DHANALAKSHMI vs The National Assistant Reproductive Technology

WP No. 41971 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26-10-2026
CORAM
THE HON'BLE MS. JUSTICE P.T. ASHA
WP No. 41971 of 2026
CNR:{HCMA012440782026}
1. Dhanalakshmi
2. N.Vijayan
..Petitioner(s)
Vs
1. The National Assistant Reproductive
Technology
and Surrogacy Board, Rep by its Chairperson
Ministry of Health and Family Welfare
Room No.156-A, Nirman Bhavan
New Delhi-110 011
2. The State Assisted Reproductive Technology
and
Surrogacy Board
Rep by its Chairperson
Directorate of Medical and Rural Health
Services
DMS Complex
Anna salai,
Teynampet
Chennai-600 006
3. Sudha Fertility Centre Pvt Ltd
410, Bharathiyar Road,
New Siddhapudur
Coimbatore-641 044
..Respondent(s)
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WP No. 41971 of 2026
Prayer: This writ petition is filed under Article 226 of the Constitution of
India, seeking writ of mandamus directing the respondents to permit and
facilitate the petitioners to undergo Frozen Embryo Transfer (FET) using the
four embryos already formed and cryopreserved on 04.03.2020.
For Petitioner(s): Mr. PA. Saigovindaraja
For Respondent(s): Mr. K.Srinivasamurthy
Senior Panel Counel
R1
Mr. J.V.Sakthi Baalakrishnan
Government Advocate
R2
Order
This writ petition is filed for the following relief:
“To direct the respondents to permit and facilitate the petitioners to
undergo Frozen Embryo Transfer (FET) using the four embryos
already formed and cryopreserved on 04.03.2020.”
2. The petitioners got married on 06.11.2016 and have been desirous of
having a child. Due to difficulties in conceiving naturally, the petitioners
rd
approached the 3 respondent fertility centre and underwent appropriate
medical evaluation, counselling and In-Vitro Fertilisation (IVF) treatment.
Pursuant to the aforesaid IVF treatment, four embryos were formed and were
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WP No. 41971 of 2026
st
cryopreserved on 04.03.2020, for future embryo transfer. Since the 1 petitioner
rd
is now aged about 51 years, the 3 respondent / fertility centre expressed that
appropriate permission from the Court is required before proceeding with the
FET. Therefore, the petitioners are before this Court.
3. Heard the learned counsels on the either side and perused the records.
4. In a similar matter in WP.No.25862 of 2026 dated 08.07.2026 , the
Coordinate Bench of this Court was considering the request of the petitioners to
undergo frozen embryo transfer using embryos created in 2017, prior to the
coming into effect of the Assisted Reproductive Technology (Regulation) Act,
2021, herein after called the ART Act. In the case on hand also the embryos
have been cryopreserved on 04.03.2020, prior to coming into force of the ART
Act.
5. The learned Judge in the above referred case had extracted the
provisions of Section 21 (g) of the ART Act and placed reliance upon the
judgement of the Hon’ble Supreme Court in the case of Vijaya Kumari S. and
another Vs. Union of India – WP (C). No.331 of 2024, where the learned
Judges had considered the criteria relating to the age limit, where they have
stated as follows:
“15.9 We therefore hold that creation of embyros and
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WP No. 41971 of 2026
freezing of the same is crystallization of the said process as it
clearly demonstrates the intention of the couples ie., intending
couples, in the instant cases. The earlier stages, namely, (I) Visit to
surrogacy clinic, (ii) Counselling of the patient, (iii) Obtaining of
the various permissions / certificates from Appropriate Authorities
under Section 4 of the Act, (iv) Extraction of gametes of Stage A,
are no doubt part of surrogacy procedure but are stages prior to
the crystallization of the intention of the souple to undertake a
surrogacy procedure an interpretation we are giving in the context
of age barriers. Therefore, when there was no age restriction at the
stage of creation of embryos and freezing them i.e., prior to the
enfocement of the Act, when the intending couples are at the
threshold of Stage B, the age restriction under the Act cannot be
permitted to operate retrospectively on such intending couples as
in the present cases so as to frustrate not just the surrogacy
procedure but also their right to have a surrogate child or become
parents, the latter being a constitutional right under Article 21 of
the Constitution.”
