Kerala High Court Allows Husbands Above 55 Years Of Age To Avail Assisted Reproductive Technique Services If Wives Are Below 50 Years

The Kerala High Court recently permitted husbands aged 55 or 56 years and wives aged 50 years or below to avail of Assisted Reproductive Techniques (ART) services. 

The Single Judge Bench of Justice Devan Ramachandran observed that Section 21(g) of the ART Act which provides that such services could be availed by women below 50 years of age, and men below 55 years of age, did not 'prima facie' reveal that both the conditions ought to apply simultaneously. 

"In the cases at hand, the women are below 50 years, therefore, fully within the ambit of the afore provision, to apply for the ART services; though their husbands may not be. But, as long as the statute does not, prima facie, maintain that both the man and woman should be able to apply for the services together, the women are entitled to relief," the Court said.

The Court also did not find merit in the submission advanced by the Central Government Counsel Mini Gopinath that even for a woman to be able to apply for the ART service, she should have the gamete from a man who could only apply for it only if he is below 55 years.

"This argument certainly may look lustrous, but if examined closely, it can mean that merely because the husband is above 55, the wife will lose her right to apply for the services, even though she is below 50 years. It will be too far-fetched to even imagine, much less suggest, that the woman must then be forced to seek the assistance of another man," the Court observed. 

It added that it was persuaded to note so since it was uncontested that if the gamete from the husband was found to be not viable, even a donor was possible under the statutory scheme. 

It thus issued the present interim order permitting the couples in question to avail of ART services, adding that the same shall not be made a precedent.

The plea was moved through Advocates Akash S. and Girish Kumar M.S. Advocate Ramola Nayapally appeared as the Amicus Curiae in the case.

Case Title: Ayshakutty M. & Anr. v. Union of India & Ors. 

Case Number: WP(C) NO. 34770 OF 2023 (U)

Click Here To Read/Download The Order