The Rajasthan High Court has upheld the constitutional validity of age limits prescribed under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 (the “Act”), opining that the legislative framework sought to balance the desire to attain parenthood through medical assistance with the need to ensure the welfare and well-being of the child.

The division bench of Justice Inderjeet Singh and Justice Sandeep Taneja observed that a provision could not be held ultra-vires merely because it prescribed a disqualification, provided the disqualification had a nexus with the object sought to be achieved. In the present case, the provision had a nexus with the object of the welfare of both the mother and the child.

Section 21(g) of the Act prescribes age-related restrictions for availing the Assisted Reproductive Technology Services, i.e. between 21 to 50 years for women, and 21 to 55 years for men.

The petitioners were married couples wherein either the wife or the husband had exceeded the prescribed age limit, and being aggrieved, had challenged the provision before the Court.

It was argued that the prescription of the age limit was arbitrary, as it violated Article 21 by curbing personal liberty and right to give birth.

Further, as argued, it created an unequal classification between an unmarried-single woman and a married woman. While the former was eligible if she fell within the age bracket, the latter may be denied the services, despite falling within the bracket, if her husband had crossed the age limit.

On the contrary, the State argued that the provision was regulatory in nature and mere hardship of an individual could not be a ground to declare it unconstitutional. It was submitted that the restrictions were prescribed for prioritizing child's welfare, best-interests, safety and well-being.

After hearing the contentions, the Court perused instruction by Ministry of Health and Family Welfare dated March 31, 2023, regarding the reasons for prescribing the age limits, and observed,

“A perusal of the aforesaid reasons indicates that the prescription of the upper age limit is based, inter alia, on the consideration that parenthood entails a continuing responsibility to provide care, support and a stable environment to a child during the course of upbringing. The material also refers to life expectancy in India and the health hazards to both the mother and the child. It emphasizes that, while the desire of an infertile couple to become parents is an important consideration, the interests of a child born through ART services cannot be overlooked. The legislative framework, therefore, seeks to balance the desire to attain parenthood through medical assistance with the need to ensure the welfare and well-being of the child.”

Furthermore, the Court referred to Kerala High Court's observations in Jeshy C O Vs. Union of India and Ors. wherein while examining the validity of age restriction for prospective adoptive parents, it was held that it was not parents' rights that were paramount but best interest of the child that was sought to be adopted.

In this background, the Court held that the age restrictions had a nexus with the objective of welfare of the child and the mother, which was sought to be achieved. Hence, the age-related restrictions were not by themselves arbitrary or violative of personal liberty.

Furthermore, the Court highlighted that there was no distinction made in the definition of “woman” under the Act to differentiate between an unmarried-single woman and a married woman. It meant that even a married woman could avail the services under the Act, individually, even though her husband had crossed the age-limit, provided the husband gave consent in the prescribed manner.

The Court further stated that this position was fortified by Rule 13 of the Assisted Reproductive Technology (Regulation) Rules, 2022 (the “Rules”) which recognized that the procedures under the Act may be undertaken by a couple or by a woman.

“…impugned provision does not, by itself, create an arbitrary classification between a married woman and a single or unmarried woman. A married woman, if otherwise eligible, can also avail herself of ART services as an individual using donor semen, subject to fulfillment of statutory requirements, including that of consent of her husband.”

In this background, the petitions were dismissed.