30.07.2026 Court No.25 D/L No.11 S. Gayen In the High Court at Calcutta Constitutional Writ Jurisdiction Appellate Side WPA 1519 of 2026 Smt. Ankhi Laha & Anr. Versus The Union of India & Ors. Ms. Deblina Lahiri Mr. Mrinmoy Chatterjee …for the Petitioners Ms. Chandreyi Alam, Ld. AGP Mr. Subhojit Das …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 after the marriage between the petitioners, a male child was born on July 16, 2004. Unfortunately, the child succumbed to death on April 8, 2022. After the said incident of death of the son of the petitioners, the petitioners had been to the clinic to have the second child but unfortunately, in the mean time, the husband has become over age, due to which, the respondent No.4 could not advice for ART procedure and accordingly, the petitioner have filed the present writ application praying for a direction upon the respondent No.4 to provide the ART procedure to the petitioner No.1 who is within the age limit under the law. 2 3. Learned counsel for the petitioners submits that though the husband of the petitioner No.1 is over age but the petitioner No.1 is aged about 43 years, i.e., within the prescribed limit as per Section 21(g)(i) of the Assisted Reproductive Technology (Regulation) Act, 2021, the respondent No.4 ought to have provide ART facilities to the petitioner No. 1. 4. Learned counsel for the petitioners has relied upon the judgment in the case of Sanchita Ghosh & Anr. vs. Union of India & Ors. reported in 2024 SCC OnLine Cal 12155 and submits that the Coordinate Bench of this Court has considered the provisions of Section 21(g) of the Act of 2021 and held that as follows:- “31. Thus read, the bar available in Section 21(g), clauses (i) and (ii) shall be 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 3 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 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. 32. Only the above 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. 33. Hence, interpreted/read down as above, the provisions of 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. 34. Accordingly, Section 21 (g) of the Assisted Reproductive Technology (Regulation) Act, 2021 is held to be intra vires the Constitution of India.” 5. In the present case also the husband is over age but the wife is within the age prescribed under the law. The petitioners had been to the clinic to go for the ART procedure but the respondent No.4 refused to provide such facilities due to the over age of the petitioner No. 2. 4 6. In the case of Sanchita Ghosh (supra), the Coordinate Bench of this Court has categorically held that the 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. Accordingly, the Coordinate Bench has held that Section 21 (g) of the Assisted Reproductive Technology (Regulation) Act, 2021 is held to be intra vires the Constitution of India and the Coordinate Bench has allowed the parties to adopt the ART procedure. 7. 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, this Court directs the respondent No.4 to provide the benefit of Assisted Productive Technology services to the petitioner No.1 in accordance with law. 8. Accordingly, WPA 1519 of 2026 stands disposed of. 9. All parties shall act on the server copy of this order duly downloaded from the official website of this Court. 10. Urgent Photostat certified copy, if applied for, be given to the parties upon compliance with all formalities. (Krishna Rao, J.)