The Calcutta High Court has cleared the way for a couple battling infertility since 2014 to undergo IVF treatment. It held that a wife who meets the eligibility rules under the Assisted Reproductive Technology (ART) Act, 2021, cannot be refused treatment only because her husband is older than the law allows. The ruling reframes how the age bar applies to couples seeking IVF.
Husband has no physical role, Court notes
Justice Krishna Rao said an overaged husband should not stand in the way of an eligible wife’s right to have a child. He pointed out that the man takes no part in the actual ART procedure. The woman alone carries the embryo as the gestational carrier.
“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,” Indian Express quoted Justice Rao as saying.
The couple’s case
The petitioners, a married couple, had moved the High Court for permission to undergo In-Vitro Fertilisation under the ART Act. They wished to conceive using sperm and ovum sourced from an ART bank. Their counsel, Advocate Swapnadwip Roy, told the court they had been married since 2014 but had no child. He said the hospital had refused the procedure because the husband was 57, above the upper limit of 55 for men. The cap for women is 50.
For the state, Advocates Sudipa Banerjee and Manisha Paswan argued the couple was not eligible. They said the wife was 49 and the husband 57, which crossed the maximum age set under Section 21(g)(ii) of the Act.
Individual right to access ART
The court stressed that the law allows an individual to access ART regardless of gender. The judgment held that the term “patient” lets a person avail the facility on their own, and nothing in the Act bars one partner of a married couple from doing so independently, Indian Express reported. A married woman, the court found, can approach a clinic by herself, and the clinic cannot refuse her if she seeks the service alone. In this case, since the two shared a cordial relationship, they came forward jointly as a commissioning couple.
The judge also leaned on the 2024 Shyamoli Saha ruling, where IVF was allowed despite the husband being over age. The court said age limits serve a real purpose and guard against misuse, but the law cannot be read in a way that makes it unworkable. It held that the wife should not suffer for her husband’s ineligibility and directed the hospital to provide the treatment.
