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Centre defends 35-year age bar for prenatal testing in Supreme Court
The Centre’s affidavit cited the standard treatment workflow issued by the Indian Council of Medical Research (ICMR) that identifies 35 years as the threshold for “high-risk pregnancy”
The Union government has told the Supreme Court that pregnant women above the age of 35 are more susceptible to a complicated pregnancy and risk of prenatal complications as it defended the Pre-Conception and Pre-Natal Diagnostic Techniques (PC-PNDT) Act, 1994, which provides limited grounds for pregnant women aged below 35 to undergo prenatal diagnostic tests.
The Ministry of Health and Family Welfare (MoHFW) made the remarks in an affidavit filed on September 16, stating, “Medical researchers have found that women aged above 35 years are more susceptible to a complicated pregnancy and risk of prenatal complications as compared to those below the 35 years of age as they are at advanced maternal age.”
The Centre’s affidavit cited the standard treatment workflow issued by the Indian Council of Medical Research (ICMR) that identifies 35 years as the threshold for “high-risk pregnancy”. It said the Act provides “protective safeguards” to pregnant women aged above 35 years to undergo prenatal diagnostic tests for detection of any abnormalities to the foetus. “The policy decision to prescribe a cut-off age of 35 years is not arbitrary or baseless. There is a justified rationale behind prescribing a minimum age of 35 years,” it added.
The submission came in response to a public interest litigation (PIL) filed by lawyer Meera Kaura Patel who said that when the Supreme Court in a landmark 2022 decision (X vs. Principal Secretary, Health and Family Welfare Department, GNCTD) allowed reproductive autonomy to a woman to abort pregnancy, such restriction contained in Section 4(3)(i) of the PC-PNDT Act is arbitrary and violates fundamental rights of pregnant women.
A bench of justices Surya Kant and Joymalya Bagchi heard the matter on September 26 and adjourned the case to November 17 for considering the Centre’s affidavit and Patel’s response to the same.
Section 4 of the Act deals with “regulation of prenatal diagnostic techniques”. The relevant provision questioned by Patel says, “No prenatal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely...age of the pregnant woman is above 35 years.”
This provision permits pregnant women who have suffered two or more miscarriages, are exposed to radiation or harmful chemicals, or have a family history of mental retardation or physical deformity, to undergo the diagnostic tests. A Central Supervisory Board (CSB) created under this Act can also specify other conditions from time to time.
The Centre’s response denied Patel’s assertion that the law creates a bar on pregnant women under 35 years to undergo prenatal tests. It cited section 4(2) of the same Act to state that prenatal diagnostic techniques can be undergone by pregnant women, including those below 35 years, for detection of “chromosomal abnormalities, genetic metabolic diseases, haemoglobinopathies, sex-linked genetic diseases, congenital anomalies”, among others. The CSB, in 2022, approved 23 other disorders to this list mentioned in section 4(2).
“It is a false impression created that a woman under the age of 35 years can in no circumstances avail the benefit of prenatal diagnostic techniques to detect the abnormalities of the nature set out in Section 4(2),” the reply by Centre said.
While stating that “these indications are age independent”, the response further said, “A woman below the age of 35 years can avail prenatal diagnostic techniques to detect abnormalities/disease specified in Section 4(2) if she satisfies any of the other conditions (besides age bar) specified in Section 4(3)”.
Patel told the court that section 4(2) does not take into consideration genetic disorders that are not hereditary and can result from spontaneous mutation in the foetus. In her response to the Centre’s submissions, she said, “This court has affirmed that compelling continuation of unwanted or abnormal pregnancy is an affront to dignity and autonomy. Access to accurate diagnosis is an antecedent to any meaningful exercise of reproductive rights.”
Routine prenatal screening of parents and foetus can aid early detection and timely medical intervention of disorders such as spinal muscular atrophy, etc, Patel said. She also recommended an awareness campaign to educate the public on genetic disorders, risks of consanguinity, and early antenatal care.
The court had issued notice on Patel’s petition in October 2022 to ascertain Centre’s stand on whether the age bar of 35 years is a restriction on reproductive rights, particularly when the top court in its 2022 decision upheld an unmarried woman to undergo abortion under Medical Termination of Pregnancy Act, 1971 (MTP).
The Centre said that the 2022 decision is inapplicable to the present case as the PC-PNDT Act does not contemplate discrimination based on marital status of the pregnant woman but regulates the pregnancy to curb instances of sex selective abortion.
Describing the PC-PNDT Act as a “social welfare legislation”, the Centre said that it is intended to prevent female foeticide.
The National Sex Ratio at Birth (SRB) in the country during 2021-2023 stood at 917 females per 1,000 males, the affidavit said, citing the Sex Ratio Survey Report 2023. This has improved over the earlier review period (2016-2018) when SRB was 899 females per 1,000 males.
According to the Centre, many instances of sex selective abortions go unreported or undetected and, hence, there is a need to ensure the law is made robust to prevent its misuse.
Dr Nandita Palshetkar, former president of Federation of Obstetrics and Gynaecological Societies of India (FOGSI) said, “While age itself isn’t a disease, pregnancies after 35 do come with statistically higher risks, and that’s a reality we manage carefully in clinical practice. Women in this age group have a greater chance of chromosomal abnormalities, gestational diabetes, hypertension, and other complications that can affect both mother and foetus. Prenatal diagnostic tests play an important role in identifying these risks early so we can intervene appropriately.”
However, she also said that access to such testing should be guided by medical need, not just chronological age. “There are women under 35 with significant family histories, previous obstetric complications or genetic concerns who also benefit from diagnostic screening. The PC-PNDT Act serves a vital purpose in preventing misuse of prenatal technologies, particularly for sex selection, but it must be implemented with nuanced medical judgment so that restrictions don’t inadvertently limit essential care for younger high-risk patients.” she said.
Dr Archana Dhawan Bajaj, gynaecologist and IVF expert at Nurture, echoed similar views.
“It is well-established in obstetric medicine that the risk profile of pregnancy changes after 35. We see a higher incidence of chromosomal anomalies like Down Syndrome along with increased chances of miscarriage, pre-eclampsia, and complications during delivery. Prenatal diagnostic tests are therefore recommended more routinely in this age group to ensure timely detection and counselling,” she said. “However, risk is not defined by age alone. Many women below 35 may have a concerning obstetric history, genetic predisposition, or underlying medical conditions that warrant the same level of screening. Any policy, including the PC-PNDT Act, must strike a balance between preventing unethical practices, especially sex selective testing and permitting necessary medical evaluation. Limiting access too rigidly for younger women could delay diagnosis and compromise outcomes. Clinical discretion, rather than an age cut-off, should guide the use of prenatal diagnostics so that both maternal and fetal health remain the central priority.”
