Couple can pursue IVF despite wife being over 50, Gujarat HC rules as husband remains within ART age limit

The petitioners were a married couple who had lost their 25-year-old son to suicide on 12 May 2022.

They thereafter sought to have another child through In Vitro Fertilization (IVF), as petitioner No. 1, the wife, was menopausal and unable to conceive naturally.

The IVF facility was refused on the ground that petitioner No. 1 had crossed the statutory upper age limit of 50 years under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 (“2021 Act”), although petitioner No. 2, the husband, was 54 years old and below the prescribed upper age limit of 55 years.

Their representation was rejected by the respondent authority through order dated 3 July 2026, following which they filed the present petition seeking quashing of that order and permission to avail themselves of ART/IVF services.

Whether the age restrictions under Section 21(g) of the 2021 Act apply independently to each spouse in a “commissioning couple,” such that one spouse’s age-related ineligibility bars the couple from accessing ART services.

Whether a married couple may avail themselves of ART/IVF services where one spouse satisfies the applicable age requirement and the other spouse exceeds the prescribed age limit.

Whether the respondent authority’s order dated 3 July 2026 refusing the petitioners access to IVF services was legally sustainable.

The Court applied Section 2(e) of the 2021 Act, which defines a “commissioning couple” as an infertile married couple approaching an ART clinic or bank for authorised services.

Section 21(g), which permits ART services for a woman above 21 and below 50 years and a man above 21 and below 55 years.

Reading these provisions with the Act’s preamble and its purpose of regulating ART, preventing misuse, and facilitating parenthood where ART is required, the Court adopted the interpretation in Sanchita Ghosh v. Union of India, W.P.A. No. 12154 of 2023, decided on 8 April 2024, that no composite upper-age limit is prescribed for a commissioning couple; consequently, the couple is not barred unless both spouses are independently disqualified under Section 21(g).

The Court also relied on the analogous reasoning in Babita A. Singh v. State of Madhya Pradesh, W.P. No. 1233 of 2026, decided on 10 July 2026, that an ART institution may medically assess the applicants and cannot reject the case solely on the ground that one spouse has crossed the statutory age limit.

The Court held that “commissioning couple” is a distinct statutory expression and that Section 21(g) prescribes age limits for women and men individually without specifying a collective or composite age limit for a married couple.

It therefore followed the liberal and harmonious interpretation adopted in Sanchita Ghosh: where either spouse satisfies the relevant age criterion, the age-related ineligibility of the other spouse does not automatically disqualify the couple from approaching an ART clinic.

Applying that rule, petitioner No. 2 was 54 years old and therefore within the statutory limit applicable to men, notwithstanding petitioner No. 1’s having crossed 50 years.

The Court further noted that the respondents could not produce any contrary authority and did not dispute the legal proposition advanced by the petitioners.

Accordingly, the refusal based solely on petitioner No. 1’s age was held unsustainable.

The Court quashed and set aside the respondent No. 3’s order dated 3 July 2026 and directed that the petitioners be permitted to avail themselves of ART/IVF services in terms of prayer 13(D).

Rule was made absolute, with no order as to costs, and direct service was permitted.