Waiving legal age limit, court allows 51-year-old woman to undergo IVF treatment to conceive again

Plea to undergo IVF

The woman had undergone IVF treatment in 2023 which resulted in the conception of twins. During pregnancy, one foetus did not survive, whereas one healthy female child was delivered. As the couple wanted a second child, the husband and wife, aged 54 and 51, respectively, approached a fertility centre.

However, they were informed that they were no longer eligible to avail IVF services as the woman had crossed 50 years. Feeling aggrieved, they moved the high court.

‘Healthy, no major medical condition’

• The counsel for the petitioners contended that though the woman was over 50 years, she had good health with no major medical condition which would come in her way to deliver a second child.
• The counsel for the petitioners submitted that the issue involved was squarely covered by the high court’s judgment in another case.
• The counsel appearing for the Union of India did not dispute the applicability of the aforesaid judgment to the instant case.
• However, it was submitted that petitioners can furnish an undertaking before authorities to the effect that if any injury/damage is caused on account of the aforesaid treatment, they would be responsible.
• In response, counsel for the petitioners submitted that the undertaking would be furnished to the competent authority.
• The court, considering the statement by the petitioners, allowed their plea and directed them to furnish an undertaking to proceed with the treatment.

Chhattisgarh High Court’s ruling

In another case, the Chhattisgarh High Court granted a couple (woman aged 49 and man 55) permission to proceed with IVF treatment, ruling that the wife remained within the statutory age limit, both partners were medically fit, and a denial of treatment would constitute a “permanent deprivation” of their right to experience parenthood.

The couple had lost their only child in 2022, causing them immense emotional and psychological distress, on account of which they were unable to immediately take any steps towards expanding their family.

Noting that the case fell within the category of exceptional circumstances warranting judicial intervention, Justice Amitendra Kishore directed the IVF clinic authorities to permit and proceed with the IVF treatment of the couple, who had been denied the procedure on the ground that the husband had crossed the prescribed age under the ART Act, 2021.

“The petitioners have suffered an irreparable personal loss, the delay in seeking treatment is bona fide and justified, the wife is within the permissible age limit, both petitioners are medically fit, and denial of treatment would result in permanent deprivation of their right to experience parenthood,” the April 24 order noted.

Highlighting the need for a purposive interpretation of Section 21(g) under the ART Act, the Chhattishgarh High Court said the statute, being a beneficial and regulatory legislation, is intended to facilitate access to ethical reproductive technologies and not to create unreasonable barriers.

“The provision prescribes age limits, but does not expressly prohibit judicial consideration in exceptional cases, nor does it provide for a blanket embargo overriding constitutional rights,” the court said.