Shweta Tuteja & Anr. vs Union Of India & Ors.

$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI


+ W.P.(C) 6103/2026


Date of Decision: 25.05.2026
IN THE MATTER OF:

SHEWTA TUTEJA
R/O RZC-90/2, RAJ NAGAR-II, RAJ
PALAM – II, COLONY, NEW DELHI
-110077


......PETITIONER NO.1

RAJESH TUTEJA
R/O RZC-90/2, RAJ NAGAR-II, RAJ
PALAM – II, COLONY, NEW DELHI
-110077
……PETITIONER NO. 2
(Through: Mr. Mohit Khandelwal and Mr. Deepak Dahiya, Advocates.)

Versus

UNION OF INDIA
THROUGH SECRETARY, MINISTRY OF HEALTH
& WELFARE, GOVERNMENT OF INDIA, MIRMAN
BHAWAN, NEW DELHI
.... RESPONDENT NO.1

NATIONAL ASSISTED REPRODUCTIVE TECHNOLOGY
AND SURROGACY BOARD
nd
2 FLOOR IRCS BUILDING -1, RED CROSS ROAD,
NEW DELHI- 110002
…. RESPONDENT NO. 2

Signature Not Verified
Signature Not Verified
Signed
By:PURUSHAINDRA
KUMAR KAURAV
Signed By:PRIYA
Signing Date:30.05.2026
15:35:29
1

THE GOVT. OF NCT OF DELHI
THROUGH THE SECRETARY OF HEALTH
& FAMILY WELFARE DEPARTMENT
th
9 LEVEL A – WING, DELHI
SECRETARIAT, IP – ESTATE, NEW DELHI 110002.
……. RESPONDENT NO. 3


THE JOINT DIRECTOR/ADDITIONAL
DIRECTOR OF HEALTH SERVICES,
PANDIT DEEP CHAND SHARMA
SAHKAR BAHWAN SECTOR-20,
PHASE – I, DWARKA DELHI, 110077
………. RESPONDENT NO. 4

CLOUDNINE HOSPITAL
(KIDS CLINIC INDIA LTD.)
PLOT NO. 17 & 18 POCKET B-10,
SECTOR 13, DWARKA,
NEW DELHI – 110075
……… RESPONDENT NO. 5

THE FELLOWSHIP DOCTOR/
GYNAECOLOGIST, CLOUDNINE
HOSPITAL
DWARKA DELHI
……. RESPONDENT NO. 6

(Through:Dr. Monika Arora, CGSC, with Mr. Subhrdeep Saha, Ms.
Anamika Thakur and Mr. Abhinav Verma Advs., Ms. Avni SINGH (Panel
Counsel – GNCTD) and Mr. Vaibhav Sharma Advocates.)


CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
J U D G E M E N T

PURUSHAINDRA KUMAR KAURAV, J. (ORAL)
1. The instant petition is seeking directions permitting the Petitioners to
undergo frozen embryo transfer ( „ FET Procedure ‟ ) of their remaining five
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By:PURUSHAINDRA
KUMAR KAURAV
Signed By:PRIYA
Signing Date:30.05.2026
15:35:29
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1
cryopreserved embryos at Respondent no. 5- Cloudnine Hospital, Dwarka,
(“ Hospital ”) under the provisions of the Assisted Reproductive Technology
Regulation Act, 2021 (“ ART Act ”).
FACTUAL MATRIX
2. The facts appear to be that the Petitioners are a married couple who
after the unfortunate demise of their son on 10.05.2025, approached Hospital
for the Assisted Reproductive Technology („ ART ‟) services in the nature of
the In Vitro-Fertilization („ IVF ‟) treatment under Respondent no. 6 –
Fellowship Doctor/Gynaecologist Doctor at the Hospital (“ Concerned
Doctor ”).
3. At the relevant time when the Petitioners‟ approached Respondent no.
5, they were within the age limit as prescribed under Section 21(g) of the
ART Act. Pursuant thereto, the Petitioners underwent medical evaluation,
counselling and investigations and, thereafter, were declared medically fit
for treatment. Necessary consent forms including consent for freezing of
embryos, frozen embryo transfer and allied procedures, were executed on
2
07.03.2026. However, the transfer was unsuccessful and the Beta-HCG test
which was conducted turned out to be negative.
4. Presently, five cryopreserved embryos belonging to the Petitioners
remain preserved with the Hospital. The Petitioners contend that
notwithstanding the unsuccessful transfer, the remaining embryos ought to
be permitted to be utilised through further FET Procedure. However, the
Hospital and the Concerned Doctor declined to proceed further on the

