The Kerala High Court has ruled that a married woman of eligible age can independently undergo Assisted Reproductive Technology (ART) procedures, even if her husband surpasses the eligibility criteria, provided he gives his consent. The verdict clarifies the interpretation of the ART (Regulation) Act, 2021, reaffirming that eligibility is determined individually for men and women rather than as a couple.
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The case involved a 46-year-old woman, Sajitha Abdul Nazar, who sought to undergo in-vitro fertilization (IVF) at Sabine Hospital and Research Centre. Her husband, Abdul Nazer P, aged 57, had crossed the upper age limit of 55 years prescribed under Section 21(g)(ii) of the ART Act. The hospital refused the procedure, arguing that both partners in a "commissioning couple" must meet the age eligibility requirements.
Court's Interpretation of the ART Act
Justice C.S. Dias, presiding over the case, examined the legal framework governing ART services. The court found that the ART Act adopts an individual-centric approach, defining separate age criteria for men and women under Section 21:
- Women aged 21 to 50 years are eligible for ART procedures.
- Men aged 21 to 55 years can avail ART services.
The court emphasized:
“The provision reinforces that the age restriction is gender-specific rather than couple-specific, reinforcing that eligibility depends on the individual's age rather than the couple’s combined age.”
Legislative Intent and Parliamentary Report Analysis
The court referred to Report No.129 of the Parliamentary Standing Committee on Health and Family Welfare, which had initially proposed an upper age limit of 45 years for women, 50 years for men, and a combined age limit of 90 years for couples. However, Parliament deliberately omitted any combined age criterion for commissioning couples, recognizing the distinct nature of ART procedures.
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Additionally, the court noted that the Adoption Regulations, 2022 explicitly provide age limits for adoptive couples but the ART Act does not impose a similar restriction. This indicated that the legislature intended to treat men and women as distinct legal entities rather than impose uniform couple-based criteria.
Impact on Married and Single Women
The court pointed out a potential inconsistency in denying ART procedures to married women based on their husband's age while allowing single women to access the same treatment. Justice Dias illustrated this by stating:
"If a married woman is ineligible for ART solely because her husband has surpassed the age limit, she would become eligible immediately upon legal separation or widowhood. Such a classification would be inequitable and contrary to legislative intent."
Requirement of Spousal Consent
The court clarified that the only legal requirement for a married woman in such cases is that her husband must provide consent in Form 8, acknowledging the child born through ART as his legal heir.
The writ petition was allowed, and the hospital was directed to provide ART services to the petitioner. The court concluded that denying the procedure solely based on the husband's age was an unfair interpretation of the law.
Counsel for Petitioners: Advocates Akash S., Girish Kumar M S, Richu Theresa Robert
Counsel for Respondents: Advocate M Shajna, Government Pleader Vidya Kuriakose
Case Title: Sajitha Abdul Nazar v Union of India
Case No: WP(C) NO. 31161 OF 2024
