Man has no role in IVF birth beyond being supportive partner: Calcutta High Court

The petitioners, a married couple, have approached the Calcutta High Court seeking directions to allow them to undergo In-Vitro Fertilisation (IVF) treatment under the ART Act, 2021. The couple wanted to conceive by obtaining sperm and ovum from an ART bank.

Advocate Swapnadwip Roy, appearing for the couple, submitted that they have been married since 2014 and have not been blessed with a child. Roy added that although the couple was medically fit, the hospital refused to proceed with IVF because the husband was 57 years old, exceeding the upper age limit of 55 for men (50 years for women) prescribed under the ART Act.

Justice Krishna Rao noted the wife’s medical report showed that she is physically fit and eligible to avail ARTs, both age-wise as well as health-wise.

He also relied on this court’s decision in Shyamoli Saha vs State of West Bengal (2024), where IVF was permitted despite the husband being over the prescribed age limit under the ART Act.

Advocates Sudipa Banerjee and Manisha Paswan, representing the state, contended that the wife is 49 years old and the husband is 57 years old, exceeding the maximum age prescribed for IVF under Section 21(g)(ii) of the ART Act, 2021, and hence, the couple was not eligible.

ART Rules

The Assisted Reproductive Technology (Regulation) Rules, 2022, provide for reasonable checks and balances, and a consent form must be signed by the couple or the woman to indicate their acceptance of ART. The form specifies that there is no guarantee that the oocytes (immature female reproductive cells) will be retrieved in all IVF cases, or the resulting embryos would be of suitable quality to be transferred.

Under the rules, the couple or the woman is made aware of the risks of the IVF procedures involved. There is no assurance that pregnancy will result in the delivery of a normal living child, and the uncertainty of the outcome of the procedures is fully explained to the couple or the woman.

As per the Act, “commissioning couple” means an infertile married couple who approach an ART clinic or bank for obtaining the authorised IVF services under the Act. “Gamete Donor” has been defined as a person who provides sperm or oocytes intending to enable an infertile couple or woman to have a child. “Patients” have been defined as an individual or couple who go to any registered ART clinic for management of infertility.

“Woman” has been defined as any woman above the age of 21 years who approaches an ART clinic or bank for obtaining its authorised services. Section 21 (g) of the Act bars the clinic from applying it to a woman who does not meet the prescribed age criteria.

Court stresses individual right to access ART

• The term “patient” in the Act permits an individual to avail the ART facility irrespective of gender. It noted that the Act does not bar an individual partner of a married couple from availing ARTs independently.
• It is not necessary that the service has to be availed jointly by a married couple. There is no provision in the Act which bars a married woman from approaching the clinic individually for availing the benefit of ART.
• The bar will not have any effect if the wife approaches the clinic to seek the IVF service unilaterally. The ART 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.
• The wife’s medical report discloses that she is physically fit and eligible to avail ARTs, both age-wise and health-wise.
• Here, since the parties are in a cordial relationship, they approached the clinic jointly as a commissioning couple.

Couple eligible, HC rules

The age limits prescribed under the ART Act serve a legitimate purpose and prevent the misuse of such technology, the court noted. However, the law cannot be interpreted or applied in such a manner that it becomes unworkable.

It underlined that denying ART to the wife despite her being eligible would be unjust merely because her husband exceeded the prescribed limit for IVF. It held that the wife should not suffer for her husband’s ineligibility, especially when he has no physical participation in any of the procedures involved in the birth of the child.

The court opined that the couple is eligible to avail the facility of ARTs and directed the hospital to provide such facility to the couple in accordance with the law.

Husband’s age can’t bar parenthood

Earlier, in a judgement, the Chhattisgarh High Court granted a couple (woman aged 49 and man 55) permission to proceed with IVF treatment, ruling that the wife remained within the statutory age limit, both partners were medically fit, and a denial of treatment would constitute a “permanent deprivation” of their right to experience parenthood.

The couple had lost their only child in 2022, causing them immense emotional and psychological distress, on account of which they were unable to immediately take any steps towards expanding their family.

Noting that the case fell within the category of exceptional circumstances warranting judicial intervention, Justice Amitendra Kishore directed the IVF clinic authorities to permit and proceed with the IVF treatment of the couple, who had been denied the procedure on the ground that the husband had crossed the prescribed age under the Assisted Reproductive Technology (ART) (Regulation) Act, 2021.