Why should there be an Upper Age bar for going for Assisted Reproductive Technology? HC asks Health Ministry, government to respond

Chennai: While considering a plea by a married middle-aged couple, who challenged the upper age bar for availing services under the Assisted Reproductive Technology, the Madras High Court has directed the Central government standing counsel to obtain instructions from the Union Health Ministry by Monday.

The petitioner couple has challenged the constitutional validity of Section 21 (g) of the Assisted Reproductive Technology (Regulation) Act of 2021 which allows only women between 21 and 50 years and men between 21 and 55 years of age to avail of such services.

Urging the HC bench of Acting Chief Justice T. Raja and Justice D. Bharatha Chakravarthy to pass an interim order in this regard, the petitioner couple has prayed for permission to cryopreserve the male partner’s semen.

In Chapter IV of the Act, the Government has specified the Duties of Assisted Reproductive Technology Clinic and Assisted Reproductive Technology Bank. Section 21 (g) under Chapter IV states,

"the clinics shall apply the assisted reproductive technology services,—

(i) to a woman above the age of twenty-one years and below the age of fifty years;

(ii) to a man above the age of twenty-one years and below the age of fifty-five years;"

In the present case, the couple tied the matrimonial knot on February 3 at a temple in Mugalivakkam in Chennai and they also registered their marriage. The age of male partner was 58 years and his wife was 49 years old. While the male partner got married for the first time, the female partner divorced her first husband back in 2021. However, she did not have any biological children through her first marriage.

Also Read: Union Health Minister convenes meeting on ART, Surrogacy Act with state health ministers

Assisted Reproductive Technology (ART) includes medical procedures such as in vitro fertilization (IVF), intracytoplasmic sperm injection (ICSI), and cryopreservation of gametes or embryos for addressing infertility. Using this process, attempts are made to secure pregnancy by handling the sperm or oocyte outside the human body and then transferring the gamete or embryo inside the woman's reproductive system.

However, the counsel for the petitioner couple, J. Kalidas informed the Court that when the couple approached a private fertility centre in Chennai for availing of such services, they were informed that even though the female partner was well within the upper age bar 50 years, her husband was outside the upper age bar of 55 years for male. Since they could not fulfill the age limit criteria, they were denied ART services.

As per the latest media report by The Hindu, approaching the HC bench, the couple has questioned the rationale behind such stipulation of upper age bar and challenged the constitutional validity of Section 21(g) of the Assisted Reproductive Technology (Regulation) Act of 2021.

They have also expressed their wonder about the fact that they are not permitted to have a child of their own through ART services even though they were legally permitted to marry at any age without a cap.

“We are unable to reproduce naturally. Restricting us from accessing ART services has led to increased frustration in the family. It has put us into great emotional stress and we are in the verge of mental breakdown. We need a biological child to take care of us during our old age and inherit our properties,” the couple informed the bench.

Filing the plea, they have urged the court to declare the legal provision as specified under Section 21 (g), which prohibits ART clinics registered with the National Medical Commission from offering services beyond the upper age limit for men and women, as unconstitutional and against Articles 14 (right to equality before law) and 21 (right to life) of the Constitution.

Apart from this, the petitioner's counsel complained about the fact that the fertility centre refused to cryopreserve the male partner’s semen at his cost. It was submitted that there was every possibility of andropause or drastic reduction in the sperm count because the petitioner was already 58 years old. So, the counsel has insisted the bench for giving permission to cryopreserve the male partner's semen until the disposal of the case.

Also Read: Assisted Reproductive Technology, Surgocay bill striving to provide better medical care: Union Health Minister