As per case facts, a married couple, aged 47 and 57, with no surviving children after 22 years and previous unsuccessful medical treatments, sought IVF/ART treatment. Despite being found medically ...
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CGHC010372042026 2026:CGHC:43127
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order Reserved on : 29.09.2026
Order Delivered on : 06.10.2026
WPC No. 4926 of 2026
1. Archana Tiwari, W/o Pradeep Kumar Tiwari, Aged 46 Years, R/o Civil
Lines, Ward No. 18, Manendragarh, Manendragarh-Chirmiri-Bharatpur
(MCB), Chhattisgarh
2. Pradeep Kumar Tiwari, S/o Bihari Lal Tiwari, Aged 57 Years, R/o Civil
Lines, Ward No. 18, Manendragarh, Manendragarh-Chirmiri-Bharatpur
(MCB), Chhattisgarh
--- Petitioners
Versus
1. State of Chhattisgarh Through Secretary, Department of Health and
Family Welfare, Swasthya Bhawan, Sector 19, Atal Nagar, Naya Raipur,
Distt. Raipur, Chhattisgarh.
2. State Assisted Reproductive Technology and Surrogacy Board,
Department of Health and Family Welfare, Swasthya Bhawan, Sector
19, Atal Nagar, Naya Raipur, Distt. Raipur, Chhattisgarh.
3. Chairman State Assisted Reproductive Technology And Surrogacy
Board, Department of Health And Family Welfare, Swasthya Bhawan,
Sector 19, Atal Nagar, Naya Raipur, Distt. Raipur, Chhattisgarh.
4. Deputy Director, ART-Surrogacy, Directorate of health service,
Department of Health and Family Welfare, Swasthya Bhawan, Sector
19, Atal Nagar, Naya Raipur, Distt. Raipur, Chhattisgarh.
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5. Aayush Test Tube Baby Centre, through its Director Dr. Manoj
Chellani, C-9 Ashok Ratan, Vidhansabha Road, Sankar Nagar, Raipur,
Chhattisgarh. --- Respondents
(Cause-title taken from Case Information System)
For Petitioners :Mr. Gagan Tiwari, Advocate
For State :Mr. Anmol Sharma, Panel Lawyer
Hon'ble Shri Amitendra Kishore Prasad, Judge
CAV Order
1.The petitioners are the unfortunate couple who are not having any
children have approached this Court in its extraordinary
jurisdiction while preferring the instant writ petition seeking
issuance of an appropriate writ, order or direction permitting them
to undergo In-Vitro Fertilization (IVF)/Assisted Reproductive
Technology (ART) treatment, notwithstanding the age restriction
prescribed under Section 21(g) of the Assisted Reproductive
Technology (Regulation) Act, 2021 (hereinafter referred to as “ART
Act”). The petitioners are a legally wedded couple aged about 47
and 57 years respectively and have completed about 22 years of
matrimonial life without having a surviving child. Petitioner No. 1
had earlier undergone IUI treatment in the year 2013 and, though
she conceived in 2015, the pregnancy unfortunately ended in
miscarriage at about four months. Thereafter, the petitioners
approached respondent No. 5 for IVF/ART treatment and, upon
medical examination and counselling, were found suitable for the
proposed treatment, subject to requisite permission from the
competent authority. Their representation dated 24.06.2026 was,
however, rejected vide impugned letter/order dated 31.07.2026
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solely on the ground that petitioner No. 2 had crossed the upper
age limit prescribed for a man under Section 21(g) of the ART Act.
The petitioners contend that such rejection ignores the gender-
specific age limits prescribed under the statute, the fact that
petitioner No. 1 is within the permissible age limit, and the
absence of any provision prescribing a composite age bar for a
commissioning couple. It is, therefore, contended that denial of
ART treatment in the peculiar facts of the case amounts to a rigid
and mechanical application of the statutory provision and
adversely affects the petitioners' right to reproductive autonomy
under Article 21 of the Constitution of India, necessitating
interference by this Court. The petitioners have sought for
following reliefs:-
“10.1. That, this Hon'ble Court may kindly be
pleased to issue a writ/writs, direction/
directions, order/orders and direction setting-
aside the impugned letter/order dated
31.07.2026.
10.2. That, this Hon'ble Court may kindly be
pleased to issue a writ/writs, direction/
directions, order/orders and direction may be
issued to the Respondents to permit and
proceed with IVF Treatment of the petitioner;
10.3. That, this Hon'ble Court may Kindly be
pleased to issue a writ/writs, direction/
directions, order/orders and direct the
respondents to continue with the IVF Treatment
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making this case an exception to the provisions
of the Assisted Reproductive Technology
(Regulation) Act, 2021 even when the
Petitioner no. 2 surpasses the age of 50 during
the ongoing treatment;
10.4. That, this Hon'ble Court may Kindly be
pleased to issue a writ/writs, direction/
directions, order/orders to ensure that no
administrative or regulatory hurdles are placed
against the Petitioner's ongoing cycles, treating
her case as an exception based on the
principle of Right to the reproductive autonomy;
10.5. Any other relief in favour of the Petitioner,
which it deems fit in the facts and
circumstances of the case, in the interest of
Justice including costs of the Petition.”
2.The fervent desire of a married couple, who have remained
without a surviving child despite prolonged efforts and medical
treatment, has compelled them to approach this Court seeking a
direction to the respondents to permit them to avail Assisted
Reproductive Technology (“ART”) services for achieving
parenthood. The petitioners are a legally wedded couple who have
completed about 22 years of matrimonial life. The impediment in
availing the said treatment is the age of petitioner No.2, who has
crossed the upper age limit prescribed for a man under Section
21(g)(ii) of the ART Act.
3.The issue which arises for consideration is whether, in the facts
and circumstances of the present case, the petitioners can be
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denied ART/IVF treatment solely on the ground that petitioner
No.2 has crossed the age limit prescribed under Section 21(g)(ii)
of the ART Act when petitioner No.1 is within the prescribed age
limit and has been medically found suitable for the proposed
treatment.
4.The facts, as canvassed by the petitioners, are that they are a
legally wedded couple. Petitioner No.1 is aged about 47 years,
whereas petitioner No.2 is aged about 57 years. Despite about 22
years of matrimonial life, the petitioners have not been blessed
with a surviving child. The petitioners made several attempts to
achieve conception through medical treatment. Petitioner No.1
underwent Intrauterine Insemination (IUI) treatment in the year
2013 at the hospital of respondent No.5, but the same did not
result in successful conception. Thereafter, petitioner No.1
conceived in the year 2015; however, unfortunately, the pregnancy
resulted in miscarriage at about four months of gestation.
5.Having regard to their prolonged history of infertility and after
exhausting conventional medical options, the petitioners
approached respondent No.5 for undergoing In-Vitro Fertilization
(IVF)/ART treatment. Upon medical examination and counselling,
respondent No.5 found the petitioners suitable for the proposed
treatment and advised them to obtain requisite permission from
the competent authority in view of the advanced age of petitioner
No.2. Accordingly, the petitioners submitted a representation dated
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24.06.2026 before the competent authority seeking permission to
undergo IVF/ART treatment. Respondent No.5 also addressed a
communication dated 24.06.2026 recommending that permission
be granted after appropriate counselling and informed consent of
the petitioners.
