28.07.2026 Court No.25 D/L No.12 S. Gayen In the High Court at Calcutta Constitutional Writ Jurisdiction Appellate Side WPA 5577 of 2025 Smt. Piu Das Sarkar & Ors. Versus The Union of India & Ors. Ms. Deblina Lahiri Ms. Moumita Sharma Mr. Mrinmoy Chatterjee …for the Petitioners Mr. Soumak Bera Mr. Goutam Sardar …for the Union of India 1. The petitioners have filed the present writ application praying for a direction upon the respondent No.4 to provide the service of assisted reproductive technology (ART) to the petitioner No. 1. 2. Learned counsel for the petitioners submits that the petitioners were married on November 18, 2018. After the marriage they were not blessed with any child. Thereafter the petitioners were under medical treatment. Initially they have taken the treatment at the Government hospital but no fruitful result has come out and subsequently the petitioners went to the private clinic. In the private clinic also, several tests have been conducted but no fruitful result has been come out. In the mean time, the petitioner No.2 has become over age and the petitioner No.1 is aged of 35 years. Due to which, the respondent No.4 refused to adopt the ART procedure as the petitioner No.2 is over age. The learned counsel for the petitioners has 2 produced the certificate from the respondent No.4 wherein it is certified that after careful clinical evaluation and necessary medical assessment, it is found that the petitioner No.1 is medically fit to undergo and carry a pregnancy and at present there is no medical contraindication to proceeding with pregnancy and she is considered fit from the medical point of view. 3. Learned counsel for the petitioners submits that though the petitioner No.2 being the husband of the petitioner No.1 is over age but he petitioner No.1 is aged about 35 years which is within the age limit as prescribed under law and she can go for the ART procedure. 4. Learned counsel for the petitioners has relied upon the judgment in the case of Sanchita Ghosh & Anr. vs. Union of India & Ors. passed in WPA 12154 of 2023 dated April 8, 2024 wherein, the Coordinate Bench of this Court has considered with regard to the bar available under Section 21(g), Clauses (i) and (ii) and held that the petitioners will be entitled to have the benefit of ART services and can approach an appropriate clinic for having such services. 5. The learned counsel for the petitioners has also relied upon the judgment in the case of Smt. Bula Santra & Anr. vs. The Union of India & Ors. passed by this Court in WPA 19776 of 2025 dated January 14, 2026, in that case also the husband was over age and the wife was within the age limit and this Court after 3 considering all the aspects of the matter and the clinical report has allowed to go for the ART procedure. 6. Learned counsel for the respondents has relied upon the judgment passed by the Hon’ble Division Bench of the Kerala High Court and submits that it is settled law that if any of the petitioners who is within the age limit as prescribed under the law can go for the ART procedure. 7. Heard the learned counsel for the respective parties. Perused the materials on record and the judgments relied upon by the parties. 8. Section 21(g), Clauses (i) and (ii) read as follows:- “i) If a commissioning couple approaches a clinic/bank for assisted reproductive technology services, no upper age limit restriction will be applicable to them unless both spouses of the commissioning couple are debarred respectively under sub-clauses (i) and (ii) of sub-Section (g) of Section 21 of the 2021 Act. ii) In the event either of the couples qualify in respect of the age limits as stipulated in Section 21(g), he or she can approach the clinic to have assisted reproductive technology service, irrespective of the fact that he or she is the constituent of a commissioning couple and her spouse is not eligible age-wise. iii) In the second scenario above, the commissioning couple, as a commissioning couple, shall be permitted to avail the facilities of assisted reproductive technology services, since there is no bar on a commissioning couple acting as such, to have 4 such reproductive technology irrespective of any age bar. iv) It is made clear that in the event one of the spouses is eligible under Section 21(g) and the other is not, it will be at the option of the clinic whether or not to use the gamete donated by the ineligible spouse in the process of assisted reproductive technology.” 9. The Coordinate Bench of this Court has interpreted the Section 21(g) and held that only interpretation of Section 21(g) and its sub-clauses, read harmoniously with the definition clause as stipulated in Section 2 of the 2021 Act, can give complete meaning and a wide expanse to the said Act, in consonance with the contemplation of the Preamble of the Act. 10. It was held that Section 21(g) of the 2021 Act create no unreasonable discrimination between married and unmarried women in availing assisted reproductive technology and, thus, passes the test of constitutionality. Section 21 (g) of the Assisted Reproductive Technology (Regulation) Act, 2021 is held to be intra vires the Constitution of India. 11. In the present case, this Court finds that though the petitioner No.2 is over age in terms of Section 21(g) (ii) but the petitioner No.1 is within the age limit in terms of the said provision and as per the report submitted by the respondent No.4 that the petitioner No.1 is found medically fit to undergo and carry the pregnancy. 12. In view of the above, this Court directs the respondent No.4 to assist the petitioner No.1 to have the benefit of 5 assisted productive technology services in accordance with law. 13. Accordingly, WPA 5577 of 2025 stands disposed of. 14. All parties shall act on the server copy of this order duly downloaded from the official website of this Court. 15. Urgent Photostat certified copy, if applied for, be given to the parties upon compliance with all formalities. (Krishna Rao, J.)