A recent ruling by the Kerala High Court has reaffirmed that a married woman is eligible to undergo in-vitro fertilization (IVF) using a donor gamete, even if her husband surpasses the age limit set by the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), as long as he provides consent.
The court examined the provisions of the ART Act and clarified that the law sets distinct upper age limits—50 years for women and 55 years for men—but does not impose a collective age restriction for couples seeking assisted reproductive treatments. This means that a woman who meets the age requirement can proceed with the procedure independently, provided she secures her husband’s approval.
Rejecting the argument that both spouses must fall within the prescribed age limits, the court emphasized that denying treatment based on the husband’s age would create an unjust disparity between married and single women. It pointed out that single women are permitted to undergo ART procedures without being restricted by a partner’s age, making such a limitation on married women legally unsound.
In the case under review, a 46-year-old woman sought IVF treatment with a donor sperm after doctors advised another round of the procedure. However, the hospital refused her request, citing her husband’s age of 57, which exceeded the male eligibility limit under the ART Act.
Arguing that the refusal violated her fundamental right to reproductive autonomy, the petitioner took the matter to court. She contended that since she alone was undergoing the procedure with a donor sperm, her husband’s age should not be a determining factor.
The hospital and government authorities opposed the petition, asserting that both spouses must meet the legal age requirements as a ‘commissioning couple.’ They referenced the ART Rules, which mandate a husband’s consent for ART procedures. The authorities also reasoned that the law was designed to promote responsible parenthood, taking into account the well-being of the future child.
However, the court dismissed these objections, reiterating that the ART Act does not impose a combined age limit on couples but rather sets separate age thresholds for men and women. It underscored that the only legal requirement for a married woman seeking ART services is obtaining her husband’s consent, which had already been fulfilled in this case.
With this ruling, the court directed the hospital to proceed with the IVF procedure, reinforcing the principle that a married woman’s reproductive choices should not be curtailed based on her husband’s age.