6. The learned Judge had also relied upon the judgement of the Division
Bench of the Delhi High Court, where the petitioners were not seeking initiation
of fresh IVF cycle or creation of fresh embryos after crossing statutory age. The
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WP No. 41971 of 2026
embryos in that case also have been preserved, when the parties have been in
the prescribed age limit. The learned Judges had observed as follows:
“24. However, in the facts of the present case, concerns
relating to maternal health and welfare of child though legitimate
and substantial, stand safeguarded. The Petitioners had already
undergone medical evaluation, counselling and requisite treatment
under expert supervision before commencement of the ART process.
The material on record would indicate that the Petitioners were
declared medically fit for undergoing the procedure.
25. The Respondents have not placed any medical opinion
indicating that utilisation of the existing cryopreserved embryos
would pose any immediate or exceptional medical risk beyond the
general policy concerns underlying the enactment.
26. The distinction between initiation of a fresh ART cycle
after crossing the statutory age threshold and continuation of an
already commenced treatment involving existing cryopreserved
embryos cannot be lost sight of. The Punjab and Haryana High
Court in the case of Pushpa v. Union of India, recently, while
coming across a case where the petitioner-wife had crossed the age
of 50 years, permitted continuation of IVF treatment noting that the
issue stood covered the earlier decision in Sarbjit Kaur. In the
opinion of this Court, the latter category stands on a materially
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WP No. 41971 of 2026
different footing and warrants a purposive interpretation consistent
with constitutional protections available to reproductive choice and
decisional autonomy.
27. This Court is also conscious of the fact that reproductive
rights and access to parenthood in the contemporary constitutional
jurisprudence cannot be reduced to purely technical or pedantic
application of statutory conditions divorced from factual context in
which such rights are asserted. The ART Act is fundamentally
regulatory in character. The object of the enactment is to ensure
ethical and safe ART practices and not to create insurmountable
barriers defeating legitimate continuation of treatment processes
already lawfully undertaken.
28. In view of the peculiar facts of the case, this Court is of
the considered opinion that denial of permission to utilise the
remaining five cryopreserved embryos solely on account of the
Petitioners having marginally crossed age threshold of the ART
process would not subserve the object of the ART Act.”
Ultimately, the learned Judge had allowed the writ petition.
7. Therefore, following suit and considering the fact that embryos had
been preserved in the year 2020 prior to the ART Act and that they were within
the age limit prescribed under Section 21 (g) of the ART Act, this writ petition
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WP No. 41971 of 2026
rd
is allowed directing the 3 respondent fertility centre to evaluate the medical
condition and fitness of the petitioners before undertaking embryo transfer
rd
procedure. The 3 respondent shall proceed with the procedure only if in its
considered opinion the same would not pose any medical risk to the petitioners
beyond the general policy concerns the underlying the enactment. The 3rd
respondent shall also evaluate the possible psychological and hormonal impacts
that the procedure and subsequent pregnancy could have on the 1st petitioner.
No costs.
26-10-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
KAN
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WP No. 41971 of 2026
To
1. The National Assistant Reproductive Technology
and Surrogacy Board, Rep by its Chairperson
Ministry of Health and Family Welfare
Room No.156-A, Nirman Bhavan
New Delhi-110 011
2. The State Assisted Reproductive Technology and
Surrogacy Board
Rep by its Chairperson
Directorate of Medical and Rural Health Services
DMS Complex
Anna salai,
Teynampet
Chennai-600 006
3. Sudha Fertility Centre Pvt Ltd
410, Bharathiyar Road,
New Siddhapudur
Coimbatore-641 044
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WP No. 41971 of 2026
P.T.ASHA J.
KAN
WP No. 41971 of 2026
26-10-2026
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