ART Act Section 21(g) Imposes Individual (Gender-wise) Age Limits, Not Couple-wise; Donor Oocyte IVF Permissible and No “One Living Child” Bar

1. Introduction

In SARBJIT KAUR AND ANOTHER v. STATE OF PUNJAB AND OTHERS (Punjab & Haryana High Court, decided on 22.01.2026), a married couple approached the High Court after the State Appellate Authority denied them access to Assisted Reproductive Technology (ART), including IVF. The couple had two children from the wedlock; their son died on 07.07.2024. Petitioner No.1 (47) had attained menopause about four years earlier; petitioner No.2 was over 56. A gynecologist (respondent No.4) certified both as medically fit to undergo IVF and stated the couple had been informed of associated risks.

The impugned order dated 06.02.2025 rejected the request primarily on: (i) alleged breach of age threshold under the Assisted Reproductive Technology (Regulation) Act, 2021 (“ART Act”); (ii) alleged impermissibility of donor oocyte IVF; (iii) health risks of post-menopausal pregnancy; and (iv) a speculative concern regarding sex determination since the couple already had a child.

The key issues were: (a) whether Section 21(g) of the ART Act creates an age bar for a couple or only for each individual (woman/man) seeking ART services; (b) whether IVF using a donor oocyte is prohibited; and (c) whether non-statutory considerations (medical risk concerns and “one living child”/sex determination apprehensions) can justify denial of ART services.

2. Summary of the Judgment

The Court quashed the order dated 06.02.2025 and permitted the petitioners to undergo ART services, including IVF for conception of a human embryo and implantation in petitioner No.1. It held that the stated grounds of rejection were legally unsustainable: the age restriction under Section 21(g) is gender-wise (woman up to 50; man up to 55) and not a couple-wise ceiling; the ART Act framework contemplates gamete donation including oocyte donation; medical risk is not a statutory embargo; and there is no statutory bar on IVF for couples with a living child nor can speculative sex-determination concerns be used to deny ART access.

3. Analysis

3.1 Precedents Cited

(a) Sanchita Ghosh and another Versus Union of India and others (WPA-12154-2023, decided on 08.04.2024)

The High Court relied on the approach attributed to the Calcutta High Court that the ART Act does not impose an “age restriction for a commissioning couple” as a unit. This precedent was used to neutralize the appellate authority’s first ground (upper age of the husband) by framing Section 21(g) as directed to service eligibility on an individual basis.

(b) Manjit Kaur and another vs Union of India and others, Law Finder Doc ID # 2822316

This was treated as the controlling articulation within the Punjab & Haryana High Court’s own jurisprudence. It held that Section 21(g) makes it mandatory for a clinic to extend ART services to: (i) a woman above 21 and below 50 years, and (ii) a man above 21 and below 55 years—thereby reinforcing that the age restriction attaches to “an individual gender and not to a couple”. The present judgment adopts this reasoning to reject the notion that a husband above 55 automatically disables the couple’s access.

(c) Shyamoli Saha and another vs State of West Bengal and others, AIR 2025 Calcutta 55

This precedent was cited as confirming the same interpretive stance as Sanchita Ghosh. The Court also addressed the administrative rationale for non-following—i.e., that the judgments were “in the process of being challenged”—and noted the State’s concession that no appeal/SLP had been filed till then. The implication is that executive authorities cannot refuse to apply existing persuasive/parallel High Court authority on a speculative future challenge, especially where no appellate stay or contrary binding ruling exists.

3.2 Legal Reasoning

(i) Section 21(g) is gender-wise, not couple-wise

The Court treated Section 21(g) as prescribing service eligibility by reference to the individual—woman (21–50) and man (21–55)—and rejected the appellate authority’s assumption that exceeding 55 by the male partner is, by itself, an absolute bar on the couple’s ART access. This reading is framed as consistent with earlier decisions and with the structure of Section 21(g) itself.

