SUMITRABEN SHAILESHKUMAR PATEL vs THE CHIEF MEDICAL OFFICER CUM CIVIL SURGEON AND THE APPROPRIATE AUTHORITY

C/SCA/10101/2026 (GJHC240477542026) JUDGMENT DATED: 02/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10101 of 2026

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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Approved for Reporting Yes No
✓
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SUMITRABEN SHAILESHKUMAR PATEL & ANR.
Versus
THE CHIEF MEDICAL OFFICER CUM CIVIL SURGEON AND THE
APPROPRIATE AUTHORITY & ORS.
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Appearance:
MR. MOHIT S BANKER(6866) for the Petitioner(s) No. 1,2
ANGESH PANCHAL AGP for the Respondent(s) No. 1,2
MR PRADIP D BHATE(1523) for the Respondent(s) No. 3
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CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

Date : 02/09/2026

JUDGMENT
1. Heard learned advocate Mr. Banker for the petitioners,
learned AGP Mr. Angesh Panchal for respondent Nos. 1 and 2,
and learned Central Government Standing Counsel Mr. Bhate
for respondent No. 3.
2. With the consent of the parties, the matter is taken up
for final disposal. Hence, Rule. Learned AGP Mr. Panchal
waives service of notice of Rule for respondent Nos. 1 and 2,
and learned Central Government Standing Counsel Mr. Bhate
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waives service of notice of Rule for respondent No. 3.
3. By way of this petition, the petitioners have prayed for
the following reliefs;
13.(A) YOUR LORDSHIPS be pleased to issue the writ of
mandamus or any other appropriate writ, order or
direction, directing the respondents' Nos. 1, 2 and 3 to
permit the petitioners to avail Assisted Reproductive
Technology services to a conceive a child.
13.(B) To issue a writ of mandamus or any other
appropriate writ, order or direction or directing the
respondent Nos. 1, 2 & 3 to decide on the representation
dated 31.05.2026 within a stipulated time period.
13.(C) To grant such other and further reliefs in the
interest of justice.
13.(D) YOUR LORDSHIPS be pleased to issue the writ of
certiorari or a writ of mandamus or any other
appropriate writ, order or direction in the like nature
quashing and setting aside the impugned order/letter
dated 03.07.2026 vide letter/order no.: F.No.
U.11019/65/2026-HR at ANNEXURE - B passed by the
respondent No. 3 and be further pleased to direct the
respondents Nos. 1, 2 & 3 to permit the petitioners to
avail Assisted Reproductive Technology (IVF) services to
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C/SCA/10101/2026 (GJHC240477542026) JUDGMENT DATED: 02/09/2026
conceive a child.
4. The brief facts giving rise to the present petition are that
petitioner Nos. 1 and 2 are a married couple, petitioner No. 1
being the wife of petitioner No. 2. From their wedlock, they
were blessed with a son and a daughter. The petitioners lost
their 25-year-old son, who committed suicide while pursuing
medical studies at Jaipur National University Institute of
Medical Sciences and Research Centre on 12th May 2022 at
Jaipur. The petitioners were emotionally disturbed and,
therefore, decided to have a child. However, petitioner No. 1
is menopausal and is unable to conceive naturally. Hence, the
petitioners opted to achieve pregnancy through In Vitro
Fertilization (IVF) and approached a doctor at Mehsana. The
said doctor refused to provide IVF treatment to the petitioners
on the ground that petitioner No.1 had exceeded the upper age
limit prescribed under the Assisted Reproductive Technology
(Regulation) Act, 2021, whereas petitioner No. 2 is 54 years
old.
5. As per Section 21(g) of the Act, clinics can apply assisted
reproductive technology services only to a woman above the
age of 21 years and below the age of 50 years, and to a man
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above the age of 21 years and below the age of 55 years. In
the instant case, as petitioner No. 1 has crossed the age of 50
years and petitioner No. 2 is 54 years old, the concerned
authority refused to provide IVF treatment to the petitioners.
The petitioners, therefore, made a representation to the
respondents, which came to be rejected, and that is how the
present petition has been preferred by the petitioners.
6. Learned advocate Mr. Banker submitted that, under
Section 2(e) of The Assisted Reproductive Technology
(Regulation) Act, 2021 “commissioning couple” means an
infertile married couple who approach an Assisted Reproductive
Technology clinic or Assisted Reproductive Technology bank for
obtaining the services authorised by such clinic or bank. In
view of the aforesaid definition, according to learned advocate
Mr. Banker, the Act would be applicable to the couple and,
therefore, the fertility of the couple is required to be
considered and not that of an individual partner. Once
petitioner No. 2, i.e. the husband, is still fertile as per the Act
and has not crossed the age of 55 years, the concerned doctor
ought not to have refused to provide treatment to the
petitioners. Therefore, according to learned advocate Mr.
