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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

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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.”