The Calcutta High Court has ruled that a wife eligible under the Assisted Reproductive Technology (ART) Act, 2021, cannot be denied in-vitro fertilisation (IVF) treatment simply because her husband is older than the prescribed age limit.
The observation came while hearing a petition by a couple, married since 2014, who had been trying to conceive for over a decade but were refused IVF treatment by a clinic because the husband was 57 years old.
The court held that denying the woman access to IVF despite her meeting all medical and legal requirements would be unjust, and directed the hospital to provide the treatment in accordance with the law.
Justice Krishna Rao observed, "In the present case, if the woman is not allowed to avail ARTs citing Section 21(g) even though she is eligible for the same, then it will be sheer injustice to her. For the ineligibility of the husband, the wife ought not to suffer. This is so because the husband has no physical participation in any of the procedures involved for the birth of the child through ARTs."
"Apart from being a supportive partner to the lady, the man does not have any role in the birth of the child. The lady acts as the gestational carrier. The medical report of the lady suggests that she is currently physically fit to hold the embryo, which means that the lady is eligible to avail ARTs both age-wise as well as health-wise," the June 24 order stated.
The petitioners approached the High Court seeking directions to allow them to undergo IVF treatment under the ART Act, 2021. They sought to conceive using sperm and ovum obtained from an ART bank.
Appearing for the couple, advocate Swapnadwip Roy argued that the husband was found over the age limit under Section 21(g)(ii) of the ART Act and the clinic had refused treatment solely on that ground, even though the wife independently met the age and health criteria.
Roy told TNIE on Tuesday evening that the court held the age bar applied to the person actually undergoing the procedure since the wife bears the pregnancy and the husband has no physical role in it. His ineligibility, therefore, could not be used to deny her access to IVF treatment, he said.
During the hearing, Roy also relied on the High Court's 2024 ruling in Shyamoli Saha vs State of West Bengal, in which IVF was permitted despite the husband being over the prescribed age limit under the ART Act.
Advocates Sudipa Banerjee and Manisha Paswan, appearing for the state, argued that the wife was 49 years old and the husband 57, exceeding the maximum age prescribed under Section 21(g)(ii) of the ART Act, 2021, and therefore the couple was not eligible for IVF treatment.
