Calcutta High Court (Appellete Side)
Saswati Mohury & Anr vs The Union Of India & Ors on 24 March, 2023
Author: Moushumi Bhattacharya
Bench: Moushumi Bhattacharya
24.03.2023
sayandeep
Sl. No. 02
Ct. No. 05
WPA 1592 of 2023
Saswati Mohury & Anr.
-Versus-
The Union of India & Ors.
Ms. Deblina Lahiri
Mr. Mrinmoy Chatterjee
....for the petitioners
Mr. Siddhartha Lahiri
Ms. Mary Dutta
.....for the UOI
The petitioner nos. 1 and 2 are married to each
other and are keen to have a child through Assisted
Reproductive Technology (ART) as defined in The
Assisted Reproductive Technology (Regulation) Act,
2021. The petitioners underwent Intra-uterine
Insemination (IUI) procedure and similar other
procedures from 2010 onwards in specialist fertility
clinics in Chennai, Odisha and Chattisgarh. The
petitioners explored ART in 2019 after successive
failures in conceiving a child through IUI. The petitioner
no. 1 was advised to undergo In vitro Fertilization (IVF)
in December, 2019 but was unable to continue with the
IVF by reason of the lockdown from March, 2020. The
petitioners visited a fertility centre in Howrah in April,
2022 and were advised to undergo certain medical
procedures. In July, 2022, the petitioners were
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informed that petitioners were ineligible for undergoing
ART as the petitioner no. 2 had crossed 55 years of age.
The present writ petition was filed in January,
2023 for declaration that section 21(g) of The Assisted
Reproductive Technology (Regulation) Act, 2021 is ultra
vires Articles 14 and 21 of the Constitution of India.
Section 21(g) of the Act requires a woman to be
above the age of 21 years and below 50 years and a
man to be above 21 years and below 55 years for being
eligible for assisted reproductive technology services.
The first petitioner (wife) is now 46 years old and
the petitioner no. 2 (husband) is 56 years.
According to learned counsel appearing for the
petitioners, although the petitioner no. 1 is within the
age limit of section 21(g), the petitioner no. 2 has
crossed the age limit by just a year. Counsel submits
that the petitioner no. 2 / husband was 52 years when
the petitioners first tried for IVF in 2019 but crossed the
age limit in July, 2022. Counsel submits that the
petitioners have suffered emotional trauma and
depression due to consecutive failures in conceiving a
child. Counsel submits that section 21(g) offends Article
14 of the Constitution since a commissioning couple
has been prohibited from seeking ART by reason of an
artificial age bar between a man and woman without
the support of any medical or expert evidence in the
3
matter. Counsel relies on the 129th Report on The
Assisted Reproductive Technology (Regulation) Bill,
2020 which was presented before the Parliament on
19th March, 2021 to submit that the age-limit was
recommended by the Parliament without any discussion
in support of the recommendation. Counsel seeks an
interim order pending a decision on the challenge to the
vires of the Act.
Learned counsel appearing for the Ministry of
Health and Family Welfare, Government of India, relies
on three orders of the Supreme Court dated 26.9.2022,
9.1.2023 and 7.2.2023 to submit that the Supreme
Court is considering a similar issue; namely a challenge
to the vires of the 2021 Act including section 21(g)
thereof.
The orders placed show that the Supreme Court
requested the Board constituted by the Government
Notification dated 4.8.2022 to examine the individual
applications made before the Supreme Court and made
the matter returnable in March 2023. The orders do not
reflect that the Supreme Court requested the High
Courts not to entertain writ petitions involving a similar
issue. The Supreme Court has also not transferred
matters pending before the High Courts to itself to
decide on the vires of the 2021 Act. The judgment
passed by the learned Single Judge of the Kerala High
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Court on 19.12.2022 in a batch of writ petitions
involving a similar question whereby the petitioners
were permitted to continue their treatment under the
ART Act is a case in point.
