The Kerala High Court has said that personal 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.

The 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.

Justice V G Arun said that the imposition of age restriction without even a transitional provision was "irrational and arbitrary".

At the same time, the court also said that it was difficult to hold that the upper age prescription was so excessive and arbitrary to warrant a judicial interference.

"On a careful balancing of the above principles, I find it difficult to hold the prescription of 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 court said.

It said the personal choice of individuals to procreate was a fundamental right which cannot be restricted by fixing an upper age limit.

"...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 court passed the directive while disposing of a batch of petitions challenging the age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive Technology (ART) (Regulation) Act, 2021, for undergoing the assisted reproductive technology.

The ART Act was introduced on January 25, 2022.

According to the petitioners, prescription of the upper age limit under Section 21 (G) of the ART Act is irrational, arbitrary, unreasonable and violative of their right to reproduction, which is acknowledged as a fundamental right. 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.

"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.

It also asked the National Board to bring to the notice of the Central Government the requirement of including a transitional provision in the ART Act.

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