1
Cryopreservation refers to the preservation by means of freezing at very low temperatures (usually in
liquid nitrogen) so that cells, tissues or embryos can be stored for future use without losing viability.
2
Beta-HCG (Beta Human Chorionic Gonadotropin) test refers to a blood test used to detect pregnancy by
measuring the level of the hCG hormone produced after implantation of the embryo.
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KUMAR KAURAV
Signed By:PRIYA
Signing Date:30.05.2026
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ground that Petitioner No.1 had crossed the upper age limit prescribed under
Section 21(g) of ART Act. Aggrieved thereby, the Petitioners‟ have filed the
present petition.

SUBMISSIONS MADE BY THE PARTIES
5. Learned counsels Mohit Khandelwal and Deepak Dahiya appearing
on behalf of the Petitioners has made the following submissions:
i. The Petitioners were within the permissible age limit when they began
the treatment with Respondent Nos. 5 and 6 and that they attained the
threshold age prescribed under Section 21(g) of the ART Act during
the course of the treatment.
ii. The age restriction under Section 21(g) cannot operate mechanically
once embryos have already been created and cryopreserved. The
remaining embryos constitute the Petitioners‟ reproductive material
and form part of their decisional autonomy and reproductive choice
protected under Article 21 of the Constitution. Reliance is placed
3
upon Suchita Srivastava v. Chandigarh Administration and Justice
4
K.S. Puttaswamy v. Union of India to contend that reproductive
autonomy forms an integral facet of privacy and personal liberty.
iii. The Petitioners further submit that the ART Act does not prescribe
any separate upper age limit for a “ commissioning couple ” and that
Section 21(g) imposes age conditions individually upon a woman and
a man. Reliance is placed on decision of Sarabjit Kuar v. State of
5 6
Punjab , Sanchita Ghosh v. Union of India , Shyamoli Saha v. State

3
(2009) 9 SCC 1
4
(2017) 10 SCC 1
5
2026 SCC OnLine P&H 689
6
WPA. No. 12154 OF 2023
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By:PURUSHAINDRA
KUMAR KAURAV
Signed By:PRIYA
Signing Date:30.05.2026
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7 8
of West Bengal and Manjit Kaur v. Union of India to contend that
the statute deserves purposive interpretation in favour of facilitating
reproductive rights and that age restrictions ought not to defeat
ongoing reproductive processes involving already created embryos.
6. Per Contra , learned counsels Monika Arora and Avni Singh,
appearing on behalf of the respondents has advanced the following
submissions:
i. Section 21(g) employs mandatory language and leaves no
discretion with ART clinics once the statutory threshold is
crossed. Embryos in the present case were created in March
2026 long after the ART Act came into force on 25.01.2022
and, therefore, no question of transitional protection arises.
ii. ART services are statutory entitlements governed entirely by
the eligibility conditions prescribed under the ART Act and
cannot be claimed dehors the statue.
iii. The upper age limits were consciously adopted based upon
scientific, ethical and child-welfare considerations. Reliance is
placed upon the Statement of Objects and Reasons of the ART
Act and Parliamentary Standing Committee Report No. 129
leading to enactment of Section 21(g). Reliance is also placed
9
on decisions of Union of India v. Nandini K. , Union of India
10
v. A.G. SarlaKumari & Ors ., Pankaj Kumar Das v. Union of

7
AIR 2025 Cal 55
8
CWP No. 13670 of 2025
9
WA No. 696 of 2024
10
WA No. 827 of 2024, Judgement dated 06.08.2024
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KUMAR KAURAV
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11
India , Kavitha Anand v. State of Tamil Nadu and Madhu
12
Soni v. Indira IVF Centre to submit that age restrictions
under Section 21(g) have consistently been upheld and cannot
be diluted by judicial directions.
iv. The Report of Expert Committee on Implications of
Conceptions at Advanced Parental Age dated 21.01.2026
records that conception at advanced maternal age is associated
with increased maternal and perinatal complications and has
opined that statutory age limits represent a reasonable and
evidence-based policy choice grounded in medical,
psychosocial and child – welfare considerations.