Banker, the respondents were not justified in rejecting the
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representation made by the petitioners. He submitted that this
Court may consider the fact that petitioner No. 2 is still below
the age of 55 years and that the Act applies to the couple and
not to an individual partner, and consequently, the petitioners
are entitled to the reliefs prayed for in the present petition.
6.1. He further clarified that, in view of the definition of
“commissioning couple”, if one of the partners of the couple
is fertile, the couple can still be considered eligible to undergo
IVF treatment. Merely because one partner has crossed the age
limit prescribed under Section 21(g) of the Act, the request of
the petitioners to undergo IVF treatment ought not to have
been rejected by the respondent authority.
6.3. Learned advocate Mr. Banker relied upon various
decisions of different High Courts on the subject. One of the
judgments relied upon by him was the decision of the High
Court at Calcutta in the case of Sanchita Ghosh and others v.
Union of India and others, rendered in W.P.A. No. 12154 of
2023, decided on 08.04.2024. By relying upon the aforesaid
decision, he submitted that, in a similar situation, the Calcutta
High Court had permitted the couple to undergo IVF
treatment. He also relied upon a number of other decisions by
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filing a compilation of judgments. The latest judgment in the
compilation was the judgment delivered by the High Court of
Madhya Pradesh at Jabalpur in Writ Petition No. 1233 of
2026, decided on 10.07.2026, in the case of Babita A. Singh
and others v. State of Madhya Pradesh.
6.4. By relying upon the aforesaid decisions, learned advocate
Mr. Banker submitted that, considering the fact that the case
of the present petitioners is similar to those cases, the present
petition may be allowed in terms of the prayers made by the
petitioners.
7. Learned AGP Mr. Panchal, though opposed the petition,
could not dispute the legal proposition on the subject,
particularly when a compilation of as many as nine judgments
has been produced by learned advocate Mr. Banker. Even
learned Central Government Standing Counsel Mr. Bhate, while
opposing the petition, could not dispute the legal proposition
canvassed by learned advocate Mr. Banker by relying upon the
aforesaid compilation. Hence, both learned counsel appearing
for respondent Nos. 1, 2 and 3 submitted that an appropriate
order may be passed in the facts and circumstances of the
case.
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C/SCA/10101/2026 (GJHC240477542026) JUDGMENT DATED: 02/09/2026
8. I have heard learned counsel for the parties and perused
the record. On perusal of the record, I find that petitioner No.
1 has crossed the age of 50 years, which is the maximum age
limit prescribed under Section 21(g) of the Act, whereas
petitioner No. 2 is 54 years of age and, therefore, falls within
the eligibility criteria for undergoing IVF treatment.
9. The term “commissioning couple” is defined in Section
2(e) of the Act, which reads as under;
“2(e) “commissioning couple” means an infertile married
couple who approach an Assisted Reproductive
Technology clinic or Assisted Reproductive Technology
bank for obtaining the services authorised by such clinic
or bank.”
10. Now, in view of the aforesaid, the judgments of various
High Courts relied upon by learned advocate Mr. Banker have
been considered by this Court. In the case of Sanchita Ghosh
(supra), the Calcutta High Court, on a similar set of facts,
observed in paragraphs 7 to 39 as under;
“7. Upon hearing learned counsel, it is apparent that the
question involved is short and as such, unnecessary
direction for affidavits will only prolong the agony of the
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petitioners.
8. Let us look into the Preamble of the statute in order
to shed some light on the issue at hand. The Preamble
reads as follows:
"An Act for the regulation and supervision of the
assisted reproductive technology clinics and the assisted
reproductive technology banks, prevention of misuse, safe
and ethical practice of assisted reproductive technology
services for addressing the issues of reproductive health
where assisted reproductive technology is required for
becoming a parent or for freezing gametes, embryos,
embryonic tissues for further use due to infertility,
disease or social or medical concerns and for regulation
and supervision of research and development and for
matters connected therewith or incidental thereto."
9. It is, thus, evident that the Act is for regulation and
supervision of assisted reproductive technology primarily,
putting in certain safeguards to prevent misuse and to
ensure safe and ethical practice of the technology.
10. The purpose of such Act is also for addressing the
issues of reproductive health where assisted reproductive
technology is required for becoming a parent.
