NANDINI Vs. UNION OF INDIA

JUDGEMENT

(1.) The writ petitions are filed by couples undergoing or intending to undergo assisted reproductive services, driven by the desire to have children. The petitioners challenge the upper age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 ('the ART Act' for short), which prohibits the application of ART services to persons above the prescribed age limit. According to the petitioners, prescription of the upper age limit under Sec. 21 (g) of the ART Act is irrational, arbitrary, unreasonable and violative of their right to reproduction, acknowledged as a fundamental right. They therefore want Sec. 21(g) of the ART Act, to the extent it prescribes an upper age limit for availing assisted reproductive technology services, to be declared unconstitutional.

(2.) Heard Advs.Akash Sathyanandan and Alex Scaria for the petitioners, S.Manu, the Deputy Solicitor General assisted by V. Girish Kumar, for the Central Government, Government Pleader Riyal Devassy for the State Government, N.Raguraj for the Kerala State Medical Council and Ramola Nayanpally, the amicus curiae.

(3.) Learned Counsel for the petitioners contended that there is no rationale in prescribing an upper age limit of 55 for men and 50 for women. It is submitted that, prior to the introduction of the ART Act, the 'National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India' ('the National Guidelines' for short), prepared by the Indian Council for Medical research ("ICMR") and National Academy of Medical Sciences (NAMS) was in force. Chapter 3 of the National Guidelines dealt with the 'Code of Practice, Ethical Considerations and Legal Issues". Therein, under the head 'General Considerations' the prescription was only with respect to the minimum age for ART. As no upper age limit was prescribed in the guidelines, the petitioners had opted for ART services, without being unduly worried about their age. Some of the petitioners were in the midst of their treatment when the ART Act came into effect on 25/1/2022, bringing the treatment came to a sudden halt. This has put the petitioners under extreme emotional stress and some are in the verge of mental breakdown.