Married woman can undergo IVF even if husband has crossed ART Act age limit: Kerala High Court

The Kerala High Court recently held that a married woman is entitled to undergo in-vitro fertilisation (IVF) using a donor gamete even if her husband exceeds the age limit prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), provided he gives consent. [Sajitha Abdul Nazar & anr v Union of India & ors].Justice CS Dias examined the provisions of the Act and noted that Section 21(g) of the ART Act imposes an upper age limit of 50 years for women and 55 years for men seeking ART services.However, neither does the Act mandate a collective age criterion for a 'commissioning couple' (infertile married couple approaching ART clinics) to restrict them from availing the procedure nor does it impose restrictions preventing a woman from undergoing the procedure independently if she meets the eligibility criteria, the Court said."The Act does not contain the concept of combined age for commissioning couples analogous to the composite age criteria applicable to prospective adoptive parents. Instead, the Act adopts an individual-centric approach, whereby the age eligibility criteria are separately laid down for women and men rather than collectively for a couple," the judge said.The Court further emphasised that denying ART services based on the husband's age would create an unfair classification between married and single women, as the latter are permitted to undergo ART procedures without restrictions related to a spouse’s age."Such a classification would be a fallacy and would put married women at an unfair disadvantage when compared to single women to access ART procedures....Without any express provision in the Act restricting commissioning couples on the basis of their composite age, there is no legal bar in a woman who is otherwise eligible under Section 21 (g) (i) from applying the ART procedure even if her husband has surpassed the age limit," the single-judge said..The wife in the present case was aged 46 and the husband 57. They had undergone IVF treatments at a hospital and were advised by doctors to undergo another procedure. However, the hospital denied them further ART treatment, citing the husband’s age, which exceeded the prescribed 55-year limit for men seeking ART services.The wife, who intended to undergo IVF using a donor sperm, approached the Court after being denied treatment despite meeting the individual eligibility criteria.The petitioners argued that since only the wife was undergoing the procedure using a donor male gamete, her husband's age should not be a determining factor. They contended that the hospital's refusal violated their fundamental right to life under Article 21 of the Constitution.The hospital and government authorities opposed the plea, arguing that both spouses must meet the age criteria as they qualified as a 'commissioning couple' under Section 2(1)(e) of the ART Act.The authorities cited Rule 13(1)(f)(iii) of the Assisted Reproductive Technology (Regulation) Rules, 2022 (ART Rules), which requires a married woman to obtain her husband’s consent for ART procedures.Thus, allowing the procedure without the husband meeting the eligibility criteria would defeat the purpose of the law, it was argued.They also contended that the ART Act was framed to ensure responsible parenthood, considering the welfare of the child to be born..However, the Court rejected these arguments and clarified that the ART Act does not impose a collective age restriction for 'commissioning couples' but instead prescribes separate age limits for men and women.It observed that the Act adopts an individual-centric approach and the only requirement for a married woman while seeking ART service, apart from satisfying the age criteria for 'woman', is to obtain her husband's consent in Form 8 under Rule 13(1)(f)(iii) of the ART Rules, In this case, the wife had already complied with the same, the Court noted."A holistic understanding of the Act and the associated ART procedures and services reveal that the only legal requirement that the 2nd petitioner has to comply with to enable the 1st petitioner to apply the ART procedure is to give his consent in Form 8, undertaking that he would acknowledge the child born through the procedure as his legal heir," the Court added.In light of this, the Court observed that the wife's eligibility for ART services must be assessed independent of her husband's age, provided he consents to the procedure..In conclusion, the Court directed the hospital to proceed with the IVF procedure for the wife using donor sperm..The couple were represented by advocate Akash S, Girish Kumar MS and Richu Theresa Robert.Advocate M Sajna appeared for the Central government.Government pleader Vidya Kuriakose appeared for the State..[Read Judgment]