Gujarat HC adds a second route around reproductive age limits

Four years after their 25-year-old son died by suicide, a couple in Gujarat decided to have another child. The woman had reached menopause and could no longer conceive naturally, and they approached a fertility clinic in Mehsana for in-vitro fertilisation (IVF).

The clinic refused treatment because the woman had crossed 50, the upper age limit under the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act). Her husband, however, was 54 and remained within the corresponding limit of 55 prescribed for men under the Act.

On 2 September 2026, Justice Nirzar S. Desai of the Gujarat High Court quashed the Union’s rejection of the couple’s request. The Court permitted them to approach an authorised clinic for assisted reproductive technology (ART) services.

The Court found that the Act prescribes separate age limits for men and women, and that the husband’s eligibility allowed the couple to seek treatment even though the wife had crossed 50.

Two separate age limits

IVF is one form of ART in which an egg is fertilised with sperm outside the body before the resulting embryo is transferred into a woman’s uterus. The ART Act regulates clinics and banks that provide such services.

Section 21(g) requires a clinic to apply ART services only to a woman above 21 and below 50, and a man above 21 and below 55. On a direct reading, these are two individual limits. It does not prescribe a single age limit for a couple.

The Act, however, also defines a “commissioning couple” as an infertile married couple approaching an ART clinic or bank. It defines “patients” to include an individual or a couple seeking management of infertility. 

The Gujarat couple relied principally on the Calcutta High Court’s decision in  Sanchita Ghosh v Union of India (2024). It held that the age bar prevented a commissioning couple from approaching a clinic only when both spouses had crossed their respective limits. Where one spouse remained eligible, the couple could seek ART services, although the clinic retained discretion to use the ineligible spouse’s gamete. 

Applying this interpretation, the Gujarat High Court held that the husband’s eligibility was sufficient for the couple to approach an ART clinic, even though the woman had crossed 50. It also relied on  Babitha A. Singh v State of Madhya Pradesh (2026), in which the Madhya Pradesh High Court permitted a 52-year-old woman, who had received a favourable medical opinion, to approach an institution for IVF with donated eggs.

What the Supreme Court protected in Arun Muthuvel

The Gujarat High Court judgement does not refer to the Supreme Court’s composite decision in Vijaya Kumari S. v Union of India, which also decided an interlocutory application filed in Arun Muthuvel v Union of India. On 9 October 2025, a Bench of Justices B.V. Nagarathna and K.V. Viswanathan considered couples who had created and frozen embryos before the Surrogacy (Regulation) Act, 2021 came into force on 25 January 2022, but had crossed its age limits by the time they sought eligibility certificates. 

Section 4(iii)(c)(I) of the Surrogacy Act requires an intending woman to be between 23 and 50 and an intending man to be between 26 and 55 on the date of certification. Before the Act came into force, the governing guidelines prescribed no corresponding age limits for intending couples.

Justice Nagarathna held that creating and freezing an embryo for transfer to a surrogate crystallised the couple’s reproductive choice, which was protected under Article 21. Applying the new age restriction to couples who had already reached that stage would give it  an impermissible retrospective operation.  

The Court consequently exempted couples who had reached the embryo-freezing stage before 25 January 2022 from the age requirement. It directed similarly placed couples to approach their jurisdictional High Courts.

The Bench left Parliament’s prescription of age limits and their validity in future cases open. Justice Viswanathan, in his concurring opinion, similarly emphasised that rights had accrued once the couples had fertilised and frozen their embryos under a legal regime that permitted them to proceed.

Gujarat protects a fresh reproductive choice

The Gujarat case falls outside the category protected by Arun Muthuvel v Union of India (2025). The couple decided to seek IVF after their son’s death in May 2022, several months after the ART and Surrogacy Acts had come into force. They had neither frozen an embryo under the earlier regime nor begun a reproductive procedure before the statutory age limits became applicable.

Arun Muthuvel protected the continuation of a reproductive choice already exercised when no age restriction existed. The Gujarat High Court protected a choice made under the new law by interpreting the husband’s eligibility as sufficient to allow the couple to seek treatment.

The Supreme Court relied on Article 21 and the rule against retrospective application of legislation, whereas the Gujarat High Court relied on the statutory distinction between an individual and a “commissioning couple”.

 Its reasoning can benefit couples who begin seeking IVF after the age restrictions have taken effect, provided one spouse remains within the prescribed limit. The Supreme Court’s exception, by comparison, depends on an embryo having been created and frozen before 25 January 2022.

Does one spouse’s eligibility answer the question?

The Gujarat ruling leaves an important question unresolved. Section 21(g) regulates the person to whom a clinic applies ART services. In cases where the husband has crossed 55 but the wife is below 50 and intends to use donor sperm, the husband’s age may have little connection with the medical procedure. 

The Gujarat case reverses that factual arrangement. Here, the woman has crossed the statutory limit and would ordinarily undergo the embryo transfer and carry the pregnancy. Her husband’s age-related eligibility does not, by itself, establish her medical capacity to sustain a pregnancy.

. The Gujarat judgement records no comparable assessment of the woman’s medical condition. It removes the age-based refusal and permits access to ART services, leaving the clinic’s statutory duties concerning counselling, medical risks, consent and suitability in place.

A widening exception without a common test

The Supreme Court has protected procedures commenced under the earlier legal regime, while several High Courts have permitted fresh applications when one spouse remains within the age limit. The cases leave no single test for determining when the age bar applies.

Clinics and prospective parents are consequently left to assemble the applicable rule from decisions delivered under two related statutes and across several jurisdictions.

The Gujarat judgement leaves open whether one spouse’s eligibility can overcome the separate age limit imposed on the other.  Until the Supreme Court directly considers the interpretation of Section 21(g), the central question will remain open: whether the age limits regulate each person receiving ART services or merely determine whether a commissioning couple may enter the clinic’s door.