6.However, the representation of the petitioners came to be rejected
vide impugned letter/order dated 31.07.2026 solely on the ground
that petitioner No.2 had crossed the upper age limit prescribed for
a man under Section 21(g)(ii) of the ART Act. It is the contention of
the petitioners that such rejection proceeds on the assumption that
crossing of the prescribed age limit by one spouse renders the
entire commissioning couple ineligible for ART services, although
petitioner No.1 is aged about 47 years and, therefore, falls within
the age limit prescribed for a woman under Section 21(g)(i) of the
ART Act.
7.The petitioners have further contended that Section 21(g) of the
ART Act prescribes separate and gender-specific age limits for a
woman and a man and does not prescribe any composite age
criterion for a commissioning couple. Reliance has been placed
upon the definitions contained in Sections 2(1)(n), 2(1)(u) and 2(1)
(e) of the ART Act to contend that eligibility for ART services is
required to be examined with reference to the statutory
requirements applicable to the individual concerned. It is,
therefore, submitted that petitioner No.1, being within the
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prescribed age limit and medically suitable for the proposed
treatment, cannot be denied ART services merely because
petitioner No.2 has crossed the age limit applicable to a man.
8.In support of the aforesaid submissions, reliance has been placed
upon the judgment of this Court in Neeru Singh v. State of
Chhattisgarh & Others, W.P.(C) No.1495 of 2026, wherein the
issue of denial of ART treatment on account of the husband having
crossed the prescribed age limit was considered. Reliance has
also been placed upon the judgment of the High Court of Calcutta
in Sanchita Ghosh & Another v. Union of India, 2024 SCC
OnLine Cal 12155. It is contended that denial of the proposed
treatment in the peculiar facts of the present case, particularly
when petitioner No.1 is within the statutory age limit and has been
medically found suitable, would amount to a rigid and mechanical
application of Section 21(g) of the ART Act and would adversely
affect the petitioners' right to reproductive autonomy forming part
of the right to life and personal liberty guaranteed under Article 21
of the Constitution of India.
9.On the aforesaid factual and legal submissions, the petitioners
seek interference with the impugned letter/order dated 31.07.2026
and appropriate directions to the respondents to permit them to
undergo IVF/ART treatment in accordance with law.
10.Mr. Gagan Tiwari, learned counsel appearing for the petitioners,
would submit that the impugned communication dated 31.07.2026
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proceeds on an erroneous and unduly restrictive interpretation of
Section 21(g) of the ART Act. According to learned counsel, the
provision prescribes two distinct and gender-specific age criteria,
namely, one applicable to a woman and the other applicable to a
man, and nowhere provides that the crossing of the prescribed
age limit by one spouse would, by itself, render the other spouse
ineligible to avail ART services. It is submitted that petitioner No.1
is aged about 47 years and thus continues to fall within the age
limit prescribed under Section 21(g)(i) of the ART Act, whereas
petitioner No.2, aged about 57 years, has crossed the age limit
prescribed under Section 21(g)(ii) of the ART Act. The statutory
language, however, does not contemplate a composite or
cumulative age restriction applicable to a “commissioning couple”.
Learned counsel would therefore submit that the respondent
authorities could not have mechanically rejected the petitioners'
request merely by taking into consideration the age of petitioner
No.2, without examining the independent eligibility of petitioner
No.1.
11.Learned counsel would further submit that the petitioners' case is
not one where the request for ART treatment is founded merely
upon a desire to have a child without any medical basis. The
petitioners have remained married for about 22 years and have
undergone prolonged medical treatment for infertility. Petitioner
No.1 had undergone IUI treatment in the year 2013, which did not
result in successful conception, and although she conceived in the
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year 2015, the pregnancy unfortunately terminated in miscarriage
at about four months. It is submitted that, after having exhausted
conventional medical avenues, the petitioners approached
respondent No.5, who, upon medical examination, counselling and
consideration of their medical history, found them suitable for the
proposed IVF/ART treatment and recommended that permission
be granted by the competent authority. Thus, the petitioners are
not seeking any indulgence contrary to medical advice; rather, the
proposed treatment is medically recommended and the only
impediment placed by the respondents is the age of petitioner
No.2.
12.Mr. Tiwari would submit that the expression “commissioning
couple” occurring in the ART Act cannot be construed so as to
introduce a disqualification which the legislature itself has not
enacted. Section 2(1)(e) of the ART Act merely defines a
commissioning couple as an infertile married couple approaching
an ART clinic or ART bank for obtaining authorised services.
Likewise, the definitions of “patients” under Section 2(1)(n) and
“woman” under Section 2(1)(u), read with Section 21(g) of the ART
Act, demonstrate that the statutory framework recognises the
individual eligibility of persons seeking ART services. Learned
counsel would contend that if the legislature intended to impose a
joint age ceiling upon both spouses, it could have expressly
provided that both members of a commissioning couple must
simultaneously satisfy their respective age requirements. In the
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absence of such express language, an administrative authority
cannot create an additional disqualification by interpretation. Such
an approach, according to learned counsel, would amount to
adding words to the statute and converting two separate gender-
specific conditions into a composite condition which the legislature
has consciously not enacted.
13.Learned counsel would further submit that the interpretation
sought to be placed by the respondents upon Section 21(g) of the
ART Act would lead to anomalous and manifestly disproportionate
consequences. A woman who is herself within the prescribed
statutory age limit and medically capable of undergoing ART
treatment would be deprived of the opportunity merely because
her husband happens to have crossed the age prescribed for a
man. According to learned counsel, the statute does not declare
such a woman to be ineligible, nor does it provide that the
ineligibility of one spouse automatically attaches to the other. The
statutory scheme, therefore, must be interpreted in a manner
which gives meaning to each of the separate age conditions
prescribed for a woman and a man, rather than treating the two
conditions as a single composite prohibition. It is submitted that
petitioner No.1 satisfies the requirement under Section 21(g)(i) of
the ART Act, and the respondents were consequently required to
consider her eligibility independently, subject to all other medical
and regulatory safeguards.
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14.In support of the aforesaid proposition, learned counsel has placed
reliance upon the recent decision of the Gujarat High Court in X2
v. Chief Medical Officer-cum-Civil Surgeon and the
Appropriate Authority, 2026 SCC OnLine Guj 6712, decided
on 02.09.2026, particularly paragraphs 8, 10 and 11, to contend
that the statutory age restriction under Section 21(g) cannot be
applied in an excessively technical manner divorced from the
object of the legislation and the constitutional protection available
to reproductive autonomy.
15.Reliance has also been placed upon Ankhi Laha v. Union of
India, 2026 SCC OnLine Cal 13928, decided on 30.07.2026,
particularly paragraphs 3, 6 and 7, and Piu Das Sarkar v. Union
of India, 2026 SCC OnLine Cal 13232, decided on 28.07.2026,
particularly paragraphs 3, 7, 8, 9 and 11. Learned counsel submits
that the aforesaid decisions recognise that while the ART Act
undoubtedly constitutes a regulatory framework governing
assisted reproductive procedures, its provisions relating to age
cannot be construed mechanically so as to defeat legitimate
claims of reproductive autonomy where the statutory requirements
otherwise stand substantially satisfied.
