The Kerala High Court has passed an interim order permitting couples where the husband is 55 or 56 years old and the wife is below the age of 50 to avail of Assisted Reproductive Technology (ART) services as per the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act).

As per Section 21(g) of the ART Act, clinics are allowed to apply assisted reproductive technology services "(i) to a woman above the age of twenty-one years and below the age of fifty years; (ii) to a man above the age of twenty-one years and below the age of fifty-five years".

The Bench of Justice Devan Ramachandran has held, " long as the statute does not, prima facie, maintain that both the man and woman should be able to apply for the services together, the women are entitled to relief".

Advocate Akash S appeared for the petitioner while Central Government Counsel Mini Gopinath appeared for the Centre.

"Prima facie, this statute does not say that both of these conditions should apply simultaneously", the Bench held, referring to Section 21(g).

The Court noted the submission of the Central Government Counsel that even for a woman to be able to apply for the ART service, she should have the gamete from a man who can apply for it only if he is below 55 years. "This argument certainly may look lustrous, but if examined closely, it can mean that merely because the husband is above 55, the wife will lose her right to apply for the services, even though she is below 50 years. It will be too far-fetched to even imagine, much less suggest, that the woman must then be forced to seek the assistance of another man", the Bench held.

The Court added that it is persuaded to hold so because, it is admitted that if the gamete from the husband is not viable, then even a donor is possible under the statutory scheme.

The Court clarified that the order should not be treated as a precedent and that the benefit is limited to one cycle of treatment. "Therefore, as an interim measure, and in the specific circumstances of this case without making it a precedent, I allow the petitioners in these cases to apply for the ART services, however, for only one cycle", the Court held.

Earlier, the Kerala High Court had held that fixing an upper age limit for couples who are in the midst of their treatment is arbitrary. However, the Court had upheld the fixation of the upper age limit in the statute, by the same judgment. The Supreme Court of seized of cases challenging, inter alia, Section 21 of the ART Act.

Cause Title: Ayshakutty M & Anr. v. Union of India & Ors. (WP(c) 34770 of 2023)

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