The Punjab and Haryana high court (HC) has held that under the assisted reproductive technology (ART) services, the treatment can’t be denied to a couple even if one of them qualifies the upper age limit prescribed under Assisted Reproductive Technology (Regulation) Act, 2021.
“Section 21 (g) of the Act makes it mandatory for the clinic to apply ART services to a woman only if she is above the age of 21 years and below 50, and to a man if he is above 21 and below 55. This sub-provision further reinforces that age restriction has been placed on individual gender. There is no age restriction for a couple,” the bench of justice Suvir Sehgal observed while directing that the couple be permitted to avail ART services.
The petitioners were married in 2004 and have consulted various doctors in India and abroad, but the wife had been unable to conceive. They approached an IVF Fertility Centre in Jalandhar for treatment. However, they were told that they could not be given treatment as the husband had surpassed the age of 55 years and is debarred under the 2021 law from undergoing the treatment. It was following that they had approached the HC.
The Centre, in its response, had said that the husband has exceeded the age criteria prescribed under 2021 law. Hence, they are ineligible to avail ART services. The age restriction has been laid down in the Act of 2021 after considering the best interest of the child to be born through the ART procedure. They fall within the definition of a “commissioning couple”, which requires satisfaction of the twin conditions regarding age laid down in Section 21(g) (i) and (ii) of the Act of 2021, the central government counsel had told the court.
{{/usCountry}}The Centre, in its response, had said that the husband has exceeded the age criteria prescribed under 2021 law. Hence, they are ineligible to avail ART services. The age restriction has been laid down in the Act of 2021 after considering the best interest of the child to be born through the ART procedure. They fall within the definition of a “commissioning couple”, which requires satisfaction of the twin conditions regarding age laid down in Section 21(g) (i) and (ii) of the Act of 2021, the central government counsel had told the court.
{{/usCountry}}The central government counsel had referred to proceedings of the Standing Parliamentary Committee on Health and Family Welfare, as well as the minutes of the meeting of the national board, wherein the restrictions regarding the age limits were discussed.
The court observed that Act of 2021 defines the “commissioning couple” as an infertile married couple, who approach an ART clinic or bank for obtaining its authorised services. “The combined age of the commissioning couple has not been laid down under the statute. Section 2 (1) (n) of the Act of 2021 lays down that patients means an individual or a couple, who approach a registered ART clinic for management of infertility. The term patients, therefore, recognises the concept of a couple as being distinct from an individual,” it said.
The court said the woman falls within the eligibility criteria as she is less than 50 years and is not debarred from seeking ART. Hence, hospital/ Centre cannot deny ART services to petitioners merely because one of them has crossed the threshold age limit laid down under 2021 law, the court noted.