Page No.# 1/6 GAHC010089742024 2026:GAU- AS:13881-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/2399/2024 PRANJITA BARUAH KALITA AND ANR W/O- JITENDRA KALITA, R/O- AMOLAPATTY, DIST. NAGAON, ASSAM, PIN- 782003. 2: JITENDRA KALITA S/O- GOLUK CHANDRA KALITA R/O- AMOLAPATTY DIST. NAGAON ASSAM PIN- 782003 VERSUS THE UNION OF INDIA AND 4 ORS REP. THROUGH ITS SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, SASTHRI BHAVAN, NEW DELHI-110001. 2:MINISTRY OF LAW AND JUSTICE GOVT. OF INDIA REP. THROUGH ITS SECRETARY DEPARTMENT OF LEGAL AFFAIRS MINISTRY OF LAW AND JUSTICE 4TH FLOOR A-WING SASTHRI BHAVAN NEW DELHI-110001. 3:THE CHAIRMAN NATIONAL MEDICAL COMMISSION POCKET-14 SECTOR-8 DWARAKA PHASE-1 NEW DELHI-110077. Page No.# 2/6 4:THE STATE OF ASSAM REP. BY ITS COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HEALTH AND FAMILY WELFARE DEPARTMENT D-BLOCK ASSAM SECRETARIAT DISPUR GUWAHATI PIN- 781006 ASSAM 5:M/S JANITVA IVF CENTRE 307 UNIVERSAL METRO WALK 3D FLOOR NH-37 BETKUCHI GHY-781035 ASSA Advocate for the Petitioner : MR D SENAPATI, MS. S KATAKEY,MR H K SARMA,MS K BHATTACHARYYA Advocate for the Respondent : DY.S.G.I., SC, HEALTH AND F W BEFORE HONOURABLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER 17.09.2026 (A.D. Choudhury, J) 1. We have heard Mr. D. Senapati, learned counsel for the petitioners. We have also heard Mr. B. Chakravarty, learned CGC representing the Union of India. 2. The petitioners are a married couple who solemnized their marriage on 12.12.2007. Having failed to conceive naturally, despite medical consultations and treatment, they explored the possibility of Page No.# 3/6 undergoing Assisted Reproductive Technology (ART) in the year 2018. However, the treatment could not be continued due to certain difficulties, including financial constraints and disruptions caused by the COVID-19 pandemic. In April 2024, the petitioners sought to commence the ART process afresh. However, they were informed that the procedure could not be undertaken since the petitioner No. 2, the husband, had already attained the age of 56 years. At that time, the petitioner No. 1, the wife, was under 50 years of age. 3. The petitioner has thus, preferred to assail the constitutional validity of the age prescription contained in Section 21(g) of the Assisted Reproductive Technology Regulation Act, 2021 (hereinafter referred to as the Act 2021). 4. This court had already considered the constitutional challenge to the age proscription contained in Section 21(g) of the Act 2021 in Pankaj Kumar Das v. Union of India and others, reported in 2025 SCC Online Gau 5083, and has held that the age-based classification under Section 21(g) is founded upon an ineligible differentia and bears a rational nexus with the object sought to be achieved by the regulatory framework governing ART. Under Section 21(g), the provision was held not to suffer from manifest arbitrariness or to infringe Article 14 or 21 of the Constitution of India. 5. The court also held that individual hardship or medical fitness cannot be employed to carve out an exception from the statutory prescription. However, 6. Mr. Senapati submitted that certain points were not argued or taken note of, and were not considered in the earlier judgment; accordingly, it is submitted that while the expression “commissioning Page No.# 4/6 couple” refers to an infertile married couple, the age restrictions under Section 21(g) of the Act, 2021 are prescribed separately for the woman and the man. According to the learned Counsel, this may result in a situation where the wife is otherwise within the prescribed age but is unable to avail ART services because her husband has crossed the prescribed age and consequently produces an anomalous result, where the wife remains within the prescribed age but is denied access to ART solely on account of the age of her husband. 7. It is further argued that the repeated reference to the “commissioning couple” in sections 2(c) to 2(j) creates ambiguity in the scheme of the legislation itself. According to the learned Counsel, Section 21(g) ought not to be construed as imposing an independent age bar upon both the spouses. 8. The argument proceeds on the premise that when the wife is within the permissible limit, her access to ART becomes an independent right, unaffected by the husband's age. The submission, though it appears attractive at first glance, does not withstand examination of the statutory provision itself. 9. The expression "commissioning couple" identifies the person who seeks to avail of the ART services. It does not mean that every eligibility condition under the Act must be applied to the couple as a single unit. Section 21(g), in clear terms, prescribes separate age eligibility for women and men. There is therefore no ambiguity in the provision. The legislative prescription is neither uncertain nor incapable of ascertainment. The provision clearly identifies the persons to whom ART services may be provided and fixes a distinct upper age limit for each. 10. It is significant to note that section 27(2)(a) and section 27(2) Page No.# 5/6 (b) expressly provide that an ART bank shall obtain semen only from a male between 21 and 55 years of age and oocytes from females between 23 years and 35 years of age, both inclusive. It shows that the legislature has consciously taken age into account not only when determining the eligibility of an intending couple but also when regulating the source of gametes and oocytes used in ART. Age has thus been treated by the legislature as a relevant consideration in regulating reproductive technology. In the context of right of reproduction, age limits prescribed are clearly linked to the concerns of parental capacity, health, longevity, long term welfare of the child and also the health of the child on her/his birth. Therefore, there is a reasonable nexus in prescribing the age limit. 11. Therefore, in our opinion, the scheme of the Act’2021 cannot be said to overlook the importance of age in the reproductive process. The prescription of different age limits for the intending woman and the intending man, the male gamete and the female oocyte donor forms part of the legislative scheme governing ART. The fact that the age of one member of a “commissioning couple” may render the couple ineligible does not make section 21(g) vague or unworkable. 12. We have already dealt with Pankaj Kumar Das (supra), that the reproductive choice of a wife is undoubtedly an aspect of personal liberty, but such a right does not confer an unrestricted entitlement to avail ART services irrespective of the conditions prescribed by law. Once ART is sought through a regulated statutory mechanism, the eligibility conditions prescribed by the legislature must be met. We repeat that the reference to “commissioning couple” in sections 21(c) to 21(j), 22 and 25 does not alter the position. Those provisions have to be read harmoniously with section 21(g). Page No.# 6/6 The expression “commissioning couple” identifies the beneficiaries of the statutory scheme, whereas section 21(g) prescribes the individual age eligibility of the person constituting such couple. There is no inconsistency between the two. 13. We, therefore, find no substance in the additional arguments advanced by Mr. Senapati, learned counsel for the petitioner. 14. Accordingly, the writ petition stands dismissed. JUDGE CHIEF JUSTICE Comparing Assistant