Madras HC Allows Couple To Transfer Four Embryos Frozen Before ART Act, If Clinic Finds It Medically Safe For 51-Year-Old Wife

The petitioners, who had undergone IVF treatment at the third respondent fertility centre, had four embryos cryopreserved on 4 March 2020 for future transfer.

The first petitioner was approximately 51 years old when the petition was considered.

The fertility centre stated that court permission was required before proceeding with a frozen embryo transfer (FET), and the petitioners sought a direction permitting the transfer.

The embryos were created before the Assisted Reproductive Technology (Regulation) Act, 2021 came into force.

Section 21(g) of the ART Act was considered in relation to its age criteria.

Relying on Vijaya Kumari S. and another v. Union of India, W.P. (C) No. 331 of 2024, the Court noted the principle that, where embryos were created and frozen before the Act, the later age restriction should not operate retrospectively to defeat the established reproductive choice and intended procedure.

The Court also relied on a coordinate Bench decision in W.P. No. 25862 of 2026 and the reasoning of the Delhi High Court that continuation of treatment using existing cryopreserved embryos is distinguishable from initiating a fresh ART cycle after crossing the statutory age threshold.

The reproductive choice and right to become parents were treated as engaging Article 21 of the Constitution.

The Court found the case materially similar to the coordinate Bench decision: the embryos had been cryopreserved in 2020, before the ART Act, when the petitioners were within the prescribed age limit.

Applying the cited reasoning, it treated the request as continuation of an already commenced treatment, rather than initiation of a new ART cycle, and allowed the petition.

However, it did not direct an unconditional transfer: it required the fertility centre to assess medical fitness and proceed only if, in its considered opinion, the procedure posed no medical risk beyond the general policy concerns underlying the Act; it also required assessment of possible psychological and hormonal impacts on the first petitioner.

The third respondent fertility centre was directed to evaluate the petitioners’ medical condition and fitness before undertaking FET and to proceed only if it considered the procedure medically safe, including after evaluating possible psychological and hormonal impacts on the first petitioner.

No costs were ordered.