Assisted Reproductive Technology Act | Enforcing Upper Age Limit On Couples Who Were In The Middle Of Treatment Is Arbitrary : Kerala High Court

The Kerala High Court recently observed that the imposition of age restriction under the Assisted Reproductive Technology (Regulations) Act, 2021 without a transitional provision, is irrational and arbitrary. Thereby, the Court issued the direction that the petitioners who were undergoing ART services as of the date on which the ART Act came into effect (25.01.2022) shall be permitted to continue their treatment.

The Court has also directed the National Assisted Reproductive Technology and Surrogacy Board to alert the Central Government about the need for a re-look at the upper age limit prescribed in Section 21(g) of the Act. 

The Court issued the aforesaid directions while disposing of a batch of Writ Petitions filed challenging the upper age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive  Technology (Regulations) Act, 2021 which prohibits the application of ART services to persons above the prescribed age limit. 

Justice V G Arun observed that, 

...I find it difficult to hold the prescription of the upper age limit in Section 21(g) to be so excessive and arbitrary as to warrant judicial interference. At the same time, I find the imposition of age restriction, without even a transitional provision, to be irrational and arbitrary.

The petitioners contended that the prescription of the upper age limit under Section 21 (g) of the Act is irrational, arbitrary, unreasonable and violative of their right to reproduction. therefore, the petitioners sought for declaring the provision to the extent that it prescribes an upper age limit for availing assisted reproduction technology services as unconstitutional. 

It was also submitted that some of the petitioners were in the midst of their treatment when the ART Act came into effect, bringing the treatment to a sudden halt. 

Furthermore, it was also pointed out that the Surrogacy (Regulation) Act which was introduced with similar objective contains a transitional provision, however no provision. The Counsel also placed reliance on the Apex Court decision in Suchita Srivastava and Anr. v. Chandigarh Administration and K. S. Puttuswamy and anr. v. Union of India to substantiate the contentions raised.  

However, on behalf of the Central Government, it was submitted that the Department-Related Parliament Standing Committee on Health and Family Welfare had considered all relevant  aspects before prescribing the upper age limit and that there is no irrationality in prescribing the upper age limit and no scope for interference with the provisions of the Act. 

 The Amicus Curie appointed by the Court, Advocate Ramola Nayampally, put forth the suggestion that since the National Assisted Reproductive Technology and Surrogacy Board is empowered to review and monitor the implementation of the ART Act and recommend suitable changes, it would be apposite to direct the National Board to review the upper age limit and make necessary recommendations to the Central Government.

The Court after perusing the report of the Parliamentary Committee, found merit in the contention that the prescription of upper age limit is done without much discussion. The Parliamentary debates on the Assisted Reproductive Technology (Regulation) Bill, 2020 also does not reveal any discussion on the age factor of the commissioning couple, the Court further added. However, the Court pointed out that absence of deliberation by the legislature alone is sufficient to hold a statutory provision to be unconstitutional. 

The Court also pointed out that in most of the countries providing ART services, the practice is regulated by domestic legislation, guidelines or both. In some countries the mother's age limit is set at 49 or 50 years however, in countries like France, Germany, Portugal, Spain, Sweden and UK do not have a specified age limit, but prescribes that the maximum age limit of the mother shall be within the natural reproductive age of a woman and the father's age limit is not considered as a factor except in France and Sweden.

Furthermore, the Court observed that in most cases, it is advised to do pre-implantation genetic testing for embryos creating using older father's sperm or aneuploidy screening of sperm cells taken from men of advanced age and since the ART Act mandates pre-implantation genetic testing for embryos, a significant part of the apprehensions pertaining to sperm health of older men stands allayed. 

The Court after considering the contentions raised and replying on the Apex Court decisions in Suchita Srivastava and Anr. v. Chandigarh Administration and K. S. Puttuswamy and anr. v. Union of India observed that the personal choice of individuals to procreate and build family is held to be a facet of his/her fundamental right. This right is being restricted by fixing an upper age limit for availing ART services. 

The personal choice of individuals to procreate and build family is held to be a facet of his/her fundamental right. This right is being restricted by fixing an upper age limit for availing ART services. While the State has the power to impose reasonable restrictions, such restriction can always be tested on the touchstone of liberty guaranteed under Article 21.

The Court however, after balancing the of the principles of 'presumption of constitutionality of legislation' and 'manifest arbitrariness', observed that prescription of upper age limit in Section 21(g) of the Act, doesn't warrant judicial interference. However, the Court observed that the imposition of  age restriction, without a transitional provision is irrational and arbitrary. 

As mentioned earlier, some of the petitioners were undergoing assisted reproductive technology services when the ART Act was introduced on 25.01.2022. The prohibition under Section 21(g), if understood to be preventing even continuance of ART services already commenced, would definitely amount to unreasonable and unjustified restriction on the reproductive choice of the commissioning couple and would militate against the liberty guaranteed under Article 21, the Court further added. 

Since Section 5 of the Act, confers upon the National Reproductive Technology and Surrogacy Board the power to advise the Central Government on policy matters relating to assisted reproductive technology, the Court opined that the impact of the prescription of upper age limit on the liberty of the individuals is a matter which ought to be brought to the notice of the Central Government by the National Board to effectuate a detailed discussion on the matter and to bring forth necessary amendments. 

The Court thereby issued the following directions :

(i) Those among the petitioners who were undergoing ART services as of  25.01.2022 shall be permitted to continue their treatment.

(ii) The National Board shall alert the Central Government about the need for having a re-look at the upper age limit prescribed in Section 21(g) of the Act.

(iii) The National Board shall also bring to the notice of the Central Government the requirement of including a transitional provision in the ART Act.

(iv) The above directions shall be complied with by the National Board within three months of receipt of a copy of this judgment.

(v) Those among the petitioners who are yet to commence their ART treatment shall await the decision of the Central Government on the upper age limit and the transitional provision.

(vi) The liberty of the petitioners to approach this Court at a later stage, if so necessitated, is reserved.

Advocates Akash Sathyanandan and Alex Scaria appeared for the Petitioners. 

Deputy Solicitor General Advocate S. Manu assisted by Advocate Girish Kumar appeared for the Central Government. 

Government Pleader Advocate Riyal Devassy for the State Government. 

Advocate N. Raguraj appeared for Kerala State Medical Council and Advocate Ramola Nayanpally was the Amicus Curiae appointed by the Court. 

Case Title: XXXX v. Union Of India and Connected Cases

Citation: 2023 LiveLaw (Ker) 1

Click Here To Read/Download The Order