Case at a Glance
Four couples were refused IVF by clinics because the husband was over 55 or the wife over 50, the upper limits in Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021. They argued that the limits were arbitrary, violated reproductive autonomy under Article 21, and unfairly treated married women differently from single women. A Division Bench of the Rajasthan High Court held that the limits have a clear nexus with the welfare of the child and are not manifestly arbitrary. It also read the Act and the 2022 Rules to mean that a wife within the age limit may proceed with donor semen if her over-age husband consents in Form-8. The petitions were dismissed.
Section 21(g) of the ART Act, 2021 permits clinics to offer assisted reproductive services only to a woman above the legal age of marriage and below 50, and a man above the legal age of marriage and below 55. In the lead case, the husband was 55 years and one month old when he remarried in January 2025 and the wife was 47; the clinic refused IVF because of his age. In another, a couple had begun IVF in 2021, before the Act came into force on 25 January 2022, and the clinic refused to continue after the husband crossed 55. In a third, the wife was over 50, and in a fourth the husband was 63 at remarriage in April 2026.
The couples argued that the caps were arbitrary, that Section 21(g) does not speak of a “commissioning couple,” that a married woman within the age bracket was barred because of her husband’s age while a single woman was not, and that the Act lacked a saving clause for those already in treatment. The Union of India defended the limits as regulatory measures protecting the child, pointing to the Ministry’s instructions of 31 March 2023 on parental health, life expectancy and higher risks of pregnancy complications and genetic conditions with age.
The Key Question Before the Court
Are the age limits for ART services in Section 21(g) of the ART Act, 2021 unconstitutional, and does a husband’s age bar his wife from treatment?
Child Welfare Justifies the Age Cap
Starting from the presumption of constitutionality recognised in Shayara Bano v. Union of India, the Court placed the burden on the petitioners. It held, relying on Gaurav Nagpal v. Sumedha Nagpal, (2008) 11 SC CK 0064 and Jeshy C O v. Union of India, that the welfare of the child outweighs the desire of prospective parents. Applying the nexus test in Javed v. State of Haryana and Ramji Lal Jat v. State of Rajasthan, it found that the age limits are connected to the object of the Act and are not manifestly arbitrary. The Court followed the view of courts that had upheld the limits, including Nandini K. v. Union of India (Kerala) and Pankaj Kumar Das v. Union of India (Gauhati).
On the Article 14 challenge, the Court held that the definition of “woman” in Section 2(1)(u) draws no distinction between married and unmarried women, that a “patient” can be an individual or a couple, and that Section 21(g) sets separate limits for a woman and a man rather than a composite limit for a couple. Reading Section 27 (male donors must be 21 to 55), Rule 13(1)(f)(iii) of the 2022 Rules and Form-8 together, it agreed with the Kerala Division Bench in Union of India v. Devayani S. that the male limit applies where the husband’s own gametes are used, and that a wife within the limit may receive donor semen with her husband’s consent in Form-8. It did not adopt Devayani’s further view on the female limit. No relief was granted to any petitioner.
What the Court Actually Held
- The age limits of 50 for women and 55 for men in Section 21(g) of the ART Act, 2021 are constitutionally valid and not manifestly arbitrary.
- The limits have a rational nexus with the Act’s object, and the welfare of the child outweighs the desire of prospective parents.
- The Act does not arbitrarily discriminate between married and single women; it sets separate limits for a woman and a man.
- A wife within the age limit may undergo treatment with donor semen if her over-age husband consents in Form-8; the writ petitions were dismissed.
Why This Judgment Matters
- Late marriages and remarriages are common, and many couples seek IVF near these age limits.
- It adds Rajasthan to the High Courts upholding the ART Act age caps, while other High Courts have taken different views on couples who began treatment earlier.
- The donor-semen route through Form-8 consent gives some couples a lawful option when the husband is over 55.
What Should Advocates Take Away From the Judgment?
For Couples Considering IVF
- Check both partners’ ages against Section 21(g) before starting treatment; the clock does not stop for pending cycles.
- If only the husband is over 55, ask the clinic about treatment with donor semen and Form-8 consent.
- Courts in different states have taken differing views on transitional cases; take legal advice on your facts.
For Counsel
- Expect courts to apply the presumption of constitutionality and child-welfare reasoning to ART age limits.
- Rely on Rule 13(1)(f)(iii) and Form-8 of the 2022 Rules and Union of India v. Devayani S. for the donor-semen route.
- Note the split among High Courts listed in the judgment when framing transitional-case arguments.
Key Takeaways
- Section 21(g) age caps (50 for women, 55 for men) were upheld.
- The welfare of the child was the decisive consideration.
- The male age limit applies where the husband’s own gametes are used.
- All four writ petitions were dismissed.
Frequently Asked Questions
Can a woman over 50 undergo IVF in India?
Under Section 21(g) of the ART Act, 2021, as upheld by the Rajasthan High Court, clinics can offer ART services only to women below 50.
My husband is over 55; can I still have IVF?
The Court held that a wife within the age limit may proceed with donor semen if her husband gives consent in Form-8 under the 2022 Rules. The husband’s own gametes cannot be used once he crosses 55.
What about couples who started IVF before the Act came into force?
The Rajasthan High Court dismissed all the petitions, including that of a couple who had begun IVF in 2021 and were refused continued treatment after the husband crossed 55; no relief was granted. Other High Courts have taken differing views on such cases.
Conclusion
The Division Bench treated the age limits as a legislative choice grounded in the welfare of the child, while reading the Rules to leave a narrow route open for wives within the limit through donor semen. With High Courts divided on related questions, the issue may ultimately need the Supreme Court’s word.
Practical takeaway: Couples near the age limits should plan treatment early and, where the husband is over 55, explore the donor-semen option with Form-8 consent rather than expect a court to relax the statutory cap.
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