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The Punjab and Haryana High Court has held that a woman who has crossed 50, the maximum age prescribed under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021, cannot undergo embryo transfer. The bar applies even where the embryos were lawfully created and cryopreserved while she was within the age limit.

Justice Tribhuvan Dahiya rejected the argument that freezing the embryos gave the couple a vested right to complete the treatment and held:

“Additionally, the argument by learned counsel for the petitioners that they acquired a vested right to avail ART services upon the freezing of their embryos, can also not be accepted. It is because the mandatory requirement under Section 21(g) of the ART Act is that the clinic shall apply ART services only to a woman and a man who are below the age of fifty years and fifty-five years, respectively. Therefore, the prescribed age limit must be satisfied on the day these services are availed or the relevant procedure is undertaken."

The Court further held, "the procedure has two stages, and for every stage the age limit must be met. Merely because embryos were frozen before the woman crossed the maximum age, would not entitle her to undertake the subsequent stage of the procedure - transferring the embryo or the gamete into her reproductive system, after she has crossed the prescribed age limit as that would be violative of stipulations under the Act.”

The Court also held that the age limits apply to each spouse separately and not to the couple as a unit. It added, however, that a woman has an independent right to avail ART services even if her husband is over 55.

The Court was hearing that six petitions. In each, either the husband or the wife had crossed the maximum age under Section 21(g). The facts were taken from the lead petition, filed by a primary school teacher and her husband, an agriculturist. The couple approached a clinic to have a child through ART/IVF.

In November 22, 2023, Nine embryos were “lawfully created and cryopreserved” at the clinic. “At the time both the petitioners were forty-seven years old and, accordingly, within the maximum prescribed age limits under Section 21(g) of the ART Act, i.e., fifty years for a woman and fifty-five years for a man.”

In July 2024, the first frozen embryo transfer “remained unsuccessful”.

In February 2025, the second transfer “resulted in pregnancy of petitioner no.1. Unfortunately, the pregnancy had to be terminated after five-six weeks.” In December 10, 2025, the wife crossed the maximum permissible age of 50.

The Court noted that “although four embryos are still cryopreserved at the facility in the Clinic... the same cannot be used as petitioner no.1 has crossed the maximum permissible age of fifty years on 10.12.2025, and is not permitted to undergo the procedure due to the restriction imposed under Section 21(g) of the ART Act. Her husband, petitioner no.2, however, is below the maximum prescribed age.”

The petitioners sought a direction allowing the wife to complete the treatment and undergo transfer of one of the four remaining embryos. They also sought a declaration that the age limit under Section 21(g) must be “construed with reference to the commissioning couple as a unit.”

The petitioners argued that, as a couple as a unit, the husband's right to procreate through ART subsists, but “its exercise stands frustrated as the procedure can only be undertaken through and with his own wife”. They relied on a coordinate bench decision in Manjit Kaur v. Union of India (2025), which permitted a couple to proceed because one of them was within the age limit.

It was argued that, the procedure began in November 2023 and was “an ongoing process”, so the petitioners should be allowed to transfer the remaining embryos as well, “particularly when the same were cryopreserved at the time when petitioner no.1 was within the prescribed age limit.” Refusing would infringe a right that “had already accrued when the embryos were lawfully created and cryopreserved on 22.11.2023.”

The clinic did not dispute the facts; it stated that “petitioner no.1 appears to be in good health for her age, with no major medical condition that would preclude her from carrying a child”, and that it had no objection to transferring one of the four embryos, “subject to permission being granted by this Court for the purpose as it is bound to comply with the provisions of the ART Act.”

The Union of India opposed the petitions and stated that the age limits were in accordance with the recommendations of the Parliamentary Standing Committee on Health and Family Welfare.

The Gauhati High Court had upheld their validity in Pankaj Kumar Das v. Union of India (2025).

The Act contains “no provision prescribing age of the commissioning couple as a composite unit”. Rule 13(f)(iii) of the ART Rules, 2022 in fact permits a woman to avail ART services even if her husband has crossed the maximum age.

It also explained how ART treatment works and stated that the procedures under the ART Act are conducted in 'treatment cycles'. One treatment cycle, by and large aligns with the menstrual cycle of the woman involved in the procedure. Once a couple or party undergoes one treatment cycle and if it does not yield the intended result, the treatment cycle can be repeated as many times and as often as advised by doctors on case-to-case basis.

The ART treatment is inherently cyclical in nature, with every cycle involving a fresh and independent round of treatment. eligibility criteria prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021 are required to be satisfied at the commencement of each cycle, the Court added.

Two Stages, Age Limit At Each

Reading the definition of “assisted reproductive technology” in Section 2(1)(a), the Court held that ART “involves two stages; (i) preservation of sperm or oocyte and/or fertilisation outside the human body, and (ii) transferring gamete or embryo into the reproductive system of a woman.”