16.Learned counsel has also relied upon the judgment of the Madhya
Pradesh High Court in Babitha A. Singh v. State of M.P., 2026
SCC OnLine MP 25565, decided on 10.07.2026 , particularly
paragraphs 6 and 11 to 14, as also the judgment of the Calcutta
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High Court in Chayana Bisui v. State of W.B., 2026 SCC OnLine
Cal 8579, decided on 24.06.2026, particularly paragraphs 4, 7 to
9 and 11. According to learned counsel, these decisions reinforce
the proposition that the provisions of the ART Act have to be
understood in the context of the right to reproductive choice and
personal autonomy, and that the statutory restrictions cannot be
extended beyond their express terms so as to create an embargo
which is not contemplated by the enactment itself. It is submitted
that the Court, while ensuring compliance with the regulatory and
medical safeguards prescribed by the statute, is required to
examine whether the denial of treatment is actually authorised by
the statutory language or is merely the consequence of an
administrative interpretation which adds an additional condition.
17.Learned counsel has further placed reliance upon the judgment of
the Delhi High Court in Shewta Tuteja v. Union of India, 2026
SCC OnLine Del 4606, decided on 25.05.2026, particularly
paragraphs 23 and 26 to 28. In the said decision, according to
learned counsel, the Court considered the scope of Section 21(g)
of the ART Act in the context of continuation of an ART process
and emphasised the need to distinguish between the regulatory
requirements governing ART and the constitutional protection
afforded to reproductive choice and decisional autonomy. It is
submitted that the Court recognised that reproductive autonomy
constitutes an important facet of the rights protected under Article
21 of the Constitution of India and that the provisions regulating
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ART ought to receive a purposive construction which advances,
rather than unnecessarily defeats, constitutionally protected
reproductive choices. Learned counsel submits that the reasoning
of the said decision is of considerable relevance while examining
the present case, where the petitioners have approached the
authorities for initiation of IVF treatment but petitioner No.1
admittedly remains within the statutory age limit.
18.Learned counsel has also relied upon Pushpa (Dr.) v. Union of
India, 2026 SCC OnLine P&H 10431, decided on 19.05.2026,
particularly paragraphs 2 and 6, and Jayanta Dasgupta v. State
of W.B., 2026 SCC OnLine Cal 5931, decided on 30.04.2026. It
is submitted that the consistent judicial approach reflected in the
aforesaid decisions is that the ART Act, though regulatory in
character, cannot be interpreted in a manner which imposes
restrictions beyond the plain language of Section 21(g) of the ART
Act, particularly where such interpretation directly affects the
individual's constitutionally protected reproductive choice. Learned
counsel would submit that the statutory scheme has to be
harmoniously construed so that the regulatory purpose of the
enactment is preserved while at the same time ensuring that
legitimate reproductive choices are not defeated by an artificial or
expansive interpretation of the age restriction.
19.Learned counsel would lastly submit that the petitioners' case
deserves to be considered in the backdrop of their peculiar
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circumstances. The petitioners have remained without a surviving
child despite 22 years of matrimonial life, have undergone medical
treatment over a considerable period, and have approached the
recognised ART facility only after conventional methods did not
yield the desired result. Petitioner No.1 is still within the age limit
prescribed by the legislature and has been medically examined
and found suitable for the proposed treatment. The rejection of
their request, therefore, solely because petitioner No.2 has
crossed the age limit applicable to a man, according to learned
counsel, amounts to treating the commissioning couple as an
indivisible statutory unit for the purpose of age restriction, despite
there being no such express provision in the Act. Such
interpretation, it is urged, would result in denial of the petitioners'
opportunity to pursue parenthood and would disproportionately
impair their right to reproductive autonomy forming part of the right
to life and personal liberty under Article 21 of the Constitution of
India.
20.Learned counsel would, therefore, submit that the impugned
letter/order dated 31.07.2026 deserves to be quashed and set
aside and the respondent authorities be directed to reconsider and
permit the petitioners to undergo IVF/ART treatment, subject to
fulfilment of all medical, ethical and regulatory safeguards
prescribed under the ART Act and the applicable Rules and
Regulations. It is further submitted that such a direction would
neither dilute the statutory regulatory framework nor amount to
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granting an unrestricted exemption from Section 21(g) of the ART
Act, but would only prevent the respondents from treating the age
of petitioner No.2 as an automatic disqualification against
petitioner No.1, who independently satisfies the age criterion
prescribed under Section 21(g)(i) of the ART Act.
21.On the other hand, Mr. Anmol Sharma, learned Panel Lawyer,
appearing for the State opposes the submissions advanced by
learned counsel for the petitioners and submits that the impugned
letter/order dated 31.07.2026 has been passed strictly in
accordance with the provisions of the ART Act. According to
learned counsel, Section 21(g) of the Act expressly prescribes the
age limits within which ART services may be provided, namely, to
a woman above the age of 21 years and below the age of 50
years and to a man above the age of 21 years and below the age
of 55 years. Since petitioner No.2 is admittedly aged about 57
years, he does not satisfy the statutory eligibility requirement
prescribed under Section 21(g)(ii) of the ART Act, and the
competent authority was, therefore, justified in declining the
request for IVF/ART treatment. He would further submit that the
petitioners cannot seek relaxation of an express statutory
condition merely by relying upon their personal circumstances or
their desire to have a child. It is contended that the ART Act has
been enacted with the object of regulating assisted reproductive
technology services and prescribing appropriate safeguards in the
interest of the persons undergoing such procedures, as well as the
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child born through ART. The age restrictions contained in Section
21(g) of the ART Act, according to learned counsel, are part of the
statutory regulatory framework and cannot be diluted or relaxed by
an administrative authority or by directing the respondents to
make an exception in an individual case. The fact that petitioner
No.1 is within the prescribed age limit, according to the
respondents, cannot by itself confer an independent right upon the
petitioners to avail ART services contrary to the statutory
conditions governing a commissioning couple. It is further
submitted that the judgments relied upon by learned counsel for
the petitioners are distinguishable on their facts and cannot be
understood as conferring an unrestricted right to undergo ART
treatment irrespective of the statutory age restrictions. Learned
Government Advocate would submit that the Court, while
exercising jurisdiction under Article 226 of the Constitution, cannot
rewrite Section 21(g) of the ART Act or substitute a different age
criterion for the one consciously prescribed by the legislature. Any
relaxation of the statutory age limit, according to learned counsel,
would amount to judicially creating an exception which finds no
place in the Act and may also have consequences for the
regulatory safeguards intended by the legislature.
22.Learned State counsel would lastly submit that the petitioners
have admittedly approached the authorities at a stage when
petitioner No.2 had already crossed the prescribed upper age
limit. The competent authority has considered the representation
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and has rejected the same for the sole reason that the statutory
requirement is not fulfilled. It is, therefore, contended that there is
neither arbitrariness nor violation of principles of natural justice in
the impugned decision. Learned counsel accordingly submits that
the writ petition, being devoid of any legal ground warranting
interference with the statutory age restriction, deserves to be
dismissed.
