The Gauhati High Court has upheld the constitutional validity of Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021, while observing that the provision is based on the well-being of the mother and child. The High Court also held that the age-based classification under Section 21(g) applies uniformly to all intending couples.

The High Court was considering a writ petition filed under Article 226 of the Constitution, which raised a challenge to the constitutional validity of Section 21(g) of the Assisted Reproductive Technology (Regulation) Act. The petitioners sought a direction to the respondent authorities to permit them to avail Assisted Reproductive Technology (ART) services, notwithstanding their ineligibility under the impugned provision.

The Division Bench of Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury held, “The age-based classification under Section 21(g) applies uniformly to all intending couples. It is founded on an intelligible differential and bears a direct nexus to the regulation of ART services in a manner that is safe, ethical, and socially responsible. The provisions do not suffer from manifest arbitrariness and do not violate Article 14 of the Constitution of India.”

“Fixation of the age limit has consistently been held to be a matter of policy. Such fixation can be said to be arbitrary when it is a case of “picked out from a hat”; in the present provision, the same is based on the well-being of the mother and child”, the order read.

Advocate B K Gogoi represented the Petitioner, while the Deputy Solicitor General of India represented the Respondent.

Factual Background

The petitioners are a married couple who have been unable to conceive naturally. In 2020, they commenced medical consultations for an Assisted Reproductive procedure. The onset of the COVID-19 pandemic interrupted their course of treatment. Thereafter, the petitioners underwent an Assisted Reproductive Procedure at the Hospital, which did not result in a successful outcome. In 2024, the petitioners approached Indira IVF Hospital to avail ART services. However, the hospital declined to treat the petitioners on the grounds that they did not meet the age-eligibility criteria prescribed under the Act.

The grievance of the petitioners was that the statutory prescription of an upper age limit under Section 21(g) violates their fundamental rights under Articles 14 and 21 of the Constitution of India by foreclosing access to ART services despite their individual medical fitness and by disproportionately denying them reproductive autonomy.

Reasoning

Highlighting the undisputed fact that the right to make reproductive choices forms part of personal liberty under Article 21 of the Constitution, the Bench stated, “Yet, the Apex Court has consistently held that the protection of Article 21 of the Constitution of India does not render every personal choice immune from regulation. The Constitutional rights, particularly in the domain of social welfare and public health, operate within a framework of permissible regulation.”

The Bench explained that Section 21(g) prescribes an upper age limit based on considerations of medical science, ethical standards, and the welfare of both the woman undergoing treatment and the child to be born.

The Bench also clarified, “The submission that the petitioners had initiated the ART prior to the coming into force of the Act, 2021, does not create any vested right to continue such treatment contrary to the statutory prescription. The law applicable on the date when eligibility is considered must govern access to the statutory benefits, even if the earlier attempt failed prior to the enactment of the Act, 2021, and was not a continuing process.”

The Bench thus declared, “On a careful evaluation of the statutory scheme, the constitutional principle governing judicial review and the precedence holding the field, we are of the considered view that Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 withstands the constitutional scrutiny and does not infringe Articles 14 or 21 of the Constitution of India.”

Thus, finding the petition to be devoid of merit, the Bench dismissed the same.

Cause Title: A v. The Union Of India (Case No.: WP(C)/2344/2024)

Appearance

Petitioner: Advocates B K Gogoi, N D Sarma

Respondent: Deputy Solicitor General of India, Advocate D J Das, Central Government Counsel B.Chakravarty

Click here to read/download Order


Gauhati High CourtJustice Arun Dev ChoudhuryChief Justice Ashutosh Kumar

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.