Married Couple can Opt for IVF if One Spouse Is Within Upper Age Limit Prescribed under ART Act

Gujarat High Court 

Why in News? 

Justice Nirzar S. Desai, in X v. The Chief Medical Officer Cum Civil Surgeon and the Appropriate Authority & Ors. (2026), permitted a married couple to avail IVF treatment to conceive a child, holding that even where the wife had exceeded the upper age limit of 50 years prescribed under the ART Act, the procedure could be availed since the husband was within the prescribed age limit of 55 years. 

What was the Background of X v. The Chief Medical Officer Cum Civil Surgeon and the Appropriate Authority & Ors. (2026) Case? 

• The petitioner-couple, who already had a daughter, sought to conceive another child after losing their 25-year-old son to suicide, as the wife was unable to conceive naturally. 
• They approached a doctor for IVF treatment, but the doctor refused treatment on the ground that the wife (petitioner No. 1) had exceeded the upper age limit prescribed under the Assisted Reproductive Technology (Regulation) Act, 2021, while the husband (petitioner No. 2) was 54 years old. 
• Under Section 21(g) of the Act, ART services can be applied only to a woman above 21 and below 50 years of age, and to a man above 21 and below 55 years of age. 
• The petitioners' representation to the concerned authority was rejected, following which they approached the High Court. 

What were the Court's Observations? 

• On the Meaning of "Commissioning Couple": 
  The Court referred to the term "commissioning couple" under Section 2(e) of the Act, which means an infertile married couple who approach an ART clinic or bank for obtaining its services. 
• On Eligibility Where Only One Spouse Meets the Age Criterion: 
  The Court relied on the Calcutta High Court's decision in Sanchita Ghosh and Others v. Union of India (2024), which had permitted a couple to opt for ART where one spouse qualified the upper age limit stipulated under Section 21(g), irrespective of whether the other spouse also qualified. 
• On the Consistency of Judicial Precedent: 
  The Court noted that a series of judgments across High Courts had taken a similar view permitting IVF where at least one spouse satisfied the prescribed age eligibility, and that counsel for the respondents could not produce any judgment taking a contrary view. 
• The Court accordingly allowed the petition in terms of the prayer made therein, permitting the couple to avail IVF treatment.

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

Background & Purpose: 

• The ART (Regulation) Act, 2021 provides a system for implementation of the law on surrogacy by setting up the National Assisted Reproductive Technology and Surrogacy Board. 
• The Act aims at the regulation and supervision of ART clinics and assisted reproductive technology banks, prevention of misuse, and safe and ethical practice of ART services. 

Definition of ART Services: 

• The Act defines ART to include all techniques that seek to obtain a pregnancy by handling the sperm or the oocyte (immature egg cell) outside the human body and transferring the gamete or the embryo into the reproductive system of a woman. These include gamete donation (of sperm or egg), in vitro fertilization (IVF), and gestational surrogacy. 
• ART services are provided through: (i) ART clinics, which offer ART-related treatments and procedures, and (ii) ART banks, which collect, screen, and store gametes. 

Eligibility Criteria for Donors: 

• A bank may obtain semen from males between 21 and 55 years of age, and eggs from females between 23 and 35 years of age. 
• A woman may donate eggs only once in her life, and not more than seven eggs may be retrieved from her. 
• A bank must not supply the gamete of a single donor to more than one commissioning party (i.e., couples or single women seeking services). 

Conditions for Offering Services: 

• ART procedures must be conducted only with the written consent of the commissioning parties and the donor. 
• The commissioning party is required to provide insurance coverage in favour of the egg donor (for any loss, damage, or death). 

Eligibility Criteria for Commissioning Couples (Section 21(g)): 

• An ART clinic or bank shall not apply ART services to a woman below the age of 21 years or above the age of 50 years, or to a man below the age of 21 years or above the age of 55 years. 

Rights of a Child Born Through ART: 

• A child born through ART will be deemed to be a biological child of the commissioning couple and will be entitled to the rights and privileges available to a natural child of the commissioning couple. A donor will not have any parental rights over the child.