A Married Woman Cannot Be Punished for Her Husband’s Age: Kerala High Court Allows ART Access Using Donor Sperm Despite Husband Crossing Age Limit

“Law Does Not Mandate Composite Age Limit for Commissioning Couple – Only Woman’s Age Matters When Donor Sperm is Used” - In a landmark judgment that fortifies reproductive rights and promotes equality under the law, the Kerala High Court dismissed a writ appeal filed by the Union of India, challenging a Single Judge’s ruling that allowed a married woman to undergo Assisted Reproductive Technology (ART) procedures using donor sperm, despite her husband being above the age limit prescribed under Section 21(g)(ii) of the Assisted Reproductive Technology (Regulation) Act, 2021.

The Division Bench comprising Justice Anil K. Narendran and Justice Muralee Krishna S. held that “prescribing such age restriction on mere assumptions is unwarranted and against what is intended by the legislature”, firmly rejecting the Centre’s claim that both spouses in a “commissioning couple” must independently satisfy age limits even when donor gametes are used.

“To Deny ART to Married Women While Allowing It to Single Women Is Discriminatory” – High Court Warns Against Creating ‘Unconstitutional Classification’ Under ART Act

The case, titled Union of India v. Devayani S. & Others (W.A. No. 2009 of 2025), involved a married couple – a 44-year-old wife and a 55-year-old husband – who approached a registered ART clinic in Kerala seeking IVF treatment. The wife, Devayani S., intended to proceed with the treatment using donor sperm, since her husband had crossed the upper age limit of 55 years for male gamete contributors under Section 21(g)(ii) of the ART Act.

However, the clinic refused service, citing the couple’s status as a “commissioning couple,” arguing that both the man and the woman must be within their respective age limits. Devayani challenged this denial through a writ petition before the Kerala High Court, which was allowed by the learned Single Judge on 25 February 2025. The Union of India then filed this writ appeal, asserting that married women could not be treated as standalone beneficiaries under the Act.

Devayani and her husband had undergone multiple failed IVF attempts over the years. By the time they were advised to proceed with another IVF round using donor sperm, the husband had crossed the permissible age under the ART Act. The clinic, invoking Section 21(g), refused treatment, claiming both members of the “commissioning couple” must meet age criteria.

Devayani filed a writ petition asserting her independent right as a “woman” defined under Section 2(1)(u) of the ART Act to undergo IVF using a donor, with her husband's consent as required under Rule 13(1)(f)(iii) of the ART Rules, 2022. The Single Judge ruled in her favour, prompting this appeal.

The core issue was whether a married woman, whose husband is above the age limit, could independently access ART using donor sperm, without being barred by the composite age condition applicable to “commissioning couples.”

The High Court clarified that:

“Section 21(g)(ii) is applicable only where the male’s gamete is used. Where donor sperm is used, only the woman’s age is relevant.”

It was held that the ART Act does not prescribe a composite age limit for both spouses if the woman uses donor gametes. The Court identified six distinct ART usage scenarios, of which the current case involved the second: a wife using her own oocyte and donor sperm, with the husband’s written consent.

The Court pointed out:

“Even after approaching the clinic as a commissioning couple, the woman is entitled to receive a third-party male gamete (sperm) with the consent of her husband.”

Further, the Court warned against reading into the statute what is not explicitly written:

“A court of law cannot read between the lines when the statute is clear on this aspect.”

On Equality and Constitutional Validity:

The Court dismissed the Union’s argument that married women must always approach ART clinics as part of a “commissioning couple.” It warned that such a view would result in a discriminatory classification, violating constitutional guarantees of equality under Article 14.

“The classification of a married woman and a single woman differently… would put married women at an unfair disadvantage when compared to single women.”

In fact, the Court noted the extreme consequence of the Union’s stance:

“The respondents even expressed readiness to avail the status of divorced persons, so as to make respondent 1 eligible to apply for ART procedure as a single woman.”

It held that the Parliament never intended such an inequitable classification in a “benevolent statute” like the ART Act.

Statutory Interpretation: Clear Language Prevails Over Assumptions

Rejecting the appellant’s reliance on legislative reports and intent to read a composite age cap, the Bench held:

“When the ART Act does not provide composite age criteria for the commissioning couple… prescribing such age restriction on mere assumptions is unwarranted.”

Notably, the Adoption Regulations, 2022 specifically prescribe a composite age cap, but the ART Act does not. This contrast was a key factor in the Court's reasoning.

The Court also relied on the amendment to Section 8 of the Hindu Adoptions and Maintenance Act, 1956, which removed restrictions on a married woman adopting a child without the husband’s consent, reinforcing the principle of individual reproductive agency for women.

ART Services Cannot Be Denied to Eligible Married Women Using Donor Sperm

The High Court held that the age restriction under Section 21(g)(ii) does not apply where the male partner is not providing the gamete. Therefore, a married woman aged between 21 and 50, using donor sperm with her husband's consent, must be permitted to access ART services.

“The learned Single Judge rightly found that the Parliament never intended such an inequitable classification within a benevolent statute like the ART Act.”

The Court concluded that there was no perversity or illegality in the impugned judgment that warranted appellate interference.

Accordingly, the writ appeal was dismissed, and the woman’s right to proceed with the ART treatment was upheld.

Date of Decision: 6 November 2025