Moreover, the Constitution Bench decision of the
Supreme Court in State of West Bengal vs The
Committee for Protection of Democratic Rights; (2010) 3
SCC 571 can meaningfully be referred to. In that case,
the Supreme Court upheld the constitutional scheme
framed for the judiciary whereunder the Supreme Court
and the High Courts were held to be courts of record.
The Supreme Court also referred to the wide powers
vested in the High Courts under Article 226 of the
Constitution.
The Assisted Reproductive Technology (Regulation) Act,
2021
The ART (Regulation) Bill was introduced in the
Lok Sabha on 14.9.2020 and was referred to the
Parliamentary Standing Committee on Health and
Family Welfare. The Standing Committee sought for the
views of stakeholders and presented the 129th Report on
the ART (Regulation) Bill, 2020 before the Parliament on
19.3.2021.
The 129th Report on the ART (Regulation) Bill,
2020 reveals that the recommendation of the upper-age
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limit for a woman and a man of 50 and 55 years,
respectively, was made without a detailed discussion.
The relevant part of the Report only refers to
recommendations made by a Select Committee on the
Surrogacy (Regulation) Bill, 2020. There is no
discussion of the upper-age limit followed in countries
outside India which shows varying limits and more
significantly of countries like Germany, Spain, Portugal
and UK where no upper-age limit has been prescribed
at all. The Report also does not mention the impact of
any Pre-implantation Genetic Testing for embryos or
screening of the sperm cells taken from a man of
advanced years or the perceived apprehension relating
to sperm health of older men justifying fixing of the
upper-age limit for a man under section 21(g)(ii).
The object of the Act, 2021 is to regulate and
supervise the assisted reproductive technology clinics
and the assisted reproductive technology banks and to
prevent the misuse of reproductive technology services
as also for addressing the issues of reproductive health
where assisted reproductive technology is required for
becoming a parent due to infertility, disease or social or
medical concerns. Section 2(1)(a) defines "assisted
reproductive technology" to mean all techniques that
attempt to obtain a pregnancy by handling the sperm or
the oocyte outside the human body and transferring the
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gamete or the embryo into the reproductive system of a
woman.
The Act has several 'silences' which do not provide any
answers:
There are three other aspects which do not find
any mention in the observations / recommendations of
the Standing Committee Report.
First, the absence of any stop-gap measures for
men, women and commissioning couples who availed of
ART Services before the Act came into force on
25.1.2022 and were consequently caught within the
age-bracket prohibition of section 21 (g) of the Act. In
the present case, for instance, the petitioner no. 2
(husband) was 52 years old in 2019 when the
petitioners visited the particular Fertility Clinic for
treatment. The Act came into force on 25.1.2022 when
the petitioner no. 2 was 55 years old and hence became
ineligible under section 21(g) of the Act. The Standing
Committee recommendations do not address the point
as to what happens to this category of cases where
persons who had undergone fertility procedures before
the Act came into effect suddenly found themselves
disqualified under section 21(g) during the course of
their treatment. The Act does not make any saving
provisions for these transitional cases.
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Second, the Recommendations are also silent on
the anomalous situation which may result where one of
the individuals of the married couple (commissioning
couple) may be within the permissible age-limit but
would nonetheless not be entitled to ART if his/her
partner crosses the age- limit.
Third, there is also no discussion on individual
risk factors to pregnancy at an advanced maternal age
against the increase in average life expectancy in India.
Further, on a prima facie assessment of the
relevant provisions of The Assisted Reproductive
Technology (Regulation) Act, 2021, there appears to be
several ambiguities with reference to a "commissioning
couple" as defined under section 2(1)(e) of the Act.
The ambiguities in the 2021 Act; those relevant
for the instant adjudication are stated below :
1) Section 21(g) provides that the clinic shall
apply assisted reproductive technology services (i) to a
woman between 21 and 50 years of age and (ii) to a man
between 21-55 years of age. Section 21(g) simply
mandates the respective age limits of a 'woman' and a
'man' for ART as 2 separate entities without treating the
'man' and the 'woman' as a unit in the sense of being a
"commissioning couple".
