despite her satisfying the
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prescribed age requirement. Rule 13(1)(f)(iii) of the Rules of 2022
provides for consent for Intrauterine Insemination with donor semen in
Form-8. The relevant provision is reproduced below:
"Rule 13(1)(f)(iii):-
(iii) consent for Intrauterine Insemination with
donor semen as specified in Form-8;”
22. Form-8, titled “Consent for Intrauterine Insemination with Donor
Semen”, contains, inter alia , the following declaration by the husband:
“I, the husband, also declare that should my wife
bear any child or children as a result of such
insemination(s), such child or children shall be as
my own and shall be my legal heir(s).”
23. The aforesaid declaration indicates that the statutory framework
contemplates a situation in which a married woman may undergo
insemination using donor semen, subject to the prescribed consent
requirements. Hence, on reading the aforesaid Rule along with the
declaration contained in the consent form, it can safely be concluded that,
even if the husband has crossed the upper age limit prescribed under
Section 21(g) of the ART Act, the wife, if she continues to satisfy the
prescribed age requirement, should not be rendered ineligible to avail
herself of ART services using donor semen. In such a situation, the
husband is required to give his consent in accordance with Form-8.
24. The question whether the age restriction applicable to a man
necessarily renders his wife ineligible to undergo ART treatment using
donor semen has also arisen before other High Courts. In this regard,
reference may be made to the judgment of the Kerala High Court in
Devayani S. (supra). The Division Bench, while interpreting the
provisions of Section 21(g) of the ART Act, observed that the upper age
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limits prescribed under the Act could not, by themselves, be considered
so excessive or arbitrary as to warrant judicial interference. The relevant
paragraphs of the judgment are reproduced hereunder:
“21. When Section 2(1)(e) defines commissioning
couple and Section 2(1)(u) defines woman, it is
pertinent to note that there is no definition of the
word man in the ART Act. When a woman is given
the right to seek ART services independently, as
gatherable from the definition of woman under
Section 2(1)(u) of the ART Act, a married woman
can approach the ART clinic only as one among
the commissioning couple under Section 21(g) of
the ART Act. However, the definition of 'gamete
donor' includes both men and women, since it
speaks about a person who provides sperm or
oocyte with the objective of enabling an infertile
couple or woman to have a child.
22. From the reading of the provisions under the
ART Act, we could foresee six circumstances of
using the ART service such as; (i) the
commissioning couple approach the ART clinic to
obtain a pregnancy by using the oocyte of the wife
and sperm of the husband, (ii) the commissioning
couple approach the ART clinic to obtain a
pregnancy by using the oocyte of the wife and
sperm of a third party male gamete provider, (iii)
the commissioning couple approach the ART clinic
to obtain a pregnancy by using the oocyte of a
third party gamete provider and the sperm of the
husband, (iv) the commissioning couple approach
the ART clinic to obtain a pregnancy by using the
oocyte and sperm both of third party gamete
providers, (v) a woman approaching the ART clinic
to obtain a pregnancy by using her oocyte and a
third party male gamete (sperm), and (vi) a
woman approaching the ART clinic to obtain a
pregnancy by completely using a third party
gamete, that is, both oocyte and sperm.
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23. The consent to be signed by the
commissioning couple as per Rule 13(1)(f)(iii) of
the ART Rules is necessary only when the couple
wants to obtain a pregnancy with third-party
donor semen. That means, the wife among the
commissioning couple can proceed with the ART
procedure by receiving a third-party male gamete
(sperm) with the consent of her husband, as in
the second circumstance mentioned above i.e.,
the commissioning couple approach the ART clinic
to obtain a pregnancy by using the oocyte of the
wife and sperm of a third party male gamete
provider. The Rule is silent about the consent of
the husband for the wife to receive a third-party
oocyte. Therefore, the Rule prevents the wife from
proceeding with the ART procedure by using a
third-party male gamete (sperm) without the
consent of her husband, if she approaches the
ART clinic as a commissioning couple. It is
therefore clear from the provisions that, even
after approaching the clinic as a commissioning
couple, the woman is entitled to receive a third-
party male gamete (sperm) with the consent of
her husband.
XXXXXX
30. As rightly noticed by the learned Single Judge,
the contention of the appellant that if the spouses
approached the clinic for availing the ART service
as a commissioning couple, both of them must
satisfy the age criteria as stipulated under Section
21(g) of the ART Act, if accepted, it will be a
discrimination among the married woman and
unmarried woman and divorced woman. The
learned counsel for respondents 1 and 2, during
the course of arguments submitted that the
respondents 1 and 2 herein are even gone to the
extend of expressing readiness to avail the status
of divorced persons, so as to make respondent 1
eligible to apply for ART procedure as a single
woman, if the law does not permit them to avail
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the ART services as a commissioning couple. If the
argument of the appellant is accepted, the 1st
respondent will be eligible for the ART services the
moment she acquires the status of a single
woman, but immediately when she acquires the
status of a married woman and approaches the
clinic with her husband, even if she is ready to
proceed with ART procedure by receiving male
gametes from a third party, she will become
ineligible for the treatment. On analysing the
provisions under the ART Act, in the light of
Ext.R1(a) report, Adoption Regulations 2022, and
also the provisions under the Hindu Adoptions and
Maintenance Act, 1956, as mentioned in the
preceding paragraphs, we are of the considered
opinion that the age restriction in the case of
women mentioned in Section 21(g)(i) is applicable
to all the six circumstances mentioned above,
since that age restriction is prescribed considering
the risk to maternal health, if the pregnancy is
below or above the age suggested by the expert
stakeholders and also the health of the child to be
begotten, especially when the woman availing the
ART procedure is the biological mother who has to
carry the child in his womb, unlike that in the case
of surrogacy. At the same time, the age restriction
in the case of men prescribed under Section 21(g)
(ii) of the ART Act, it can only be said that the
same is applicable only to the circumstance of
using his male gamete (sperm), either as one
among the commissioning couple or as a third-
party male gamete provider. When the ART Act
does not provide composite age criteria for the
commissioning couple, or Section 21(g) of the ART
Act does not speak about the age criterion there
in as applicable to the persons approaching the
ART clinic as a commissioning couple, prescribing
such age restriction on mere assumptions is
unwarranted and against what is intended by the
legislature. A court of law cannot read between
the lines when the statute is clear on this aspect.
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While considering all these aspects, we agree with
the finding of the learned Single Judge that the
classification of a married woman and a single
woman differently, when they approach the ART
clinic, either as one among the commissioning
couple or as a single woman, would put married
woman at an unfair disadvantage when compared
to single woman. The learned Single Judge rightly
found that the parliament never intended such an
inequitable classification within a benevolent
statute like the ART Act.”
(emphasis supplied)
25. In view of the foregoing discussion, we are of the considered
opinion that the impugned provision does not, by itself, create an
arbitrary classification between a married woman and a single or
unmarried woman. A married woman, if otherwise eligible, can also avail
herself of ART services as an individual using donor semen, subject to
fulfillment of statutory requirements, including that of consent of her
husband. Accordingly, this Court finds no substance in the challenge to
Section 21(g) of the ART Act on this ground as well.
26. As an upshot, the present writ petitions deserve to be dismissed.
27. Accordingly, the present writ petitions are dismissed.
28. All pending applications, if any, stand disposed of.
(SANDEEP TANEJA),J (INDERJEET SINGH),J
1-4/S-A/SAHIL SONI
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