Chandigarh: A woman can independently avail services and undergo procedures under the Assisted Reproductive Technology (ART) Act, 2021, even if her husband has crossed the prescribed age limit, the Punjab and Haryana high court has ruled, disposing of six petitions.Justice Tribhuvan Dahiya held that the Act confers an independent right on a woman, married or unmarried, to seek ART services by approaching an authorised clinic or bank and furnishing the requisite information and consent. Her husband crossing the prescribed maximum age of 55 years would not, by itself, disqualify her, provided she was below the age limit of 50 years.“In view of the discussion, it is held that a woman has the right to avail the services/undertake procedures independently under the ART Act, irrespective of her husband having crossed the prescribed age limit,” the court held.The petitioners, through advocates Kunal Thapa and Aman Mittal, argued that a partner who remained within the prescribed age limit retained the right to have a child through ART, but could not exercise it if the procedure required the participation of a spouse who had crossed the age limit.Opposing the petitions, senior Union govt counsel Dheeraj Jain, assisted by counsel Gurneet Sagoo, argued that the petitioners were not entitled to relief because one partner had crossed the statutory age limit. The Union said the law prescribed separate age limits for men and women after due consideration of the implications of conception at an advanced parental age.The court agreed that Section 21(g) prescribed separate limits — 50 years for women and 55 for men — and did not prescribe a composite age limit for a commissioning couple. “A provision which has not been provided for specifically, cannot ordinarily be read into the enactment as it would be expanding the scope of the enactment itself. This is nothing short of re-framing the statute which is beyond the scope of judicial interpretation,” it observed.However, the court rejected the argument that freezing embryos before a woman crossed the age limit gave her a vested right to complete the procedure. Embryo transfer after crossing the prescribed age would violate the Act.“Resultantly, the women petitioners in the aforementioned petitions who have not crossed the maximum age, have the option of availing the services under the Act, if desired,” it held.
