Allowed

Nasiya v. Union of India

Kerala HC12 Jan 2023WP(C)/332/2023

Case brief

AI extract

What is this about?

Three couples filed writ petitions challenging the upper age limits for ART services under the 2021 Act. The Court, relying on a prior judgment, permitted those who commenced treatment before January 25, 2022, to continue while directing authorities to review the age limits.

What did the court decide?

Petitioners permitted to continue ART services if commenced before January 25, 2022; liberty to approach Court reserved.

Nasiya Vs Union of India — Service and Employment | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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THURSDAY, THE 12^TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944

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WP(C) NO. 315 OF 2023

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PETITIONER/S:

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1 LINIMOL MANOJ AGED 50 YEARS WIFE OF MANOJ K GEORGE, 'KARIMPANACKAL', MANIMALA PO, KOTTAYAM , PIN - 686543 2 MANOJ K. GEORGE AGED 53 YEARS SON OF P J GEORGE, 'KARIMPANACKAL', MANIMALA PO, KOTTAYAM , PIN - 686543 BY ADVS. AKASH S. GIRISH KUMAR M S V.S.VARALEKSHMI DEVIKA JAYARAJ

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RESPONDENT/S:

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1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, SASTHRI BHAVAN, NEW DELHI , PIN - 110001 2 STATE OF KERALA REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM , PIN - 695001 3 THE DISTRICT REPRODUCTIVE & CHILD HEALTH ("RCH") OFFICER DISTRICT MEDICAL OFFICE, ERNAKULAM, PARK EVE, MARINE DRIVE, ERNAKULAM, KERALA , PIN - 682011 4 SABINE HOSPITAL AND RESEARCH CENTRE PVT. LTD REPRESENTED BY ITS MANAGING DIRECTOR,

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W.P.(C) Nos.315, 331 and 332 of 2023

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PEZHAKKAPPALLY PO, MUVATTUPUZHA , PIN - 686673

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OTHER PRESENT:

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GP P.S.APPU;AMMINIKUTTY K

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2023, ALONG WITH WP(C).331/2023, 332/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.315, 331 and 332 of 2023

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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THURSDAY, THE 12^TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944 WP(C) NO. 331 OF 2023

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PETITIONER/S:

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1 SMITHA ANIL KUMAR AGED 41 YEARS WIFE OF ANIL KUMAR G S, 'MADHAVAM', MOULANA NAGAR, CHITHARA, KOTTARAKKARA, KOLLAM , PIN - 691506 2 ANIL KUMAR G.S AGED 57 YEARS SON OF GOPALAKURUP B, 'MADHAVAM', MOULANA NAGAR, CHITHARA, KOTTARAKKARA, KOLLAM , PIN - 691506 BY ADVS. AKASH S. GIRISH KUMAR M S V.S.VARALEKSHMI DEVIKA JAYARAJ

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RESPONDENT/S:

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W.P.(C) Nos.315, 331 and 332 of 2023

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3 3THE DISTRICT REPRODUCTIVE & CHILD HEALTH ("RCH") OFFICER, DISTRICT MEDICAL OFFICE, ERNAKULAM, PARK EVE, MARINE DRIVE, ERNAKULAM, KERALA , PIN - 682011 4 SABINE HOSPITAL AND RESEARCH CENTRE PVT. LTD, REPRESENTED BY ITS MANAGING DIRECTOR, PEZHAKKAPPALLY PO, MUVATTUPUZHA , PIN - 686673 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2023, ALONG WITH WP(C).315/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.315, 331 and 332 of 2023

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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THURSDAY, THE 12^TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944 WP(C) NO. 332 OF 2023

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PETITIONER/S:

