The Kerala High Court ruled that a married woman can undergo IVF with donor sperm despite her husband’s age exceeding the ART Act limits, provided he consents, emphasizing individual eligibility.
Kerala: The Kerala High Court has ruled that a married woman can undergo in-vitro fertilisation (IVF) using a donor sperm even if her husband exceeds the age limit prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), as long as he provides consent.
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Justice CS Dias examined the provisions of the Act and noted that Section 21(g) of the ART Act sets an upper age limit of 50 years for women and 55 years for men seeking ART services. However, the Court clarified that the Act does not mandate a combined age criterion for ‘commissioning couples’ (infertile married couples approaching ART clinics) and does not restrict a woman from undergoing the procedure independently if she meets the eligibility criteria.
“The Act does not contain the concept of combined age for commissioning couples analogous to the composite age criteria applicable to prospective adoptive parents. Instead, the Act adopts an individual-centric approach, whereby the age eligibility criteria are separately laid down for women and men rather than collectively for a couple,”
the judge stated.
The Court emphasized that denying ART services based on the husband’s age would create an unfair classification between married and single women, as the latter are permitted to undergo ART procedures without any restrictions related to a spouse’s age.
“Such a classification would be a fallacy and would put married women at an unfair disadvantage when compared to single women to access ART procedures….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,”
the Court ruled.
In this case, the wife was 46 years old and the husband was 57. They had undergone IVF treatments earlier and were advised by doctors to undergo another procedure. However, the hospital denied them further ART treatment, citing the husband’s age limit under the ART Act.
The wife, who intended to undergo IVF using a donor sperm, approached the Court after being denied treatment despite meeting the individual eligibility criteria. The petitioners argued that since only the wife was undergoing the procedure using a donor male gamete, her husband’s age should not be a determining factor.
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The hospital and government authorities opposed the plea, stating that both spouses must meet the age criteria as they qualify as a ‘commissioning couple’ under Section 2(1)(e) of the ART Act. They cited Rule 13(1)(f)(iii) of the Assisted Reproductive Technology (Regulation) Rules, 2022 (ART Rules), which requires a married woman to obtain her husband’s consent for ART procedures.
However, the Court rejected these arguments, stating that the ART Act prescribes separate age limits for men and women rather than imposing a collective restriction for couples.
“A holistic understanding of the Act and the associated ART procedures and services reveal that the only legal requirement that the 2nd petitioner has to comply with to enable the 1st petitioner to apply the ART procedure is to give his consent in Form 8, undertaking that he would acknowledge the child born through the procedure as his legal heir,”
the Court observed.
The Court concluded that the wife’s eligibility for ART services must be assessed independently of her husband’s age, provided he consents to the procedure. As a result, the hospital was directed to proceed with the IVF procedure for the wife using donor sperm.
The couple was represented by advocates Akash S, Girish Kumar MS, and Rich Theresa Robert. Advocate M Sajna appeared for the Central government, while Government pleader Vidya Kuriakose represented the State.
Case Title – Sajitha Abdul Nazar & anr v Union of India & ors
Read the Judgement here:
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