SC To Consider On February 11 Interim Applications In Pleas Challenging Lack Of Transitionary Provision While Fixing Upper Age Limit In ART Act
The Supreme Court today agreed to hear the batch of petitions challenging various provisions of the Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), on February 11 and in particular applications seeking interim relief in respect to intending couple who were undergoing treatment while the ART Act came into force and who were barred from proceeding further on account of the fixation of the upper age limit for couple in the said Act.
The Bench of Justice B.V. Nagarathna and Justice Satish Chandra Sharma said, "We have heard learned senior counsel, learned ASG Aishwarya Bhati, and learned counsels for the respective parties. It was submitted that interim relief....the age bar and the process having already commenced—may be taken up for consideration in the first instance. Hence, list on 11.02.2025; by then the respondent—Union of India to file their reply written submissions."
Accordingly, the Court will now hear the batch of petitions on February 11.
The ART Act fixes an upper age limit of 50 for women and 55 for men undergoing the treatment under the Act.
It is to be noted that in May 2024, the Court had suggested eleven issues on which parties could file written submissions before the final hearing of the matters.The issues suggested by the Union Government with respect to the Surrogacy (Regulation) Act, 2021 were as follows:
“1. Whether the prohibition of commercial surrogacy under Sections 4(ii)(b) & 4(ii)(c) of the Surrogacy (Regulation) Act, 2021 is constitutional?
2. Whether the right of a couple to avail surrogacy being restricted to married couples between the age of 23 to 50 years in case of female and between 26 to 55 years in case of male as provided in Section 4(iii)(c)(I) read with Section 2(1)(h) of the Surrogacy (Regulation) Act, is constitutional?
3. Whether the right of a single woman to avail surrogacy being restricted to only widows or divorcees between the ages of 35 to 45 years as provided under Section 2(1)(s) of the Surrogacy (Regulation) Act 2021, is constitutional?
4. Whether the right of an intending couple to avail surrogacy being restricted to only those couples who do not have a surviving child as provided under Section 4(iii)(c)(II) of the Surrogacy (Regulation) Act 2021, is constitutional?
5. Whether individuals who initiated the process of availing surrogacy prior to the enactment of the Surrogacy (Regulation) Act, 2021 have any right to avail surrogacy in a manner beyond the scope of the Surrogacy (Regulation) Act, 2021, save for cases falling within the ambit of Section 53 of the Act?"
As regards the Assisted Reproductive Technology (Regulation) Act, 2021, the Union had suggested the following issues:
“1. Whether the right to avail assisted reproductive technologies being available for only married couples where the woman is between the age of 21 and 50 years and the man is between the age of 21 and 55 years as provided under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021, is constitutional?
2. Whether an oocyte donor being permitted to only donate her oocytes once in her life under Section 27(4) of the Assisted Reproductive Technology (Regulation) Act, 2021 violates the reproductive autonomy of women and is, therefore, unconstitutional?
3. Whether Section 21(b) of the Assisted Reproductive Technology (Regulation) Act, 2021 ought to be read down in order to permit an ART clinic to perform a donor cycle without the involvement of an ART bank?
4. Whether Section 33 of the Assisted Reproductive Technology (Regulation) Act, 2021 prescribing offences, penalties and imprisonment for violations under the Assisted Reproductive Technology (Regulation) Act, 2021 is constitutional?”
5. Whether the requirement of consent of both husband and wife to avail an ART procedure as prescribed under Rule 13(1)(f)(iii) read with Form 8 of the Assisted Reproductive Rules, 2022 is legally sustainable?
6. Whether individuals who initiated the process of availing an ART procedure by freezing their embryos prior to the enactment of the Assisted Reproductive Technology (Regulation) Act, 2021 have any right to avail an ART procedure in a manner beyond the scope of the Assisted Reproductive Technology (Regulation) Act, 2021?"
The lead petition is a PIL filed through Advocate Mohini Priya, which challenges Section 2(s) of the Surrogacy Act, 2021, which excludes unmarried women from the scope of the definition of ‘intending woman’.The PIL was filed by an infertility specialist from Chennai, Tamil Nadu, Dr. Arun Muthuvel, challenging various contradictions in the Assisted Reproductive Technology (Regulation) Act, 2021, the Assisted Reproductive Technology (Regulation) Rules, 2022, the Surrogacy (Regulation) Act, 2021, and the Surrogacy (Regulation) Rules, 2022. It was also alleged that the legislation is discriminatory and violative of the constitutional rights of privacy and reproductive autonomy. In January 2023, the Apex Court issued the notice in the petition.
In December 2022, a Single Judge of the Kerala High Court had passed a Judgment permitting couples who claimed to have been undergoing treatment when the ART Act came into force on January 25, 2022 to continue treatment despite crossing the upper age limit prescribed under Section 21(g) of the ART Act. The same was stayed by a Division Bench of the High Court. The Division Bench had also stayed an interim order passed by a Single Judge 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.
Cause Title: Arun Muthuvel V. Union Of India [W.P. (C) No. 756 of 2022]