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1 NASIYA AGED 41 YEARS DAUGHTER OF AYISHA, 'EDAPATTA HOUSE', PULLENGODE PO, KALIKAVU, MALAPPURAM , PIN - 676525 2 ZAKKEER HUZAIN AGED 57 YEARS SON OF ESAMAIL KUNJU, 'MADATHILAZHIKATHU PUTHENVEEDU', PAMPALIL, PERINAD PO, KOLLAM , PIN - 691601 BY ADVS. AKASH S. GIRISH KUMAR M S V.S.VARALEKSHMI DEVIKA JAYARAJ

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RESPONDENT/S:

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1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, SASTHRI BHAVAN, NEW DELHI , PIN - 110001 2 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT , SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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W.P.(C) Nos.315, 331 and 332 of 2023

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3 THE DISTRICT REPRODUCTIVE & CHILD HEALTH ("RCH") OFFICER DISTRICT MEDICAL OFFICE, ERNAKULAM, PARK EVE, MARINE DRIVE, ERNAKULAM, KERALA , PIN - 682011

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4 SABINE HOSPITAL AND RESEARCH CENTRE PVT. LTD REPRESENTED BY ITS MANAGING DIRECTOR, PEZHAKKAPPALLY PO, MUVATTUPUZHA , PIN - 686673

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION

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ON 12.01.2023, ALONG WITH WP(C).315/2023 AND CONNECTED CASES,

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THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.315, 331 and 332 of 2023

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JUDGMENT

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Dated this the 12^th day of January, 2023

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These writ petitions are filed by couples who

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have opted to undergo assisted reproductive technology services. The petitioners are aggrieved by the upper age limit of 50 years for women and 55 years for men prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 ('the ART Act' for short), as a result of which, it became impossible for them to continue the ART services which they had opted for. The challenge raised by identically placed couples was considered by this Court in W.P.(C)

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No.24058 of 2022 and connected cases. After detailed consideration, these writ petitions were disposed with the following directions;

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“(i) Those among the petitioners who

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were undergoing ART services as on 25.01.2022 shall be permitted to continue

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W.P.(C) Nos.315, 331 and 332 of 2023

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their treatment.

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(ii) The National Board shall alert the Central Government about the need for having a re-look at the upper age limit prescribed in Section 21(g) of the Act.

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(iii) The National Board shall also bring to the notice of the Central Government the requirement of including a transitional provision in the ART Act.

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(iv) The above directions shall be complied by the National Board within three months of receipt of a copy of this judgment.

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(v) Those among the petitioners who are yet to commence their ART treatment shall await the decision of the Central Government on the upper age limit and the transitional provision.

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(vi) The liberty of the petitioners to approach this Court at a later stage, if so necessitated, is reserved.”

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In the light of the above directions, the

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instant writ petitions are also disposed of, permitting the petitioners to continue the Assisted Reproductive Technology Services, if

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W.P.(C) Nos.315, 331 and 332 of 2023

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they had actually opted for or commenced ART services before 25.01.2022.

Sd/-

V.G.ARUN

JUDGE

Scl/

W.P.(C) Nos.315, 331 and 332 of 2023

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APPENDIX OF WP(C) 331/2023

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PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AADHAAR CARD OF THE 1ST PETITIONER Exhibit P2 TRUE COPY OF THE AADHAAR CARD OF THE 2ND PETITIONER Exhibit P3 TRUE COPY OF THE IN-PATIENT CARD PROVIDING THE DISCHARGE SUMMARY OF THE 1ST PETITIONER, ISSUED BY THE SAT HOSPITAL, THIRUVANANTHAPURAM DATED 07.11.2017 Exhibit P4 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED TO THE 1ST PETITIONER BY THE MINISTRY OF HEALTH, KUWAIT, DATED 24.03.2022 Exhibit P5 TRUE COPY OF THE RELEVANT PAGES OF THE 'NATIONAL GUIDELINES FOR ACCREDITATION, SUPERVISION AND REGULATION OF ART CLINICS IN INDIA' ("NATIONAL GUIDELINES"), PREPARED BY THE INDIAN COUNCIL FOR MEDICAL RESEARCH ("ICMR") AND NATIONAL ACADEMY OF MEDICAL SCIENCES (NAMS), ON BEHALF OF THE UNION MINISTRY OF HEALTH AND FAMILY WELFARE, OF THE YEAR 2005