23.I have heard learned counsel for the petitioners as well as learned
counsel appearing for the State and have perused the pleadings
and documents placed on record.
24.At the outset, the controversy involved in the present petition lies
in a narrow compass, namely, whether the petitioners, who are
otherwise medically fit and fall within the statutory framework in
part, can be denied access to Assisted Reproductive Technology
ART)/IVF treatment solely on account of a rigid application of the
age bar prescribed under Section 21(g) of the ART Act, without
taking into consideration the peculiar and exceptional facts of the
present case. For the sake of convenience, Section 21(g) of the
ART Act is reproduced below:
“21. The clinics and banks shall perform the
following duties, namely:-
XXXXXXXXX
(g) the clinics shall apply the assisted
reproductive technology services,-
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(i) to a woman above the age of twenty-
one years and below the age of fifty
years;
(ii) to a man above the age of twenty-
one years and below the age of fifty-five
years;
XXXXXX”
25.According to the provisions of the ART Act, ART services are
available to a woman above the age of 21 years and below the
age of 50 years and to a man above the age of 21 years and
below the age of 55 years. In the present case, although petitioner
No.1-wife, aged about 47 years, falls within the prescribed age
limit, petitioner No.2-husband, aged about 57 years, has exceeded
the upper age limit prescribed for a man. The petitioners, who
have been married for about 22 years and have no surviving child,
approached respondent No.5, Aayush Test Tube Baby Centre,
Raipur, for undergoing IVF/ART treatment. Upon medical
examination and counselling, respondent No.5 found the
petitioners medically suitable and recommended that they be
permitted to undergo the proposed treatment. However, in view of
the age of petitioner No.2, the petitioners were informed that the
treatment could not be proceeded with without appropriate
permission from the competent authority/court. The petitioners,
accordingly, submitted a representation dated 24.06.2026 seeking
permission to undergo IVF/ART treatment, which came to be
rejected vide communication/order dated 31.07.2026 solely on the
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ground that petitioner No.2 had crossed the prescribed age limit.
26.Conspicuously, the Act does not contain the concept of combined
age for commissioning couples analogous to the composite age
criteria applicable to prospective adoptive parents. Instead, the Act
adopts an individual-centric approach, whereby the age eligibility
criteria are separately laid down for women and men rather than
collectively for a couple. This interpretation is further supported by
Section 2(1)(n) of the ART Act, which defines "patients" as both
individuals and couples seeking infertility treatment at a clinic.
Section 2(1)(n) of the ART Act is reproduced below:
“2. (1) In this Act, unless the context otherwise
requires,-
XXXXXXXXX
(n) "patients" means an individual or couple
who comes to any registered assisted
reproductive technology clinic for
management of infertility;”
27.Additionally, Section 21 of the ART Act casts statutory duties upon
the registered ART clinics and banks to ensure strict adherence to
the requirements prescribed under the Act. In particular, Section
21(g) of the ART Act provides separate age criteria for a woman
and a man, namely, that ART services may be provided to a
woman above 21 years and below 50 years of age and to a man
above 21 years and below 55 years of age. The language
employed in the provision indicates that the age restriction is
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gender-specific and is to be applied with reference to the
individual seeking the ART service, rather than by treating the age
of the commissioning couple as a composite or cumulative
criterion. In the present case, petitioner No.1-wife is aged about 47
years and, therefore, falls within the prescribed age limit, whereas
petitioner No.2-husband is aged about 57 years and has crossed
the upper age limit prescribed under Section 21(g)(ii) of the ART
Act. Nevertheless, the petitioners seek to pursue parenthood
through petitioner No.1, who is otherwise within the permissible
age limit and has also been medically examined and found
suitable for undergoing IVF/ART treatment by respondent No.5.
The statutory scheme, read as a whole, does not expressly
provide that the ineligibility of one spouse on account of age
would, by itself, render the other spouse ineligible where such
spouse independently satisfies the prescribed statutory conditions.
The consent of petitioner No.2, as the husband of petitioner No.1,
is available and the petitioners are willing to comply with all
requisite statutory safeguards, including furnishing the necessary
consent and declarations. Thus, merely because petitioner No.2
has crossed the age prescribed for a man under Section 21(g)(ii)
of the ART Act, the statutory eligibility of petitioner No.1, who
continues to fall within the age prescribed for a woman under
Section 21(g)(i) of the ART Act, cannot automatically be treated as
extinguished. Such interpretation would amount to reading into the
Act a composite age restriction for a couple which is not expressly
21
provided by the legislature.
28.From the undisputed factual matrix, it emerges that the petitioners
are a legally wedded couple who have completed about 22 years
of matrimonial life and, unfortunately, have no surviving child.
Petitioner No.1 had earlier undergone an IUI procedure in the year
2013 at the hospital of respondent No.5, but the said attempt was
unsuccessful. Thereafter, in the year 2015, petitioner No.1
conceived but suffered a miscarriage at about four months of
pregnancy. The petitioners, therefore, approached respondent
No.5 for undergoing IVF/ART treatment with the hope of achieving
parenthood. Upon medical examination and counselling,
respondent No.5 found the petitioners suitable for the proposed
treatment and, having regard to their circumstances,
recommended that permission be granted for undergoing IVF/ART.
The petitioners thereafter submitted their representation dated
24.06.2026 seeking permission for the proposed treatment.
However, their request came to be rejected vide
communication/order dated 31.07.2026 solely on the ground that
petitioner No.2 had crossed the upper age limit prescribed under
Section 21(g)(ii) of the ART Act. Thus, the denial is not founded
upon any medical contraindication, unsuitability of petitioner No.1,
or any allegation of non-compliance with the other statutory
safeguards, but solely upon the age of petitioner No.2. The issue,
therefore, essentially concerns the interpretation and application of
Section 21(g) of the ART Act to the peculiar facts of the present
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case, particularly where petitioner No.1 admittedly falls within the
prescribed age limit and has been medically found suitable to
undergo the proposed ART procedure.
29.The Hon'ble Supreme Court, in Suchita Srivastava Chandigarh
Admn, (2009) 9 SCC 1, has categorically held that reproductive
choices form an integral part of personal liberty under Article 21 of
the Constitution of India. It was observed thus:
"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...…"
30.The aforesaid principle has been consistently expanded in
subsequent decisions to include not merely the right to procreate,
but also the right to access reproductive technologies, subject to
reasonable regulation.
31.In the matter of K.S. Puttaswamy v. Union of India, (2017) 10
SCC 1, which recognised a right to privacy within the contours of
Article 21, Dr D.Y. Chandrachud, J. (as he then was), observed as
follows:
"248. Privacy has distinct connotations
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including (i) spatial control; (ii) decisional
autonomy: and (iii) informational control.
[Bhairav Acharya, "The Four Parts of Privacy
in India", Economic & Political Weekly (2015),
Vol. 50 Issue 22, at p. 32.] Spatial control
denotes the creation of private spaces.
Decisional autonomy comprehends intimate
personal choices such as those governing
reproduction as well as choices expressed in
public such as faith or modes of dress."
