Kerala HC Stays Judgment Permitting Couple Undergoing Treatment When ART Act Came Into Force To Continue Process Despite Crossing Upper Age Limit

A Division Bench of the Kerala High Court has stayed the operation of the Judgment by a Single Judge of the High Court permitting couple who claimed to have been undergoing treatment when the Assisted Reproductive Technology Act, 2021 (ART Act) came into force on January 25, 2022 to continue treatment despite crossing the upper age limit prescribed under Section 21(g) of the ART Act. The interim order has been passed in appeals filed by the Central Government.

The Division Bench has also stayed an interim order passed by another single judge of the Court permitting couples to continue ART services if only one among them (husband in the particular case) has crossed the upper age limit prescribed under Section 21(g) of the ART Act.

A Division Bench comprising Justice Anil K. Narendran and Justice Harisankar V. Menon held, “We also notice that in Writ Appeal No.701 of 2024, arising out of W.P(C) No.34687 of 2023 the interim order was granted in the writ petition taking into account the fact that the wife is below 50 years of age and therefore, ART services can be permitted to be continued. However, as already found, insofar as the provisions of Section 21(g) of the Act have been upheld by this Court as constitutional, we see no reason to permit the continuance of ART services in that case also. We are not called upon to consider in the present case a situation where one of the parties is below the prescribed age and ART services are sought for from a donor who is within the age limit.”

Writ Petitions were filed by couples who claimed that they were undergoing Assisted Reproductive Technology services when the ART Act came into force with an upper age limit of 50 years for women and 55 years for men under Section 21(g). They contended that the then-existing legal regime did not have any upper age limit. They challenged the constitutionality of Section 21(g) as violative of Articles 21 and 14 of the Constitution of India. 

By the impugned Judgment,  a Single Judge of the High Court found that it is difficult to hold that the prescription of the upper age limit in Section 21(g) of the ART Act is excessive and arbitrary so as to warrant judicial interference. However, after finding so, the Single Judge observed that the imposition of age restriction, without a transitional provision, would be irrational and arbitrary, especially when some of the parties were undergoing ART services when the ART Act was introduced.

The Single Judge then directed the National Board under the ART Act to alert the Central Government about the need for having a relook at the upper age limit prescribed in Section 21(g) of the Act and permitted the Petitioners to continue treatment. 

Similarly, interim orders were passed in similar cases on the basis of finding that "as long as the statute does not, prima facie, maintain that both the man and woman should be able to apply for the services together, the women are entitled to relief".

The Division Bench noted that the directions were passed permitting couple to continue treatment even though Section 21(g) of the Act was not declared as unconstitutional. The Court held that unless the provisions of the statute are declared as unconstitutional, no directions can be issued to the authorities to act contrary to the provisions of the statute.

"Thus, it is noticed that in a writ petition filed, when the provisions of the statute are not held to be unconstitutional, the writ court is not expected to issue further directions in the matter, like the one issue in the case at hand", the Court held. 

The Court found that the Expert Committee of the National Board had given reasons for prescribing the upper age limit, which were not challenged.  "A perusal of the opinion given by the members of the committee, throws light on the reason for prescribing an upper age limit for ART services. It is to be noticed that the committee consists of experts in the field. The Committee has given valid reasons for prescribing an upper age limit. There is no challenge to the above opinion. We see no reason to doubt their wisdom", the Division Bench held.

Accordingly, the High Court stayed the operation of the impugned judgments/orders.

Cause Title- Union of India v. XXXX

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