SAJITHA ABDUL NAZAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The 1st petitioner is the wife of the 2nd petitioner. The petitioners are aged 46 and 57 years, respectively. They are issueless. The 1st petitioner has undergone in-vitro fertilisation (IVF) procedures at the 4th respondent hospital. Although the doctors have advised the 1st petitioner to undergo another IVF procedure, the hospital has declined the procedure for the reason that the 2nd petitioner has surpassed the age of 55 years as stipulated under Sec. 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 ('Act', for brevity) and the petitioners fall within the purview of the term 'commissioning couple' defined under the Act. Since the 1st petitioner is 46 years of age and she is a 'woman' as defined under Sec. 2 (1)(u) of the Act, and further, the 2nd petitioner has given his consent for the procedure; the 1st petitioner is entitled to undergo the procedure. The refusal of the hospital to provide treatment to the petitioners is an infringement of their right to life. The age restrictions laid down under the Act apply only if the man and woman participate in the Assisted Reproductive Technology ('ART') procedure. In the present case, only the 1st petitioner needs to undergo the procedure. Hence, the respondents may be directed to permit the 1st petitioner to avail of the ART procedure using donor male gamete.

(2.) The 1st respondent has filed a counter affidavit contending that, as the 2nd petitioner has exceeded the age criteria prescribed under Sec. 21 (g) (ii)of the Act, the petitioners are ineligible to avail the ART services. Merely because the 1st petitioner has not surpassed the age prescribed under Sec. 21(g)(i) of the Act, she is not entitled to proceed with the procedure. In view of Sec. 2(1)(e) of the Act, which explicitly defines a commissioning couple, the petitioners have to fulfil the conditions under Ss. 2(1)(e) and 21(g) of the Act. The Act has been enacted considering the status of a single woman (unmarried, divorcee and widow) and a married woman. The criteria for selecting the beneficiaries under the Act was discussed by the Parliamentary Committee as per Ext.R1(a) report. The age restrictions in the Act have been laid down after considering the best interest of the child to be born through the ART procedure. The petitioners have filed the writ petition as a couple; therefore, they fall within the definition of a commissioning couple. Sec. 21(g) requires a man and a woman to complete the procedure. Any married woman or married man constituting a commissioning couple and wanting to undergo an ART procedure has to simultaneously qualify the twin conditions under Ss. 21(g)(i) and 21 (g) (ii) of the Act. There is no indication in the Act that only one among the men or women constitutes a commissioning couple. The age restrictions have been imposed on both parties, keeping in view the social responsibilities of the father. As per Sec. 2(1)(e) of the Act, when a woman approaches an ART clinic with her man as a 'commissioning couple', they should be married and infertile as provided under Sec. 2(1)(j). Moreover, as per Rule 13(1) (f)(iii) of the Assisted Reproductive Technology (Regulation) Rules, 2022, a married woman is required to submit the consent of her husband in Form 8. If a married woman is permitted to approach the clinic as a woman, her husband will not come into the picture, and she will escape the stipulation under Rule 13(1)(f)(iii), which would defeat the condition under the Act and the Rules. The Act does not envisage a married woman approaching a clinic as a woman. In the process of fulfilling the desire of a couple to become parents, the rights and welfare of the unborn child should not be neglected, which is of paramount importance. To ensure the above matters are addressed, the 1st respondent has issued Ext.R1(b) instructions. The constitutional validity of Sec. 21(g) is under challenge before the Honourable Supreme Court of India in W.P(c) No.756/2022 and connected cases. It is settled law that there is a presumption in favour of the constitutionality of an enactment. The petitioners have failed to plead or show that their fundamental rights have been infringed. The imposition of an upper age limit in the Act is only a reasonable restriction and cannot be said to violate the rights of individuals/couples. The writ petition is meritless and may be dismissed.

(3.) When the writ petition came up for admission, this Court declined to grant an interim relief because, in W.A.No.768 of 2024 and connected cases, a Division Bench of this Court has stayed the operation of interim orders passed in identical matters.