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2) The omission to specify "commissioning couple"
in section 21(g) is striking in its continued silence in the
scheme of the Act.
(a) The expression "commissioning couple" has
been defined in section 2(1)(e) as an infertile
married couple who approaches an ART clinic or
ART bank for obtaining authorised services.
Hence, "commissioning couple" has been treated
as a separate unit and an entity distinct from a
'woman' (or a man) in the statutory scheme.
(b) This would further be evident from the
expression 'woman' which has been given a
specific definition under section 2(1)(u) to mean
any woman above the age of 21 years who
approaches an ART clinic or ART bank for
obtaining authorised services. Therefore, the
separate identity given to a "commissioning
couple" in section 2(1)(e) has not been carried to
its logical conclusion in section 21(g) where the
qualifying age of only a man and a woman has
been described.
(c) Section 21 - "General duties of assisted
reproductive technology clinic and banks" -
makes repeated reference to "commissioning
couple" and 'woman' through the gamut of the
duties. The reference to these two entities is
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found in section 21(c)(ii) and (iii), section 21(d), (e)
and continues through section 21(j).
(d) Section 21(j) is significant since an obligation
has been cast on the clinics and banks to provide
all information related to "enrollment of the
commissioning couple, woman and gamete donors"
[section 21(j)(i)]. Here, apart from "commissioning
couple" and "woman", "gamete donors" have also
been given a separate identity.
(e) Section 22 - "Written informed consent" - sub-
section (4) entitles any of the "commissioning
couple" to withdraw his or her consent under
section 22(1) at any time before the human
embryos or gamete are transferred to the
concerned woman's uterus. Hence, under section
22(4), a "commissioning couple" has further been
dissected into two individuals for withdrawing
consent before the ART advances to the next
stage. Remarkably, explanation (iii) to section
22(4) defines "parties" as including the
commissioning couple or woman and the donors.
(f) Section 25(2)(a) mandates that the donation of
an embryo after the Pre-implantation Genetic
Diagnosis to an approved research laboratory for
research purpose shall only be done with the
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approval of the commissioning couple or the
woman.
Therefore, the importance given to the individual
identity of a "commissioning couple" as a unit
separate and distinct from a "woman" or a
"gamete donor" is curiously jettisoned in section
21(g) which ignores the combined entity of a
commissioning couple altogether.
3) Although section 21(g) prescribes the eligible
age-band of a man for availing ART services [21(g)(ii)],
the Act does not define a 'man' anywhere within the
statutory scheme. Further, section 21 mentions the
categories of "commissioning couple", "woman" and
even a "gamete donor" several times without any
reference to a "man" except in section 21(g)(ii).
Significantly, the definition of a "commissioning couple"
refers to an infertile married couple without any
reference to whether a couple would consist of a man-
woman, man-man, woman-woman or transgender
persons.
4) The exclusion of "man" is all the more
noticeable since a "gamete donor" has been defined in
section 2(1)(h) as a person who provides sperm or
oocyte with the objective of enabling an infertile couple
or woman to have a child. Despite the omission, 'sperm'
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in section 2(1)(r) has been defined as "mature male
gamete".
5) Although, the age of a man under section
21(g)(ii) has been capped at 55 for being eligible for ART
services, the Act does not specify the age of a "gamete
donor". This omission is significant when viewed with
reference to the definition of a "gamete donor" under
section 2(1)(h) as a person who provides sperm or
oocyte for enabling an infertile couple or woman to have
a child.
If the above omissions are read together it
appears that the Act has discounted the relevance of a
man as a part of a commissioning couple and even as a
necessary part of ART altogether!
Hence, the omission to treat a commissioning
couple as a separate unit coupled with the omission to
prescribe an age for a gamete donor leads to the
compelling argument : that of a woman's age being the
only relevant factor for a commissioning couple for
availing of ART services.
