Wife ‘within age limit’, HC lets 58-yr-old become test tube dad
Times of India | 23 November 2024
Kolkata: The Calcutta High Court on Friday allowed a childless elderly couple, married for the last 30 years, to become parents through assisted reproductive technology, even though the husband, at 58, crossed the upper age limit of 55 specified in the Assisted Reproductive Technology (Regulation) Act, 2021.
Noting that the wife, who is below 50, is eligible for IVF, Justice Amrita Sinha in her order said: "If the woman is not allowed to avail ARTS even though she is eligible for it, it will be sheer injustice to her. The wife ought not to suffer for the ineligibility of her husband. This is so because the husband has no physical participation in any of the procedures involved for the birth of the child through ARTS."
Justice Sinha also said: "The husband has claimed that he is financially strong to bear the expenses of the procedure. Apart from providing moral and financial support to the wife, the husband hardly has a role to play."
This is the second case in which the HC interpreted the ARTA 2021 to allow couples to opt for IVF even if one among them overshot the age limits — 50 for women and 55 for men. In May 2024, the Calcutta HC allowed an older couple, who lost their 19-year-old son to suicide in 2023, to become parents again, even though the husband was 59.
In the current case, a couple from Cossipore, married in 1994, opted for the IVF after they failed to bear a child in their 30 years of conjugal life. The purpose was to continue with the family line. Accordingly, they went to a fertility clinic in Dec 2023. The clinic, after considering the husband's age, opined that his age was not conducive for undergoing IVF. The clinic advised the couple to approach the state health department and get the go-ahead instead. The state health department denied permission based on the report of the fertility clinic. The couple moved the HC seeking permission.
Arguing that "the law cannot be interpreted or applied in such a manner that the same becomes unworkable," Justice Sinha also broached on the HC's 2024 judgment and said it was earlier held that "the couple would be entitled to have the benefit of IVF as one of the parties qualify on the upper age limit stipulated in Section 21(g), irrespective of the fact that the other spouse does not."
Bending laws to allow the couple to take an attempt at parenthood, Justice Sinha said, "It cannot be said with certainty that each and every ARTS case would be successful... The facility must be their last resort to get a child for which they are craving for so long."