Kerala High Court
Sreejith Kumar L.T vs Union Of India on 30 March, 2026
WP(C) NO. 9750 OF 2026 1 2026:KER:32125
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
MONDAY, THE 30TH DAY OF MARCH 2026 / 9TH CHAITHRA, 1948
WP(C) NO. 9750 OF 2026
PETITIONERS:
1 SREEJITH KUMAR L.T
AGED 59 YEARS, S/O.K.P.BALAN,
LAVATHARAMMAL HOUSE KALLIASSERI SOUTH .P.O
ANCHAMPEEDIKA , KANNUR, PIN - 670331
2 NISHA L T
AGED 43 YEARS, D/O.L.T.KELU
LAVATHARAMMAL HOUSE, KALLIASSERI SOUTH .P.O
ANCHAMPEEDIKA , KANNUR, PIN - 670331
BY ADVS.
SMT.T.SWETHA
SMT.SHRUTHI BALAKRISHNAN
SMT.ATHEENA ANTONY
SMT.ANULAKSHMI L.
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY MINISTRY OF HEALTH AND
FAMILY WELFARE, SASTHRI BHAVAN, NEW DELHI, PIN - 110001
2 THE DIRECTOR
MEDICAL COUNCIL OF INDIA POCKET - 14, SECTOR 8 DWARAKA
PHASE - I NEW DELHI, PIN - 110077
3 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY MINISTRY OF HEALTH AND
FAMILY WELFARE, SECRETARIAT THIRUVANANTHAPURAM,
PIN - 695001
WP(C) NO. 9750 OF 2026 2 2026:KER:32125
4 THE DIRECTOR
KERALA STATE MEDICAL COUNCIL COMBINED COUNCIL BUILDING,
RED CROSS ROAD, NEAR GENERAL HOSPITAL,
THIRUVANANTHAPURAM, PIN - 695035
5 THE MANAGING DIRECTOR
ARMC IVF FERTILITY CENTER GRAND PLAZA, NEAR PRABATH
JUNCTION FORT ROAD, KANNUR, PIN - 670001
BY ADV SMT.R.ASALATHA VARMA, CGC
ADV.SRI.SHEMEER P.M-GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 30.03.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 9750 OF 2026 3 2026:KER:32125
M.B.SNEHALATHA, J.
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W.P(C) No.9750 of 2026
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Dated this the 30th March, 2026
JUDGMENT
Petitioners have approached this Court seeking the following
reliefs:
“i) Issue a writ of Mandamus or any other appropriate
Writ or order directing commanding the respondents 2
to 5 to accord sanction to provide ART Service to the
petitioners.
ii) Issue a Writ of Mandamus or any other appropriate
Writ or order directing the respondents 2 to 5 to take
immediate steps so as to require the 5 th respondent to
provide ART service to the petitioners.
Iii) Declare that the age of the husband cannot
operate as a bar to the wife undergoing Assisted
Reproductive Technology treatment when she is
otherwise eligible and medically fit, and that any such
restriction is violative of Articles 14 and 21 of the
Constitution of India.
iv) Declare that the provisions of the Assisted
Reproductive Technology (Regulation) Act, 2021
cannot be given retrospective effect so as to affect or
invalidate Assisted Reproductive Technology
procedures initiated prior to the commencement of the
said Act.”
2. According to the petitioners, 1st petitioner/husband is aged
59 years whereas, the 2 nd petitioner wife is aged 43 years. Though they
got married in the year 2002, they have no children and they have been
undergoing treatment for infertility and they started assisted
reproductive technology treatment to have a child of their own. It is
WP(C) NO. 9750 OF 2026 4 2026:KER:32125
contended by the petitioners that since the 2 nd petitioner uses male
donor gametes and the 1st petitioner is not an active participant, she is
eligible under Section 21(g) of the Assisted Reproductive Technology Act,
2021 (for short ‘the Act’) to proceed with the treatment as a woman as
defined under Clause 2(u) of the Act.
3. It was contended by the learned counsel for the petitioners
that the 5th respondent has hesitated to provide them necessary services
under the Act, citing that the 1 st petitioner has crossed the statutory age
limit of 55 years. It is also contended by the petitioners that unless the
2nd petitioner is permitted to avail ART services by utilising the male
donor gametes, they would be put to much hardship.
4. 1st respondent entered appearance through DSGI.
Respondents 2, 3 and 4 entered appearance through the Government
Pleader. 5th respondent also entered appearance through counsel.
5. Admittedly, the 1st petitioner has crossed the age limit as
stipulated under Section 21(g) of the ART Act. But the 2 nd petitioner is
below the age of 50 years. The question is whether the 2 nd petitioner
wife, who is aged 43 years can avail the ART services by receiving donor
gametes in the status as a woman despite the fact that her husband,
who is the 1st petitioner herein has crossed the age of 55 years as
prescribed under the Assisted Reproductive Technology Act, 2021.
6. Section 2(1)(a) of the ART Act defines ‘Assisted Reproductive
Technology’, which reads as under;
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“(a) “assisted reproductive technology” with its
grammatical variations and cognate expressions,
means all techniques that attempt to obtain a
pregnancy by handling the sperm or the oocyte
outside the human body and transferring the gamete
or the embryo into the reproductive system of a
woman.”
