Kerala High Court Dismisses Pleas Challenging Upper Age Limit For Availing Assisted Reproductive Technology Services

The Kerala High Court recently dismissed a batch of writ petitions challenging the upper age limit prescribed to avail assisted reproductive technology services.Justice Sobha Annamma Eapen passed a common judgment in the batch of cases that had challenged the constitutional validity of Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 that prescribed the upper age limits for women as 50 years and men as 55 years for availing ART services.The petitioners in these cases were all preferred by either husband and wife or one of them who have crossed the upper age limit prescribed by the Act. They challenged the provision to the extent it prescribed maximum age for men and women to seek ART services from licensed clinics. They also sought a direction to the respondents to take immediate steps to provide them with ART services. The respondents in the various writ petitions included the Union of India, the State of Kerala, the State ART & Surrogacy Board, District Reproductive and Child Health Officer, various clinics providing ART services, etc.The petitioners contended that prescribing an upper age limit is violative of Article 14 of the Constitution of India. They also challenged the Act on the ground that it does not contain any transitional provision that provides for a smooth transition from the earlier legislation.The Union of India opposed the pleas and argued that the Act and its provisions were enacted for the welfare of the children, which the State is empowered to do since the Constitution of India mandates it to acts as the parens patriae for the protection and wellbeing of all, including children.Further, it was submitted that the issue regarding upper age limits for availing ART services was already considered by the Department Related Parliamentary Standing Committee on Health and Family Welfare, which recommended the age criteria as 21 to 50 years for women and 21 to 55 years for men.The Union also brought to the notice of the Court the Single Judge's decision in a batch of cases that challenged the Act on the same grounds as the present pleas. The Single Judge had passed certain directions to the National Reproductive Technology and Surrogacy Board. Two appeals were preferred by the Union against this judgment, one in 2024 [WA No. 696 of 2024] and the other in 2025 [WA No. 1331 of 2025]. The judgment in WA No. 696 of 2024 was rendered on 18.07.2025 and the Division Bench had allowed the appeal, setting aside the directions issued by the Single Judge and upholding the validity of Section 21(g).WA No. 1331 of 2025 was decided on 25.06.2025, in which the Division Bench observed that the Single Judge had not touched upon the constitutional validity of the provision but merely passed directions. The Division Bench had dismissed the appeal and the delay petition since the huge delay of 864 days was not properly explained by the Union.The petitioners contended that since two decisions were rendered by two separate Division Benches, the matter had to be referred to the Full Bench for consideration of the issue. It was also contended that since in the subsequent writ appeal, the delay petition was dismissed, it amounts to confirmation of the decision of the Single Judge.Countering the afore argument, the Union contended that the subsequent decision was rendered on merits while the first Division Bench judgment was not on merits. Therefore, the subsequent Division Bench judgment has to be followed.Justice Sobha remarked that the first decision of the Division Bench had not arrived at any ratio since the appeal was not decided on merits. It was further observed that while hearing the subsequent appeal, none of the parties raised the issue of res judicata.“The judgment in WA No.696 of 2024 dated 18.07.2025 is decided on merits considering the factual as well as legal aspects. Hence, this Court is bound by the judgment in WA No.696 of 2024…, an appeal filed by the Union of India against the directions of the learned Single Judge, which was allowed, upholding the findings negating the challenge to provisions of Section 21(g) of the Act. Therefore, I find that the petitioners are not entitled to any reliefs as claimed and the writ petitions are liable to be dismissed,” the judge observed.Thus, the Court dismissed the batch of writ petitions.Case No: WP(C) No.352/2023 & con. casesCase Title: XXX v. Union of India and Ors.Citation: 2026 LiveLaw (Ker) 91Counsel for the petitioners: Akash S., Girish Kumar M S, V.S.Varalekshmi, Devika Jayaraj, K.B.Rekha, George Mathews M.M.Anto, M.Unnikrishnan, R.T.Pradeep, M.Bindudas, G.Appan, P.Bijimon, R.Amla, S.S.Rajesh, T.K.Sandeep, Veena Harikumar, Swetha R., M.K.Dileep Kumar, A.D.Divya, Navya Sony, Lloyd John, Sreekanth K.M., Manjusha.M.S., Siyamol N.P., K.I.Sageer, Muhammed Yasil, T.Madhu, C.R.Saradamani, Renjish S. Menon, Vrinda T.S., Aiswarya Jayapal, P.B.Krishnan (Sr.), P.B.Subramanyan, Sabu George, Manu Vyasan Peter, Chithira Venugopal, Resma...

Kerala High Court Dismisses Pleas Challenging Upper Age Limit For Availing Assisted Reproductive Technology Services

K. Salma Jennath

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