Age Limit under ART Act Applies at Every Stage of IVF

Source: Punjab and Haryana High Court

Why in News?

Justice Tribhuvan Dahiya of the Punjab and Haryana High Court decided Veena Devi v. Union of India (2026) along with five connected petitions. The Court held that the age limit under Section 21(g) of the ART Act must be met at each stage of the procedure. Freezing embryos earlier does not give a vested right to transfer them after the woman crosses 50. 

The Court also held: 

• The age limits apply to each spouse individually. There is no “couple age” under the Act. 
• A woman has an independent right to ART services, whatever her husband’s age.

What was the Background of Veena Devi v. Union of India (2026) Case? 

• Six petitions were heard together. In each one, either the husband or the wife had crossed the maximum age under Section 21(g). 
• The facts were taken from the lead petition. It was filed by a primary school teacher (petitioner no. 1) and her husband, an agriculturist (petitioner no. 2). They approached a clinic to have a child through ART/IVF. 
• 22nd November 2023: nine embryos were lawfully created and cryopreserved. Both petitioners were 47 years old at the time, which was within the limits of 50 for a woman and 55 for a man. 
• July 2024: the first frozen embryo transfer was unsuccessful. 
• February 2025: the second transfer led to pregnancy, but it had to be terminated after five to six weeks. 
• 10th December 2025: the wife crossed 50 years. Four embryos were still frozen, but they could not be used because of Section 21(g). The husband was still below 55. 
• What the petitioners asked for:  
  • A direction allowing the wife to undergo transfer of one of the four remaining embryos. 
  • A declaration that the age limit in Section 21(g) should be read with reference to the commissioning couple as a unit. 
• What the petitioners argued:  
  • The husband’s right to have a child through ART continued, but he could not use it because the procedure could only be done with his own wife. 
  • They relied on Manjit Kaur v. Union of India (2025), a coordinate bench decision that let a couple proceed because one spouse was within the age limit. 
  • The treatment that began in November 2023 was an ongoing process. A right had already accrued when the embryos were frozen. 
• The clinic’s stand: it did not dispute the facts. It said the wife appeared to be in good health for her age and that it had no objection to the transfer, subject to the Court’s permission. 
• The Union of India’s stand: it opposed the petitions. It said:  
  • The age limits followed the recommendations of the Parliamentary Standing Committee on Health and Family Welfare. 
  • The Gauhati High Court had upheld them in Pankaj Kumar Das v. Union of India (2025). 
  • The Act has no provision on the age of the couple as a unit. 
  • Rule 13(f)(iii) of the ART Rules, 2022 allows a woman to use ART services even if her husband has crossed the maximum age. 
  • ART is done in treatment cycles that broadly match the woman’s menstrual cycle. Each cycle is a fresh, independent round of treatment, and eligibility must be met at the start of each one. 

Questions before the High Court: 

• Does freezing embryos while within the age limit give a vested right to transfer them after the woman crosses the maximum age? 
• Should the age limit under Section 21(g) be applied to the commissioning couple as a unit, or to each spouse separately? 
• Can a woman use ART services on her own if her husband has crossed the maximum age? 

What were the Court’s Observations? 

On the two stages of ART and the age limit at each stage: 

• Reading the definition of ART in Section 2(1)(a), the Court said ART has two stages:  
  • Preserving sperm or oocytes and/or fertilisation outside the human body. 
  • Transferring the gamete or embryo into the woman’s reproductive system. 
• ART is cyclical in nature. The right to use it is subject to the separate age limits in Section 21(g): 21 to 50 years for a woman and 21 to 55 years for a man. 
• The age limit must be met on the day the services are used or the procedure is done. 
• The age limit must be met at every stage. Embryos frozen before the woman crossed 50 do not entitle her to the transfer stage after that. Allowing it would break the Act. 
• The argument of a vested right from freezing the embryos was rejected. 
• The Court noted that the constitutional validity of Section 21(g) was not challenged in these proceedings. 