The (In)equality Argument:
Article 14 of the Constitution, which prohibits the
State from denying equal rights to any person before the
law, is a grey area when viewed in the backdrop of The
Assisted Reproductive Technology (Regulation) Act,
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2021. The Act creates an unequal division between an
unmarried, single woman and a married woman who is
a part of a "commissioning couple" as defined in section
2(1)(e). While the former is eligible for ART services from
21 to 50 years, a married woman whose
husband/counterpart crosses 55 years would fall within
the mischief - and the grey area - of section 21(g) of the
Act. The Act foists an indefensible fetter on a married
woman with regard to ART while disentangling the
statutory stranglehold from an unmarried woman.
Indeed, the inequality thus created is absurd and defies
logic.
The argument of Article 14 of the Constitution
falling by the wayside is therefore completely
reasonable. The constitutional safeguards cannot also
be permitted to be overridden rough-shod. Men and
women are entitled to equal rights to marriage and to
have a family as articulated in Article 16(1) of the
Universal Declaration of Human Rights. Suchita
Srivastava v. Chandigarh Administration; (2009) 9 SCC 1
reiterated a woman's right to make reproductive choices
as a dimension of personal liberty as understood under
Article 21 of the Constitution. Needless to say, a woman
can exercise her reproductive choice to procreate as well
as to abstain from procreating. The right cradles a
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woman's freedom to choose birth-control methods as
well as the right to carry a pregnancy to its full term.
A legislative enactment seeking to curb a woman's
right to reproductive choices and means for parenthood,
must be founded on clear medical evidence of domain
experts. The curtailment must in any event be tested on
the benchmarks of legislative competence, manifest
arbitrariness, irrational considerations and violation of
fundamental rights.
This Court also wishes to add that the framers of
the law must not be presumed to have enacted a statute
which will operate inequitably and result in harsh
consequences. The aforesaid gives rise to the
presumption that if the law operates unjustly in a given
case, the legislature must have intended to exempt such
cases from the scope of the statute. After all, the
legislature lays down broad and general rules to govern
and leaves the determination of specific cases to the
courts to do justice.
The Act contemplates interim relief
Under section 2(1)(f) of the Act "embryo" means a
developing or developed organism after fertilization
till the end of 56 days from the day of fertilization.
Section 22(2) debars the clinic from cryo-preserving
any human embryos or gamete without specific
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instructions and consent in writing from all the
parties seeking ART. Explanation (i) of section 22
defines "cryo-preseve" as freezing and storing of
gametes, zygotes, embryos, ovarian and testicular
tissues.
Section 28(2) provides that the gamete of a donor or
embryo shall be stored for a period of not more than
10 years after which period the gamete or embryo
shall be allowed to perish or be donated to a
research organisation registered under the Act for
research purposes with the consent of the
commissioning couple.
Section 29 prohibits sale, transfer or use of gametes,
zygotes and embryos or any part thereof or any
information related thereto, directly or indirectly to
any party within or outside India except transfer of
own gametes or embryos for personal use with the
permission of National Board.
Section 42(2)(v) and (w) empowers the Central
Government to make rules for the standards for the
storage and handling of gametes, human embryos
and the manner for obtaining the consent of the
commissioning couple for perishing or donating of a
gamete or embryo under section 28(2) of the Act.
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Rule 16 of the Assisted Reproductive Technology
(Regulation) Rules, 2022 requires the consent of the
commissioning couple or individual for perishing or
donating the gamete of a donor or embryo in the
format as specified in Forms 9 and 10 of the Rules.
Forms 9 and 10 relate to "Consent for Freezing of
Embryos" and "Consent for Freezing of
Gametes/Sperm/Oocytes", respectively.
The above provisions indicate that cryo-
preservation of any human embryo is permissible with
the written consent of all the parties seeking ART. As
stated above, cryo-preservation includes freezing and
storing of embryos. Storage of an embryo is also allowed
for a period of 10 years beyond which the embryo may
either be permitted to perish or be donated to a
registered research organisation for research purposes
with the consent of the commissioning couple.
Therefore, the Act contemplates grant of interim order
for preservation of the embryo.
