The Calcutta High Court on Friday awarded interim relief to a married couple who were denied IVF (In vitro Fertilization) due to the age bar for couples under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021.
The provision requires a man to be over the age of 21 and under the age of 55 to be eligible for assisted reproductive technology treatments. The upper age limit for woman is 50 year old. In this case, the man was 56 years old.
The single judge bench of Justice Moushumi Bhattacharya stated that if temporary relief is not granted to the pair till the matter is finally decided, it will become increasingly difficult for the couple as their ineligibility will increase with each passing day.
It went further stated that the Act considers interim relief because it allows for the cryopreservation of any human embryo for ten years.
“The preparation for Assisted Reproductive Technology should be permitted to begin as further delay may frustrate the petitioners’ long-standing desire to have a child,” the court ruled.
Aside from that, the Court stated that the petition presents fundamental questions concerning identity, social unit fragmentation, and some inherent rights. “The definition of a “commissioning pair” refers to an infertile married couple without regard to whether the couple is made up of a man-woman, man-man, woman-woman, or transgender people,” the bench stated.
It also stated that Section 21(g) simply specifies the respective age limits of a “woman” and a “man” for ART as two independent entities, rather than treating the “man” and the “woman” as a unit in the sense of a “commissioning couple.”
As a result, it has asked the Union Ministry of Health and Family Welfare file its objection and response to the petition within three weeks.
The petitioners said that they looked into ART in 2019 after meeting the age requirements. However, owing to the lockdown, they were unable to continue, and when they returned to a fertility clinic in April 2022, they were informed that they had been disqualified for ART as petitioner no. 2. (husband) had crossed 55 years of age.
As an interim relief, the court ordered the Fertility Centre to collect the husband’s sperm for preparation of the embryo with a donor egg and keep it until the disposal of the petition.
The court ordered that the case be relisted again after 5 weeks.
