Age Bar Under Assisted Reproductive Technology Act Applies To Individuals, Not Couples: P&H High Court Allows IVF To Bereaved Parents
The Punjab and Haryana High Court has set aside an order denying Assisted Reproductive Technology (ART) services to a married couple who lost their only son in 2024, holding that the ART Act, 2021 does not prescribe an age limit for a commissioning couple and expressly permits the use of donor oocytes.
Allowing the writ petition, the Court quashed the order dated 06 February 2025 passed by the State Appellate Authority, which had rejected the couple's request for IVF on grounds of age, menopause, medical risk and apprehension of sex determination.
Justice Suvir Sehgal said,
"Section 21 (g) of ART Act makes it mandatory for a clinic to extend ART services to a woman if she is above the age of 21 years and below the age of 50 years and to a man if he is above the age of 21 years and below the age of 55 years. This Court held that the statute reinforces age restriction on an individual gender and not to a couple."
The Court further made it clear that, 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.
"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," it added.
The petitioners, a married couple aged 47 and over 56 years, had two children from their wedlock. Their daughter was married in 2020, while their son died on 07 July 2024 due to jaundice.
After the tragedy, the couple approached a gynecologist seeking IVF treatment. However, they were denied ART services on the ground that the husband had crossed the age of 55 years, allegedly barred under the Assisted Reproductive Technology (Regulation) Act, 2021.
A prior writ petition was disposed of with a direction to the Appellate Authority to consider their case in light of statutory provisions and judicial precedents. The authority, however, again rejected their claim.
Age Restriction Applies To Individuals, Not Couples
Rejecting the first ground of rejection, the High Court relied on its earlier decision in Manjit Kaur v. Union of India and judgments of the Calcutta High Court in Shyamoli Saha and another vs State of West Bengal and others, AIR 2025 Calcutta 55, holding that Section 21(g) of the ART Act prescribes age limits individually for men and women, not for married couples.
The Court noted that the State's contention that these judgments were under challenge was factually incorrect, as no appeal or SLP had been filed till date.
Donor Oocyte Expressly Permitted Under ART Act
The Court found the second ground—denial of IVF due to menopause and non-availability of the petitioner's own oocyte—to be contrary to the very object of the ART Act.
Referring to the statutory scheme, the Court held that ART includes techniques involving handling of sperm or oocyte outside the body and the Act explicitly recognises gamete donors, including oocyte donors.
ART banks are statutorily authorised to source and provide donor gametes.
The Court observed that denying IVF due to donor oocyte use would defeat the purpose of the ART Act and the Surrogacy (Regulation) Act, 2021, both of which were enacted to regulate—not prohibit—ethical reproductive assistance.
Medical Risk Not A Statutory Bar
On the issue of medical risk, the Court relied on the affidavit of the treating doctor, who certified that the woman was medically fit to carry a pregnancy;
The husband's sperm parameters were normal and the couple had been duly informed of risks and consented to the procedure.
The Court held that health risks or possible genetic abnormalities are not statutory prohibitions under the ART Act and cannot be used to deny access to ART services.
The Court held that health risks or possible genetic abnormalities are not statutory prohibitions under the ART Act and cannot be used to deny access to ART services.
No Prohibition For IVF When Couple Has A Child
Rejecting the apprehension regarding sex determination, the Court noted that no provision under the ART Act bars a couple with a living child from opting for IVF.
Holding that none of the grounds relied upon by the Appellate Authority were legally sustainable, the High Court quashed the impugned order and permitted the petitioners to undergo ART services, including IVF, for conception and implantation. The writ petition was accordingly disposed of.
Mr. Anmol Partap Singh Mann, Advocate and Mr. Navjot Singh Sidhu, Advocate for the petitioners.
Mr. Harinder Pal Singh Ishar, Addl. A.G., Punjab.
Mr. Amanjot Singh Sidhu, Advocate for Mr. Gurjeet Singh, Advocate for respondent No.4.
Title: Sarbjit Kaur and another v. State of Punjab and others