Gujarat High Court: In a writ petition filed by a couple seeking permission to avail In Vitro Fertilisation (IVF) to conceive a child after the loss of their son, the Single Bench of Nirzar S. Desai, J., allowed the petition and directed the respondent authorities to permit the petitioners to avail IVF services, despite the wife having crossed the upper age limit of 50 years prescribed under Section 21(g), Assisted Reproductive Technology (Regulation) Act, 2021 (the Act).
Facts and Background
The petitioners, a married couple, lost their 25-year-old son, who died by suicide while pursuing medical studies at Jaipur National University Institute of Medical Sciences and Research Centre on 12 May 2022. Being emotionally disturbed by the loss, the petitioners decided to have another child. However, Petitioner 1 (the wife) was menopausal and unable to conceive naturally. The petitioners therefore approached a doctor at Mehsana for IVF treatment, which was refused on the ground that Petitioner 1 had exceeded the upper age limit of 50 years prescribed under Section 21(g) of the Act, while Petitioner 2 (the husband), aged 54 years, was within the permissible limit of 55 years.
The petitioners’ representation dated 31 May 2026 came to be rejected by the third respondent vide letter dated 3 July 2026, following which the present petition was filed seeking a writ of mandamus directing the respondents to permit the petitioners to avail IVF services, and a writ of certiorari quashing the rejection order.
Section 21(g) of the Act restricts clinics from providing Assisted Reproductive Technology (ART) services to a woman below 21 or above 50 years of age, and to a man below 21 or above 55 years of age. Section 2(e) separately defines a “commissioning couple” as an infertile married couple approaching an ART clinic or bank for such services, without prescribing any composite or collective upper age-limit for the couple as a unit.
Analysis
The Court examined the Preamble and scheme of the Act and noted that while Section 21(g) prescribes individual age-limits separately for men and women, it does not prescribe any composite age ceiling for a “commissioning couple” as a unit. Approving the reasoning of the Calcutta High Court in Sanchita Ghosh v. Union of India, 2024 SCC OnLine Cal 12155, the Court held that unless both spouses constituting the commissioning couple are independently disqualified under Section 21(g), the couple cannot be denied ART services; it suffices if either spouse satisfies the prescribed age criteria, and the decision on whether to use the gamete of the ineligible spouse is left to the discretion of the treating clinic.
Noting that a series of decisions of different High Courts had taken a consistent view on the issue, and that learned counsel for the respondents could not point to any judgment taking a contrary view, the Court found no reason to depart from the said line of authority.
Decision
Allowing the petition, the Court permitted the petitioners to avail IVF services at an institution of their choice, leaving it open to the institution to clinically examine the petitioners and decide whether IVF could be performed, and clarified that their case could not be rejected merely on the ground of the wife’s age. Rule was made absolute, with no order as to costs, and direct service was permitted.
[X v. Chief Medical Officer, 2026 SCC OnLine Guj 6712, decided on 2-9-2026]
Advocates who appeared in this case:
For the Petitioners: Mohit S. Banker, Advocate.
For the Respondents: Angesh Panchal, AGP, Pradip D. Bhate, Central Government Standing Counsel