It observed, “An infertile couple or a woman are entitled to have a child availing the ART procedure which is inherently cyclical in nature as by and large it aligns with the menstrual cycle of the woman involved. This entitlement is subject to age restrictions prescribed separately for a woman and a man under Section 21(g) of the ART Act. The woman must be between twenty-one to fifty years of age, and the man between twenty-one to fifty-five years, for application of ART services/procedure.”

The Court noted that “the constitutional validity of this provision is not under challenge in the present proceedings.”

Expert Committee Report

The Court relied on a report dated January 21, 2026, by an expert committee constituted by the Department of Health Research, Ministry of Health and Family Welfare. The committee comprised five members from AIIMS, New Delhi and JNU, three of them expert members of the National ART and Surrogacy Board. The Court extracted parts of the report, including the following:

“Pregnancy in women beyond 50 years of age is inherently high-risk and is associated with significantly increased maternal and perinatal complications.”

On caregiving, the report said, “Parents above 50 years are more likely to experience age-related illnesses, reduced physical stamina, and functional limitations during a child's formative years, which may impair active caregiving, emotional availability, and parenting capacity at crucial stages of child's development. Children require stable guardianship for nearly two decades.”

The committee concluded, “The upper age limits of 50 years for women and 55 years for men prescribed under the ART (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021 are reasonable and founded on well-established medical, genetic, epigenetic, psychosocial, and child-welfare considerations.”

The Court held that “prescribing the maximum age limits for a man and a woman to avail the services under the ART Act has been vindicated by independent experts in the concerned fields.”

It concluded, “In view of the discussion, this Court holds that in the event of either a woman or a man crossing the maximum prescribed age, their right to avail the services/undertake procedures under the ART Act does not survive.”

No 'Couple Age' Under The Act

The Court rejected the argument that the age of the couple as a unit must be considered, “The legislature in its wisdom has prescribed distinct age limits for a woman and a man desirous of availing the services."

"It has refrained from prescribing minimum and/or maximum age for the commissioning couple as a unit for determining eligibility, nor has it provided that the procedure can be permitted if one of the spouses continues to fall within the prescribed age limit... A provision which has not been provided for specifically, cannot ordinarily be read into the enactment as it would be expanding the scope of the enactment itself. This is nothing short of re-framing the statute which is beyond the scope of judicial interpretation," the judge added.

The Court held that the words of Section 21(g) “are unequivocal, calling for no interpretation” and that “there is, accordingly, no case for supplying casus omissus”. It relied on Padma Sundara Rao v. State of Tamil Nadu and Independent Sugar Corporation v. Girish Sriram Juneja.

It declined to follow the Calcutta High Court's decision in Sanchita Ghosh v. Union of India (2024), on which Manjit Kaur was based. Sanchita Ghosh had held that a couple may avail ART if either spouse is within the age limit.

Justice Dahiya said, “The role of the couple as a unit becomes relevant after the process fructifies. While their joint effort may be relevant for parenting, but for ART/IVF services under the Act individual potential of the woman and the man matters. Hence, the age restrictions are for the spouses separately... Accordingly, with utmost respect this Court is unable to subscribe to the reasoning in Sanchita Ghosh case.”

Woman Has An Independent Right

The Court also rejected the petitioners' premise that a woman can avail ART services only “through and with her husband”. Pointing to the separate definitions of “commissioning couple” and “woman” in Section 2(1), the definition of “gamete donor”, and the general duties of clinics under Section 21, it held:

“This makes it evident that ART services can be availed either by a couple or a woman on her own, and there is no requirement that only a couple must approach the ART clinic or the bank for this purpose.”

It added, “A woman, who may or may not be married, has been conferred an independent right under the Act to avail ART services by approaching an authorised bank or clinic and furnishing the requisite information, consent, etc., as may be required. In this eventuality, her husband having crossed the maximum prescribed age of fifty-five years would not, by itself, deprive her from availing the services, provided she remains below the maximum prescribed age of fifty years.”

The Court concluded, “In view of the discussion, it is held that a woman has the right to avail the services/undertake procedures independently under the ART Act, irrespective of her husband having crossed the prescribed age limit.”

Accordingly, the women petitioners who have not crossed 50 may avail ART services if they wish. In the light of the above, the petitions were disposed of.

Appearances: Mr. Kunal Thapa, Mr. Aman Mittal, Mr. Simranjit Singh, Mr. Ravi Malik, Mr. Abhishek Rawal and Mr. S.S. Tiwana, Advocates for the petitioners;

Mr. Dheeraj Jain, Senior Central Government Counsel with Ms. Gurneet Sagoo, Central Government Counsel;

Mr. Akhil Kamra, Assistant Advocate General, Punjab.

Mr. Mahender Joshi, Advocate for respondent No. 4 (in CWP-18704-2026); Mr. A.S. Nirmaan, Advocate for respondent No. 4 (in CWP-18180-2026).

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