Based on science, ensures wellbeing of mother, child: Gauhati High Court junks challenge to ART provision prescribing age limit

“Section 21(g) prescribes an upper age limit based on considerations of medical science, ethical standards, and the welfare of both the woman undergoing treatment and the child to be born. These considerations fall squarely within the legislative domain,” the court observed.

The upper age limit for women is 50 years, and the lower age limit is 21 years, whereas for men, the upper and lower age limits are 55 and 21 years, respectively.

The court highlighted that it does not evaluate the wisdom of legislative choices but examines whether the choice made transgresses the constitutional boundaries. Fixation of the age limit has consistently been held to be a matter of policy.

“Such fixation can be said to be arbitrary when it is a case of ‘picked out from a hat”; in the present provision, the same is based on the well-being of the mother and child,” the order added.

Case

The couple filed the plea before the court after they were denied the ART services by a hospital in 2024, on the grounds of exceeding age limits mandated by Section 21(g) of the ART Act, 2021.

The couple initiated fertility consultations in 2020, when they were unable to conceive naturally. Following a failed procedure and pandemic-related delays, they sought further ART services in 2024 and were denied.

The petitioners urged that the reproductive choice and aspiration to parenthood are integral to the right to life and personal liberty under Article 21 of the Constitution of India.

Arguments

Appearing for the petitioner, advocate B K Gogoi argued that the statutory prescription of an upper age limit under Section 21(g) violates their fundamental rights under Articles 14 and 21 of the Constitution of India by foreclosing access to ART services despite their individual medical fitness and by disproportionately denying them reproductive autonomy.

Gogoi further submitted that the reproductive choice and aspiration to parenthood are integral to the right to life and personal liberty under Article 21 of the Constitution of India.

Gogoi further argued that rigid age-based exclusion fails to account for individual medical assessments and is, therefore, arbitrary and disproportionate, offending Article 14 of the Constitution of India.

Gogoi also urged that since the petitioners had commenced treatment before the enactment of the Act, 2021, the subsequent statutory restriction ought not to be applied to them.

Representing the state, advocates D J Das and B Chakravarty argued that the Act, 2021, constitutes a comprehensive regulatory framework governing ART, enacted to address ethical, medical, and societal concerns.

They further submitted that the age limits are founded on scientific evidence relating to the maternal health risks, fetal outcomes, and child welfare, and that the court must accord due deference to legislative policy in such matters.

Findings

• A statute enacted by Parliament carries a presumption of constitutionality. The burden of establishing unconstitutionality lies heavily upon the challenger.
• Well settled that the economic and the social welfare legislations are entitled to the judicial deference, particularly where the classification adopted has a rational nexus with the object sought to be achieved.
• The age-based classification under Section 21(g) applies uniformly to all intending couples. It is founded on an intelligible differential and bears a direct nexus to the regulation of ART services in a manner that is safe, ethical, and socially responsible.
• Provisions do not suffer from manifest arbitrariness and do not violate Article 14 of the Constitution of India.

Decision

The court held that the petitioners had initiated the ART prior to the coming into force of the Act, 2021, which does not create any vested right to continue such treatment contrary to the statutory prescription.

“The law applicable on the date when eligibility is considered must govern access to the statutory benefits, even if the earlier attempt failed before the enactment of the Act, 2021, and was not a continuing process,” it added.

The court said that the individual exemptions on the grounds of hardship or medical fitness would amount to substituting judicial discretion for legislative policy. Such an exercise would traverse beyond the permissible limit of constitutional adjudication.

“On a careful evaluation of the statutory scheme, the constitutional principle governing judicial review and the precedence holding the field, we are of the considered view that Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 withstands the constitutional scrutiny and does not infringe Articles 14 or 21 of the Constitution of India,” the court held.