(empasis supplied)”
32.The Hon'ble Supreme Court in the matter of X2 v. State (NCT of
Delhi), (2023) 9 SCC 433 has held as under :
"(i) The right to reproductive autonomy
101. The ambit of reproductive rights is not
restricted to the right of women to have or not
have children. It also includes the
constellation of freedoms and entitlements
that enable a woman to decide freely on all
matters relating to her sexual and
reproductive health. Reproductive rights
include the right to access education and
information about contraception and sexual
health, the right to decide whether and what
type of contraceptives to use, the right to
choose whether and when to have children,
the right to choose the number of children, the
right to access safe and legal abortions, and
the right to reproductive healthcare. Women
must also have the autonomy to make
decisions concerning these rights, free from
24
coercion or violence."
33.In the matter of X4 v. Union of India, reported in (2024) 9 SCC
586 Hon'ble Supreme Court has held as under:
"18. Secondly, the petitioner herein had
commenced the procedure achieving for
parenthood through surrogacy much prior to
the amendment which has come into effect
from 14-3-2023. Therefore, amendment which
is now coming in the way of the intending
couple and preventing them from achieving
parenthood through surrogacy, we find, is
prima facie contrary to what is intended under
the main provisions of the Surrogacy Act both
in the form as well as in substance."
34.Recently, in the matter of Vijaya Kumari S. v. Union of India,
(2026) 2 SCC 96 has held as under:
"10.4. From a constitutional perspective, it
was submitted that the upper age-limit falls
foul of the right to reproductive autonomy
under Article 21 of the Constitution. This right
enables a woman to make autonomous
decisions regarding, if, when, and in what
manner to have children. Our attention was
drawn to the following extract from the
decision of this Court in X1 v. State (NCT of
Delhi) [X1 v. State (NCT of Delhi), (2023) 9
SCC 433] ("X1 v. State"): (SCC pp. 486-87,
para 101)
"101. The ambit of reproductive rights is
not restricted to the right of women to have
25
or not have children. It also includes the
constellation of freedoms and entitlements
that enable a woman to decide freely on
all matters relating to her sexual and
reproductive health. Reproductive rights
include the right to access education and
information about contraception and
sexual health, the right to decide whether
and what type of contraceptives to use,
the right to choose whether and when to
have children, the right to choose the
number of children, the right to access
safe and legal abortions, and the right to
reproductive healthcare. Women must
also have the autonomy to make decisions
concerning these rights, free from coercion
or violence."
10.5. In light of this decision in X1 v. State
(NCT of Delhi) [X1 v. State (NCT of Delhi),
(2023) 9 SCC 433], it was submitted that the
age-restrictions under the Act run contrary to
the constitutional right afforded to women
make unhindered decisions regarding their
reproductive choices.
XXX XXX XXX
24.4. As recently as 2024, this Court in A v.
State of Maharashtra [A v. State of
Maharashtra, (2024) 6 SCC 327 : (2024) 3
SCC (Cri) 197] held that: (SCC p. 345, para
36)
"36. The right to choose and a
26
reproductive freedom is fundamental right
under Article 21 of the Constitution."
XXX XXX XXX
54. The real issue in each case is as to the
dominant intention of the legislature to be
gathered from the language used, the object
indicated, the nature of rights affected, and
the circumstances under which the statute is
passed. Applying the aforesaid principles to
the present case, if the intending couple had
attained the age of 50 and 55 years prior to
the coming into force of the Act and had also
commenced the the surrogacy procedure
would certification be denied to them after the
coming into force of the Act. Conversely, if the
intending couple were within the age-limits
when they commenced the surrogacy
procedure and on the date of certification
sought under the Act had overreached the
age-limits will the certificate be denied to
them? In our view, in both of the above
situations the provision cannot apply
retrospectively so as to deny the certification
to the intending couples in the present cases
on the premise that on the date of issuance of
certification they had crossed the age bar.
This is because there was no age restriction
when the couples intending commenced the
surrogacy procedure, the Act has been
enforced when the Intending couple were in
the midst of the procedure, at a crucial phase
l.e. at the stage of creation of embryos and
27
freezing the same. This was a sufficient
manifestation of their intention. The next step
was to transfer the frozen embryos to the
uterus of the surrogate mother. At that stage
the age bar under the Act has come into play.
The intending couples have a constitutional
right which was unfettered when they
commenced the process of surrogacy. The
same can be curtailed only by reasonable
restrictions and by not interpreting the Act
unfairly, so as to completely curtail their
constitutional right to surrogacy which was
unfettered by the Act not giving a retrospective
or even a retroactive effect to the Act under
consideration.
XXX XXX XX
Right includes liberty - Salmond
66. Salmond on Jurisprudence, 12th Edn. by
P. J. Fitzgerald, while dealing with the aspect
of legal rights in the wider sense of the term,
sets out the principle that there are things
which an individual may do without being
prevented by the law. It further mentions that
the sphere of one's legal liberty is that sphere
of activity within which the law is content to
leave the individual alone. Salmond asserts
that "the term right is often used in a wide
sense to include such liberty" (at p. 225):
"Liberties and no-rights. Just as my legal
rights (in the strict sense) are the benefits
which I derive from legal duties imposed
28
upon other persons, so my legal liberties
(sometimes called licences or privileges)
are the benefits which I derive from the
absence of legal duties imposed upon
myself. They are the various forms
assumed by the interest which I have in
doing as I please. They are the things
which I may do without being prevented by
the law. The sphere of my legal liberty is
that sphere of activity within which the law
is content to leave me alone. It is clear that
the term right is often used in a wide
sense to include such liberty. I have a right
(that is to say, I am at liberty) to do as I
please with my own; but I have no right
and am not at liberty to interfere with what
is another's. I have a right to express my
opinions on public affairs, but I have no
right to publish a defamatory or seditious
libel. I have a right to defend myself
against violence, but I have no right to
take revenge upon him who has injured
me."
(emphasis supplied)"
35.High Court of Delhi, in the matter of D and Another vs. Union of
India and Another, 2023 SCC OnLine Del 8826 has held as
under:
"12. The petitioners have encountered a
roadblock in obtaining the eligibility certificate,
primarily due to their age exceeding the
prescribed limits. However, it is essential to
29
note that the petitioners commenced their IVF
treatment, and embryo was created on 3-12-
2021, when the age restrictions outlined in
both the SR Act and the ART Act, were not yet
in effect. Furthermore, it is essential to
emphasize that the embryos were created
through the fertilization of gametes that were
recovered and frozen when the petitioners'
ages were well below the age-limit introduced
under the Impugned provision. Prima facie,
the impugned provision cannot be applied
retrospectively, thereby disqualifying
individuals who had already initiated or
undergone the ART process, accordance with
the prevailing laws. Mr Chetan Sharma,
learned Additional Solicitor General, has also
fairly pointed out that the legal implications of
the provision should be prospective in nature.
Considering these crucial facts, in our opinion,
the impugned provision should not be
interpreted as an obstacle to the petitioners'
pursuit of surrogacy.
