Justice Nirzar S. Desai, Gujarat High Court
Age Bar For One Spouse Does Not Disqualify Commissioning Couple From ART Services If Other Is Eligible: Gujarat High Court
|The Court relied on a line of High Court decisions taking the view that Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 does not prescribe a composite age limit for a commissioning couple.
The Gujarat High Court has held that the age-related ineligibility of one spouse does not, by itself, bar a married “commissioning couple” from availing Assisted Reproductive Technology services if the other spouse satisfies the statutory age requirement.
Allowing a couple’s petition, the Court set aside the rejection of their request and directed the respondents to permit them to avail Assisted Reproductive Technology/IVF services to conceive a child.
The Court was hearing a special civil application filed by a couple seeking permission to avail Assisted Reproductive Technology/IVF services and challenging the rejection of their representation after treatment was refused on the ground that one spouse had crossed the age limit under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021.
A Bench of Justice Nirzar S. Desai, while relying on decisions taking a similar view, reproduced the Calcutt High Court’s observations in Sanchita Ghosh v. Union of India (2024): “In the event either the woman or the man comprising the commissioning couple are eligible to have assistive reproductive technology, there is no reason why the bar stipulated for individual women and men should be incorporated into the purview of the commissioning couple as well. The age-related ineligibility of one of the spouses need not affect the other, if they comprise of a ‘commissioning couple’.”
Advocate Mohit S Banker appeared for the petitioners, Assistant Government Pleader Angesh Panchal and Central Government Standing Counsel Pradip D Bhate appeared for the respondents.
Background
The petitioners are an anonymised married couple. The judgment records that after losing their adult son, they decided to have a child. Since the wife was menopausal and unable to conceive naturally, they opted for IVF and approached a doctor, who refused treatment on the ground that she had crossed the upper age limit prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021.
Section 21(g) of the Act provides that clinics may apply Assisted Reproductive Technology services to a woman above 21 years and below 50 years, and to a man above 21 years and below 55 years. In the present case, the wife had crossed 50 years, while the husband was 54 years old.
The petitioners submitted that Section 2(e) defines a “commissioning couple” as an infertile married couple approaching an Assisted Reproductive Technology clinic or bank for authorised services. They argued that the Act applied to the couple and not merely to an individual partner, and that the request could not be rejected when one spouse still fell within the statutory age criteria.
The petitioners relied on several High Court decisions, including Sanchita Ghosh and others v. Union of India and others (2024) and Babita A. Singh and others v. State of Madhya Pradesh (2026). The respondents opposed the petition but could not dispute the legal proposition canvassed on behalf of the petitioners.
Court’s Observations
The Court first recorded the statutory age framework under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 and applied it to the facts before it.
The Court observed: “On perusal of the record, I find that petitioner No. 1 has crossed the age of 50 years, which is the maximum age limit prescribed under Section 21(g) of the Act, whereas petitioner No. 2 is 54 years of age and, therefore, falls within the eligibility criteria for undergoing IVF treatment.”
It then referred to the statutory definition of “commissioning couple” under Section 2(e) of the Act.
The Court noted: “‘commissioning couple’ means an infertile married couple who approach an Assisted Reproductive Technology clinic or Assisted Reproductive Technology bank for obtaining the services authorised by such clinic or bank.”
The Court considered the earlier High Court decisions relied upon by the petitioners. In Sanchita Ghosh and others v. Union of India and others (2024), the Calcutta High Court had examined the preamble and scheme of the Act and held that the statute was meant to regulate Assisted Reproductive Technology while addressing reproductive health concerns where such technology is required for becoming a parent.
The reproduced decision stated: “The first thing which strikes the eye even on a primary reading of the statute is that there is no specific bar or age limit in respect of ‘commissioning couples’ for availing assistive reproductive technologies.”
It further reasoned that a “commissioning couple” was defined separately from an individual woman and that Section 21(g) did not impose a collective age limit on such couples.
The reproduced decision observed: “Whereas under Section 2(e) a commissioning couple is an infertile married couple who approach for assistive technology, Section 21(g) does not put in any rider to restrict their collective age and/or their individual age limits, if acting as a couple.”
The Court also noted the view that unless both spouses are barred under the age restrictions applicable to men and women respectively, a commissioning couple is not barred from approaching an appropriate clinic for Assisted Reproductive Technology services.
The reproduced decision stated: “Forging the said lack of restriction for commissioning couples with Section 21(g)(i) and (ii), the only possible interpretation is that unless the restriction is applicable to both the spouses who comprise of the commissioning couple, there is no bar in the commissioning couple to approach the appropriate clinic for assistive reproductive technology services.”
The Gujarat High Court recorded that other judgments had taken a similar view and referred to Babita A. Singh and others v. State of Madhya Pradesh (2026), where the Madhya Pradesh High Court had permitted the petitioners there to undergo Assisted Reproductive Technology/IVF and had directed that the case should not be rejected on the ground of age barrier.
The Court found that the respondents could not place any judgment taking a contrary view on the issue. It therefore allowed the petition in terms of the prayer seeking setting aside of the rejection and permission to avail Assisted Reproductive Technology/IVF services.
The Court held: “In view of the aforesaid discussion and as learned counsel appearing for the respondents could not produce any judgment taking a contrary view, the present petition is required to be allowed and is accordingly allowed in terms of the prayer made in paragraph 13(D) of the petition.”
Conclusion
The Gujarat High Court allowed the petition, set aside the impugned rejection of the petitioners’ request, and directed the respondents to permit the petitioners to avail Assisted Reproductive Technology/IVF services to conceive a child. Rule was made absolute, with no order as to costs. Direct service was permitted.
Cause Title: X v. The Chief Medical Officer Cum Civil Surgeon and The Appropriate Authority & Ors.