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W.P.(C) Nos.315, 331 and 332 of 2023

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APPENDIX OF WP(C) 332/2023

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PETITIONER EXH	IBITS
Exhibit P1	TRUE COPY OF THE AADHAAR CARD OF THE 1ST PETITIONER
Exhibit P2	TRUE COPY OF THE AADHAAR CARD OF THE 2ND PETITIONER
Exhibit3	TRUE COPY OF THE DISCHARGE SUMMARY OF THE 1ST PETITIONER AT THE MES MEDICAL COLLEGE, PERINTHALMANNA DATED 18.07.2017
Exhibit P4	TRUE COPY OF THE ULTRA SOUND SCAN REPORT OF THE 1ST PETITIONER DATED 19.07.2019, ISSUED BY THE TRAVANCORE MEDICITY HOSPITAL, KOLLAM
Exhibit P5	TRUE COPY OF THE LABORATORY REPORT CONDUCTED ON 1ST PETITIONER DATED 05.10.2021, ISSUED BY THE TRAVANCORE MEDICITY HOSPITAL, KOLLAM
Exhibit P6	TRUE COPY OF THE LABORATORY REPORT CONDUCTED ON 2ND PETITIONER DATED 18.10.2021, ISSUED BY THE TRAVANCORE MEDICITY HOSPITAL, KOLLAM
Exhibit P7	TRUE COPY OF THE MEDICAL RECORDS MAINTAINED BY THE DOCTOR AT TRAVANCORE MEDICITY HOSPITAL, KOLLAM, DATED 'NIL'
Exhibit P8	TRUE COPY OF THE RELEVANT PAGES OF THE 'NATIONAL GUIDELINES FOR ACCREDITATION, SUPERVISION AND REGULATION OF ART CLINICS IN INDIA' ("NATIONAL GUIDELINES"), PREPARED BY THE INDIAN COUNCIL FOR MEDICAL RESEARCH ("ICMR") AND NATIONAL ACADEMY OF MEDICAL SCIENCES (NAMS), ON BEHALF OF THE UNION MINISTRY OF HEALTH AND FAMILY WELFARE, OF THE YEAR 2005

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W.P.(C) Nos.315, 331 and 332 of 2023

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APPENDIX OF WP(C) 315/2023

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PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AADHAAR CARD OF THE 1ST PETITIONER Exhibit P2 TRUE COPY OF THE AADHAAR CARD OF THE 2ND PETITIONER Exhibit P3 TRUE COPY OF THE ULTRA SOUND SCAN CONDUCTED ON THE 1ST PETITIONER DATED 26.08.2021, AT THE 4TH RESPONDENT HOSPITAL Exhibit P4 TRUE COPY OF THE DISCHARGE SUMMARY OF THE 1ST PETITIONER DATED 28.09.2021, ISSUED THE 4TH RESPONDENT HOSPITAL Exhibit P5 TRUE COPY OF THE IVF SUMMARY OF THE 1ST PETITIONER DATED 28.01.2022, ISSUED THE 4TH RESPONDENT HOSPITAL Exhibit P6 TRUE COPY OF THE RELEVANT PAGES OF THE 'NATIONAL GUIDELINES FOR ACCREDITATION, SUPERVISION AND REGULATION OF ART CLINICS IN INDIA' ("NATIONAL GUIDELINES"), PREPARED BY THE INDIAN COUNCIL FOR MEDICAL RESEARCH ("ICMR") AND NATIONAL ACADEMY OF MEDICAL SCIENCES (NAMS), ON BEHALF OF THE UNION MINISTRY OF HEALTH AND FAMILY WELFARE, OF THE YEAR 2005

Nasiya v. Union of India

Case brief

What is this about?

What did the court decide?

Nasiya v. Union of India

Case brief

What is this about?

What did the court decide?

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