13. At this juncture, we must reference a
judgment passed by the High Court of Kerala
in Nandini K. [Nandini K. v. Union of India,
2022 SCC OnLine Ker 8235], as it bears
significant relevance to the issue at hand. In
that case, the Court was dealing with Section
21(g) of the ART Act, which prescribes the
age-limit for couples desirous of availing ART.
It was held that if the prohibition under Section
21(g) is understood to be preventing
continuance of ART services that had already
30
commenced, it would amount to unreasonable
and unjustified restriction on the reproductive
choice of the commissioning couple, and
would militate against the liberty guaranteed
under Article 21 of the Constitution. As a
result, the Court determined that couples who
had initiated IVF treatment prior to 25-1-2022
(the date of the enforcement of the ART Act)
should not be adversely affected by the age
prescription outlined in the ART Act. This
precedent, set by the High Court of Kerala,
sheds significant light on the prospective
applicability of standing provisions, and
reinforces the argument in favour of the
petitioners.
(emphasis supplied)"
36.Further, High Court of Punjab and Haryana at Chandigarh in the
matter of Sarbjit Kaur and Another vs. State of Punjab and
Others 2026 SCC OnLine P&H 689 has held as under:
"6. In so far as the second ground of rejection
is concerned, the same is against the
objective behind the framing of ART Act as
well as the Surrogacy (Regulation) Act, 2021.
ART has been defined under the ART Act, as
all techniques that attempt to obtain a
pregnancy by handling a sperm or the oocyte
outside the human body and transferring the
gamete or the embryo into the reproductive
system of a woman. A gamete has been
described to mean both sperm and oocyte;
and gamete donor have been defined to be a
31
person, who provides sperm or oocyte with an
objective of enabling an infertile couple or
woman to have a child. Section 27 of the
statute provides for sourcing of gametes by
ART banks. When these provisions are read
together, it is evident that the statutory
framework explicitly provides for gamete
donors as well as oocyte donation. Chapter IV
of the ART Act lays down the duties of ART
clinics as well as banks. Various safeguards
regarding sourcing, collection, preservation of
oocyte have been laid down under this
chapter for the purposes of regulation of the
ART procedure. The primary purpose of the
ART Act is to regulate and supervise the ART
clinics and banks, so as to prevent their
misuse and avoid unsafe and unethical
practices. The intent of the statute would
stand defeated if the reasoning given by
respondent No. 2 is accepted. This ground in
fact, violates the very spirit of ART Act as well
as the Surrogacy (Regulation) Act, 2021. The
second ground, therefore, cannot withstand
judicial scrutiny and is rejected.
7. Insofar as the next ground is concemed, in
his affidavit, Annexure P. 6, respondent No. 4
has elaborated upon the health and fitness of
the couple. He has specifically stated that
petitioner No. 1 is a healthy woman and is fit
to carry a pregnancy, if a fertilized egg is
successfully implanted in her uterus. It has
been further stated that sperm count of
petitioner No. 2 has been analyzed and has
32
been found to be normal. There are chances
of his being able to produce a healthy sperm
for fertilization of a donor egg sourced from an
ART Bank, after screening and examination.
The doctor has also certified that he has made
the couple aware of the risks involved in the
IVF treatment, which petitioners are willing to
undertake. The risks involved in undergoing
an ART procedure and chances of the genetic
abnormality in the offspring are not an
embargo from undergoing the procedure
under the ART Act. This ground for rejection
has been taken by respondent No. 2 without
there being any statutory prohibition. Similarly,
in so far as ground (iv) is concerned, there is
no bar in the ART Act for a couple to opt for
IVF, when they have one living child. No
restriction could be pointed out by the State
counsel in any statute, which debars the
petitioners from undergoing the ART
treatment. All the grounds given in the
Impugned order passed by respondent No. 2
are not tenable and are turned down.
8. In view of the above discussion, impugned
order, Annexure P-8, cannot be sustained and
is set aside. Petitioners are permitted to
undergo ART services, including IVF
treatment, for the purposes of conception of
human embryo and its implantation in
petitioner No. 1."
37.High Court of Calcutta in the matter of Shyamoli Saha and
Another Vs. State of West Bengal and Others, 2024 SCC
33
OnLine Cal 10379 has held as under:
"18. In the case at hand, if the woman is not
allowed to avail ARTS citing Section 21(g)
even though she is eligible for the same, then
it will be sheer injustice to her. For the
ineligibility of the husband, the wife ought not
to suffer. This is so because the husband has
no physical participation in any of the
procedures involved for the birth of the child
through ARTS. The husband has claimed that
he is financially strong to bear the expenses of
the procedure. Apart from providing moral and
financial support to the wife, the husband
hardly has a role to play.
19. The Court in the matter of Sanchita Ghosh
(supra) and Sudarshan Mandal (supra)
discussed the issue elaborately and held that
the couple would be entitled to have the
benefit of Assisted Reproductive Technology
as one of the parties qualify on the upper age
limit stipulated in Section 21(g), irrespective of
the fact that the other spouse does not."
38.High Court of Kerala at Ernakulam in the matter of Sajitha Abdul
Nazar and Others Vs. Union of India Represented By Its
Secretary, Ministry of Health and Family Welfare and Others,
2025 SCC OnLine Ker 1171 has held as under:
"22. On the contrary, if the respondents'
contention is accepted that both spouses must
satisfy the age criteria, it would create an
unconstitutional classification, treating married
34
women and single women as separate and
distinct classes. Take, for example, a
hypothetical situation where a married woman
is ineligible for an ART procedure solely
because her husband has surpassed the age
limit; the woman would become eligible
immediately on her legal separation or
becoming a widow. Such a classification
would be a fallacy and would put married
women at an unfair disadvantage when
compared to single women to access ART
procedures. It can never be presumed that the
Parliament intended such an inequitable
classification within a benevolent statute like
the Act. It is a well-established legal principle
that no one can supplement conditions not
explicitly provided in the statute. Without any
express provision in the Act restricting
commissioning couples on the basis of their
composite age, there is no legal bar in a
woman who is otherwise eligible under
Section 21(g)(i) from applying the ART
procedure even if her husband has surpassed
the age limit. The same rationale applies to
men, ensuring that single and married
individuals enjoy equitable access to
reproductive assistance. The above
discussions conclude that there is no legal bar
for the 4th respondent to apply the ART
procedure on the 1st petitioner. The
experience of childlessness is a silent anguish
known to only those who walk that path.
In light of the above discussions, I answer the
35
question in favour of the 1st petitioner by
allowing the writ petition and directing the 4th
respondent to provide ART services to the 1st
petitioner as per the provisions of the Act after
obtaining the consent of the 2nd petitioner."
39.Very recently the Delhi High Court in the matter Shewta Tuteja
and Another v. Union of India, through Secretary, Ministry of
Health & Welfare and Others, 2026 SCC OnLine Del 4606 has
head as under :
“11. There can be no quarrel with the
proposition that the ART Act is a beneficial
regulatory legislation enacted with the object
of ensuring safe, ethical and regulated ART
practices. Equally, the concerns relating to
maternal health and child welfare which
underlie the statutory framework cannot be
disregarded. However, while interpreting a
regulatory statute touching upon reproductive
rights and decisional autonomy, the Court is
also required to adopt an interpretation which
remains consistent with constitutional values
embodied under Article 21 of the Constitution.
