A newly married middle aged couple moved the Madras High Court challenging the constitutional validity of Section 21(g) of the Assisted Reproductive Technology (Regulation) Act of 2021 which states that only women between 21 and 50 years of age and men between 21 and 55 years of age could avail such services.
Acting Chief Justice T. Raja and Justice D. Bharatha Chakravarthy on Thursday directed a Central government standing counsel to obtain instructions from the Union Ministry of Health and Family Welfare by Monday since the couple had insisted on interim orders permitting them to cryopreserve the male partner’s semen.
The petitioners’ counsel J. Kalidas told the court the couple got married on February 3 at a temple in Mugalivakkam in Chennai and also registered their marriage. The male partner was 58 years old and his wife was 49 years old. While it was his first marriage, the female partner had divorced her first husband in 2021.
The woman had no biological children through her first marriage. Therefore, now, the couple decided to have a child through Assisted Reproductive Technology (ART) that attempts to obtain a pregnancy by handling the sperm or oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.
When they approached a private fertility centre in Chennai, the couple was informed that while the female partner was well within the maximum age limit of 50 years for availing the ART services, her husband had crossed the upper age limit of 55 years fixed by the 2021 Act and therefore the services could not be offered.
Questioning the rationale behind the stipulation of such an upper age limit for availing the services, the petitioner couple wondered why wouldn’t the law permit them to have a child of their own with the assistance of technological advancements when it permits them 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 told the court.
They urged the Bench to declare Section 21(g) which prohibits ART clinics, registered with the National Medical Commission, from offering their services to women above 50 years of age and men above 55 years of age as unconstitutional and against Articles 14 (right to equality before law) and 21 (right to life) of the Constitution.
Complaining that the fertility centre had even refused to cryopreserve the male partner’s semen at his cost, the counsel said, there was every possibility of andropause or drastic reduction in the sperm count since the petitioner was already 58 years old. Therefore, it was just and necessary to cryopreserve his semen until the disposal of the case, he insisted.
