Explained: Can Individuals & Couples Opting IVF Use Third-Party Donors?

In a recent ruling, the Calcutta High Court said that in the case of In-Vitro Fertilisation (IVF), the donated sperm or oocytes don't need to come from the couple who is seeking the artificial pregnancy. The single bench of Justice Sabyasachi Bhattacharya was dealing with the plea of a couple who sought IVF since they lost their teenage daughter at a young age. The court allowed their plea, however, there were certain conditions. Read on to know more. 

Referring to the Assisted Reproductive Technology (Regulation) Act, 2021 (Act),  Justice Bhattacharya said that the husband, who was 59 years old, was above the limit of age for IVF under the Act. However, the 46-year-old wife was eligible for the same.

"IVF doesn't discriminate between married or single women"

Justice Bhattacharya further said that IYF laws do not discriminate between married or single women. He said, "Section 21(g) makes no difference between a woman who approaches a clinic for taking resort to such technology individually and a woman who is one of the spouses of a commissioning couple approaching a clinic for similar purposes. Since the Act does not discriminate between women who are married and those who are not, such distinction cannot be made in the present case as well." 

The court said that petitioner-1 who is the husband doesn't qualify for the IVF process because of his age. However, the wife, petitioner-2, is eligible for the assisted reproduction. So, as per the court, "The petitioners seek to use the sperm of a third-party donor, thus, ruling out physical participation of the petitioner no. 1, who is debarred under the Act, from seeking assisted reproductive technology services. Thus, the bar under Section 21(g)(ii) does not come into play at all."

Court allows the couple's plea to seek IVF through a third-party donor

The court stated that as per the law, the couple is allowed to seek IVF services because they aren't able to conceive naturally. Even if the husband cannot donate, the couple can still seek IVF services if they are willing to accept donor gametes from a third party. 

The court stated, "Pregnancy can be obtained by handling sperm or oocyte outside the human body. There is no restriction to the effect that either of the two must come from the couple themselves."

Hence the court allowed the couple's plea for seeking IVF. 

Now let's look into some of the important Laws and Sections regarding IVF in India

•  Assisted Reproductive Technology (Regulation) Act of 2021 (ART Act) was framed to provide legalisation to assisted conception or reproduction. 
• According to this act, the age limit for women to seek IVF is 21-50 years. However, for men, it is from 26 to 55 years. 
• The Act is used to become parents or to freeze eggs, and gametes for further use. It is mainly exercised by people who are infertile or have medical issues. The gametes submitted are often used for Research and Development purposes too.  
• Assisted Reproductive processes are carried out in Assisted Reproductive Technology Clinics. These clinics are the ones that have all the facilities for such reproduction and are registered under the National Medical Commission to perform such procedures. 
• The couple who approaches the Assisted Reproductive Technology Clinic to seek IVF for childbirth are called a commissioned couple. 
•  The Assisted Reproductive Technology Act is supervised by the National Board of National Assisted Reproductive Technology and Surrogacy Board’ constituted under Section 15(1) of the Surrogacy (Regulation) Act, 2021.
• The child born under the Act will be treated as equally as a child born naturally. The child will belong to the commissioned couple and not the donor. 
• However, the cat doesn't include unmarried men, divorced men, widowed men, unmarried yet cohabiting heterosexual couples, trans persons and homosexual couples.