12. The Petitioners' herein, are not seeking
Initiation of a fresh IVF cycle after having
crossed the statutory age limit prescribed
under Section 21(g) of the ART Act. Rather
the admitted factual position is that the
treatment process had already commenced
while the Petitioners were within prescribed
statutory age limits. At the relevant time, when
36
the embryos were retrieved, created and
cryopreserved on 7-3-2026 Petitioner
1(female) was aged 49 years 11 months and
14 days old and, therefore, squarely fulfilled
the eligibility criteria under Section 21(g) of the
ART Act. It is also not disputed that six
embryos were created and cryopreserved
pursuant thereto, out of which one embryo
was utilised during the FET Procedure
undertaken on 7-3-2026. Presently, five
cryopreserved embryos belonging to the
Petitioners continue to remain preserved with
the Hospital.
13. At this stage, it is significant to note that
the Petitioners are not seeking creation or
extraction of fresh embryos after crossing the
statutory age threshold. The request of the
Petitioners' is confined to utilisation of the very
same embryos which had already been
retrieved at a point when Petitioner 1
undisputedly satisfied the statutory age
requirement. As on date, Petitioner 1 is stated
to be 50 years 2 months of age where as
Petitioner 2 is stated to be 54 years old.
However, the embryos presently sought to be
utilised are those which came to be created
during subsistence of permissible statutory
age and pursuant to a process initiated under
medical supervision.
14. The aforesaid distinction, in the
considered opinion of this Court, assumes
considerable significance while interpreting
37
the scope and application of Section 21(g) of
the ART Act. The present case, therefore,
concerns continuation of an already initiated
reproductive process involving pre-existing
cryopreserved embryos and not
commencement of a fresh ART procedure
dehors the statutory framework.
15. The cryopreserved embryos in question
are not merely preserved biological material in
abstract but are intrinsically connected with
the Petitioners' reproductive autonomy,
decisional privacy and their constitutional
protected choice relating procreation and
family life.
16. The Supreme Court in the case of Suchita
Srivastava (supra) recognised reproductive
choice as an inseparable facet of personal
liberty under Article 21 of the Constitution.
Similarly, in Justice K.S. Puttaswamy (supra),
decisional autonomy and privacy in matters
concerning family, procreation and bodily
integrity were held to be constitutionally
protected interests. These constitutional
principles necessarily require that statutory
provisions regulating ART procedures receive
a purposive Interpretation that advances
constitutional freedoms while preserving the
regulatory object sought to be achieved by the
enactment.
17. The Punjab Haryana High Court in
Sarabjit Kaur (supra) while Interpreting the
provisions of the ART Act observed that the
38
primary purpose of the enactment is to
regulate and supervise ART clinics and banks
so as to prevent misuse and unsafe practices.
The statutory framework ought not to be
construed in a manner defeating the very
object underlying the legislation. The
restrictions which are not expressly
contemplated under the statue cannot be
imported so as to defeat access to ART
procedures. The reasoning adopted in Sarabjit
Kaur also assumes significance Inasmuch as
the statutory framework Imposes age
restrictions individually upon a woman and a
man and not upon "commissioning couple" as
a composite unit. The legislative scheme does
not contemplate any joint or collective age
restriction for a "commissioning couple."
18. Further, the Calcutta High Court in
Shaymoll Saha (supra) upon analysing the
definitions of "woman", "patient" and
"commissioning couple" under the ART Act,
had observed that the statute does not
prescribe any composite age criterion for a
"commissioning couple" and that such a
restriction cannot be judicially imported into
the statue.
19. The aforesaid line of reasoning has also
found acceptance in subsequent decisions
including Vanaja v. Union of India, Ambiki
Balan v. Union of India, Union of India v.
Devayani S15 The Division Bench of Kerala
High Court in Devayani S. specifically
39
observed that although the parliamentary
Standing Committee had considered
introduction of a "combined age" criterion for
couples, the legislature consciously did not
incorporate any such composite age
restriction within the enacted provisions of the
ART Act. The Court further held that where
the statue prescribes age thresholds
separately for a woman and a man under
Section 21(g), Courts cannot read into the
statue an additional restriction not expressly
contemplated by the legislature.
20. Through a different lens, the aforenoted
reasoning also finds support in the text of the
provision. Section 21(a) of the ART Act, at its
highest, require the commissioning couple,
which is to "avall" assistive reproductive
technology to be compliant of the
requirements of the Act. Section 2(e) of the
ART Act further defines "commissioning
couple" as a couple who "approach" a clinic
providing assisting reproductive technology.
21. Thus, it is the time that the benefits of the
technology are availed and when the couple
approaches, that the limitations and conditions
of age, if at all, are to be considered. Section
21(h) further requires a discharge certificate to
be issued to the "commissioning couple" l.e.
which is the couple as they were at the time
they approached the clinic, stating the details
of the assisted reproductive technology
procedure performed on the "commissioning
40
couple". It is, therefore, the case, that the text
of the provision, also, support the purposive
interpretation rendered by the Courts.
22. A brief reliance may also be placed on GP
Singh's Principles of Statutory Interpretation,
which has noted that while selecting out of
different interpretations "the Court will adopt
that which is just, reasonable and sensible
rather than that which is none of the hose
things". A construction giving rise to an
anomaly ought to be avoided.
23. This Court is conscious of the decisions
relied upon by the Respondents including
Pankaj Kumar Das and Kavitha Anand,
wherein, emphasis has been laid upon the
legislative policy underlying the age
restrictions prescribed under Section 21(g) of
the ART Act. There can be no disagreement
with the proposition that the statutory age
limits are founded upon legitimate
considerations relating to maternal health,
ethical regulation and child welfare.
24. However, in the facts of the present case,
concerns relating to maternal health and
welfare of child though legitimate and
substantial, stand safeguarded. The
Petitioners had already undergone medical
evaluation, counselling and requisite
treatment under expert supervision before
commencement of the ART process. The
material on record would indicate that the
Petitioners were declared medically fit for
41
undergoing the procedure.
25. The Respondents have not placed any
medical opinion indicating that utilisation of
the existing cryopreserved embryos would
pose any immediate or exceptional medical
risk beyond the general policy concerns
underlying the enactment.
26. The distinction between initiation of a fresh
ART cycle after crossing the statutory age
threshold and continuation of an already
commenced treatment involving existing
cryopreserved embryos cannot be lost sight
of. The Punjab and Haryana High Court in the
case of Pushpa v. Union of India, 12 recently,
while coming across a case where the
petitioner-wife had crossed the age of 50
years, permitted continuation of IVF treatment
noting that the issue stood covered by the
earlier decision in Sarbjit Kaur. In the opinion
of this Court, the latter category stands on a
materially different footing and warrants a
purposive interpretation consistent with
constitutional protections available to
reproductive choice and decisional autonomy.
27. This Court is also conscious of the fact
that reproductive rights and access to
parenthood in the contemporary constitutional
jurisprudence cannot be reduced to purely
technical or pedantic application of statutory
conditions divorced from factual context in
which such rights are asserted. The ART Act
is fundamentally regulatory in character. The
42
object of the enactment is to ensure ethical
and safe ART practices and not to create
insurmountable barriers defeating legitimate
continuation of treatment processes already
lawfully undertaken.”
