Couple lose son, fight to be parents again

Ahmedabad: After losing their only son at the age of 25, a Mehsana couple's hope of rebuilding their family has run into a legal hurdle. On Monday, Gujarat High Court issued notices to the state govt and central authorities on their plea seeking permission to conceive through assisted reproductive technology (ART), after a private fertility specialist declined treatment citing the age limits prescribed under the ART (Regulation) Act.

The law permits ART procedures for women aged between 21 and 50 years and men between 21 and 55 years. While the man is 54-years-old, the woman is over 50 years.

Initially, the couple had represented their case before the authorities seeking relaxation in the age criteria. While the petition was pending before the high court, the authorities rejected their request under ART. Their counsel subsequently urged the court to quash the rejection order and direct the authorities to permit the couple to undergo ART treatment so that they could experience parenthood again.

Arguing the case before Justice Nirzar Desai, the petitioners' lawyer relied on a Calcutta High Court ruling in a similar matter, where relief was granted by considering the peculiar facts of the case. The petitioner's lawyer submitted that the age limit should not be applied mechanically and that individual circumstances deserve consideration.

It was contended that although the woman had crossed the prescribed age limit, the husband remained within the permissible age of 55 years and therefore the couple should not be denied access to the technology.

After hearing the matter, Justice Desai issued notices to the chief medical officer of Mehsana, the state health and family welfare department, and the National ART and Surrogacy Board, seeking their responses by Aug 10.

The court also stressed the need for an expeditious response from the Centre. Observing that the couple was "running against time", the judge told the central govt's standing counsel that the treatment process itself could take considerable time.

The high court, however, did not issue notice at this stage to the private doctor who had declined treatment. The order stated: "For the time being the court does not deem it appropriate to issue notice to R-4 (private doctor), and if required, the notice shall be issued to him at an appropriate time."

Ahmedabad: Sabina* remarried at 45 and hoped to start a family with her second husband, Aabid*. But after their first in-vitro fertilization (IVF) attempt failed, a statutory age limit brought the next round of treatment to a halt. Sabina was 47 and Aabid 54 when they began their first IVF cycle. By the time the second cycle was nearing completion, Aabid had turned 55 — the upper age limit prescribed for men seeking assisted reproductive technology services.

Fertility specialists say many couples face a similar deadline after delayed marriages, miscarriages, or unsuccessful IVF cycles.

"I still had time under the age limit applicable to women, but my husband had turned 55. We suspended the treatment and were heartbroken," said Sabina, who lives in central Gujarat. "Life does not follow a fixed schedule... Setting a cap on the age seems like injustice."

The Assisted Reproductive Technology (Regulation) Act, 2021, caps the man's age at 55 years and the woman's age at 50 years for IVF. For unmarried women, the cap is 45 years. As Gujarat High Court hears a couple's plea seeking IVF treatment past the legal age limit, fertility experts note a growing trend of couples planning families in their late 40s and early 50s due to professional commitments and family circumstances. Many are forced to abandon their dream of parenthood due to the strict statutory age cap.

Dr Nayana Patel, a specialist from Anand, said her clinic receives about five to six requests a month from older couples. "If either partner has crossed the prescribed age, we have to refuse treatment. There are also instances in which treatment has to be discontinued because of the age restriction," she said.

Dr Falguni Bavishi from Ahmedabad said, "In one case, the third cycle was under way, but the woman had crossed the age limit by two months and we could not proceed." She added that the restriction also affects older couples who seek IVF after losing children in disasters.

Specialists said the restrictions were intended to regulate assisted reproduction. Patients, however, argue that individual medical fitness and the stage of treatment should also be considered.

(*Names of patients changed to withhold identities)