Upper Age Limit For Women To Avail ART Services Rational, Difficult For Mother To Support Child During Her Elderly Years: Madras High Court

“A woman, who asks for ART services for begetting a child is duty bound to take care of the child atleast till he/she attains the majority age of 18 years. A woman intending to use ART to get a child must be biologically and financially capable of supporting the child for another 18 years so as to bring him/her up. In India, the retirement age is 60 years, therefore, it is highly doubtful whether the woman/commissioning couple getting a child after 50 years of age will be in a position to support the child for 18 years,” the court observed.

Justice S Sounthar also noted that there was a higher risk in pregnancy after the age of 50 years and it was considering such factors, that the legislature decided to fix an upper age limit to apply for the ART.

“Further, by virtue of ageing process, the risk to the life of mother above the age of 50 years is more than the mother below the age of 50 years. The risk to pregnancy is also very much high after 50 years. Therefore, legislature thought it fit to fix an upper age limit for application of ART. Therefore, the age limits prescribed under the Act cannot be said to be irrational,” the court said.

The court was hearing a woman's plea against the order of the Secretary, of the Ministry of Health and Family Welfare, rejecting their application for ART services. The petitioner, Kavitha Anand, argued that there was no upper age limit prescribed for the definition of “woman” under Section 2(u) of the ART Act and thus, the Secretary had committed serious error in rejecting their request.

The petitioner argued that in the absence of an upper age limit in the definition section, a restrictive meaning cannot be given to the word. It was further argued that Section 21(g) of the Act only makes it mandatory for the ART clinic to apply ART services to a woman between the ages of 21 and 50 years and it did not mean that a woman above the age of 51 years was not entitled to seek services of ART.

The court was however not inclined to accept this contention. The court noted that as per Section 21(g) of the Act, it was clear that the ART Clinics were duty-bound to apply the ART services to women above the age of 21 years and below 50 years. The court added that when such a duty was imposed on the ART Clinic, a corollary legal right was created for women between 21 and 50 years to demand ART services as a matter of right, subject to other conditions of the Act. The court observed that a woman, falling outside the age bracket provided under the Act, did not have a legal right to claim the ART services.

With respect to the absence of an upper age limit in the definition section, the court observed that the legislature had purposefully avoided incorporating an upper age limit in the definition. The court noted that the Act provided two upper age limits – one was 35 years for a woman intending to donate oocyte and another was 50 years, for a woman intending to receive gametes. Thus, the court noted that since two different upper age limits were prescribed for women under the Act, the legislature consciously omitted the upper age limit in the definition to avoid confusion.

The court also noted that though an upper age limit is not prescribed in the definition, a restrictive meaning was given under Section 21(g) and the same would prevail over the definition in the general definition section. The court added that whenever a word is defined in a particular manner in an Act, and a different meaning is given for the very same work which either restricts or enlarges its meaning, the altered meaning would prevail over the general meaning.

“In other words, whenever a word is defined under the Act in particular fashion, the word will be understood as per the definition in the Act. However, if a different meaning is given to the very same word in a specific section of the very same Act, either by restricting the meaning or by enlarging the meaning, the altered meaning given in the specific section will prevail over the general definition contained in definition Section in so far as interpretation of the said specific section is concerned,” the court said.

Though the petitioner tried to argue that the definition was highly irrational it permitted a woman of 50 years to avail of services but restricted a woman who was one day older than 50 years, the court did not accept the contention. The court noted that such imbalance was supposed to happen when the legislature fixed an age limit.

Thus, finding no error in the order of the Secretary, the court dismissed the plea.

Counsel for the Petitioner: Mr. G. R. Hari

Counsel for the Respondents: Mr. E. Sundaram Government Advocate, Mr. K. S. Jeyaganesan Central Government Standing Counsel

Case Title: Kavitha Anand c. The State of Tamil Nadu and Others

Citation: 2025 LiveLaw (Mad) 111

Case No: W.P.No.35158 of 2024