7. Section 2(1)(e) defines ‘Commissioning Couple’ which is read
as under;
“(e) “commissioning couple” means an infertile
married couple who approach an assisted reproductive
technology clinic or assisted reproductive technology bank
for obtaining the services authorised of the said clinic or
bank.”
8. The word ‘Woman’ is defined under Section 2 (1)(u) of the
Act, which is extracted hereunder;
“(u) “woman” means any woman above the age of
twenty one years who approaches an assisted reproductive
technology clinic or assisted reproductive technology bank
for obtaining the authorised services of the clinic or bank.”
9. Sections 21(g) of the Act read thus;
Section 21(g) – the clinics shall apply the assisted
reproductive technology services, —
(i) to a woman above the age of twenty-one years and
below the age of fifty years;
(ii) to a man above the age of twenty-one years and below
the age of fifty-five years;
10. In the case on hand, the prayer sought is to permit the wife
who is within the prescribed age under the Act to avail Assisted
Reproductive Technology Services using male gametes at the 5th
respondent hospital.
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11. In Devayani.S and others v. Union of India (W.P(c)
No.37687/2024), this Court held that when a woman wants to undergo
an IVF procedure, only her age is to be considered as relevant,
irrespective of the age of the husband and the same principle applies
conversely to men. It was also held that the above interpretations lead
to an inevitable conclusion that the legislature has treated men and
women as distinct legal entity under the Act rather than imposing
uniform couple centric legislation. It was also held that without any
express provision in the Act restricting commissioning couples on the
basis of their composite age, there is no legal bar for a woman who is
otherwise eligible under Section 21(g)(i) from applying the ART
procedure even if her husband has surpassed the age limit as prescribed
under the Act.
12. The Division Bench of this Court in Union of India v.
Devayani.S and others, (WA No.2009/2025) upheld the judgment of the
learned Single Judge and held as follows:
“30. As rightly noticed by the learned Single Judge, the
contention of the appellant that if the spouses
approached the clinic for availing the ART service as a
commissioning couple, both of them must satisfy the
age criteria as stipulated under Section 21(g) of the ART
Act, if accepted, it will be a discrimination among the
married woman and unmarried woman and divorced
woman. The learned counsel for respondents 1 and 2,
during the course of arguments submitted that the
respondents 1 and 2 herein are even gone to the extend
of expressing readiness to avail the status of divorced
persons, so as to make respondent 1 eligible to apply for
ART procedure as a single woman, if the law does not
permit them to avail the ART services as a
commissioning couple. If the argument of the appellant
is accepted, the 1st respondent will be eligible for the
WP(C) NO. 9750 OF 2026 7 2026:KER:32125ART services the moment she acquires the status of a
single woman, but immediately when she acquires the
status of a married woman and approaches the clinic
with her husband, 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. On
analysing the provisions under the ART Act, in the light
of Ext.R1(a) report, Adoption Regulations 2022, and also
the provisions under the Hindu Adoptions and
Maintenance Act, 1956, as mentioned in the preceding
paragraphs, we are of the considered opinion that the
age restriction in the case of women mentioned in
Section 21(g)(i) is applicable to all the six circumstances
mentioned above, since that age restriction is prescribed
considering the risk to maternal health, if the pregnancy
is below or above the age suggested by the expert
stakeholders and also the health of the child to be
begotten, especially when the woman availing the ART
procedure is the biological mother who has to carry the
child in his womb, unlike that in the case of surrogacy.
At the same time, 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. When the ART Act does not
provide composite age criteria for the commissioning
couple, or Section 21(g) of the ART Act does not speak
about the age criterion there in as applicable to the
persons approaching the ART clinic as a commissioning
couple, 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. While considering all these aspects, we agree
with the finding of the learned Single Judge that the
classification of a married woman and a single woman
differently, when they approach the ART clinic, either as
one among the commissioning couple or as a single
woman, would put married woman at an unfair
disadvantage when compared to single woman. The
learned Single Judge rightly found that the parliament
never intended such an inequitable classification within a
benevolent statute like the ART Act.”
13. In the case at hand, 2 nd petitioner, namely, the woman, is
aged 43 years and she is within the age limit to apply for Assisted
Reproductive Technology services.
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In such circumstances, there shall be a direction to the 5 th
respondent to provide Assisted Reproductive Technology services to the
2nd petitioner using male donor gametes, after obtaining the consent of
the 1st petitioner/husband.
The Writ Petition is allowed as above.
Sd/-
M.B.SNEHALATHA
JUDGE
ab
WP(C) NO. 9750 OF 2026 9 2026:KER:32125
APPENDIX OF WP(C) NO. 9750 OF 2026
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF MARRIAGE CERTIFICATE
NUMBERED 154/2002 DATED 14.09.2002 ISSUED
BY LOCAL REGISTRAR OF THALASSERY
Exhibit P2 A TRUE COPY OF ADHAAR CARD OF THE 1ST
PETITIONER BEARING NO.3911 5139 5985
Exhibit P3 TRUE COPY OF ADHAAR CARD OF THE 2ND
PETITIONER BEARING NO. 4042 3588 1271
Exhibit P4 TEST REPORTS AND MEDICAL TREATMENT
REPORTS ISSUED BY THE 6TH RESPONDENT TO
THE PETITIONER ON 2014 AND 2015
Exhibit P5 THE JUDGMENT IN WP(C) NO. 28631 OF 2024
DATED 22.01.2026
RESPONDENTS EXHIBITS: NIL