The Kerala High Court observed that an individual’s choice to build a family is a fundamental right and fixing an upper age limit for the same was a restriction which needs a relook. Justice V G Arun called the imposition of age restriction without even a transitional provision as "irrational and arbitrary."

The court also said that it was difficult to hold the upper-age prescription as so excessive and arbitrary to warrant judicial interference. "...Thus, the personal choice of individuals to procreate and build family is held to be a facet of his/her fundamental right. This right is being restricted by fixing an upper age limit for availing ART services," Justice Arun said in a December 19 order.

The directive was passed while disposing of a batch of petitions challenging the provisions of the ART Act, introduced on January 25, 2022. The act prescribes 50 years of age for women and 55 years for men as the upper age limit under the Assisted Reproductive Technology (ART) (Regulation) Act, 2021, for undergoing the assisted reproductive technology.

The petitioners contend, prescription of the upper age limit under Section 21 (G) of the ART Act is irrational, arbitrary, unreasonable and in violation of their fundamental right to reproduction. They sought to declare it as unconstitutional.

"While the State has the power to impose reasonable restrictions, such restriction can always be tested on the touchstone of liberty guaranteed under Article 21. It is now settled that legislative action can be challenged on the ground of lack of legislative competence, violation of fundamental rights or any other constitutional provision and manifest arbitrariness," the court has said.

The court, however, permitted those among the petitioners who were undergoing ART treatment as on January 25, 2022 to continue with the same.

The Kerala High Court has directed the National Assisted Reproductive Technology and Surrogacy Board to alert the Union government about the need for having a relook at the upper age limit prescribed for using assisted reproductive technology (ART). "In my opinion, the impact of the prescription of upper age limit on the liberty of individuals is a matter which the National Board should bring to the notice of the Central Government, so as to effectuate a detailed discussion on the subject and pave the way for necessary amendments," the court said.

The HC also directed?the National Board to bring the requirement of including a transitional provision in the ART Act to the notice of the Central Government.
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