JUDGMENT : The writ petitions are filed by couples undergoing or intending to undergo assisted reproductive services, driven by the desire to have children. The petitioners challenge 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), which prohibits the application of ART services to persons above the prescribed age limit. 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, acknowledged as a fundamental right. They therefore want Section 21(g) of the ART Act, to the extent it prescribes an upper age limit for availing assisted reproductive technology services, to be declared unconstitutional. 2. Heard Advs.Akash Sathyanandan and Alex Scaria for the petitioners, S.Manu, the Deputy Solicitor General assisted by V. Girish Kumar, for the Central Government, Government Pleader Riyal Devassy for the State Government, N.Raguraj for the Kerala State Medical Council and Ramola Nayanpally, the amicus curiae. 3. Learned Counsel for the petitioners contended that there is no rationale in prescribing an upper age limit of 55 for men and 50 for women. It is submitted that, prior to the introduction of the ART Act, the ‘National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India' ('the National Guidelines' for short), prepared by the Indian Council for Medical research ("ICMR") and National Academy of Medical Sciences (NAMS) was in force. Chapter 3 of the National Guidelines dealt with the 'Code of Practice, Ethical Considerations and Legal Issues". Therein, under the head 'General Considerations' the prescription was only with respect to the minimum age for ART. As no upper age limit was prescribed in the guidelines, the petitioners had opted for ART services, without being unduly worried about their age. Some of the petitioners were in the midst of their treatment when the ART Act came into effect on 25.01.2022, bringing the treatment came to a sudden halt. This has put the petitioners under extreme emotional stress and some are in the verge of mental breakdown. 4. It is pointed out that, while the Surrogacy (Regulation) Act introduced with a similar objective contains a transitional provision, the ART Act contains no such provision. This has put the petitioners under extreme emotional stress and some are in the verge of mental breakdown. 4. It is pointed out that, while the Surrogacy (Regulation) Act introduced with a similar objective contains a transitional provision, the ART Act contains no such provision. It is contended that the rights of individuals to found a family is recognised as a human right by the United Nations and reproductive rights has been recognised as an aspect of personal liberty under Article 21 of the Constitution of India by the Honourable Supreme Court also. In support of this contention reliance is placed on the decisions in Suchita Srivastava and Anr. v. Chandigarh Administration [ (2009) 9 SCC 1 ], K.S. Puttuswamy and another v Union of India [ (2017) 10 SCC 1 ] 5. Responding with alacrity to this Court's request for assistance, learned amicus curiae has submitted a detailed report after exhaustive reference to statutes, judgments, parliamentary debates, journal articles and interviews with doctors practicing infertility and reproductive medicine. According to the amicus curiae, the issue of limiting access to assisted reproductive techniques ought to be addressed from the psychological, ethical and social perspectives. From the psychological point of view, being restricted from accessing ART may lead to increased frustration of families who are unable to reproduce naturally. Ethically, objections may arise by measuring the value of life of the newborn against the risks associated with the mothers' advanced age. On the social perspective, it is to be noticed that, with the increased use of ART, administration of such technologies has gained a social value with demographic relevancy. Certain studies have shown that later parenthood is associated with a more stable family environment, a higher socio-economic position, higher income and better living conditions as well as better parenting practices. However, concerns regarding the reduced physical capacity to meet the demands of parenthood, fear of premature parental loss, social stigma and absence of grandparents are projected as reasons for preferring parents of younger age. In addition to the above mentioned aspects, wider considerations such as higher success rates with repeated treatment cycles and role of the State in regulating reproduction also assumes relevance. 6. In addition to the above mentioned aspects, wider considerations such as higher success rates with repeated treatment cycles and role of the State in regulating reproduction also assumes relevance. 6. Referring to Clause 3.1.6 in the 129th report of the Department Related Parliament Standing Committee on Health and Family Welfare, it is pointed out that a Senior Consultant & Professor of AIIMS and a representative from the Department of Reproductive Medicine, Christian Medical College & Hospital, Vellore had submitted that the lower age limit for woman seeking ART services should be more than 20 years and the upper age limit for both men and women should be decided based on factors like risk to maternal health due to pregnancy at advanced maternal age; care of child until 18 years and average life expectancy in India. It is submitted that except noting such suggestions, there was no discussion on the aspects by the experts. To highlight the impracticality in fixing the upper age limit, it is pointed out that, by reason of the upper age limit, a married woman below 50 years will not be permitted to undergo assisted reproductive services if her husband has crossed 55 years of age, while an unmarried woman can avail such service till she attains 50 years. 