New Delhi: In a case that pits reproductive choice, medical science and state regulation in direct conflict, the Bombay High Court is hearing a challenge by two women to the upper age limit for seeking fertility treatments such as in vitro fertilisation (IVF).
The petitioners—Swati Sharad Parab (55) and Geeta Devi Vishwakarma (53)—are challenging Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021, which bars fertility treatments for women aged 50 and above. The provision states that clinics can provide assisted reproductive technology (ART) services to a woman between 21 and 50, and to a man between 21 and 55.
The petitioners argue that this age limitation is unconstitutional and violates their fundamental rights.
During the first substantive hearing on 23 March, before a division bench of Justices Ravindra V. Ghuge and Abhay J. Mantri, the petitioners requested interim relief to undergo ART treatments using “donor gametes”.
Both women said they had medical certificates from a gynaecologist declaring their fitness for a full-term pregnancy.
But the court found that their claims lacked sufficient supporting data, and appointed senior advocate Ashutosh Kumbhakoni as amicus curiae to assist in the case.
Subsequently, on 22 April, the court allowed the petitioners to undergo medical tests to determine their eligibility for ART services.
The amicus curiae argued that the absence of a transitional framework creates a legal dilemma in cases where the age threshold is crossed midway through treatment.
He also cited cases where the Supreme Court granted interim relief to couples by relaxing the age bar, urging the high court to adopt a “balanced approach”, while adding, “we are running against time in these cases”.
The court expressed its reservations about the health implications for both the woman and child involved in a late-age pregnancy.
In one of the hearings, Justices Ghuge and Hiten Shamrao Venegavkar asked Kumbhakoni to seek the opinion of a reputed senior gynaecologist to determine the risk factors to mother and child.
While issuing notice to concerned parties, the court fixed the next date of hearing for 19 June.
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Pregnancy risks at older age
Dr. Snigdha Pathak, a gynaecologist and fertility specialist, said that it was biologically rare and difficult for a woman over the age of 50 to conceive naturally. The reason this question even arises is because of advances in ART whereby donor eggs can be used for a pregnancy “against the natural age of conception”.
“While 50 may be an arbitrary number, the government does have to set some age limit, keeping in mind the health of the woman,” said Dr. Pathak.
IVF conceptions carry a higher risk of pre-eclampsia, a life-threatening condition, as compared to natural conceptions, she said.
When combined with the natural risks of an advanced age pregnancy, the health risks to the woman increase further. The risk of birth abnormalities in the child does not increase due to ART, but does naturally increase with the age of the mother.
“Hence, this age restriction is in place to primarily protect the health of the woman,” she said.
But she added that individual cases, however, rare, may vary from the norm.
Dr. Pathak said there is an age bar on men as well, due to factors such as sperm abnormalities with advancing age, but she emphasised that this is secondary, as women are the ones who have to bear the risks and challenges of pregnancy.
Dr. Geeta Chadha, senior gynaecologist and obstetrician at Apollo Hospital, said that pregnancies in women aged 35 and older, known as geriatric pregnancies, carry a higher risk of complications for both the mother and the foetus.
The risks include gestational diabetes, high blood pressure, pre-eclampsia, premature birth, and low birth weight. Moreover, success rates for assisted reproduction usually decline as age negatively impacts egg quality, ovarian reserve, and implantation chances.
The Assisted Reproductive Technology Act is India’s principal law regulating fertility treatments and facilities. Under the law, ART refers to “all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman”.
Section 21 of the ART Act prescribes the general duties of assisted reproductive technology clinics and banks, which include the mandated age restrictions.
According to Dr. Chadha, setting an upper age limit for assisted pregnancies is not only about the mother and baby’s health during pregnancy, but also the future well-being of an individual born to older parents.
But she clarified that no two cases are the same, and stressed the need for an individualised approach. “An overburdened state cannot be expected to cover the medical nuances of each case.”
Surging ART demand
This challenge comes at a time when infertility is increasingly recognised as a significant health concern in India. Several studies, including the National Family Health Survey, estimate infertility amongst couples at around 10-20 percent.
While initially stigmatised, demand for IVF and other ARTs has been surging, with a market research report estimating India’s fertility market at $1.8 billion by 2030. The urban bias of fertility diagnosis and treatment is a pertinent factor affecting the data.
In 2023, the Kerala High Court had flagged the need for a “relook” at the upper age restriction for availing ART.
Justice V.G. Arun said that the imposition of age restriction without even a transitional provision was “irrational and arbitrary”, but not so excessive as to warrant judicial intervention. The court issued this directive while considering a batch of petitions challenging the upper age limit.
But in 2025, a division bench of the Gauhati High Court upheld the age limit in the ART Act, saying, “Section 21(g) prescribes an upper age limit based on considerations of medical science, ethical standards, and the welfare of both the woman undergoing treatment and the child to be born.”
On reproduction and age, the Supreme Court has ruled on the limited issue of retrospective application of the Surrogacy Act’s age restriction.
In 2025, a bench of Justices B.V. Nagarathna and K.V. Viswanathan drew a distinction between surrogacy and ART, describing the Act regulating ART as a “relatively less-restrictive regime” because “ART procedures are conducted on one’s own body.”
Dr. Chadha questioned whether court petitions are the appropriate route in such cases, emphasising the time-sensitivity of fertility treatment.
Highlighting other issues in reproductive law, such as the statutory limit of one child via surrogacy, she said, “Law-abiding citizens with genuine issues often suffer due to such blanket bans.”
Saumya Sharma is an alum of ThePrint School of Journalism, currently interning with ThePrint.
(Edited by Sugita Katyal)
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