Justice Harisankar V. Menon took note of Punjab and Haryana High Court decision relied on by the couple wherein in a similar situation, the couple over the age limit was permitted to continue treatment upon undertaking to bear all the risks.

The Court then suo motu impleaded the Kerala State Art and Surrogacy Board as 6^th respondent and asked the couple to furnish a notarised undertaking before the Board stating that they shall bear all the risks arising from the treatment. It was also observed that ART services are to be provided to them upon furnishing the undertaking:

“I am of the opinion that since the petitioners have come forward to bear the risk, and since such facility has been extended to a similarly placed couple by the Punjab and Haryana High Court, the petitioners are also to be extended the same benefits, upon furnishing an undertaking before the 6^th respondent to the effect that they shall bear all risks, consequences, and liabilities arising out of or incidental to the said procedure/ treatment. Needless to say, upon the petitioners furnishing the aforesaid as a notarised undertaking, the ART services shall be provided to them in accordance with law.”

The petitioners had commenced their IVF procedure in 2023 when they were both within the permissible statutory age limit. The wife was aged 50 years and the husband was aged 49 years. When the wife crossed the age limit, the IVF hospital refused to offer the procedure sought for by them. Aggrieved, they approached the High Court.

The petitioners submitted that they are ready and willing to undergo the treatment by undertaking any liability. They referred to the P&H High Court decision in CWP No.13085 of 2026 and sought for similar relief.

The Court was of the view that the request can be allowed since they are undertaking to bear all the risks and liabilities involved. Thus, it disposed of the couple's plea.

Counsel for the petitioners: Vimal Vijay, Dinu N.G.

Counsel for the respondents: Joseph Rony Jose – CGC, Mintu Cherian – Government Pleader

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