The Kerala High Court while disposing of a batch of writ petitions filed against the upper age limit of 50 years for women and 55 years for men under Assisted Reproductive Technology (Regulations) Act, 2021 has held that fixing such an upper age limit on the petitioners i.e., the couples in the midst of their medical treatment is arbitrary and irrational in nature.

A Single Bench of Justice V.G. Arun adjudged –

“… the personal choice of individuals to procreate and build family is held to be a facet of his/her fundamental right. This right is being restricted by fixing an upper age limit for availing ART services. While the State has the power to impose reasonable restrictions, such restriction can always be tested on the touchstone of liberty guaranteed under Article 21. It is now settled that legislative action can be challenged on the ground of lack of legislative competence, violation of fundamental rights or any other constitutional provision and manifest arbitrariness. In Shayara Bano v. Union of India [(2017) 9 SCC 1], the Apex Court has termed 'manifest arbitrariness' as something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. … I find it difficult to hold the prescription of upper age limit in Section 21(g) to be so excessive and arbitrary as to warrant judicial interference. At the same time, I find the imposition of age restriction, without even a transitional provision, to be irrational and arbitrary.”

The Bench also held that the impact of the prescription of the upper age limit on the liberty of individuals is a matter which the National Board should bring to the notice of the Central Government, so as to effectuate a detailed discussion on the subject and pave the way for necessary amendments.

Advocate Akash Sathyanandan appeared for the petitioners, Deputy Solicitor General S.Manu for the Central Government, Government Pleader Riyal Devassy for the State Government, Advocate N.Raguraj for the Kerala State Medical Council and Advocate Ramola Nayanpally, the amicus curiae.

Facts –

The writ petitions were filed by couples who have been undergoing or intending to undergo assisted reproductive services, driven by the desire to have children. The petitioners challenged the upper age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), which prohibits the application of ART services to persons above the prescribed age limit. According to the petitioners, the prescription of the upper age limit under Section 21 (g) of the ART Act is irrational, arbitrary, unreasonable, and violative of their right to reproduction, acknowledged as a fundamental right. They, therefore, wanted Section 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.

The counsel for the petitioners contended that there is no rationale in prescribing an upper age limit of 55 for men and 50 for women. The amicus curiae suggested that, since the National Assisted Reproductive Technology and Surrogacy Board (National Board, constituted in terms of Section 15(1) of the Surrogacy (Regulation) Act is empowered to review and monitor the implementation of the ART Act and recommend suitable changes, it will be apposite to direct the National Board to review the upper age limit and make necessary recommendations to the Central Government.

The counsel on behalf of the Central Government submitted that the Department-Related Parliament Standing Committee on Health and Family Welfare had considered all relevant aspects before prescribing the upper age limit. The High Court in this context said, “Having carefully perused the report of the Parliamentary Committee, I find merit in the contention that the prescription of upper age limit is made without much discussion.”

The High Court directed that those among the petitioners who were undergoing ART services shall be permitted to continue their treatment.

The Court also issued the following directions:

“(ii) The National Board shall alert the Central Government about the need for having a re-look at the upper age limit prescribed in Section 21(g) of the Act.

(iii) The National Board shall also bring to the notice of the Central Government the requirement of including a transitional provision in the ART Act.

(iv) The above directions shall be complied by the National Board within three months of W.P.(C) No.24058 of 2022 & con.cases -80- receipt of a copy of this judgment.

(v) Those among the petitioners who are yet to commence their ART treatment shall await the decision of the Central Government on the upper age limit and the transitional provision.

(vi) The liberty of the petitioners to approach this Court at a later stage, if so necessitated, is reserved.”

Accordingly, the Court disposed of all the petitions.

Cause Title- XXXX v. Union of India and Ors.

Click here to read/download the Judgment

Kerala HCJustice VG ArunAssisted Reproductive Technology (Regulations) Act

Swasti Chaturvedi