40.In the light of the law laid down by the Supreme Court of India and
various High Courts, reproductive autonomy forms an integral
facet of the right to life and personal liberty guaranteed under
Article 21 of the Constitution of India. The statutory provisions
regulating Assisted Reproductive Technology are undoubtedly
required to be complied with; however, while interpreting such
provisions, the Court is also required to keep in view the object
and purpose of the legislation and the constitutional rights sought
to be protected. A rigid and mechanical interpretation of an age
restriction, particularly where one spouse independently satisfies
the prescribed eligibility criteria and the proposed treatment is
medically permissible, ought not to result in an unintended and
disproportionate denial of the opportunity to pursue parenthood.
41.Thus, access to ART/IVF treatment, in appropriate circumstances,
falls within the broader sphere of reproductive autonomy and
decisional privacy protected under Article 21 of the Constitution. In
the present case, the petitioners are not seeking exemption from
the statutory framework in its entirety, nor do they seek
dispensation from the safeguards prescribed under the Act.
Petitioner No.1, who is aged about 47 years, admittedly falls within
the age limit prescribed for a woman under Section 21(g)(i) of the
43
ART Act. She has also been medically examined and found
suitable for undergoing the proposed IVF/ART treatment by
respondent No.5. The only impediment relied upon by the
respondents is that petitioner No.2, aged about 57 years, has
crossed the upper age limit prescribed for a man under Section
21(g)(ii) of the ART Act.
42.A purposive interpretation of Section 21(g) of the ART Act,
therefore, becomes necessary in the facts of the present case.
The provision prescribes distinct age limits for a woman and a
man; however, it does not expressly provide that the crossing of
the prescribed age limit by one spouse would automatically render
the other spouse, who independently satisfies the statutory age
requirement, ineligible to undergo ART treatment. Likewise, the
statutory definition of a “commissioning couple” does not, by itself,
prescribe a composite or cumulative age criterion whereby the
eligibility of one spouse is made entirely dependent upon the age
of the other spouse. The provision, being part of a regulatory
framework governing ART services, cannot be extended beyond
its express terms so as to create an additional restriction which the
legislature has not specifically incorporated.
43.This Court also finds substance in the submission of learned
counsel for the petitioners that the statutory scheme, particularly
Section 21(g) of the ART Act, contemplates separate age
parameters for women and men. Petitioner No.1 satisfies the age
44
requirement applicable to a woman and is medically fit to undergo
the proposed procedure. Petitioner No.2, though having crossed
the age prescribed under Section 21(g)(ii) of the ART Act, is not
seeking to claim eligibility contrary to the statutory prescription;
rather, the petitioners seek to proceed with the ART treatment
through petitioner No.1, with the consent and participation of
petitioner No.2 and subject to compliance with all other statutory
and medical requirements. At the same time, the objection of the
respondents that the registered ART clinic is bound by the
provisions of the Act also deserves due consideration.
Respondent No.5, being a regulated ART clinic, cannot be faulted
for declining to proceed with the treatment in the absence of an
appropriate judicial or competent-authority direction. However,
once this Court, in exercise of its constitutional jurisdiction,
interprets the statutory provision and grants appropriate relief, the
concerned respondents are required to act in accordance with
such direction.
44.Having regard to the totality of the facts and circumstances, this
Court is of the considered view that the present case warrants
judicial intervention. The petitioners have remained married for
about 22 years and have no surviving child. Petitioner No.1 had
earlier undergone IUI treatment in the year 2013, which was
unsuccessful, and thereafter conceived in the year 2015 but
unfortunately suffered miscarriage at about four months of
pregnancy. The petitioners have thereafter approached
45
respondent No.5 with the intention of undergoing IVF/ART
treatment and, upon medical examination and counselling, have
been found suitable for the proposed treatment. The request of the
petitioners has been declined solely on account of the age of
petitioner No.2, notwithstanding the fact that petitioner No.1 is
within the permissible age limit and has been medically found fit.
In these peculiar circumstances, treating the age of petitioner No.2
as an absolute bar to the ART treatment of petitioner No.1 would
amount to importing a composite age restriction into Section 21(g)
of the ART Act, which is not expressly contemplated by the
statutory provision. Such an interpretation would also have the
effect of substantially curtailing the reproductive choice of
petitioner No.1 despite her independently satisfying the prescribed
age criterion.
45.Accordingly, the writ petition is allowed with the following
directions:
(a) The impugned communication/order dated
31.07.2026, whereby the request of the petitioners has
been rejected solely on the ground that petitioner No.2
has crossed the upper age limit prescribed under Section
21(g)(ii) of the Assisted Reproductive Technology
(Regulation) Act, 2021, is hereby set aside.
(b) The respondent authorities and respondent No.5 shall
permit the petitioners to proceed with IVF/ART treatment,
46
subject to petitioner No.1 satisfying the applicable
medical requirements and the petitioners complying with
all other statutory, ethical and regulatory requirements
prescribed under the ART Act and the applicable
Rules/Regulations.
(c) The mere fact that petitioner No.2 has crossed the
age prescribed under Section 21(g)(ii) of the ART Act
shall not, by itself, be treated as a bar to petitioner No.1
undergoing the proposed IVF/ART procedure, she
otherwise being within the age prescribed under Section
21(g)(i) of the ART Act.
(d) It is further directed that if, during the course of the
treatment already commenced pursuant to this order,
petitioner No.1 crosses the age of 50 years, such
intervening attainment of age shall not, by itself, operate
to discontinue or frustrate an ongoing treatment cycle,
subject always to medical advisability and compliance
with the other applicable statutory requirements.
(e) Respondent No.5 shall not be subjected to any penal
or adverse action under the ART Act merely for providing
the treatment to the petitioners in compliance with the
present order, provided that all other statutory, medical
and regulatory requirements are duly complied with.
(f) The concerned respondents shall ensure that no
47
unnecessary administrative impediment is created in the
implementation of the present order. The treatment shall,
however, remain subject to medical assessment,
informed consent, professional advice and all other
safeguards mandated under the applicable law.
46.It is clarified that the relief granted herein is confined to the
peculiar facts and circumstances of the present case and shall not
be construed as dispensing with any other mandatory requirement
prescribed under the ART Act or the Rules and Regulations
framed thereunder.
47.Before parting with this order, it is noteworthy to mention that
“Where the body remains capable and the heart remains willing,
the desire for parenthood cannot be dismissed merely as a desire
whose time has passed.”
Sd/- Sd/-
(Amitendra Kishore Prasad)
Judge
Yogesh / Avinash
The date when the
judgment is
reserved
The date when the
judgment is
pronounced
The date when the judgment is
uploaded on the website
Operative Full
29.09.2026 06.10.2026 ------ 06.10.2026
48
HEAD NOTE:-
“Where medical fitness, informed consent and the capacity to
assume parental responsibilities are established, the mere fact
of crossing a prescribed age cannot be viewed in isolation from
the constitutional guarantee of dignity and personal liberty.”
Legal Notes
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