09.03.2026 Item No.02 Court No.12 CP MAT No.1745 of 2025 with CAN 1 of 2025 Union of India & Anr. Vs. Bipul Kumar Sarker & Ors. Mr. Kumar Jyoti Tiwari, Sr. Advocate Ms. Anamika Pandey Ms. Samriddhi Nayak Mr. Amit Sinha Mr. Aniruddha Tewari ....for the appellants. The appellants are aggrieved by the judgment and order dated May 14, 2024, passed by a learned Single Judge, by which WPA 12573 of 2024 was disposed of by directing the concerned clinic, under the provisions of Assisted Reproductive Technology (Regulation) Act, 2021, (hereinafter referred to as „the said Act‟), to allow the respondents to avail of the facility of assisted reproductive technology services with the sperm/gamete of the husband, writ petitioner no. 1 and the oocyte of the writ petitioner no. 2 (wife), as the first choice. Mr. Tewari, learned senior advocate for the appellants, submits that the effect of the decision impugned resulted in diluting the provisions of the statute, especially the definition of „woman‟ and „couple‟. 2 He further relies on a decision of the Division Bench of the Kerala High Court in the matter of Union of India Vs. Nandini K & Ors. reported in 2025: KER:55330 in support of his contention that after the promulgation of the said Act, any attempt at assisted reproductive services, would be governed solely by the said Act and the cycle would start afresh under the provisions of the said Act, if not completed at the earlier stage. Mr. Tewari relied on the definition of various terms in the Act, in support of his contention that the statute was unambiguous. A literal meaning should have been given to the provisions. The learned Single Judge should not have given a purposive interpretation of section 21(g) thereof. The writ petition was filed challenging the vires of Section 21(g) of the said Act. The writ petitioners were Bangladeshi citizens. The writ petitioners sought to avail of the treatment for assisted pregnancy. It has been informed to the court that the writ petitioners are not in India. They have left for Bangladesh and a baby has been born. The learned counsel for the writ petitioners took release from the matter. The appellants attempted to serve the writ petitioners but they are not before us. In the present case, the husband had crossed the age of 55 years when the writ petition had been filed, but when the sperm of the husband was collected, he 3 was below 55 years. The wife was within the age limit to undergo IVF treatment. The husband did not have any further function in the process. The first question raised by appellants was whether a Bangladeshi national could take advantage of the said Act. His Lordship considered the issue by relying on the preamble of the Act and the statement and objects thereof. His Lordship came to the conclusion that, the Act was promulgated to regulate ART services and to protect affected women and children from exploitation. In the statement and objects of the subject Bill, it was clarified by the legislature that India had become a recognized country where major centres for IVF treatment had been established and reproductive medical tourism had become a significant activity. Thus, His Lordship was of the view that the statement of objects clearly indicated that none should be deprived of the treatment if they fall within the parameters of the statute. The Bangladeshi nationals were not in India to stay, forever, but to avail of the treatment. The purpose of the Act was to regulate reproductive medical tourism in India, as it had become a major centre of the global fertility industry. His Lordship did not find any provision in the statute which prohibited foreigners from availing of assisted reproduction. There is no law which prohibits foreign nationals from availing any medical treatment in India. 4 Statement of Objects and Reasons behind the promulgation of the Assisted Reproductive Technology (Regulation) Act, 2021 are hereby quoted below:- “Assisted reproductive technology (ART) has grown by leaps and bounds in the last few years. India has highest growths in the ART centres and the number of ART cycles performed every year. Assisted Reproductive Technology including in- vitro-fertilisation, has given hope to a multitude of persons suffering from infertility, but it has also introduced a plethora of legal, ethical and social issues. 2. India has over the years become one of the major centres of this global fertility industry, with reproductive medical tourism becoming a significant activity. Clinics in India offer nearly all the ART services—gamete donation, intrauterine insemination, in-vitrofertilisation, intra cytoplasmic sperm injection, pre-implantation genetic diagonistic and gestational surrogacy. However, in spite of so much activity in India, there is yet no standardisation of protocols and reporting is still very inadequate. Furthermore, there is no law to regulate ART and it is regulated through guidelines. 3. The need to regulate the Assisted Reproductive Technology Services is mainly to protect the affected women and children from exploitation. The oocyte donor needs to be supported by an insurance cover. Multiple embryo implantation needs to be regulated and children born through ART need to be protected. The cryopreservation of sperm, oocytes and embryo by the ART Banks need to be regulated and the proposed legislation intends to make Pre Genetic Implantation Testing mandatory for the benefit of the child born through assisted reproductive technology. 4. There is a need to regulate ART clinics and banks by establishing the National Board, the State Boards, the National Registry and the State Registration Authorities for the regulation and supervision of assisted reproductive technology clinics and the assisted reproductive technology banks, for prevention of misuse and for safe and ethical practice of assisted reproductive technology services.” 5 Relevant provisions of Assisted Reproductive Technology (Regulation) Act, 2021 are hereby quoted below:- “2(e) “commissioning couple” means an infertile married couple who approach an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the services authorised of the said clinic or bank; 2(n) “patients” means an individual or couple who comes to any registered assisted reproductive technology clinic for management of infertility; 2(u) “woman” means any woman above the age of twenty-one years who approaches an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the authorised services of the clinic or bank. 2(2) The expressions “clinics” and “banks” occurring in this Act shall be constructed as “assisted reproductive technology clinics” and “assisted reproductive technology banks”. * * * * * * 21(g) the clinics shall apply the assisted reproductive technology services,- (i) to a woman above the age of twenty-one years and below the age of fifty years; (ii) to a man above the age of twenty-one years and below the age of fifty-five years.” His Lordship recorded that the sperm of the husband was collected before he was 55. Thus, the age bar would not apply. The concerned clinic, as the expert, was asked to examine whether the sperm quality was adequate for reproduction and whether a healthy baby could be born. The clinic has obviously found that the sperm quality was upto the standard and continued with the process, and the child was born. Mr. Tiwari places reliance on the opinion of the National Board, justifying the reasons for prescribing 6 the age limit under Section 21(g) of the Act for ART services. With regard to prescription of age limit of a male, the Board opined thus:- “Even men sperm quality is also compromised in above 55 years age, the number of mutations in the father‟s genome increases that leads to an increase in the incidence of congenital malformations in offspring. Older paternal age may be harmful to the offspring‟s health in terms of genetic mutation and epigenetics.” Thus, according to the Board also, the sperm quality of a male above 55 years would be compromised and the number of mutations in the father‟s genome would increase, which would lead to an increase in incidence of congenital malformations of the offspring. The age limit was specific in the opinion of the Board, i.e., male above 55 years, which does not apply in this case as the sperm was collected prior to the man turning 55. The learned Single Judge did not consider the prayer seeking striking down the provisions of Section 21(g) of the said Act, on the ground of unconstitutionalily. The decision of the Kerala High Court does not apply to the facts of this case. In this case, as the sperm was collected prior to the age of 55 of the husband and the wife was within the age limit, His Lordship was of the view that the continuation of the IVF treatment would not offend the law. 7 Under such circumstances, this appeal is not entertained. However, the issues raised by Mr. Tiwari with regard to interpretation of the different provisions of the statute, involve questions of law which can be decided in an appropriate case. Accordingly, the appeal is disposed of without any orders. With such disposal of the appeal, CAN 1 of 2025 is also disposed of. All the parties are directed to act on the basis of the server copy of this order. (Shampa Sarkar, J.) (Ajay Kumar Gupta, J.)