7. Learned amicus curiae suggested that, since the National Assisted Reproductive Technology and Surrogacy Board (National Board, constituted in terms of Section 15(1) of the Surrogacy (Regulation) Act is empowered to review and monitor the implementation of the ART Act and recommend suitable changes, it will be apposite to direct the National Board to review the upper age limit and make necessary recommendations to the Central Government. 8. On behalf of the Central Government, it is submitted that the Department-Related Parliament Standing Committee on Health and Family Welfare had considered all relevant aspects before prescribing the upper age limit. After due deliberation, based on inputs received from various stakeholders, the Committee recommended the age criteria of 21 to 50 years for women and 21 to 55 years for men to be the most suitable. The report of the Committee was placed before both the houses of Parliament and passed after due discussion. There is no irrationality in prescribing the upper age limit and no scope for interference with the provisions of a well thought out and well intended legislation. 9. The report of the Committee was placed before both the houses of Parliament and passed after due discussion. There is no irrationality in prescribing the upper age limit and no scope for interference with the provisions of a well thought out and well intended legislation. 9. Before proceeding to decide the constitutionality of Section 21(g), it is essential to have an idea about the conception, evolution and introduction of the ART Act. For this purpose, it is necessary to note that the benefits of assisted reproductive techniques came into focus with the birth of Louise Brown, the world's first test tube baby, on 25th July, 1978. About two months later, the world's second and India's first IVF baby, Kanupriya @ Durga was born in Kolkata. Since then, the field of assisted reproductive technology has grown exponentially and India has become one of the major centres for ART services. This gave rise to a multitude of legal, ethical and social issues, in the absence of any prescribed standards or protocols. The Central Government was therefore prompted to call upon the ICMR to draft the National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India. Later, the Law Commission of India presented its 228th report, recommending active legislative intervention to facilitate the correct use of ART technology and legalisation of surrogacy. Accordingly, the Standing Committee on Health and Family Welfare submitted the 102nd report on the Surrogacy Regulation Bill. The Committee observed that along with Surrogacy Regulation, there is an urgent need to regulate ART Clinics across the country. Consequently, the ART (Regulation) Bill was introduced in the Lok Sabha on 14.09.2020 and referred to the Parliamentary Standing Committee on Health and Family Welfare. The Standing Committee sought the views of stakeholders and Governments and presented the 129th report on the ART (Regulation) Bill, 2020 before the Parliament on 19.03.2021. The Bill was passed on 01.12.2021 and the Act came into force on 25.01.2022. 10. The objective of the ART Act, as discernible from its preamble, is to regulate and supervise the assisted reproductive technology clinics and banks to prevent misuse and ensure safe and ethical practice of Assisted Reproductive Technology Service etc. The Bill was passed on 01.12.2021 and the Act came into force on 25.01.2022. 10. The objective of the ART Act, as discernible from its preamble, is to regulate and supervise the assisted reproductive technology clinics and banks to prevent misuse and ensure safe and ethical practice of Assisted Reproductive Technology Service etc. As per Section 2(1)(a) of the Act, “assisted reproductive technology”, with its grammatical variations and cognate expressions, means all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.” Section 2(1)(e) defines “commissioning couple” as an infertile married couple who approach an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the authorised services of that clinic or bank. Section 2(1)(j) defines “infertility” as the inability to conceive after one year of unprotected coitus or other proven medical condition preventing a couple from conception. Section 2(1)(u) defines a “woman” to mean any woman above the age of twenty-one years who approaches an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the authorised services of the clinic or bank. Section 21 of the Act requires the ART clinics and banks to perform certain enumerated duties. As per Section 21(g), the clinics shall apply the assisted reproductive technology services, (i) to a woman above the age of twenty-one years and below the age of fifty years and (ii) to a man above the age of twenty- one years and below the age of fifty-five years. 