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The Kerala Supreme Court should reconsider the maximum age for assisted reproductive technology.

The Kerala High Court has ruled that the choice to start a family is a fundamental right and that setting an upper age limit for family formation is a restriction that must be reconsidered.

The Supreme Court has ordered the National Assisted Reproductive Technology and Surrogacy Board to notify the federal government of the need to reconsider the specified maximum age limit for assisted reproductive technology use.

Justice V G Arun deemed the installation of age restrictions without even a transitional clause to be “arbitrary and unreasonable.”

In addition, the court stated that it was impossible to conclude that the maximum age limit was exorbitant and arbitrary enough to require judicial intervention.

“After weighing the preceding considerations, I find it difficult to conclude that Section 21(Gupper )’s age limit is so unreasonable and arbitrary as to necessitate judicial intervention. In addition, I deem the imposition of age restrictions without even a transitional clause to be arbitrary and unreasonable,” the court stated.

It was stated that the personal option to procreate is a fundamental right that cannot be curtailed by a maximum age limit.

“…Therefore, the option of an individual to procreate and form a family is considered a component of his/her fundamental right. Justice Arun stated in an order dated December 19 that this entitlement is being hampered by the imposition of an age restriction for ART services.

In resolving a group of petitions contesting the age limit of 50 years for women and 55 years for men stipulated by the Assisted Reproductive Technology (ART) (Regulation) Act, 2021, for undergoing assisted reproductive technology, the court issued the directive.

On January 25, 2022, the ART Act was introduced.

According to the petitioners, the higher age limit prescribed in Section 21 (G) of the ART Act is irrational, arbitrary, unjust, and in violation of their recognised fundamental right to reproduction. They attempted to have it declared unlawful.

“Although the State has the authority to impose legitimate restrictions, such restrictions can always be measured against the liberty provided by Article 21.” The court has ruled that legislative action can now be challenged on the grounds of lack of legislative competence, violation of basic rights or any other constitutional provision, and obvious arbitrariness.

However, the court enabled those petitioners who were undergoing ART therapy as of January 25, 2022 to continue doing so.

The court stated, “In my judgement, the National Board should bring to the attention of the Central Government the effects of the prescribed upper age limit on individual liberty in order to facilitate a full discussion on the subject and pave the way for required revisions.”

It further requested that the National Board raise the need for a transitional clause in the ART Act to the attention of the Central Government.


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