Kerala High Court lets couple continue IVF as treatment began before age bar

“The petitioners having come forward to bear the risk, and since such facility have been extended to similarly placed couple by the Punjab and Haryana High Court, the petitioners are also to be extended the same benefits upon furnishing an undertaking,” the court said on August 19. The court directed that the undertaking should state that the couple would bear “all risks, consequences, and liabilities” arising out of or incidental to the procedure or treatment.

The couple approached the high court after crossing the age limit prescribed under Section 21(g) of the Act. According to the order, the hospital was not coming forward to provide the procedure they sought. They informed the court that they were ready and willing to undergo the treatment and were prepared to undertake the liability, if any.

Justice Harisankar V Menon directed the couple to furnish a notarised undertaking before Assisted Reproductive Technology services are provided in accordance with law. (Image enhanced using AI)

IVF treatment began in 2013

The couple had commenced IVF treatment with the hospital as early as 2013, the court noted and said that both were within the permissible age limit under the ART Act at that time. They later approached the court after crossing the age limit prescribed under Section 21(g), when the hospital did not agree to provide the procedure they sought.

Their counsel relied on a May 19, 2026 judgment of the Punjab and Haryana High Court in Dr Pushpa and Another vs Union of India and Others, where a substantially similar issue had been considered. In that case, the petitioners agreed to furnish an undertaking before the competent authority accepting responsibility if injury or damage was caused to the woman on account of the treatment.

The Punjab and Haryana High Court subsequently allowed the petition and directed that further treatment could proceed after the undertaking was furnished. The Kerala petitioners also agreed to furnish an undertaking before the fourth respondent, the Kerala State ART and Surrogacy Board, for availing ART services.

Centre opposed plea over age limit

The Centre opposed the couple’s plea, arguing that the provisions of Section 21(g) of the ART Act could not be diluted. The centre’s counsel submitted that the petitioners had admittedly crossed the prescribed age limit and, therefore, no facility could be provided to them.

The court, however, noted that the couple had come forward to bear the risk and that a similar facility had been extended to a similarly placed couple by the Punjab and Haryana High Court. The court held that the petitioners should also be extended the same benefit upon furnishing an undertaking before the fourth or second respondent stating that they would bear all risks, consequences and liabilities arising out of or incidental to the procedure or treatment.

ART services subject to notarised undertaking

The relief was conditional on the couple furnishing a notarised undertaking. “Needless to say, upon the petitioners furnishing the aforesaid as a notarised undertaking, the ART services shall be provided to them in accordance with law,” the court said.

The case record includes documents relating to the couple’s earlier treatment. These include an IVF/ICSI (Intracytoplasmic Sperm Injection) cryopreservation summary issued by the hospital on July 14, 2016. The couple also produced a current embryo viability certificate issued by the hospital on April 23, along with a letter issued by the hospital on April 24 this year only.