11. Having carefully perused the report of the Parliamentary Committee, I find merit in the contention that the prescription of upper age limit is made without much discussion. In the 129th report of the Parliamentary Committee, except referring to the suggestion put forth by the experts regarding the need for prescribing the upper age limit for women/men, there is no discussion on the relevant aspects. The Parliamentary debates on the Assisted Reproductive Technology (Regulation) Bill, 2020 also does not reveal any discussion on the age factor of the commissioning couple. Be that as it may, absence of deliberation by the legislature is not sufficient to hold a statutory provision to be unconstitutional. There could have been discussion regarding the absence of international conventions or treaties regulating ART. Be that as it may, absence of deliberation by the legislature is not sufficient to hold a statutory provision to be unconstitutional. There could have been discussion regarding the absence of international conventions or treaties regulating ART. Another factor of relevance is that in most of the countries providing ART services, the practice is regulated by domestic legislation, guidelines or both. Countries like Estonia, Greece and Netherlands has set the mother's age limit at 50 years, the Czech Republic at 49 years, Belgium, Bulgeria, Denmark and Ireland at 45 years. At the same time, countries like France, Germany, Portugal, Spain, Sweden and UK do not have a specified age limit, but prescribes that the maximum age limit of the mother shall be within the natural reproductive age of a woman. Particularly, the father's age limit is not considered as a factor except in France and Sweden. It is also worthwhile to note that while some studies find advanced paternal age to be having a negative impact on ART outcome, others are of opinion that it has no impact at all. In most cases, it is advised to do pre-implantation genetic testing for embryos creating using older father's sperm or aneuploidy screening of sperm cells taken from men of advanced age. As the ART Act mandates pre-implantation genetic testing for embryos, a significant part of the apprehensions pertaining to sperm health of older men stands allayed. These are some of the relevant aspects which could have been taken into consideration while fixing the upper age limit for availing ART services. 12. On the contention that the State cannot regulate the reproductive choices of its citizens, it may be worthwhile to refer to Article 16(1) of the Universal Declaration of Human Rights, extracted hereunder; “Article 16(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” In Suchita Srivastava (supra), the Apex Court held reproductive choice of women to be a dimension of her personal liberty. The contextually relevant portion of the judgment reads as under; “22. There is no doubt that a woman's right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. The contextually relevant portion of the judgment reads as under; “22. There is no doubt that a woman's right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a “compelling State interest” in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the MTP Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices.” Later in K.S. Puttuswamy(supra), the Constitution Bench declared family, marriage, procreation and sexual orientation as integral to the dignity of an individual. Paragraph 298 of the judgment is extracted hereunder for easy reference; “298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary State action. It prevents the State from discriminating between individuals. The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self- determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha-suffixed right to privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self- determination.” (emphasis supplied) 13. 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. 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. In Shayara Bano v. Union of India [ (2017) 9 SCC 1 ], the Apex Court has termed 'manifest arbitrariness' as something done by the legislature capriciously, irrationally and/or without adequate determining principle. In Shayara Bano v. Union of India [ (2017) 9 SCC 1 ], the Apex Court has termed 'manifest arbitrariness' as something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. At the same time, this Court has to be mindful of the principle of 'presumption of constitutionality of legislations'. 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. As mentioned earlier, some of the petitioners were undergoing assisted reproductive technology services when the ART Act was introduced on 25.01.2022. The prohibition under Section 21(g), if understood to be preventing even continuance of ART services already commenced, would definitely amount to unreasonable and unjustified restriction on the reproductive choice of the commissioning couple and would militate against the liberty guaranteed under Article 21. 14. As rightly pointed out by the amicus curiae, Section 5 of the Act confers the National Assisted Reproductive Technology and Surrogacy Board with the power to advice the Central Government on policy matters relating to assisted reproductive technology. 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. Based on the above discussion, the following directions are issued; (i) Those among the petitioners who were undergoing ART services as on 25.01.2022 shall be permitted to continue their treatment. (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. (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. (iv) The above directions shall be complied by the National Board within three months of receipt of a copy of this judgment. (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. (iv) The above directions shall be complied by the National Board within three months of receipt of a copy of this judgment. (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. (vi) The liberty of the petitioners to approach this Court at a later stage, if so necessitated, is reserved. I place on record my appreciation for the immense help rendered by the learned amicus curiae.