Estranged Wife Moves Supreme Court Challenging ART Rule Mandating Husband's Consent For Donor Sperm Insemination

The Division Bench, comprising Justices Ajay Rastogi and C.T. Ravikumar, refused to issue notice but told Advocate Akshat Srivastava, the counsel appearing on behalf of the petitioner, that he was at liberty to mention it along with the pending matter. The Bench led by Justice Ajay Rastogi, in September, had sought the responses of the Ministry of Health and Family Welfare, the Ministry of Women and Child Development, and the Indian Council of Medical Research in the other petition and directed the matter to be listed "before the appropriate Bench for hearing" after the pleadings were completed.

The present petition was filed by a 38-year-old woman whose husband, despite already having filed for divorce, refused to permit the petitioner to undergo artificial insemination using donor sperm. She challenged the impugned rule for being violative of the rights to equality and life and liberty under Articles 14 and 21, apart from being ultra vires the parent act inasmuch as the Act itself does not impose any such "arbitrary restriction on the rights of a woman". The petition stated –

"This restriction assumes extreme significance in fact situations like that of the petitioner, where she is separated from her husband, who has filed a divorce case against her and is any event neither ready for providing his own sperms or giving his consent for donor sperms, so that the petitioner could opt for intrauterine insemination. The consequence is that despite being desperately desirous for motherhood and despite the technology being available to make her do so, petitioner is prevented by law from becoming a mother.

It is extremely pertinent to mention here that although law mandates that a woman can opt for these IVF procedures till the age of 50 years, it is common knowledge that pregnancy becomes increasingly difficult with age. Petitioner is already 38 years old. Further, with the heavy backlog in the courts in the country, it is difficult to predict how long a divorce case can take to get finalized, given the triple stage adjudication process."

In 2021, the Parliament passed the Assisted Reproductive Technology (Regulation) Act, 2021 with the objective of introducing a regime of safe and ethical use of, and research and development in assisted reproductive technology (ART). Section 22(1)(a) enjoins infertility clinics from performing any treatment or procedure without the written informed consent of all the parties seeking assisted reproductive technology, which includes the 'commissioning couple' or the woman and her donor. The term 'commissioning couple' has been defined in Section 2(e) as an infertile married couple while Section 2(u) defines woman as any woman older than 21 years. The duties of infertility clinics and banks are given in Section 21. Clause (g) of the Section requires clinics to provide assisted reproductive technology services to any woman between the ages of 21 and 50 years, and any man between the ages of 21 and 55 years.

In June 2022, in the exercise of the rule-making powers conferred under Section 42, the Ministry of Health and Family Welfare notified the Assisted Reproductive Technology (Regulation) Rules, 2022. Rule 13 deals with the "other duties of clinics" and provides in Clause (f) that an infertility clinic must maintain the following consent forms –

• consent form to be signed by the couple or woman as specified in Form 6,
• consent for insemination with husband's semen or sperm as specified in Form 7,
• consent for insemination with donor semen as specified in Form 8,

The validity of this provision as well as that of Form 8 was questioned in the present writ petition. The petitioner alleged that even though no distinction between a married and an unmarried woman has been made in the Act itself, Section 22(1)(a), when read with Rule 13(1)(f), placed an arbitrary restriction on married women seeking to use donor sperm for artificial insemination, by requiring her to furnish proof of her husband's consent before undergoing such a procedure. The consequence of this restriction is that the right of married women to unilaterally opt for motherhood is "virtually taken away" because it is made "dependent upon the sweet will of their husband's". The impugned provisions were also assailed on grounds of being violative of the right of women to make reproductive choices that formed a part of the rights to personal liberty, privacy, dignity, and bodily integrity under Article 21, as well as other constitutional rights guaranteed under Articles 14 and 15.

Srivastava attempted to bolster the petitioner's plea by referring to an Australian case in which the Federal Court had declared a similar provision as invalid and inoperative to the extent that it required the applicant to obtain her estranged husband's consent for undergoing a "treatment procedure" as defined in that Act. [EHT18 v. Melbourne IVF (2018) FCA 1421]. He said –

"At least in Australia, they have taken this view. I have brought on record this judgement of the Federal Court."

However, Justice Rastogi quickly interjected –

"Our Indian society will continue with the Indian fabric and family."

Case :  [WP (C) No. 931 of 2022]