Kerala High Court Refuses To Permit Couple Who Crossed Age Limit To Undergo ART Treatment Based On Undertaking

The Kerala High Court has refused to follow the Judgments of the Punjab and Haryana High Court, whereby, in cases where either of the married couple has crossed the upper age limit prescribed under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act), they were permitted to undergo the procedure based on an undertaking furnished by them. 

The Kerala High Court had initially permitted such couple to undergo treatment, but refused to grant such relief after noticing the Judgment of its Division Bench in the matter of Union of India v. Nandini K. & Ors., which upheld Section 21(g) of the ART Act. 

The Bench of Justice Harisankar V. Menon held, "It is true that the Division Bench of the Punjab and Haryana High Court has considered the entitlement with reference to the judgment in Sarbjit Kaur (supra), and this Court has also followed the same. However, as rightly pointed out by the learned Central Government Counsel, insofar as the judgment of the Division Bench in Nandhini (supra) has not been relied on or pointed out while rendering the judgment in W.P.(C) No.28787 of 2026, this Court is of the opinion that merely because the Punjab and Haryana High Court has held that the services are to be extended upon furnishing an undertaking, similar treatment does not require to be extended to the petitioners."

The Court also refused to permit the couple who had begun the treatment before crossing the age limit to continue their ART treatment even after crossing the age limit based on the Judgment of the Apex Court in the matter of Vijaya Kumari S. v. Union of India.

The Court held, "However, this Court notices that the afore judgment had been rendered with reference to the provisions of the Surrogacy (Regulation) Act, 2021, whereas the Division Bench of this Court in Nandhini (supra) has considered the issue specifically with reference to the provisions of the ART Act. When that be so, the reliance placed on the judgment in Vijayakumari (supra) cannot also be said to be correct even though the provisions may be pari materia".

The Punjab and Haryana High Court had held in the matter of Dr.Pushpa and Another v. Union of India and Others, following its Judgment in Sarbjit Kaur v. State of Punjab, that even couple who have crossed the age limit under Section 21 can undergo the process if they furnish an undertaking.

Cause Title: Dileep A. & Anr. v. Union of India & Ors. & connected cases (Neutral Citation: 2026:KER:80986)

Appearance:

Petitioners: Advocates U Balagangadharan, Namitha George, K. C. Maneesh Charly, Sathiabhama A., Joel Chalamana, Soniya S., Dr. K. P. Pradeep, T. T. Biju, T. Thasmi and M. J. Anoopa

Respondents: Central Government Counsel T. V. Vinu, Arjun Venugopal, Sreelakshmi Suresh, Satheesh Mohanan and Government Pleader Mintu Cherian

Click here to read/download Judgment