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11. As such, the thrust of the statute is two-fold - first, it
is to provide a healthy channel for couples who are
willing to have a baby but are unable to do so due to
certain inability, clinical or otherwise, to avail of assisted
reproductive technology and second, to regulate and
govern such process in order to curtail rampant abuse
and exploitation of such eager couples by unruly and
unlawful elements.
12. The purpose is noble and as such has to be read in a
liberal context insofar as the beneficiaries of the statute,
that is, childless couples are concerned.
13. The first thing which strikes the eye even on a
primary reading of the statute is that there is no specific
bar or age limit in respect of „commissioning couples ‟
for availing assistive reproductive technologies.
14. The bar is stipulated in Section 21(g) separately and
specifically in respect of women and men, described
independently by their genders.
15. However, whereas a woman has been separately
defined in Section 2(1)(u), there is no such definition of a
man under the statute.
16. Since Section 2(1)(e) defines a „commissioning
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C/SCA/10101/2026 (GJHC240477542026) JUDGMENT DATED: 02/09/2026
couple ‟ independent of a „woman , it has to be ‟
construed that the said terms have been used and
intended to be used separately.
17. Whereas under Section 2(e) a commissioning couple is
an infertile married couple who approach for assistive
technology, Section 21(g) does not put in any rider to
restrict their collective age and/or their individual age
limits, if acting as a couple.
18. On the other hand, the restriction put in is to an
individual man or a woman who is apparently not
married or does not come within the purview of
commissioning couple.
19. Thus, two interpretations of the bar stipulated in
Section 21(g)(i) vis-à-vis women are possible.
20. The first and restrictive interpretation is that a
woman as contemplated in Section 21(g) is a woman who
does not fall within the purview of „commissioning
couple and the second more liberal view is that the ‟
Section encompasses women as a class - both in or
outside matrimony.
21. Interpreted either way, the bar applicable under
Section 21(g)(i), does not discriminate between a woman
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in a matrimonial bond and a woman who is not.
22. The restriction in Section 21(g)(i) is specifically
applicable to a woman, irrespective of whether she is or
is not married.
23. Applying such test, in the present case, the petitioner
no.1 is a woman who, by chance, is in a matrimonial
bond but remains a woman all the same within the
contemplation of the statute.
24. It is evident that the expression "woman" has been
used separately defined in the definition clause from a
commissioning couple to spread the wings of the liberty
granted to persons seeking assistive reproductive
technology not only to married couples but also to
independent women who are not married or choose not
to be married.
25. The same is in advancement of the changing mores
of society to assist people who are different from the
established and archaic conventional societal norms.
26. As such, the restriction applicable under Section 21(g)
(i) applies to women in general, irrespective of whether
they are married or not.
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27. Applying the same test to a commissioning couple,
the separate bars applicable to either of the spouses has
to be taken into consideration.
28. In so taking into consideration, we have to take into
account that collectively as a „commissioning couple , ‟
there is no age limit or upper ceiling of age.
29. Forging the said lack of restriction for commissioning
couples with Section 21(g)(i) and (ii), the only possible
interpretation is that unless the restriction is applicable to
both the spouses who comprise of the commissioning
couple, there is no bar in the commissioning couple to
approach the appropriate clinic for assistive reproductive
technology services.
30. In the event either the woman or the man comprising
the commissioning couple are eligible to have assistive
reproductive technology, there is no reason why the bar
stipulated for individual women and men should be
incorporated into the purview of the commissioning
couple as well. The age-related ineligibility of one of the
spouses need not affect the other, if they comprise of a
„commissioning couple . ‟
31. Thus read, the bar available in Section 21(g), clauses
(i) and (ii) shall be read as follows:-
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i) If a commissioning couple approaches a clinic/bank
for assisted reproductive technology services, no upper
age limit restriction will be applicable to them unless
both spouses of the commissioning couple are debarred
respectively under sub-clauses
(i) and (ii) of sub-Section (g) of Section 21 of the
2021 Act.
ii) In the event either of the couples qualify in
respect of the age limits as stipulated in Section 21(g), he
or she can approach the clinic to have assisted
reproductive technology service, irrespective of the fact
that he or she is the constituent of a commissioning
couple and her spouse is not eligible age-wise.
iii) In the second scenario above, the commissioning
couple, as a commissioning couple, shall be permitted to
avail the facilities of assisted reproductive technology
services, since there is no bar on a commissioning couple
acting as such, to have such reproductive technology
irrespective of any age bar.
iv) It is made clear that in the event one of the
spouses is eligible under Section 21(g) and the other is
not, it will be at the option of the clinic whether or not
to use the gamete donated by the ineligible spouse in the
process of assisted reproductive technology.