7. I have heard learned counsels on behalf of the parties have perused
the records.
ANALYSIS
8. The controversy in the present petition lies within a narrow compass.
The question which falls for consideration is whether the age restriction
prescribed under Section 21(g) of the ART Act can be construed in a manner
so as to prevent the continuation , as opposed to the initiation , of an ART
process beyond the age limit prescribed under Section 21(g) of the ART Act.
The material portion of the said provision reads as under:
“ 21. General duties of assisted reproductive technology clinics and banks.
The clinics and banks shall perform the following duties, namely:

(a) the clinics and banks shall ensure that commissioning couple, woman
and donors of gametes are eligible to avail the assisted reproductive
technology procedures subject to such criteria as may be prescribed;

11
2025 SCC OnLine Gau 5083
12
WP. No. 35158 OF 2024
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KUMAR KAURAV
Signed By:PRIYA
Signing Date:30.05.2026
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...
(g) the clinics shall apply the assisted reproductive technology services,
(i) to a woman above the age of twenty-one years and below the age of fifty
years;
(ii) to a man above the age of twenty-one years and below the age of fifty-
five years;
(h) the clinics shall issue to the commissioning couple or woman a
discharge certificate stating details of the assisted reproductive technology
procedure performed on the commissioning couple or woman”

[Emphasis supplied]

9. Further, Section 2(e) of the ART Act provides for the definition of a
“ commissioning couple ” in the following terms:
“ (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 of the
said clinic or bank ”
[Emphasis supplied]


10. A bare perusal of the aforesaid provision would indicate that Section
21(g) of the ART Act prescribes the age eligibility for availing the ART
services by a woman and a man individually. The provision stipulated that
ART services may be extended to a woman above the age of twenty-one
years and below the age of fifty years and to a man above the age of twenty-
one years and below the age of fifty-five years.
11. There can be no quarrel with the proposition that the ART Act is a
beneficial regulatory legislation enacted with the object of ensuring safe,
ethical and regulated ART practices. Equally, the concerns relating to
maternal health and child welfare which underlie the statutory framework
cannot be disregarded. However, while interpreting a regulatory statute
touching upon reproductive rights and decisional autonomy, the Court is
also required to adopt an interpretation which remains consistent with
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constitutional values embodied under Article 21 of the Constitution.
12. The Petitioners‟ herein, are not seeking initiation of a fresh IVF cycle
after having crossed the statutory age limit prescribed under Section 21(g) of
the ART Act. Rather the admitted factual position is that the treatment
process had already commenced while the Petitioners were within
prescribed statutory age limits. At the relevant time, when the embryos were
retrieved, created and cryopreserved on 07.03.2026 the Petitioner No.
1(female) was aged 49 years 11 months and 14 days old and, therefore,
squarely fulfilled the eligibility criteria under Section 21(g) of the ART Act.
It is also not disputed that six embryos were created and cryopreserved
pursuant thereto, out of which one embryo was utilised during the FET
Procedure undertaken on 07.03.2026. Presently, five cryopreserved embryos
belonging to the Petitioners continue to remain preserved with the Hospital.
13. At this stage, it is significant to note that the Petitioners are not
seeking creation or extraction of fresh embryos after crossing the statutory
age threshold. The request of the Petitioners‟ is confined to utilisation of the
very same embryos which had already been retrieved at a point when the
Petitioner No.1 undisputedly satisfied the statutory age requirement. As on
date, Petitioner No. 1 is stated to be 50 years 2 months of age where as
Petitioner No. 2 is stated to be 54 years old. However, the embryos presently
sought to be utilised are those which came to be created during subsistence
of permissible statutory age and pursuant to a process initiated under
medical supervision.
14. The aforesaid distinction, in the considered opinion of this Court,
assumes considerable significance while interpreting the scope and
application of Section 21(g) of the ART Act. The present case, therefore,
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concerns continuation of an already initiated reproductive process involving
pre-existing cryopreserved embryos and not commencement of a fresh ART
procedure dehors the statutory framework.
15. The cryopreserved embryos in question are not merely preserved
biological material in abstract but are intrinsically connected with the
Petitioners‟ reproductive autonomy, decisional privacy and their
constitutional protected choice relating procreation and family life.
16. The Supreme Court in the case of Suchita Srivastava (supra)
recognised reproductive choice as an inseparable facet of personal liberty
under Article 21 of the Constitution. Similarly, in Justice K.S. Puttaswamy
(supra), decisional autonomy and privacy in matters concerning family,
procreation and bodily integrity were held to be constitutionally protected
interests. These constitutional principles necessarily require that statutory
provisions regulating ART procedures receive a purposive interpretation that
advances constitutional freedoms while preserving the regulatory object
sought to be achieved by the enactment.
17. The Punjab Haryana High Court in Sarabjit Kaur (supra) while
interpreting the provisions of the ART Act observed that the primary
purpose of the enactment is to regulate and supervise ART clinics and banks
so as to prevent misuse and unsafe practices. The statutory framework ought
not to be construed in a manner defeating the very object underlying the
legislation. The restrictions which are not expressly contemplated under the
statue cannot be imported so as to defeat access to ART procedures. The
reasoning adopted in Sarabjit Kaur also assumes significance inasmuch as
the statutory framework imposes age restrictions individually upon a woman
and a man and not upon “ commissioning couple ” as a composite unit. The
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legislative scheme does not contemplate any joint or collective age
restriction for a “ commissioning couple. ”
18. Further, the Calcutta High Court in Shaymoli Saha (supra) upon
analysing the definitions of “ woman ”, “ patient ” and “ commissioning
couple ” under the ART Act, had observed that the statute does not prescribe
any composite age criterion for a “ commissioning couple” and that such a
restriction cannot be judicially imported into the statue.
19. The aforesaid line of reasoning has also found acceptance in
13
subsequent decisions including Vanaja v. Union of India , Ambiki Balan
14 15
v. Union of India , Union of India v. Devayani S. & Ors. The Division
Bench of Kerala High Court in Devayani S. specifically observed that
although the Parliamentary Standing Committee had considered introduction
of a “ combined age ” criterion for couples, the legislature consciously did not
incorporate any such composite age restriction within the enacted provisions
of the ART Act. The Court further held that where the statue prescribes age
thresholds separately for a woman and a man under Section 21(g), Courts
cannot read into the statue an additional restriction not expressly
contemplated by the legislature.
20. Through a different lens, the aforenoted reasoning also finds support
in the text of the provision. Section 21(a) of the ART Act, at its highest,
require the commissioning couple, which is to “ avail ” assistive reproductive
technology to be compliant of the requirements of the Act. Section 2(e) of
the ART Act further defines “ commissioning couple ” as a couple who
“ approach ” a clinic providing assisting reproductive technology.

