Husband’s age can’t bar parenthood: Chhattisgarh High Court allows IVF for couple grieving death of their only child

“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.

Justice Amitendra Kishore Prasad heard the matter on April 24.

Right to reproductive autonomy

• In light of the various precedents, it was well established that the right to life and personal liberty under Article 21 of the Constitution, and statutory provisions regulating the same, were required to be interpreted in a purposive and non-restrictive manner. 
• It was held that a rigid and mechanical application of age restrictions, particularly in exceptional circumstances, ought not to defeat the substantive rights of individuals, especially when one of the parties otherwise satisfies the statutory eligibility. 
• The right to access ART/IVF treatment, in appropriate circumstances, falls within the broader spectrum of reproductive autonomy and decisional privacy.

The key issue before the Chhattisgarh High Court was whether the petitioners, who are otherwise medically fit and fall within the statutory framework in part, can be denied access to IVF treatment solely on account of a rigid application of the age bar prescribed under the ART Act.

ART Act

• According to the Act, the service is available to a woman above the age of 21 years and below the age of 50 years and to a man above the age of 21 years and below the age of 55 years.
• The Act does not contain the concept of combined age for commissioning couples analogous to the composite age criteria applicable to prospective adoptive parents. 
• It adopts an individual-centric approach, whereby the age eligibility criteria are separately laid down for women and men rather than collectively for a couple.
• The interpretation is further supported by Section 2(1)(n) of the Act, which defines “patients” as both individuals and couples seeking infertility treatment at a clinic. 
• Section 21 casts duties on the ART clinics and banks to ensure adherence to the statutory requirements. 
• The provision reinforces that the age restriction is gender-specific rather than couple-specific, reinforcing that eligibility depends on the individual’s age rather than the couple’s combined age. 

Highlighting the need for a purposive interpretation of Section 21(g) under the ART Act, the Chhattishgarh High Court said that 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. 

Denial of treatment, arbitrary and unjust

Senior Advocate Manoj Paranjpe, along with advocate Apoorva Ghore, representing the petitioners, submitted that the wife, being below the age of 50 years, independently satisfies the eligibility criteria prescribed under Section 21(g)(i) of the Assisted Reproductive Technology (ART) Act, and is medically fit to undergo the IVF procedure. 

It was argued that the denial of treatment based on a rigid mechanical application of the age bar of the husband was arbitrary and unjust and defeats the very object and purpose of the Act, which is to regulate and facilitate access to reproductive technologies.

Paranjpe contended that the ART Act adopts an individual-centric approach rather than a strictly couple-centric one. Additionally,  Sections 2(1)(n) and 2(1)(u) recognise “patients” and “woman” as independent legal entities for ART procedures. 

The counsel urged that a conjoint reading of these provisions demonstrates that ART eligibility is to be assessed individually, and not collectively as a “commissioning couple.” 

On behalf of their client, the counsel submitted that the wife, being within the prescribed age limit and medically eligible, cannot be denied access to ART treatment merely because the husband had marginally exceeded the age threshold. 

The refusal to permit IVF treatment on the part of the respondent was unreasonable and violative of the petitioner’s fundamental right under Article 21 of the Constitution of India, which encompasses the right to reproductive autonomy, dignity, and the right to form a family, the counsel argued.

The counsel also submitted that the delay in approaching for ART treatment was neither intentional nor attributable to any negligence, but was solely due to the severe trauma from losing their daughter.

It was submitted that the petitioners were mentally, physically, and financially fit and had approached this court seeking directions to enable them to undergo IVF treatment and avail themselves of their last opportunity to experience parenthood. 

Allowing couple’s plea would defeat ART Act

Panel Lawyer, Anadi Sharma, representing the state, opposed the petitioner’s submissions and contended that the statute, being a product of legislative wisdom, consciously incorporates such age limits keeping in view medical, ethical, and social considerations, which cannot be diluted on compassionate or equitable grounds.

He submitted that the ART Act schemes to regulate the procedures in a structured manner, and any deviation by way of judicial intervention would amount to rewriting the statute, and the eligibility conditions were to be read in the context of a commissioning couple as a unit, and not in isolation of either spouse.  

It was argued that permitting the couple to undergo IVF despite the clear statutory prohibition would set an undesirable precedent and defeat the object of the legislation.

Advocates Vivek Sharma and Shantam Awashthi, representing the IVF clinic and its director, asserted that the petition filed by the couple was in deviation from the statutory mandate contained under the ART Act, and they were seeking judicial intervention to create an exception to the express age limitations prescribed.

It was argued that the IVF clinic was duly registered as an ART clinic functioning strictly within the framework of the 2021 Act and the Rules framed thereunder, and the clinic and its director were statutorily bound to ensure compliance with the provisions of the said enactment. 

On behalf of the clinic and its director, the counsel submitted that the Act does not confer any power upon the clinic or its director to relax, waive, or reinterpret the statutory age limits, and the decision was purely taken on legal grounds, not on discretionary grounds.

Such authority, if at all, vests only in the regulatory bodies constituted under the Act, the counsel added.

Couple lost their only child 

• The couple-petitioners were blessed with a daughter; however, due to the unfortunate demise of their only child in 2022, causing them emotional distress, they were unable to plan to extend the family.
• Later, after attaining emotional stability, the couple approached an IVF centre, which confirmed their suitability for the procedure.
• However, despite such medical eligibility, the respondent clinic declined to proceed with the treatment solely because the husband had marginally crossed the upper age limit of 55 years in February, as prescribed under Section 21(g) of the ART (Regulation) Act of 2021. 
• The couple made a detailed representation dated March 24, 2026, before the Director of the IVF Centre, Bilaspur, requesting initiation of the IVF process and seeking relaxation of the age limit considering their exceptional circumstances, but no favourable outcome was taken on the aforementioned representation.