Gauhati High Court Upholds Age Restriction Under Assisted Reproductive Technology Act, Says It Ensures Well-Being Of Mother & Child

The Gauhati High Court recently upheld the constitutional validity of Section 21(g) of Assisted Reproductive Technology (Regulation) Act 2021 which prescribes an age limit for men and women who can avail ART services, observing that provision was enacted to ensure well-being of the mother and child. 

For context, as per Section 21(g), ART services can be provided to women who are above the age of 21 years and below the age of 50 years and to men who are above the age of 21 years and below the age of 55 years. 

The petitioners-a married couple had challenged the constitutional validity of Section 21(g) ART Act seeking a direction to the respondent authorities to permit them to avail Assisted Reproductive Technology (ART) services, notwithstanding their age-ineligibility under the provision. 

Referring to the provision a division bench of Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury in its order observed that there was no dispute that  the right to make reproductive choices forms part of personal liberty under Article 21 of the Constitution of India, also recognized by the Supreme Court in Suchita Srivastava & Anr. Vs. Chandigarh Administration (2009).

Yet, the bench said, the Supreme Court had consistently held that the protection of Article 21 of the Constitution of India does not render every personal choice immune from regulation. The court said that Constitutional rights, particularly in the domain of social welfare and public health, operate within a framework of permissible regulation. It said:

"The impugned provision must, therefore, be assessed not on the touchstone of absolute autonomy but within the well-established limits of constitutional review of social legislation. 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 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 bench further said that a statute enacted by the Parliament carries a presumption of constitutionality and the burden of establishing unconstitutionality "lies heavily upon the challenger".

It further said that it had been 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. The provisions do not suffer from manifest arbitrariness and do not violate Article 14 of the Constitution of India," the court said.

After being unable to conceive naturally, the petitioners had commenced medical consultations for an Assisted Reproductive procedure in 2020; but the onset of the COVID-19 pandemic had interrupted their course of treatment.

After the procedure did not yield a successful outcome in one hospital, the petitioners in 2024 approached another hospital to avail ART services. However on 13.03.2024, the hospital declined to treat the petitioners on the ground that they did not meet the age-eligibility criteria prescribed under the Act. 

The grievance of the petitioners is 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.

The petitioners argued that a 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. It was contended that since the petitioners had commenced treatment prior to the enactment of the 2021 Act the subsequent statutory restriction ought not to be applied to them. 

The respondents contended that the 2021 Act constitutes a comprehensive regulatory framework governing ART enacted to address ethical, medical, and societal concerns. It was argued that age limits are founded on scientific evidence relating to the maternal health risks, foetal outcomes, and child welfare, and that the Court must accord due deference to legislative policy in such matters. 

The court rejected the submission of the petitioners that they had initiated the ART prior to the coming into force of the 2021 Act, observing that the same does not create any vested right for the petitioners to continue such treatment contrary to the statutory prescription.

It said that the law applicable on the date when eligibility is considered must govern access to the statutory benefits, even if the earlier attempt failed prior to the enactment of the Act, 2021, and was not a continuing process.

"To carve out, 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," it said. 

"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 bench added. 

The plea was dismissed.

Case title: X & Anr. v/s Union of India and Others

WP(C)/2344/2024 

Click Here To Read/Download Order

Citation: 2025 LiveLaw (Gau) 85