The High Court of Kerala, in a significant judgment dated November 6, 2025, has dismissed an appeal filed by the Union of India, affirming that a married woman under the age of 50 is eligible to avail Assisted Reproductive Technology (ART) services using donor sperm, even if her husband is over the 55-year age limit prescribed in the ART Act, 2021.
A Division Bench comprising Justice Anil K. Narendran and Justice Muralee Krishna S. upheld a Single Judge’s decision, holding that the age limit for a man under Section 21(g)(ii) of the Act applies only when his own gametes are being used for the procedure.
The judgment was delivered in Writ Appeal No. 2009 of 2025, filed by the Union of India against the judgment dated 25.02.2025 in W.P.(C) No.37687 of 2024.
Background of the Case
The case was initiated by a married couple, respondents Devayani S (aged 44) and Vinod Kumar MC (aged 55). They had been undergoing infertility treatment for a long time and had undergone In Vitro Fertilisation (IVF) on multiple occasions.
When their doctors at Sabine Hospital (5th respondent) suggested another IVF procedure, Mr. Vinod Kumar had attained the age of 55. This barred him under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021. The couple was advised that as a “commissioning couple,” both must be within the prescribed age limits (50 for women, 55 for men).
The couple filed a writ petition seeking a writ of mandamus to permit Ms. Devayani to avail ART services using donor male gametes, arguing she was eligible under the Act as a ‘woman’ [Section 2(1)(u)] and was within the age limit of 50 [Section 21(g)(i)].
The learned Single Judge allowed their writ petition, finding that the wife’s eligibility “operates independently, despite the 2nd respondent’s ineligibility, provided the 2nd respondent gives his consent for the procedure.” The Single Judge held that if the Union’s contention was accepted, “it would create an unconstitutional classification, treating married women and single women as separate and distinct classes,” which would be a “fallacy” and place married women at an “unfair disadvantage.”
Arguments of the Parties
The Union of India, represented by the learned Additional Solicitor General of India (ASGI), appealed this decision.
The Appellant (Union of India) argued:
- Respondents 1 and 2 approached the clinic as a ‘Commissioning Couple’ as defined under Section 2(1)(e) of the ART Act.
- Therefore, both parties must simultaneously meet the age criteria prescribed under Section 21(g).
- Section 21(a) of the Act mandates that clinics must ensure the “commissioning couple is eligible.”
- Rule 13(1)(f)(iii) of the ART (Regulation) Rules, 2022, requires a married woman to have the consent of her husband (Form-8) for using donor semen, implying she can only access ART services as part of a couple, not as an individual ‘woman’.
The Respondents (the couple) argued:
- The 1st respondent (wife), at 44 years, is within the age limit prescribed by Section 21(g)(i).
- Since she intended to use donor male gametes, the 2nd respondent’s (husband’s) age of 55 was irrelevant.
- The age restriction for men (55 years) is based on sperm quality, which is not a factor when donor sperm is used.
The High Court’s Analysis and Findings
The Division Bench, in its judgment authored by Justice Muralee Krishna S., conducted a detailed analysis of the ART Act’s provisions and legislative intent.
The court referenced the Union’s own counter-affidavit (paras 20 and 21) and a Parliamentary Standing Committee report (Ext.R1(a)), which clarified the rationale for the age limits. The judgment noted these documents show the age restriction for women (below 50) was fixed “considering the risk to maternal health,” while the restriction for men (below 55) was because “the sperm quality is compromised above the age of 55 years.”
Based on this, the High Court held that the age limit for women [Section 21(g)(i)] is universally applicable in all ART circumstances “since that age restriction is prescribed considering the risk to maternal health… especially when the woman availing the ART procedure is the biological mother who has to carry the child in his womb.”
However, regarding the age limit for men, the court held, “the age restriction in the case of men prescribed under Section 21(g)(ii) of the ART Act, it can only be said that the same is applicable only to the circumstance of using his male gamete (sperm), either as one among the commissioning couple or as a third-party male gamete provider.”
The court explicitly noted that the ART Act “does not provide composite age criteria for the commissioning couple,” unlike the Adoption Regulations, 2022. It found that “prescribing such age restriction on mere assumptions is unwarranted and against what is intended by the legislature. A court of law cannot read between the lines when the statute is clear on this aspect.”
The Bench concurred with the Single Judge’s finding of discrimination, stating, “if the argument of the appellant is accepted, the 1st respondent will be eligible for the ART services the moment she acquires the status of a single woman, but immediately when she acquires the status of a married woman… even if she is ready to proceed with ART procedure by receiving male gametes from a third party, she will become ineligible for the treatment.”
The court found that this “would put married woman at an unfair disadvantage when compared to single woman” and concluded, “the parliament never intended such an inequitable classification within a benevolent statute like the ART Act.”
Decision
The High Court found “no reason to hold that the impugned judgment [of the Single Judge] is perverse or illegal, which warrants interference.”
The writ appeal filed by the Union of India was dismissed.
