Shreya Gupta
On February 24, 2025, the Kerala High Court ruled that a married woman is entitled to undergo in-vitro fertilization (IVF) using a donor gamete even if her husband exceeds the upper age limit prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), as long as he provides consent.
Justice CS Dias heard this case and examined the provisions of the Act. He 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 Act does not mandate a collective age criterion for a ‘commissioning couple’—an infertile married couple approaching ART clinics—nor does it impose restrictions on a woman from undergoing the procedure independently if she meets the eligibility criteria. The Court clarified that, unlike the composite age criteria applied to prospective adoptive parents, the ART Act follows an individual-centric approach by prescribing separate age limits for men and women instead of a combined age restriction for a couple.
The Court further emphasized that refusing ART services based on a husband’s age would create an unfair classification between married and single women. The latter are permitted to undergo ART procedures without any restrictions concerning a spouse’s age, and imposing such a limitation on married women would put them at a disadvantage. The Court stated that there is no express provision in the Act restricting commissioning couples based on their combined age. Therefore, a woman who is otherwise eligible under Section 21(g)(i) of the Act can avail herself of the ART procedure, even if her husband surpasses the prescribed age limit.
In the present case, the wife, aged 46, and her husband, aged 57, had undergone IVF treatments at a hospital. Following medical advice, they sought another round of treatment. However, the hospital denied them further ART procedures, citing the husband’s age, which exceeded the 55-year limit set for men under the ART Act. The wife, intending to undergo IVF using a donor sperm, was denied treatment despite meeting the individual eligibility criteria. Consequently, she approached the Court, arguing that since only she was undergoing the procedure using a donor male gamete, her husband’s age should not be a determining factor. The petitioners contended that the hospital’s refusal violated their fundamental right to life under Article 21 of the Constitution.
On the other hand, the hospital and government authorities opposed the plea, arguing that both spouses must meet the age criteria since they qualified as a ‘commissioning couple’ under Section 2(1)(e) of the ART Act. They relied on 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 before undergoing ART procedures. It was argued that allowing the procedure without the husband meeting the eligibility criteria would defeat the purpose of the law, which was framed to ensure responsible parenthood and consider the welfare of the child to be born.
However, the Court rejected these arguments and clarified that the ART Act does not impose a collective age restriction for commissioning couples but instead prescribes separate age limits for men and women. It reiterated that the Act follows an individual-centric approach, and the only legal requirement for a married woman seeking ART services, apart from meeting the age criteria, is to obtain her husband’s consent in Form 8, as per Rule 13(1)(f)(iii) of the ART Rules. Since the wife in this case had complied with this requirement, the Court held that she was eligible to undergo the procedure.
The Court further observed that a holistic interpretation of the Act and associated ART procedures indicates that the only legal requirement for the husband is to provide consent in Form 8, acknowledging the child born through ART as his legal heir. Since this condition was met, the wife’s eligibility for ART services should be assessed independently of her husband’s age. Based on this, the Court directed the hospital to proceed with the IVF procedure for the wife using donor sperm.
The couple was represented by advocates Akash S, Girish Kumar MS, and Richu 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
Case Number: Writ Petition (C) NO. 31161 OF 2024
Bench: Justices C.S. Dias