Delhi HC Allows Frozen Embryo Transfer After Wife Marginally Crosses ART Act Age Limit

The Delhi High Court held that the ART Act's age restriction governs initiation of treatment, not continuation of an already-commenced process involving cryopreserved embryos created within the statutory age limit.

Justice Purushaindra Kumar Kaurav, sitting singly at the High Court of Delhi, on 25 May 2026 allowed a writ petition filed by a married couple seeking permission to undergo frozen embryo transfer of five cryopreserved embryos held at Cloudnine Hospital, Dwarka. The hospital and the treating gynaecologist had refused to proceed on the ground that Petitioner No. 1 — the wife — had crossed the upper age limit of fifty years prescribed under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021. The court drew a firm distinction between initiating a fresh ART cycle after the statutory age threshold and continuing a treatment process that had already lawfully commenced, holding that the latter falls outside the prohibition and is protected by the reproductive autonomy guaranteed under Article 21 of the Constitution.

The Dispute Before the Court

Shweta Tuteja and Rajesh Tuteja, residents of Raj Nagar-II, New Delhi, approached Cloudnine Hospital, Dwarka after the death of their son on 10 May 2025. They sought IVF treatment under a fellowship doctor and gynaecologist at the hospital. At the time they approached the hospital, both petitioners were within the age limits prescribed under Section 21(g) of the ART Act — the provision that restricts ART services to women between twenty-one and fifty years of age and to men between twenty-one and fifty-five years of age.

The couple underwent medical evaluation, counselling, and investigations and were declared medically fit for treatment. Consent forms for freezing of embryos, frozen embryo transfer, and allied procedures were executed on 7 March 2026. Six embryos were created and cryopreserved. One embryo was used in a frozen embryo transfer on 7 March 2026, but the Beta-HCG test returned negative, indicating an unsuccessful transfer.

Five cryopreserved embryos remained with the hospital. When the petitioners sought to proceed with further frozen embryo transfer using those embryos, the hospital and the treating doctor declined. Their reason: Petitioner No. 1 had by then crossed fifty years of age. She was stated to be 50 years and 2 months old at the time of the petition. Petitioner No. 2 was 54 years old. The couple filed W.P.(C) 6103/2026 before the Delhi High Court.

The Legal Question

The court framed the issue precisely: whether the age restriction under Section 21(g) of the ART Act can be read so as to prevent the continuation, as opposed to the initiation, of an ART process beyond the prescribed age limit.

Section 21(g) directs ART clinics to apply their services to a woman above twenty-one years and below fifty years, and to a man above twenty-one years and below fifty-five years. The petitioners argued that this restriction cannot operate mechanically once embryos have already been created and cryopreserved within the permissible age window. They relied on Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1 and Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 to contend that reproductive autonomy is an integral facet of privacy and personal liberty under Article 21.

The petitioners also argued that Section 21(g) imposes age conditions individually upon a woman and a man, not upon a “commissioning couple” as a composite unit, relying on decisions from the Punjab and Haryana High Court, Calcutta High Court, and Kerala High Court.

The respondents — Union of India, the National ART and Surrogacy Board, the Government of NCT of Delhi, and the hospital — countered that Section 21(g) uses mandatory language and leaves no discretion with ART clinics once the statutory threshold is crossed. They submitted that the embryos were created in March 2026, well after the ART Act came into force on 25 January 2022, so no transitional protection arose. They also placed reliance on a Report of an Expert Committee on Implications of Conceptions at Advanced Parental Age dated 21 January 2026, which recorded that conception at advanced maternal age carries increased maternal and perinatal complications and that the statutory age limits represent a reasonable, evidence-based policy choice.

How the Court Reasoned

The court accepted that the ART Act is beneficial regulatory legislation and that concerns about maternal health and child welfare underlying the statutory framework cannot be disregarded. However, it held that a regulatory statute touching upon reproductive rights and decisional autonomy must receive a purposive interpretation consistent with constitutional values under Article 21.

The factual distinction the court treated as decisive was this: when the embryos were retrieved, created, and cryopreserved on 7 March 2026, Petitioner No. 1 was 49 years, 11 months, and 14 days old — squarely within the statutory age limit. The petitioners were not seeking creation or extraction of fresh embryos after crossing the threshold. They sought to use the very same embryos created while the wife was still eligible.

The court held that the cryopreserved embryos are “intrinsically connected with the Petitioners' reproductive autonomy, decisional privacy and their constitutionally protected choice relating to procreation and family life.” Drawing on Suchita Srivastava and Justice K.S. Puttaswamy, it held that these constitutional principles require statutory provisions regulating ART procedures to receive a purposive interpretation that advances constitutional freedoms while preserving the regulatory object of the enactment.

On the question of whether Section 21(g) imposes a composite age restriction on a couple, the court surveyed a line of High Court decisions. The Punjab and Haryana High Court in Sarabjit Kaur v. State of Punjab 2026 SCC OnLine P&H 689 had observed that the statutory framework imposes age restrictions individually upon a woman and a man, not upon a “commissioning couple” as a unit. The Calcutta High Court in Shyamoli Saha v. State of West Bengal AIR 2025 Cal 55 had held, after analysing the definitions of “woman”, “patient”, and “commissioning couple” under the ART Act, that the statute prescribes no composite age criterion for a couple and that such a restriction cannot be judicially imported. The Division Bench of the Kerala High Court in Union of India v. Devayani S. & Ors. had specifically noted that although the Parliamentary Standing Committee had considered introducing a combined age criterion for couples, the legislature consciously did not incorporate any such composite restriction in the enacted provisions.

The court also read the text of the provision itself as supporting this interpretation. Section 21(a) requires the commissioning couple to be compliant with the Act when they “avail” ART services. Section 2(e) defines “commissioning couple” as a couple who “approach” a clinic. Section 21(h) requires a discharge certificate to be issued to the commissioning couple — that is, the couple as they were when they first approached the clinic. The court held that it is at the time of approach and commencement that age eligibility falls to be assessed, not at each subsequent step of a continuing treatment process.

The court also noted that the respondents had not placed any medical opinion on record indicating that utilisation of the existing cryopreserved embryos would pose any immediate or exceptional medical risk beyond the general policy concerns underlying the enactment. The petitioners had already undergone medical evaluation, counselling, and requisite treatment under expert supervision before the ART process commenced, and had been declared medically fit.

Addressing the respondents' reliance on decisions such as Pankaj Kumar Das v. Union of India and Kavitha Anand v. State of Tamil Nadu, the court acknowledged that the statutory age limits are founded on legitimate considerations of maternal health, ethical regulation, and child welfare. It did not disagree with those decisions on their facts. But it held that in the present case those concerns “stand safeguarded” given the medical clearance already obtained and the absence of any specific medical opinion against proceeding.

The court also referred to the Punjab and Haryana High Court's recent decision in Pushpa & Anr. v. Union of India & Ors. 2026:PHHC:078831, where continuation of IVF treatment was permitted even after the wife had crossed fifty years, the court there having treated the issue as covered by Sarabjit Kaur.

Invoking the principle from G.P. Singh's Principles of Statutory Interpretation that a court will prefer an interpretation that is just, reasonable, and sensible over one that is none of those things, the court held that denying the petitioners permission to use their five remaining embryos solely because the wife had marginally crossed the age threshold would not subserve the object of the ART Act.

Outcome

The court allowed the writ petition. The petitioners were permitted to undergo frozen embryo transfer of their remaining five cryopreserved embryos at Cloudnine Hospital, Dwarka, with all medical safeguards. No order as to costs was made. The petition was disposed of on 25 May 2026.