ART Act- Kerala High Court Stays Its Order Permitting Married Women To Accept Donor Sperm When Husband Is Above Age Limit

The Division Bench of the Kerala High Court has stayed the Judgment of the single judge of the Court permitting married women who have not crossed the upper age limit under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act) to procreate using donor sperm in cases where husbands have crossed the upper age limit.

The ART Act fixes an upper age limit of 50 years for women and 55 years for men. Hence, the question before the Court was whether wives who are below 50 years of age could undergo treatment as per the ART Act using the sperm of a donor who has not crossed the upper age limit, if their husbands are above 55 years old, with the consent of the husbands.

The Division Bench of Justice Amit Rawal and Justice PV Balakrishnan held in an interim order, "No doubt the learned Single Bench in the judgment under challenge and as well as the judgments of the Calcutta High Court have permitted one of the spouses, that is the woman, to proceed ahead under the ART Act for conceivement with the help of the donor, by interpreting the provisions of 21(g) on a gender basis and not on a couple basis. But we are afraid that the said findings would not be applicable in case the definition of woman and commissioning couple, as well as the provisions of 21(g) are read in 'conjunction'. In other words, prima facie, all the judgments deal with the interpretation of the provisions of the Act in isolation and not conjunctively".

In the Writ Appeal filed by the Union of India, Additional Solicitor General AR. L. Sundaresan appeared for the Appellant, while Advocate Akash S. appeared for the private Respondents.

The single Judge had allowed the Writ Petition filed by a couple, holding that 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 (read report).

The single Judge had also held that the same rationale applies to men, ensuring that single and married individuals enjoy equitable access to reproductive assistance.

The Division Bench condoned a delay of 427 days in filing the Writ Appeal holding, "...from the perusal of paragraphs 4 to 6 of the application herein accompanied by an affidavit, it is evident that the explanation does not fall in the expression, 'gross negligence' 'deliberate inaction' or 'lack of bona fides', it is otherwise and therefore liberal concession has to be adopted...", relying upon a Judgment of the Apex Court. 

It was the contention of the Union of India that "commissioning couple" as defined under the ART Act would not include the definition of donor, therefore, the generic distinction drawn in the judgment impugned, that is gender-specific and not couple-specific, would not be applicable and, therefore, there is an abdication. 

Cause Title: Union of India v. Devayani S. & Ors. (WA No. 2009 of 2025)

Appearance:

Appellant: Additional Solicitor General AR. L. Sundaresan, Central Government Counsel K. Arjun Venugopal

Respondents: Advocate Akash S.

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