Kerala High Court Upholds Married Woman's Right to Avail ART Services Independently

Court Recognizes Eligibility of Married Woman to Use Third-Party Male Gametes for ART Procedure Despite Husband's Ineligibility

In a landmark judgment, the Kerala High Court has upheld the right of married women to independently avail Assisted Reproductive Technology (ART) services using third-party male gametes, provided they meet the age criteria and secure their husband’s consent. The Division Bench consisting of Justices Anil K. Narendran and Muralee Krishna S delivered the judgment, dismissing a writ appeal filed by the Union of India against the Single Judge's decision in favor of the respondents, Devayani S and her husband.

The case revolves around the interpretation of the Assisted Reproductive Technology Act, 2021, particularly Section 21(g) which stipulates age restrictions for availing ART services. The respondents, Devayani S and her husband, aged 44 and 55 respectively, had been undergoing infertility treatment and sought to proceed with an In Vitro Fertilization (IVF) procedure using donor male gametes due to the husband's age disqualifying them from using his gametes.

The Union of India challenged the eligibility of Devayani under the ART Act, arguing that both spouses must satisfy the age criteria simultaneously as a commissioning couple. However, the court found that the age restriction for women under Section 21(g)(i) applies independently of the husband's age, as long as his consent is obtained when using third-party male gametes.

Justice Muralee Krishna S, delivering the judgment, emphasized that treating married women differently from single or divorced women under the ART Act for availing ART services creates a discriminatory classification, contrary to Article 14 of the Constitution which guarantees equality of status and opportunity. The judgment clarifies that the ART Act does not prescribe composite age criteria for commissioning couples and allows a married woman to avail ART services independently as a ‘woman’ under Section 2(1)(u), provided her husband’s consent is obtained when using third-party male gametes.

The judgment also highlighted the legislative intent behind the ART Act, which focuses on the welfare of the child to be born using ART services, ensuring healthy progeny and parental care till the child reaches adulthood. The court noted that imposing age restrictions on both spouses when only one is biologically involved in the ART procedure would be inequitable and not intended by the legislature.

This decision marks a significant step in recognizing the reproductive rights of married women, ensuring they are not at an unfair disadvantage compared to single women in accessing ART services. The ruling reinforces the principle of equality enshrined in the Constitution and upholds the autonomy of women in reproductive decision-making.

The Union of India’s appeal was dismissed, affirming the learned Single Judge's judgment that empowers married women to make independent choices regarding ART procedures, respecting their autonomy and constitutional rights.

Bottom Line:

Assisted Reproductive Technology Act, 2021 - Married woman's eligibility to avail ART services independently recognized - Age restriction applicable to women under Section 21(g)(i) of the ART Act applies irrespective of marital status, provided husband's consent is obtained when using third-party male gametes.

Statutory provision(s): Assisted Reproductive Technology Act, 2021 Sections 21(g), 2(1)(e), 2(1)(u), Constitution of India, 1950 Article 14, Assisted Reproductive Technology (Regulations) Rules, 2022 Rule 13(1)(f)(iii).

Union of India v. Devayani S, (Kerala)(DB) : Law Finder Doc Id # 2805009