Age Restriction under ART Act with no transitional provision is irrational and arbitrary: Kerala High Court

The Kerala High Court recently said that Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2022 (ART Act) which lays down age restriction to undergo ART treatment, is irrational and arbitrary without a transitional provision. .A transitional provision is a statutory provision intended to govern events during the period of transition before a law or an amendment to the law comes into force.Justice VG Arun, however, said that the prescription of upper age limit in the Act alone cannot be held to be so excessive and arbitrary to warrant interference from the Court.“..when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. At the same time, this Court has to be mindful of the principle of 'presumption of constitutionality of legislations'. On a careful balancing of the above principles, I find it difficult to hold the prescription of the upper age limit in Section 21(g) to be so excessive and arbitrary as to warrant judicial interference. At the same time, I find the imposition of age restriction, without even a transitional provision, to be irrational and arbitrary,” the judgment said.It, therefore, directed the National Assisted Reproductive Technology and Surrogacy Board under the Act to alert the Central government about the need for a re-look at the upper age limit prescribed in Section 21(g) of the Act and also bring to the notice of the Central government the requirement of including a transitional provision in the ART Act within 3 months..The judgment was passed on a batch of pleas that challenged the upper age limit of 50 for females and 55 for males fixed under Section 21(g) of the ART Act.The petitioners moved the Court contending that prescription of the upper age limit under ART Act was irrational, arbitrary, unreasonable and violative of their right to reproduction, acknowledged as a fundamental right. They, therefore, sought quashing of the said provision to the extent it prescribes an upper age limit for availing assisted reproductive technology services, to be declared unconstitutional.The petitioners also sought directions from the Court to the concerned authorities to take immediate steps so that the petitioners who have crossed the age limit fixed under Section 21(g) of the ART Act could avail of services from their respective hospitals for ART services..Petitions before Kerala High Court challenge upper age limit for availing Assisted Reproductive Technology .The Court had earlier passed interim orders permitting some of the petitioners who were undergoing ART services before the implementation of the ART Act, 2022 to continue their treatment. The Court in its verdict of December 19 called for the need to include a transitional provision. The remaining petitioners' treatment shall await the decision of the Central government on the upper age limit and the transitional provision, the Court said.It further reserved liberty to the petitioners to approach the Court at a later stage, if necessary..The petitioners were represented by advocates Akash Sathyanandan and Alex Scaria.Advocate Ramola Nayanpally served as Amicus Curiae.Deputy Solicitor General of India S Manu and advocate V Girish Kumar appeared for the Central government. Government Pleader Riyal Devassy appeared for the State government and advocate N Raguraj appeared for the Kerala Sate Medical Council..[Read Judgment]