Chandigarh: The Punjab and Haryana High Court has ruled that the age limits for In-Vitro Fertilisation (IVF) and other assisted reproductive treatment apply to a husband and wife separately, and not to the couple as a unit. Once either spouse crosses the limit, 50 for a woman and 55 for a man, the right to the treatment does not survive, even if the other partner is still eligible and embryos were frozen earlier. A woman, however, can seek treatment on her own, even if her husband is above 55, as long as she is below 50.
The case came from a primary school teacher and her husband, a farmer. On 22 November 2023, they had nine embryos created and frozen at an IVF clinic. Both were 47 then, well within the age limits set by law. Two years later, four of those embryos are still in the freezer. The woman is not allowed to use them.
The couple’s first embryo transfer, in July 2024, did not work. The second, in February 2025, led to a pregnancy, but it had to be terminated after five to six weeks. On 10 December 2025, the wife turned 50. Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021, bars clinics from treating a woman who is 50 or older. For a man, the limit is 55. The husband is still below it.
The clinic, ASUV Swasthya Private Limited, confirmed in a letter on 28 April 2026 that the four embryos were intact. It told the high court it had no objection to transferring one of them, if the court allowed it. It also said the woman appeared to be in good health for her age, with no condition that would stop her from carrying a child.
In his order of 5 November, however, Justice Tribhuvan Dahiya of the Punjab and Haryana High Court decided otherwise. He heard the couple’s petition together with five others raising the same question and disposed of all six in one order. In every case, one of the spouses had crossed the age limit.
The petitioners argued that the Act sets age limits for a man and a woman individually, but says nothing about a commissioning couple as a unit. So, if one spouse is within the limit, the couple should be allowed to go ahead. They cited a judgment of the Calcutta High Court in Sanchita Ghosh, decided on 8 April 2024, and a ruling of the Punjab and Haryana High Court in Manjit Kaur, which had followed it. They also said the embryos were frozen when the wife was eligible, so her right to the procedure had already accrued.
The Union of India opposed the petitions. Its counsel told the court that Parliament had fixed the limits after a Parliamentary Standing Committee examined the Bill, and that the Gauhati High Court’s Division Bench had upheld the provision in Pankaj Kumar Das. The Centre also produced a report dated 21 January 2026 by an expert committee set up by the Department of Health Research. Its members included doctors from AIIMS, New Delhi, and a faculty member from JNU. The committee found the limits of 50 and 55 years reasonable on medical, genetic and child welfare grounds.
Justice Dahiya sided with the Centre. The Act has no provision on the age of a couple, he said, and a court cannot add one; doing so would amount to rewriting the law. He relied on Supreme Court rulings that a court cannot fill a gap in a clear statute. He said the Act sets separate limits because the biological capacity of the man and woman is what matters for treatment. The couple’s role as a unit, he said, comes into play only after the procedure succeeds. He added that he was unable to subscribe to the reasoning in Sanchita Ghosh.
The court also rejected the argument about a vested right. Assisted Reproductive Technology (ART) has two stages, it said: creating and storing the embryo, and transferring it to the woman. The age limit has to be met at each stage. Embryos frozen before the woman crossed the limit do not entitle her to a transfer after she crosses it. The court noted that the Union had described the treatment as a series of cycles, with eligibility to be satisfied at the start of each. It held that once either a woman or a man crosses the maximum age, the right to ART services does not survive. The court also noted that the validity of Section 21(g) was not under challenge.
The court then took up a second question: whether a woman can seek ART services only through her husband. It said she cannot be made to. The Act allows a commissioning couple as well as a woman, married or not, to approach a clinic. The high court held that a husband above 55 does not by himself bar a wife who is below 50. The woman petitioners who have not yet crossed 50 can seek treatment on their own, if they wish.
(Edited by Nardeep Singh Dahiya)
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