Gujarat couple in 50s, who lost doctor son to suicide, win IVF legal battle

In a 17-page judgment dated September 2, Justice Nirzar S Desai allowed the couple’s petition and set aside the rejection of their request to undergo IVF treatment. The court said the petition was required to be allowed after noting that the respondents had not placed before it any judgment taking a contrary view.

The identities of the couple are being withheld due to a specific clause of the ART Act, cited in the Gujarat HC judgment. According to the HC judgment, the couple had a son and a daughter. Their son, 25, was pursuing medical studies at a medical college in Jaipur when he died by suicide in May 2022.

“The petitioners were emotionally disturbed and, therefore, decided to have a child,” the High Court recorded while setting out the facts of the case. The woman, however, had reached menopause and was unable to conceive naturally, prompting the couple to turn to in-vitro fertilisation.

Their attempt to undergo IVF began at a clinic in Mehsana but was stopped at the threshold because of the age limits laid down in the 2021 law. s per Section 21(g) of the Assisted Reproductive Technology (Regulation) Act women above 21 and below 50 years of age, and for men above 21 and below 55, are permitted to use ART services. The woman in this case had crossed 50, while her husband was 54.

“In the instant case, as petitioner No. 1 (wife) has crossed the age of 50 years and petitioner No. 2 (husband) is 54 years old, the concerned authority refused to provide IVF treatment to the petitioners,” the court noted. The couple’s advocate Mohit Banker challenged that decision, arguing that the law should not be read as automatically disqualifying a married couple merely because one spouse had crossed the prescribed age limit.

Their lawyer relied on the Act’s definition of a “commissioning couple”, which refers to an infertile married couple approaching an authorised assisted reproductive technology clinic or bank for treatment. The couple argued that their eligibility should be considered in that context rather than by treating the age-related ineligibility of one spouse as an automatic bar to both.

Their counsel told the court that “the fertility of the couple is required to be considered and not that of an individual partner”. Since the husband remained below 55, the couple argued, the authorities should not have refused them treatment solely because the woman was above 50.

Justice Desai noted that while the woman had crossed the upper age limit, her husband, at 54, still fell within the statutory eligibility criteria. The court then considered a series of rulings from other High Courts that had addressed similar disputes.

A key precedent came from the Calcutta High Court, whose reasoning was reproduced in the Gujarat High Court’s judgment of September 2. An earlier ruling said that “unless the restriction is applicable to both the spouses who comprise of the commissioning couple, there is no bar” on the couple approaching an appropriate clinic. It further observed that “the age-related ineligibility of one of the spouses need not affect the other” where the two together constitute a commissioning couple.

Under that interpretation, if either spouse remained within the age limits prescribed under Section 21(g), the couple could seek assisted reproductive technology services. The Calcutta High Court had also said that where one spouse was eligible and the other was not, it would be for the treating clinic to decide whether the gamete of the spouse outside the age limit could be used in the treatment process, the judgment notes.

The Gujarat High Court also noted that the couple had placed before it a compilation of nine judgments dealing with similar questions, including a recent ruling of the Madhya Pradesh High Court.

Although government counsel opposed the petition, the court recorded that they “could not dispute the legal proposition” advanced by the couple’s lawyer. The state government’s counsel, Angesh Panchal, and the Union government counsel Pradip Bhate submitted that an appropriate order could be passed on the facts of the case.

Justice Desai said that, given the “series of judgments taking a similar view”, there was no need to reproduce all the relevant portions of those decisions. The court added that the respondents had not produced any judgment taking a contrary position.

“The present petition is required to be allowed and is accordingly allowed,” the court held, quashing the July 2026 rejection letter and directing that the couple be permitted to avail themselves of Assisted Reproductive Technology services.

The ruling, however, does not itself guarantee that the couple will undergo a particular IVF procedure. Their medical suitability and the manner in which treatment may be carried out will remain matters for an appropriate assisted reproductive technology clinic and treating doctors.