(ii) Donor oocyte IVF is contemplated by the statutory scheme

The appellate authority’s position—that donor oocyte IVF is “not permissible”—was held contrary to the statute’s objective and architecture. The Court relied on the ART Act’s definitional and operational framework:

  • ART includes techniques involving handling sperm or oocyte outside the body and transferring gamete/embryo to the woman’s reproductive system.
  • “Gamete” includes both sperm and oocyte; “gamete donor” includes persons providing sperm or oocyte to enable an infertile couple/woman.
  • Section 27 provides for sourcing of gametes by ART banks; Chapter IV establishes duties and safeguards for clinics/banks for sourcing, collection, preservation and regulation.

On this basis, the Court reasoned that oocyte donation is not an exception but a contemplated and regulated pathway; to deny donor oocyte IVF would defeat the Act’s regulatory purpose, which is to supervise and prevent misuse/unsafe practices—not to prohibit lawful ART modalities that the Act itself structures and safeguards.

(iii) Medical-risk concerns cannot become a non-statutory prohibition

The Court accepted respondent No.4’s medical certification that petitioner No.1 was fit to carry a pregnancy if implantation succeeds, that petitioner No.2’s sperm parameters were normal, and that the couple had been counselled about risks and still wished to proceed. It then held that risks or genetic abnormality chances are not an “embargo” under the ART Act. In effect, where the statute does not create a prohibition, the State Appellate Authority cannot invent one based on generalized medical apprehensions, especially in the face of a treating specialist’s fitness assessment and informed consent.

(iv) No statutory “one living child” bar; speculative sex-determination concerns impermissible

The Court rejected the rationale that having a living child disqualifies the couple or that IVF could be a deterrent towards sex determination. It emphasized that no such restriction exists in the ART Act (and none was shown from any other statute). Administrative denial based on speculation—without a statutory hook—was held legally untenable.

3.3 Impact

  • Constrains administrative discretion under the ART Act: State authorities and appellate bodies must anchor refusals in clear statutory prohibitions; medical paternalism or policy anxieties (absent statutory backing) cannot substitute for law.
  • Affirms donor oocyte pathways as integral to ART regulation: By locating oocyte donation within the Act’s definitions and bank-sourcing regime (Section 27/Chapter IV), the judgment strengthens access for post-menopausal or oocyte-deficient women, subject to the Act’s safeguards.
  • Reinforces the “individual age limit” interpretation: The decision, building on Manjit Kaur and Calcutta High Court authorities, adds weight to the emerging judicial consensus that Section 21(g) is not a couple-based bar, thereby influencing future challenges where clinics/authorities deny ART solely due to one partner’s age.
  • Signals approach to “pending challenge” arguments: The Court’s handling implies that mere intention to challenge or internal governmental disagreement does not dilute the persuasive authority of existing judgments in the absence of an actual appeal/SLP or stay.

4. Complex Concepts Simplified

  • ART (Assisted Reproductive Technology): Medical techniques that assist pregnancy by handling sperm/egg (oocyte) outside the body (e.g., IVF) and then transferring an embryo/gamete into the woman’s reproductive system.
  • IVF (In Vitro Fertilization): Fertilization of an egg by sperm in a laboratory, followed by embryo transfer to the uterus.
  • Oocyte donor / gamete donation: Using an egg from a donor (or sperm from a donor) when an intending parent cannot provide viable gametes. The judgment emphasizes the ART Act contemplates and regulates this via ART banks and clinic duties.
  • “Embargo” (in this context): A legal bar or prohibition. The Court held that medical risk concerns, by themselves, are not a statutory embargo under the ART Act.
  • Writ of certiorari: A constitutional remedy through which a High Court can quash an unlawful order of a public authority.

5. Conclusion

The judgment sets aside an administrative denial of ART by reaffirming that: (i) Section 21(g) operates through gender-specific age eligibility, not a couple-level age bar; (ii) donor oocyte IVF is consistent with and supported by the ART Act’s definitions, Section 27 and regulatory safeguards; and (iii) absent statutory prohibition, authorities cannot deny ART on generalized medical-risk concerns or speculative policy fears such as sex-determination apprehensions or the fact of an existing child. The decision strengthens rights-consistent, text-and-purpose-based access to regulated ART services and narrows the scope for extra-statutory refusals by appellate and administrative authorities.