Assisted Reproductive Technology: Kerala High Court Allows Couple Above Statutory Age Bar to Continue with Treatment

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Despite the Reproductive Technology (Regulation) Act’s (ART Act) 55-year-old male and 50-year-old female upper age limits for assisted reproductive treatment, the Kerala High Court recently allowed a married couple over 50 to continue their treatment.


The petitioners, a married couple, are facing infertility issues and have been undergoing treatment for a pretty long time. Although the petitioner conceived and gave birth to a girl child in between, the child lived only for 6 years and died of Pneumonia on 05.12.2010. The petitioners re-commenced their treatment for infertility. As part of the treatment, cryo-preservation of two embryos was done on 22.09.2021 and the petitioner conceived again. 

Unfortunately, it turned out to be a tubular pregnancy and had to be aborted. The petitioners are continuing their treatment at the Hospital. While so, the Assisted Reproductive Technology (Regulation) Act, 2021 was enforced as per the notification dated 20.01.2022. 

Section 21(g) of the Act caps the upper age limit for assisted reproductive treatment for men at 55 years and for women at 50 years. 

The date of birth of the petitioner is 13.09.1970 and that of the petitioner, 01.10.1972. As such, the petitioner has crossed 50 years. As a result, the petitioners are prevented from continuing the treatment in view of the interdiction contained in Section 21(g). 

The writ petition was filed challenging the constitutional validity of the Act on the ground that it infringes the reproductive choice of citizens, which the Supreme Court has declared as a fundamental right.

Petitioner’s Submissions

The petitioner submitted that the sudden stoppage of the treatment has affected the chance of the petitioner conceiving again and has impacted the mental status of the petitioners. It is requested that, as an interim measure, the petitioners may be permitted to continue the treatment.

Court’s Observation

Justice VG Arun granted interim relief to the couple and posted the case along with a bunch of petitions that challenge the upper age limit of 50 for females and 55 for males fixed under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act (ART Act).

“The petitioners have undergone treatment for the past many years and have faced two tragedies, one by losing their child at the age of 6 years and by the 2nd petitioner the pregnancy being aborted, I am inclined to grant the relief sought for,” the court observed.

Case: Jomon CV & Anr. v The Union of India & Ors.

Citation: WP(C) NO. 36347 OF 2022(P)

Date: 18.11.2022

Click here to read the Order/Judgment

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