Calcutta High Court: Husband's Age Cannot Deny Wife IVF Treatment
The Calcutta High Court has ruled that a wife who meets the eligibility criteria under the Assisted Reproductive Technology (ART) Act, 2021 cannot be denied In-Vitro Fertilisation (IVF) treatment solely because her husband exceeds the prescribed age limit. Justice Krishna Rao, in an order dated June 24, emphasised that the husband's role in the birth of a child through ART is limited to being a supportive partner.
The court was hearing a petition filed by a married couple from Kolkata who have been struggling with infertility since 2014. The couple wanted to conceive using sperm and ovum from an ART bank. However, the hospital refused to proceed with IVF because the husband was 57 years old, exceeding the upper age limit of 55 for men (50 for women) prescribed under the ART Act.
Justice Rao observed that the wife, aged 49, was medically fit and eligible to avail ART services both age-wise and health-wise. The court noted, "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 judge further stated that an overaged husband should not bar an eligible wife from her right to reproduction.
The state government, represented by advocates Sudipa Banerjee and Manisha Paswan, had argued that the couple was ineligible under Section 21(g)(ii) of the ART Act, which bars clinics from providing services to a woman who does not meet prescribed age criteria. However, the court relied on its earlier decision in Shyamoli Saha vs State of West Bengal (2024), where IVF was permitted despite the husband being over the age limit.
The Assisted Reproductive Technology (Regulation) Rules, 2022, require couples or women to sign a consent form acknowledging the risks and uncertainties of IVF, including that pregnancy may not result in a normal living child. The Act defines a "commissioning couple" as an infertile married couple seeking ART services, and a "patient" as an individual or couple undergoing infertility management, irrespective of gender.
The court stressed that the term "patient" under the Act permits an individual to avail ART facilities regardless of gender. It noted that the wife, as a woman above 21 years of age, met the legal definition and could not be denied treatment due to her husband's age. The ruling clears the path for the couple to undergo IVF, provided they comply with other statutory requirements.
