A Couple Can Avail Benefit Of Assisted Reproductive Technology If One Of Them Qualify On Upper Age Limit Even If The Other Does Not: Calcutta HC
The Calcutta High Court has granted permission to an infertile couple to utilize Assisted Reproductive Technology (ART) to conceive a child, despite the husband's age being above the statutory limit set under the Assisted Reproductive Technology (Regulation) Rules, 2022.
The petitioners, a married couple who had been childless despite being married for over thirty years, sought to avail ART services to have a child. They argued that the only obstacle to receiving the service was the husband's age, as the ART regulations stipulate that women can undergo the procedure if they are between the ages of 21 and 50, and men between the ages of 21 and 55. Although the wife met the age criteria, the husband did not.
A Bench of Justice Amrita Sinha ruled in favor of the couple, acknowledging that while the wife fell within the prescribed age limit for ART, the husband, at 58 years old, exceeded the age limit.
The Court noted, “In the instant case, the woman falls within the prescribed age limit but the man is over aged. Due to over age of the husband, the clinic is refusing to provide the service to the couple.”
The Court added, “The clinic or the bank does not have any authority to refuse service if a single partner of a married couple intends to avail the service. Had the wife approached the clinic individually, the clinic could not have refused to provide ARTS to her. Here, since the parties are in a cordial relationship, they approached the clinic jointly as commissioning couple.”
The Court emphasized, “The medical report of the wife discloses that the lady is physically fit to hold the embryo. For the ineligibility of the husband, the wife ought not to suffer. This is so because the husband has no physical participation in any of the procedures involved for the birth of the child through ARTS.”
Advocate Achin Jana appeared for the Petitioners and Advocate Biswabrata Basu Mallick appeared for the Respondents.
The clinic had initially refused to provide ART services due to the husband's age. However, the Court clarified that a clinic or sperm bank does not have the authority to refuse services to a married couple simply because one partner exceeds the age limit. Had the wife sought ART services independently, the clinic would not have been able to deny her. Since the couple was in a stable and cordial relationship, they approached the clinic together as a commissioning couple.
The State's counsel referred to guidelines issued by the Special Secretary (MERT) and Chairperson of the SAA under the ART and Surrogacy Act, which highlighted that men above the age of 55 are not eligible for ART services. However, the petitioners referenced previous rulings by the Calcutta High Court, such as the orders in Sanchita Ghosh & Anr. Vs. Union of India & Ors. (April 2024) and Sudarshan Mandal & Anr. Vs. State of West Bengal & Ors. (April 2024), to support their case.
The Court acknowledged that the ART Act was designed to address reproductive health issues, specifically providing a solution for couples who are unable to conceive through natural means. Given that the mother was still eligible to carry a child under the ART Act, the Court ruled in favor of the couple, allowing them to proceed with the ART procedure.
Cause Title: Shyamoli Saha & Anr. v. The State of West Bengal & Ors.
Appearance:
Petitioners: Advocates Achin Jana, Bhaskar Dalui, Gargi Dhang, and Chetna Rustagi
Respondents: AGP Biswabrata Basu Mallick, Advocates Debraj Sahu, Dhananjay Banerjee, Suman Chakraborty, Prosenjit Ghosh
