Challenging ART Age Limits
A pivotal legal challenge is unfolding in the Bombay High Court concerning the age restrictions for women seeking pregnancy through Assisted Reproductive
Technology (ART). Two women, aged 53 and 55, have filed petitions asserting that a specific clause within the ART Act, Section 21(g), which stipulates ART services only for women between 21 and 50 years old, is unconstitutional. Their aim is to gain access to ART treatments despite exceeding the current age threshold. While the petitioners have presented certificates from gynaecologists affirming their physical capability to carry a pregnancy to term and deliver a child, the court has noted the absence of comprehensive research presented by them to preliminarily establish medical fitness for pregnancy and childbirth at such advanced ages. This legal battle highlights a growing debate on reproductive rights and the evolving understanding of female fertility and health in later life.
Court-Ordered Evaluations
In response to the petitions, the Bombay High Court has taken proactive steps to gather crucial information and assess the petitioners' eligibility. The court has directed the two women to undergo specific medical tests and evaluations, to be conducted under the supervision of the State ART and Surrogacy Board. These examinations are scheduled to take place between May 5th and May 25th and will be performed by qualified and authorized medical practitioners. The intention behind these tests is to thoroughly assess their fitness for undergoing ART procedures. Following the Supreme Court's precedent from February 2026, the High Court is permitting these evaluations. The outcomes of these tests are to be submitted to the court by the next hearing on June 19th, providing a clinical basis for the court's deliberation on their request.
Expert Medical Opinion Sought
Beyond the direct medical tests for the petitioners, the Bombay High Court is also seeking broader medical insights into the implications of pregnancy for older women. The court has appointed senior advocate Ashutosh Kumbhakoni as an amicus curiae (friend of the court) to assist in this matter. Kumbhakoni has been tasked with gathering information from a senior gynaecologist of high repute. The specific focus of this inquiry is to understand the physical capacity and strength of women beyond the age of 45 to 55 years in enduring a full-term pregnancy. Furthermore, the court is interested in their ability to deliver a healthy child and whether there is an increased risk of the foetus developing congenital defects compared to younger women embarking on motherhood. This quest for expert opinion aims to provide a comprehensive medical perspective to inform the court's decision on the challenging legal and ethical questions presented.
Legal Framework and Arguments
The legal arguments presented in this case touch upon specific provisions of the ART Act and its associated rules. While the ART Act defines Assisted Reproductive Technology as encompassing techniques that handle sperm or oocytes outside the body before transferring gametes or embryos into a woman's reproductive system, the crux of the legal challenge lies in Section 21(g). This section, which limits ART services to women aged 21 to 50, is being contested as discriminatory by the petitioners. Advocate Kalyani Tulankar, representing the petitioners, highlighted an apparent inconsistency: the ART rules permit male donors up to the age of 55, yet impose a stricter age limit of 50 for the woman who is to receive donated sperm and carry the pregnancy. The court has issued notices to key respondents, including the Union and state Health Ministries and the National and State ART and Surrogacy Boards, requesting their official responses to these arguments in the upcoming hearings.