It is also of significance that the petitioners have
affirmed their consent for freezing of embryos in Form 9
which is the statutory form recording consent under
Rules 13(1)(f)(iv) and 16 of the 2022 Rules. The consent
in Form 9 is part of the affidavit filed by the petitioners.
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Are the petitioners entitled to interim relief?
The balance of convenience for grant -or refusal-
of interim relief weighs in favour of the petitioners for
the following reasons. The petitioners started their first
treatment in 2006 at Apollo Hospitals, Chennai. Since
this procedure was unsuccessful, similar procedures
were repeated in 2010-2011 in other fertility clinics in
Odisha and Chhattisgarh. The petitioners sought to
avail of ART in 2019 whereupon the petitioner no. 1 was
made to undergo further tests and thereafter advised to
undergo IVF in December, 2019. The petitioners
however could not proceed with the treatment by reason
of the lockdown from March, 2020 onwards. The
disruption caused by the Covid-19 Pandemic continued
till March, 2022 after which the petitioners again visited
the particular Fertility Centre in April, 2022. The
petitioners were informed of the age-bar under section
21(g) of the Act when the petitioners returned to the
Fertility Centre in July, 2022 for continuation of the
procedure.
The narration of the above chain of events would
show that the petitioner no. 1 (wife) was 42 years old
and the petitioner no. 2 (husband) was 52 years when
they first visited the fertility clinic in 2019. Therefore,
the petitioner no. 2 was well within the age limit of a
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"man" under section 21 (g)(ii) of the Act which
prescribes a age-cap of 55 years. The petitioner no. 2
crossed the upper-age limit of 55 years only recently
and is now 56 years old. The question of giving any kind
of interim relief to the petitioners will become more of a
challenge with each passing day as the ineligibility of
the petitioner no. 2 would increase with a possible delay
in the adjudication of the present writ petition. Simply
put, the petitioners cannot afford to wait for availing of
ART services until the final adjudication on the vires of
the 2021 Act. This Court is therefore of the view that
the petitioner no. 2, as the male counterpart of the
commissioning couple and having crossed the
prescribed age by just a year, has established a case for
interim relief.
This Court is alive to the fact that grant of interim
relief may amount to final relief in the present facts.
However, such an apprehension would be allayed on the
ground that the ultimate relief claimed is for declaring
section 21(g) of the Act as ultra vires Articles 14 and 21
of the Constitution. The interim order is only in aid of
the final relief and in consideration that time is of the
essence in the matter. The petitioners may not be in a
position to sustain a long-drawn litigation on purely
physiological constraints. There is hence every reason to
consider the prayer for interim relief in light of the
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peculiar attending factors which have been brought to
the attention of the Court.
Thus, the material placed before the Court and
the balance of convenience unmistakably show that the
petitioners have made out a case for interim relief. The
preparation for Assisted Reproductive Technology
should be permitted to start as further delay may
frustrate the petitioners' long-standing wish to have a
child. There shall accordingly be an interim order
permitting collection of the sperm of the petitioner no. 2
for preparation of the embryo with a donor egg. The
embryo shall be preserved till disposal of the writ
petition. The direction is given on Dr. Shiuli Mukherjee
of the Fertility Center mentioned in paragraph 13 of the
writ petition. Dr. Mukherjee is permitted to conduct
requisite tests and procedures in aid of the interim
order.
Further, the constitutionality of section 21(g) of
the Assisted Reproductive Technology (Regulation) Act,
2021 raises important issues on identity, fragmentation
of social units and certain inalienable rights and must
be decided after the respondents are given an
opportunity to file their affidavits. The respondent Ministry of Health and Family Welfare shall bring its objection on record by way of an affidavit-in-opposition within 3 weeks from date; reply within 2 weeks 19 thereafter. The affidavit shall also address the challenge to section 21(g) of The Assisted Reproductive Technology (Regulation) Act, 2021 as being ultra vires Articles 14 and 21 of the Constitution.
List this matter after 5 weeks. Parties shall be at liberty to mention the matter any time before that.
(Moushumi Bhattacharya, J.)