On the Expert Committee Report: 

• The Court relied on a report dated 21st January 2026. It was prepared by an expert committee set up by the Department of Health Research, Ministry of Health and Family Welfare. 
• The committee had five members from AIIMS, New Delhi and JNU. Three of them were expert members of the National ART and Surrogacy Board. 
• Main findings:  
  • Pregnancy after 50 is inherently high-risk, with much higher maternal and perinatal complications. 
  • Parents over 50 are more likely to face age-related illness and reduced stamina, which can affect caregiving. A child needs stable guardianship for nearly two decades. 
  • The upper limits of 50 for women and 55 for men, under both the ART Act and the Surrogacy (Regulation) Act, 2021, are reasonable. They rest on medical, genetic, epigenetic, psychosocial and child-welfare grounds. 
• The Court held that independent experts had vindicated the age limits. 

On the “couple as a unit” argument: 

• The legislature set separate age limits for a woman and a man. 
• It did not set any age for the commissioning couple as a unit. It also did not allow the procedure when only one spouse is within the limit. 
• A provision that is not in the statute cannot be read into it. Doing so would amount to re-framing the statute, which is beyond judicial interpretation. 
• The words of Section 21(g) are unequivocal, so there is no case for supplying casus omissus. The Court relied on:  
  • Padma Sundara Rao v. State of Tamil Nadu 
  • Independent Sugar Corporation v. Girish Sriram Juneja 
• The Court declined to follow the Calcutta High Court’s decision in Sanchita Ghosh v. Union of India (2024), on which Manjit Kaur was based. Sanchita Ghosh had held that a couple may use ART if either spouse is within the age limit. 
• The couple’s role as a unit matters after the process succeeds, for parenting. For ART services, what matters is the individual potential of the woman and the man. 

On the woman’s independent right: 

• The Court looked at:  
  • The separate definitions of “commissioning couple” and “woman” in Section 2(1) 
  • The definition of “gamete donor” 
  • The general duties of clinics under Section 21 
• From these, it held that ART services can be used either by a couple or by a woman on her own. 
• A woman, married or not, has an independent right to ART services through an authorised clinic or bank. 
• Her husband being over 55 does not, by itself, stop her from using ART, as long as she is below 50.

Decision 

• A woman or man who has crossed the maximum age under Section 21(g) cannot use ART services, even if the embryos were frozen earlier. 
• The age limits apply to each spouse separately, not to the couple as a unit. 
• A woman may use ART services independently, even if her husband has crossed the age limit. 
• Women petitioners below 50 may use ART services if they wish. 
• The petitions were disposed of.

What is the Assisted Reproductive Technology (Regulation) Act, 2021? 

About: 

• The Act regulates and supervises ART clinics and ART banks. It aims to prevent misuse of ART and to ensure safe and ethical practice. 
• It works alongside the Surrogacy (Regulation) Act, 2021. The National ART and Surrogacy Board works under both Acts. 
• ART Rules, 2022 were framed under the Act. 

Section 2(1)(a) – Definition of Assisted Reproductive Technology: 

• ART covers all techniques that try to achieve pregnancy by handling sperm or oocytes outside the human body and transferring the gamete or embryo into the reproductive system of a woman. 
• It includes gamete donation, intrauterine insemination, in-vitro fertilisation (IVF), intra-cytoplasmic sperm injection (ICSI), and gestational surrogacy. 

Section 21(g) – Age limits: 

• An ART clinic shall apply ART services only to:  
  • A woman above 21 and below 50 years. 
  • A man above 21 and below 55 years. 

Rule 13(f)(iii), ART Rules, 2022: 

• A woman may use ART services even if her husband has crossed the maximum age limit.

What is the Doctrine of Casus Omissus? 

About: 

• Casus omissus means a case omitted: a situation the legislature did not provide for in the statute. 
• General rule: courts cannot supply an omission by adding words to a statute. That is the legislature’s job, not the court’s. 
• A court may supply a casus omissus only in rare cases, where the statute’s language makes it clearly necessary. It cannot be done when the words are plain and unambiguous. 
• Padma Sundara Rao v. State of Tamil Nadu (2002): the Supreme Court held that courts cannot read anything into a statutory provision that is plain and unambiguous, and that a casus omissus cannot be supplied by the court except in the case of clear necessity.