Married Woman Of Eligible Age Can Undergo IVF Treatment Despite Husband's Ineligibility Provided He Consents: Kerala High Court
The Kerala High Court has permitted a married woman aged 46 years to avail Assisted Reproduction Technology (ART) procedure, even though her husband who is 57 years old has become ineligible to avail the ART services. The Court found that the married woman can independently undergo ART procedure through intrauterine insemination using donor male gametes, even though the husband has surpassed...
The Kerala High Court has permitted a married woman aged 46 years to avail Assisted Reproduction Technology (ART) procedure, even though her husband who is 57 years old has become ineligible to avail the ART services.
The Court found that the married woman can independently undergo ART procedure through intrauterine insemination using donor male gametes, even though the husband has surpassed the eligibility age of 55 years.
As per Section 21(g)(i) and (ii) of the ART (Regulation) Act of 2021, women aged between 21 and 50 years, and men aged between 21 and 55 years, are eligible to avail ART services.
Justice C.S. Dias observed that the wife's eligibility to apply for ART procedure operates independently despite the ineligibility of the husband. The Court clarified that this is because the ART (Regulation) Act follows an individual centric approach, specifying separate age criteria for men and women under Section 21, rather than a combined age limit for a 'commissioning couple'.
“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………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.”
The first petitioner-wife aged 46 and second petitioner-husband aged 57 years in this case were denied permission to avail ART procedure since they did not satisfy the age criteria in Section 21 (g) as a commission couple.
The Court noted that age criteria have been distinctly laid down for man and woman as per Section 21 (g)(i) and (ii) respectively. It noted that no specific age restriction have been given for a commissioning couple under Section 21.
The Court referred to Report No.129 of the Parliamentary Standing Committee on Health and Family Welfare Suggestions on Clause 21 (g) of the ART (Regulation) Bill of 2020. The Court noted that the Parliamentary Standing Committee had suggested an upper age limit of 45 years for women, 50 years for men, and a combined age limit of 90 years for the couple (woman and man).
The Court thus stated that the Parliament has consciously omitted to include any age criteria for the 'commissioning couple' in the Act considering the distinct nature of ART services.
Court added, “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.”
The Court further noted that Adoption Regulations of 2022 expressly lays down the maximum age criteria of prospective adoptive parents as a couple. It thus stated that the ART (Regulation)Act of 2021 has consciously avoided the concept of combined age for commissioning couples.
The court further noted that the only legal requirement is that the husband has to give consent in Form 8 that he would acknowledge the child born through ART as his legal heir.
Additionally, the Court observed married woman who satisfies the eligibility criteria cannot be treated differently from a single woman who satisfies the same eligibility criteria.
Court explained, “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.”
As such, the Court stated that the Regulations does not restricting commissioning couples on the basis of their composite age. It thus stated that the petitioner-wife who is otherwise eligible to undergo ART procedure cannot be denied ART services only because her husband surpassed the age limit.
As such, the writ petition was allowed and the petitioner-wife was permitted to avail ART services.
Counsel for Petitioners: Advocates Akash S., Girish Kumar M S, Richu Theresa Robert
Counsel for Respondents: Advocate M Shajna, Government Pleader Vidya Kuriakose
Case Title: Sajitha Abdul Nazar v Union of India
Case No: WP(C) NO. 31161 OF 2024
Citation: 2025 LiveLaw (Ker) 135
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