Woman in Assam challenges ART Act’s provision barring women over 50; High Court pulls up fertility clinic for non co-operation

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The High Court of Meghalaya has pulled up a fertility clinic in Assam over a Meghalaya woman’s bid to conceive past the age of 50 years.

A few weeks ago, the woman approached the Guwahati-based Institute of Human Reproduction to undergo a procedure to become pregnant. The Institute told her that the Assisted Reproductive Technology (Regulation) Act of 2021 bars women over the age of 50 to undergo the procedure unless she had a court order permitting her to do so.

The woman then filed a writ petition at the High Court of Meghalaya challenging the portion of the Act that does not allow women over 50 years to avail of ART, and for directions to the institute to carry out the procedure.

The court subsequently asked the Institute to form a medical board to let it know whether the said procedure could be carried out safely on the petitioner. It also directed the Union of India and the State government to take instructions on the matter.

On Monday (February 10, 2025), a division bench of Chief Justice I.P. Mukerji and Justice W. Diengdoh said it was “shocked” to note the Institute’s failure to constitute the medical board as it lacked a multi-speciality team. The Institute had informed the court on February 5 about its inability to form the board.

“Kindly note that we are a health facility which specialises in rendering mother and child services. Hence, we would suggest that the same may be requested to any government hospital/medical college and hospital/any multi-speciality hospital having the adequate facility and expertise,” the institute said.

Flip-flop noted

Taking a serious view of the matter, the court said: “At one point of time, the hospital is telling the patient to get a court order to enable it to perform the procedure. Now, they turn around and say that they cannot form a medical board. This tantamounts to saying that they cannot even opine whether the procedure is safe or reasonably free from risk for the writ petitioner. This kind of an attitude cannot be tolerated by the court.”

The court directed the institute to file an affidavit after due consultation with the specialist in this procedure attached to this hospital whether this procedure can be performed on the writ petitioner or not, how safe the procedure is and what the risks are.

“If no satisfactory response is received, we shall have to presume that the hospital does not want to take any care of or responsibility towards its patients or its medical professionals simply do not have the competence to carry out the procedure under the said Act. If either of the two is established in public interest, we would have to pass necessary orders restraining this Institute to perform any kind of procedure under the Assisted Reproductive Technology (Regulation) Act, 2021,” the court said.

The court fixed February 20 as the next date of hearing in the case.