Calcutta High Court Grants Interim Relief To Couple Denied IVF Citing Age Bar In Assisted Reproductive Technology Act, Orders Preparation Of Embryo

The Calcutta High Court on Friday granted interim relief to a married couple who was denied IVF (In vitro Fertilization), citing the age bar for couples under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021.

The provision mandates a man to be aged above 21 years and below 55 years for being eligible for assisted reproductive technology services. The upper age limit for women is 50 years. The man in this case had turned 56 years.

The single judge bench of Justice Moushumi Bhattacharya observed that if interim relief is not granted to the couple until the matter is finally decided, it will become more of a challenge to the couple as with each passing day, their ineligibility would increase.

It further stated that the Act contemplates granting of interim relief inasmuch as it provides for cryopreservation of any human embryo for 10 years. The court thus ordered,

"The preparation for Assisted Reproductive Technology should be permitted to start as further delay may frustrate the petitioners’ long-standing wish to have a child."

That apart, the Court noted that the petition raises important issues on identity, fragmentation of social units and certain inalienable rights. "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," the bench noted.

The petitioners claimed that they explored ART in the year 2019 when they qualified the age criteria. However, they were unable to continue due to lockdown and from March, 2020 and thereafter, when they again visited a fertility centre in April, 2022, they were informed that they have become ineligible for undergoing ART as the petitioner no. 2 (husband) had crossed 55 years of age.

As an interim relief, the court directed the Fertility Centre to collect the sperm of the husband for preparation of the embryo with a donor egg and preserve it till disposal of the petition.

The court directed to list the matter again after 5 weeks.

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

Coram: Justice Moushumi Bhattacharya

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