Assisted Reproductive Technology Act Appears To Have Discounted Relevance Of Male Counterpart In ART Process: Calcutta High Court

While hearing a Writ Petition filed by a married couple challenging constitutional validity of Section 21(g) of the ART Act, 2021, the single judge bench of Justice Moushumi Bhattacharya observed:

“If the omissions under various provisions of the ART Act, 2021 are read together it appears that the Act has discounted the relevance of a man as a part of a commissioning couple and even as a necessary part of ART altogether.”

The couple had challenged Section 21(g) of the ART Act as being ultra vires Articles 14 and 21 of the Constitution of India on the ground that a commissioning couple has been prohibited from seeking ART by reason of an "artificial age bar" between a man and woman without the support of any medical or expert evidence in the matter.

While perusing the matter, the Court highlighted the following ambiguities in the ART Act, 2021 which are relevant for adjudication:

1. Section 21(g) provides that the clinic shall apply assisted reproductive technology services (i) to a woman between 21 and 50 years of age and (ii) to a man between 21-55 years of age. Section 21(g) simply mandates the respective age limits of a ‘woman’ and a ‘man’ for ART as two separate entities without treating the ‘man’ and the ‘woman’ as a unit in the sense of being a “commissioning couple”.

2. The omission to specify “commissioning couple” in section 21(g) is striking in its continued silence in the scheme of the Act.

3. Although section 21(g) prescribes the eligible age-band of a man for availing ART services [21(g)(ii)], the Act does not define a ‘man’ anywhere within the statutory scheme. Further, section 21 mentions the categories of “commissioning couple”, “woman” and even a “gamete donor” several times without any reference to a “man” except in section 21(g)(ii). The definition of a “commissioning couple” refers to an infertile married couple without any reference to whether a couple would consist of a man-woman, man-man, woman-woman or transgender persons.

4. The exclusion of “man” is all the more noticeable since a “gamete donor” has been defined in section 2(1)(h) as a person who provides sperm or oocyte with the objective of enabling an infertile couple or woman to have a child. Despite the omission, ‘sperm’ in section 2(1)(r) has been defined as “mature male gamete”.

5. Although, the age of a man under section 21(g)(ii) has been capped at 55 for being eligible for ART services, the Act does not specify the age of a “gamete donor”.

Justice Bhattacharya observed the ART Act, 2021 creates an unequal division between an unmarried, single woman and a married woman who is a part of a “commissioning couple” as defined in section 2(1)(e) as the former is eligible for ART services from 21 to 50 years, a married woman whose husband/counterpart crosses 55 years would fall within the mischief - and the grey area - of section 21(g) of the Act.

“The Act foists an indefensible fetter on a married woman with regard to ART while disentangling the statutory stranglehold from an unmarried woman. Indeed, the inequality thus created is absurd and defies logic,” Justice Bhattacharya opined.

The court remarked that woman can exercise her reproductive choice to procreate as well as to abstain from procreating which includes woman’s freedom to choose birth-control methods as well as the right to carry a pregnancy to its full term.

The court averred:

“A legislative enactment seeking to curb a woman’s right to reproductive choices and means for parenthood, must be founded on clear medical evidence of domain experts. The curtailment must in any event be tested on the benchmarks of legislative competence, manifest arbitrariness, irrational considerations and violation of fundamental rights.”

“The argument of Article 14 of the Constitution falling by the wayside is therefore completely reasonable. The constitutional safeguards cannot also be permitted to be overridden rough-shod. Men and women are entitled to equal rights to marriage and to have a family as articulated in Article 16(1) of the Universal Declaration of Human Rights”, the court further added.

The Court directed the Ministry of Health and Family Welfare to bring its objection on record by way of an affidavit-in-opposition to the abovementioned ambiguities/omissions in the ART Act, 2021 and to further file a reply addressing the challenge to section 21(g) of the ART Act, 2021 as being ultra vires Articles 14 and 21 of the Constitution.

Case Title: Saswati Mohury & Anr. v. The Union of India & Ors.

Citation: 2023 LiveLaw (Cal) 77