Law Doesn't Discriminate Between Individual Women, Couples Seeking IVF; No Requirement For Sperm/Oocyte To Come From Couple Themselves: Calcutta HC

The Calcutta High Court has recently held that in cases of in-vitrio fertilisation (IVF), it is not mandatory that either the sperm or the oocyte must come from the couple seeking IVF themselves.

A single bench of Justice Sabyasachi Bhattacharya perused the rules under the Assisted Reproductive Technology (Regulation) Act, 2021 (Act) and allowed a plea by a husband who along with his wife sought to conceive through IVF, after losing their teenage daughter at a young age. The couple was facing difficulties due to the husband being 59 years old, and above the limit for IVF according to the Act, while the wife being 46-years old was eligible for the same. 

Section 21(g) makes no difference between a woman who approaches a clinic for taking resort to such technology individually and a woman who is one of the spouses of a commissioning couple approaching a clinic for similar purposes. Since the Act does not discriminate between women who are married and those who are not, such distinction cannot be made in the present case as well, the Court held.

It added: For all practical purposes, the petitioner no. 1 (husband) is, thus, debarred individually from taking resort to assisted reproductive technology services. However, the petitioner no. 2 (wife) comes within the permissible age limit of Section 21(g)(i). The petitioners seek to use the sperm of a third-party donor, thus, ruling out physical participation of the petitioner no. 1, who is debarred under the Act, from seeking assisted reproductive technology services.Thus, the bar under Section 21(g)(ii) does not come into play at all.

It was clarified that under the Act, a commissioning couple, who could seek IVF facilities was defined as a married couple who were unable to conceive through natural means. 

Court stated that under the Act, the husband could not participate in the IVF process, but the couple could still conceive since they were willing to accept donor gametes.

Pregnancy can be obtained by handling sperm or oocyte outside the human body. There is no restriction to the effect that either of the two must come from the couple themselves, the Court held.

It was further held that although the husband had exceeded the age to donate his gametes to the process, the wife was still eligible under the act, and there was no bar on her to seek IVF treatment.

Accordingly, it allowed the plea by the couple to receive IVF treatment.

Citation: 2024 LiveLaw (Cal) 101

Case No: Sudarsan Mandal and Another v The State of West Bengal and others

Case Name: WPA 9232 of 2024