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2025:KER:16115
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2026:KER:30454
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21. Thus, it is the time that the benefits of the technology are availed and
when the couple approaches, that the limitations and conditions of age, if at
all, are to be considered. Section 21(h) further requires a discharge
certificate to be issued to the “ commissioning couple ” i.e., which is the
couple as they were at the time they approached the clinic, stating the details
of the assisted reproductive technology procedure performed on the
“ commissioning couple ”. It is, therefore, the case, that the text of the
provision, also, support the purposive interpretation rendered by the Courts.

22. A brief reliance may also be placed on GP Singh’s Principles of
16
Statutory Interpretation , which has noted that while selecting out of
different interpretations “ the Court will adopt that which is just, reasonable
and sensible rather than that which is none of the hose things ”. A
construction giving rise to an anomaly ought to be avoided.
23. This Court is conscious of the decisions relied upon by the
Respondents including Pankaj Kumar Das and Kavitha Anand , wherein,
emphasis has been laid upon the legislative policy underlying the age
restrictions prescribed under Section 21(g) of the ART Act. There can be no
disagreement with the proposition that the statutory age limits are founded
upon legitimate considerations relating to maternal health, ethical regulation
and child welfare.
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

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16 th
13 Ed., 2012, Ch. 2, pg. 132-133.
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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 & Anr. v. Union
17
of India & Ors ., 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 by the earlier decision in
Sarbjit Kaur . In the opinion of this Court, the latter category stands on a
materially 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
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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.
29. In view of the aforesaid, the petition stands allowed. The Petitioners
are permitted to undergo frozen embryo transfer of their remaining five
cryopreserved embryos, with all medical safeguards.
30. With the aforesaid directions, the instant petition stands disposed of.
31. No order as to costs.

(PURUSHAINDRA KUMAR KAURAV)
JUDGE

MAY 25, 2026
Rao/SS

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