HC allows woman to avail IVF facility despite husband’s age-based ineligibility

Soumyadip Mullick, MP, 23 Nov 2024, Kolkata: The Calcutta High Court allowed a couple to avail the facility of test tube baby, observing that for the age-based ineligibility of the husband, the wife should not suffer. 

The Bench of Justice Amrita Sinha was hearing a petition wherein a couple married in 1994 have been unsuccessful in producing a child in their 30 years of married life. Hence, they do not have any legal heir. 

The petitioners had approached a PHS Fertility (IVF and Women care) where they were suggested to opt for assisted reproductive technology for procreation. However, the clinic, in view of provisions under Assisted Reproductive Technology (ART) (Regulation) Act, 2021, expressed their inability to provide the petitioners with the services. 

Subsequently, the petitioners approached the state for necessary permission but didn’t get it as it was observed that the husband is over 55 years. However, the woman is of the age between 50 and 55 years. The court observed that the woman falls within the prescribed age limit but the man is over aged. 

Due to the over-age of the husband, the clinic is refusing to provide the service to the couple. The term ‘patient’ in the Act permits an individual to avail the facility of ART service irrespective of gender. 

The Act does not bar an individual partner of a married couple to avail ARTS independently, the court noted. The court observed that there is no provision in the Act which bars a married woman to approach the clinic individually for availing the benefit of ARTS. 

The bar will not have any effect if the wife approaches the clinic to seek the service unilaterally. The clinic or the bank does not have any authority to refuse service if a single partner of a married couple intends to avail the service. 

The court observed petitioners will be eligible to avail the facility of ART service and directed the PHS Fertility to provide such facility to the petitioners. 

https://www.millenniumpost.in/bengal/hc-allows-woman-to-avail-ivf-facility-despite-husbands-age-based-ineligibility-587838