In a writ petition filed before the Gauhati High Court to challenge the constitutional validity of Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 and to seek directions for the respondent authorities to permit the petitioners to avail Assisted Reproductive Technology (ART) services, a Division Bench of the Chief Justice Ashutosh Kumar and Justice Arun Dev Choudhury found the petition to be devoid of merit and dismissed the same.
The petitioners, a married couple who were unable to conceive naturally, commenced medical consultations for an assisted reproductive procedure in 2020 when the COVID-19 pandemic interrupted their course of treatment. Thereafter, they underwent a procedure, which was unsuccessful. On 13-03-2024, the couple visited Indira IVF Hospital to avail themselves of ART services, but were denied on the grounds that they did not meet the age-eligibility criteria under the 2021 Act.
The couple contended that the statutory prescription of an upper age limit under the impugned provision violated their fundamental rights under Articles 14 and 21 of the Constitution. It was submitted that the reproductive choice and aspiration to parenthood are integral to the right to life and personal liberty.
The Court agreed that the right to make reproductive choices forms part of the personal liberty under Article 21, but noted that the Supreme Court has consistently held that the protection of Article 21 does not render every personal choice immune from regulation.
It was stated that the upper age limit prescribed in the impugned provision is based on the considerations of medical science, ethical standards, and the welfare of both the woman undergoing treatment and the child to be born. The Court said that the fixation of the age limit had consistently been held to be a matter of policy and that such fixation can be said to be arbitrary when it is a case of ‘picked out from a hat’.
The Court stated that the age-based classification under Section 21(g) applies to all intending couples and is founded on an intelligible differentia bearing a direct nexus to the regulation of ART services in a manner that is safe, ethical, and socially responsible. It was held that the impugned provision did not suffer from any manifest arbitrariness and is not violative of Article 14 of the Constitution.
The Court found the submission that the couple had initiated ART before the 2021 Act came into force to be devoid of merit since this did not create a vested right to continue such treatment contrary to the statutory prescription. It was held that carving out individual exemptions based on hardship or medical fitness would amount to the substitution of judicial discretion for legislative policy, which would go beyond the permissible limit of constitutional adjudication.
Thus, while dismissing the petition, the Court held that Section 21(g) of the 2021 Act withstands constitutional scrutiny and does not infringe Articles 14 or 21 of the Constitution.
Appearances:
For Petitioner – Mr. B K Gogoi, Mr. N D Sarma
For Respondent – Y.S.G.I., Mr. D J Das, SC, Health
