Calcutta High Court Allows Infertile Couple To Avail Assisted Reproductive Technique Although Husband's Age Exceeded Statutory Limit
The Calcutta High Court has allowed an infertile couple to avail of the facility of Assistive Reproductive Techniques (ART) to aid them in conceiving a child, even though the husband's age at 58 years, was above the statutory limit prescribed under the Assisted Reproductive Technology (Regulation) Rules, 2022.Justice Amrita Sinha held: In the instant case, the woman falls within the...
The Calcutta High Court has allowed an infertile couple to avail of the facility of Assistive Reproductive Techniques (ART) to aid them in conceiving a child, even though the husband's age at 58 years, was above the statutory limit prescribed under the Assisted Reproductive Technology (Regulation) Rules, 2022.
Justice Amrita Sinha held: In the instant case, the woman falls within the prescribed age limit but the man is over aged. Due to over age of the husband, the clinic is refusing to provide the service to the couple. The clinic or the bank does not have any authority to refuse service if a single partner of a married couple intends to avail the service. Had the wife approached the clinic individually, the clinic could not have refused to provide ARTS to her. Here, since the parties are in a cordial relationship, they approached the clinic jointly as commissioning couple.
The medical report of the wife discloses that the lady is physically fit to hold the embryo. For the ineligibility of the husband, the wife ought not to suffer. This is so because the husband has no physical participation in any of the procedures involved for the birth of the child through ARTS.
The petitioners are a married childless couple. Despite leading a happy conjugal life for the last thirty years, the petitioners failed to beget a child. They intended to avail of the facility under ARTS for giving birth to a baby. It was submitted that the stumbling block was the overage of the husband-petitioner no.2.
According to the Act, the service is available to a woman above the age of 21 years and below the age of 50 years and to a man above the age of 21 years and below the age of 55 years. Though the wife-petitioner no. 1 is within the prescribed age limit, the husband failed to meet the age criteria.
Advocate representing the State respondents relied upon the instruction forwarded by the Special Secretary (MERT) and Chairperson, SAA under ART and Surrogacy Act, Department of Health and Family Welfare mentioning that Section 21 (g) stands as a bar for providing service under the Act to a man above the age of 55 years.
In support of their prayer, the petitioners relied on the order passed by a coordinate Bench of this Court on 8th April, 2024 in WPA 12154 of 2023 (Sanchita Ghosh & Anr. Vs. Union Of India & Ors.) and the judgment dated 26th April, 2024 in WPA 9232 of 2024 (Sudarshan Mandal & Anr. Vs. State of West Bengal & Ors.).
Court noted that the subject Act has been enacted to address the issues of reproductive health where Assisted Reproductive Technology is required for becoming a parent where the parent fails to give birth to a child in the normal biological process.
Thus in considering the nature of the role of the father, and the fact that the mother was still eligible to carry a child under the ART act, the court held that the plea for the couple to avail of the ART facility was to be allowed.
Counsel for the petitioner: Mr. Achin Jana, Adv., Mr. Bhaskar Dalui, Adv., Ms. Gargi Dhang, Adv., Ms. Chetna Rustagi, Adv.
Case: X v State of West Bengal
Case No: WPA No.23776 of 2024
Citation: 2024 LiveLaw (Cal) 255