'Reproductive rights of women and Assisted Reproductive Technology Act'
Ayshakutty M & Sidhiq v. Union of India & 3 others
W P ©34770/2023
Before High Court of Kerala at Ernakulam
Writ Petition was disposed of on 19.12.2023 by Hon’ble Mr. Justice Devan Ramachandran allowing the couple petitioner couple to go for only one cycle availing of Assisted Reproductive Technology Services.
Fact
The Case relates to Assisted Reproductive Technology Act.
The Act came into force on January 25, 2022.
Here age of the wife petitioner is 49 years & that of husband petitioner is 55 years.
Section 21g of the AST Act says,
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;
Prayer
The Writ was filed before the High Court to direct the respondents* 1 to 3 to take immediate steps so as to require the 4th respondent to commence providing ART services to the petitioners, including permitting to extract the semen of the 2nd petitioner, at the earliest, pending disposal of the Writ Petition
Respondents*
Union of India represented by its secretary, ministry of health and family welfare
State of Kerala, represented by its secretary ministry of health and family welfare
The district reproductive & child health Officer Ernakulam
Sabine Hospital and Research Centre Pvt Ltd. represented by its Managing Director
Issue
The women below 50 years fall within the ambit of the provision, to apply for the ART services; though their husbands may not be.
But, as long as the statute does not, prima facie, maintain that both the man and woman should be able to apply for the services together, they aren’t able to avail the benefit of the advancement of technology.
And age bar is restriction on the reproductive rights of women.
Submission of the Counsel of the Central Government
For a woman willing to apply for the ART service, she should have the gamete from a man if he is below 55 years.
Observation of the Court
It means that merely because the husband is above 55, the wife will lose her right to apply for the services, even though she is below 50 years.
It will be too far-fetched to even imagine, that the woman must then be forced to seek the assistance of another man.
It is without contest that if the gamete from the husband is not viable, then even a donor is possible under the statutory scheme.
Order
The Hon’ble Court was pleased to permit as an interim measure, and in the specific circumstances of this case without making it a precedent, allowing the petitioners in the case to apply for the ART services, however, for only one cycle.
Seema Bhatnagar