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32. Only the above interpretation of Section 21 (g) and
its sub-clauses, read harmoniously with the definition
clause as stipulated in Section 2 of the 2021 Act, can
give complete meaning and a wide expanse to the said
Act, in consonance with the contemplation of the
Preamble of the Act.
33. Hence, interpreted/read down as above, the
provisions of Section 21 (g) of the 2021 Act create no
unreasonable discrimination between married and
unmarried women in availing assisted reproductive
technology and, thus, passes the test of constitutionality.
34. Accordingly, Section 21 (g) of the Assisted
Reproductive Technology (Regulation) Act, 2021 is held
to be intra vires the Constitution of India.
35. Consequentially, in the present case, in view of the
above interpretation of Section 21(g), the petitioners will
be entitled to have the benefit of assisted reproductive
technology services and can approach an appropriate
clinic for having such services, in view of the fact that
one of the two spouses, that is, the petitioner no.1,
qualifies on the upper age limit as stipulated in Section
21(g), irrespective of the fact that the other spouse does
not so qualify.
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36. If so approached, the concerned clinics shall, within
the contemplation of the Act, assist the petitioners to
have the benefit of such assisted reproductive technology
service, with or without the gamete of petitioner no. 2 at
the discretion of the clinic.
37. WPA 12154 of 2023 is disposed of accordingly in the
light of the above observations.
38. There will be no order as to costs.
39. Urgent photostat copies of this order, if applied for,
be given to the parties upon compliance of all requisite
formalities.”
11. There are other judgments which are also on similar
lines. The latest judgment is the one delivered by the Madhya
Pradesh High Court in the case of Babita A. Singh, wherein,
after considering a series of judgments rendered by various
High Courts, the Madhya Pradesh High Court, in paragraphs
11 to 14, observed as under;
“11. The said provision does not prescribe any composite
age limit for the couple as a unit, therefore, it creates
discrepancy regarding the age limit which was considered
in series of judgments by the Court. Therefore, the report
is given by the Superintendent, Dr. K. N. K. Hospital,
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C/SCA/10101/2026 (GJHC240477542026) JUDGMENT DATED: 02/09/2026
Bhopal addressed to President, District Medical Board, Jai
Prakash Hospital, Bhopal dated 27.2.2026 to the
following effect:-
" उपरोवषयांतगतलेखहैकआपकेसंदिभतप ारा ीमतीबबीतअजय ि संहकेसंबंध
मजांचकर Assisted Reproductive Technology (IVF) हेतुफटहैअथवानह ं ,
काअिभमतचाहागयाहै।
करणमसंबंि धत ीरोगवशेष ाराजांचकर " Patient can be planned for
surrogacy or IVF with oocytes donation." काअिभमतदयागयाहै।
अतःउपरो ानुसारचाहगईजानकारआपकओरआवयककायवाहहेतु ेषतहै
। "
12. Counsel appearing for the petitioners before this
Court submits that the petitioners are ready to face all
the consequences and will undergo the IVF at their own
risk and if ultimately that operation fails, they would not
claim anything from the respondents / doctors as it
would be totally on their own risk.
13. Considering the judgments as cited herein above as
well as the opinion given by the doctors that "Patient
can be planned for surrogacy or IVF with oocytes
donation", this Court deems it appropriate to permit the
petitioners to undergo Assisted Reproductive Technology
(IVF) at any Institution of their choice. The Institution is
at the liberty to examine the petitioners and take a
decision with respect to the fact that whether Assisted
Reproductive Technology (IVF) can be performed or not.
The case of the petitioners will not be rejected on the
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ground of age barrier as the petitioner no. 1 is 52 years
of age.
14. Needless to mention here that the identity of the
petitioners should not be disclosed in view of Section 21
(e) of the Assisted Reproductive Technology (Regulation)
Act, 2021.”
12. Considering the fact that there are a series of judgments
taking a similar view, I do not deem it appropriate to
reproduce all the relevant paragraphs of all the judgments, as
all these judgments have taken a similar view.
13. In view of the aforesaid discussion and as learned counsel
appearing for the respondents could not produce any judgment
taking a contrary view, the present petition is required to be
allowed and is accordingly allowed in terms of the prayer
made in paragraph 13(D) of the petition. Rule is made
absolute. No order as to costs.
Direct service is permitted.
(NIRZAR S. DESAI,J)
BHAVIN MEHTA
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