Case at a Glance
Seven couples who had crossed the age limit fixed by Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 asked the Kerala High Court to let them continue fertility treatment, offering an undertaking as the Punjab and Haryana High Court had allowed. Some said they had started treatment before the age bar applied to them. Justice Harisankar V. Menon held that he was bound by the Division Bench ruling in Union of India v. Nandhini K., which upheld the age limit, and that the Supreme Court’s decision under the Surrogacy Act did not help them. All seven writ petitions were dismissed.
The petitioners were seven couples from different parts of Kerala, including Kannur, Thrissur, Kozhikode, Alappuzha and Kottayam, who wanted to undergo or continue assisted reproductive procedures at fertility centres such as CIMAR, Sabine Hospital, Kinder Women’s Hospital and Bliss Fertility Hospital. In the lead case the husband was 58 and the wife 43; in others both spouses were in their fifties. All were above the age limit prescribed by Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 (the ART Act).
They argued that they had started ART procedures before the age limit came to bind them and should be allowed to finish on an undertaking. They relied on the Punjab and Haryana High Court’s decisions in Dr. Pushpa v. Union of India and Sarbjit Kaur v. State of Punjab, on a Kerala High Court judgment of 23 September 2026 in W.P.(C) No. 28787 of 2026 that followed them, and on the Supreme Court’s ruling in Vijaya Kumari S. v. Union of India, (2025) 10 SC CK 1091. The Union of India answered that the Division Bench in Union of India v. Nandhini K. had upheld the age limit and reversed similar leniency, and that the September judgment had not considered Nandhini.
The Key Question Before the Court
Can a High Court permit couples who are above the age limit in Section 21(g) of the ART Act to continue assisted reproductive treatment on an undertaking, when a Division Bench has upheld that limit?
A Binding Division Bench Ruling Outweighs Persuasive Precedent
The Court accepted that the Punjab and Haryana High Court had allowed treatment on an undertaking and that a single judge of the Kerala High Court had followed that course in September 2026. But it noted that the Division Bench decision in Nandhini “has not been relied on or pointed out” in that case. It held that “merely because the Punjab and Haryana High Court has held” that services may be extended on an undertaking, the same relief need not follow in Kerala, where a Division Bench had examined the issue specifically under the ART Act.
On Vijaya Kumari S., the Court observed that “the afore judgment had been rendered with reference to the provisions of the Surrogacy (Regulation) Act, 2021”, while Nandhini “has considered the issue specifically with reference to” the ART Act. Reliance on the Supreme Court ruling therefore “cannot also be said to be correct even though the provisions may be pari materia.” Following Nandhini, the Court concluded that “these writ petitions are only to be dismissed.”
What the Court Actually Held
- The age limit in Section 21(g) of the ART Act binds the Court, as upheld by the Division Bench in Union of India v. Nandhini K.
- Punjab and Haryana High Court rulings permitting treatment on an undertaking are not binding and need not be followed in Kerala.
- An earlier single-judge order that did not consider Nandhini could not be relied on.
- Vijaya Kumari S. v. Union of India, decided under the Surrogacy Act, does not govern the ART Act question; all seven petitions were dismissed.
Why This Judgment Matters
- It tells couples over the statutory age that, in Kerala, a writ petition is unlikely to unlock continued ART treatment.
- It shows how binding Division Bench authority controls the outcome even where other High Courts have been more lenient.
- It highlights a split in approach between High Courts that may eventually need the Supreme Court’s attention.
What Should Advocates Take Away From the Judgment?
For Couples Seeking ART
- Check the age limit under Section 21(g) before starting or continuing treatment; the Court did not create an exception for treatment already begun.
- An undertaking accepted elsewhere will not necessarily be accepted by the Kerala High Court.
- Keep treatment records and registration documents; they may matter if the law is revisited by a higher court.
For Counsel
- Always disclose binding Division Bench rulings such as Nandhini; an order passed without them was not followed.
- Distinguish Surrogacy Act precedents carefully when the claim arises under the ART Act.
- Where a coordinate-bench conflict exists, consider an intra-court appeal or a request for reference.
Key Takeaways
- Section 21(g) of the ART Act sets an age limit that the Court applied strictly.
- Union of India v. Nandhini K. (Division Bench) was treated as binding.
- Punjab and Haryana High Court rulings on undertakings were not followed.
- All seven couples’ writ petitions were dismissed.
Frequently Asked Questions
Did the Court decide what the exact age limits are?
No. The judgment refers to the age limit in Section 21(g) of the ART Act and records that the petitioners were above it, but does not set out the figures.
Why did an earlier Kerala judgment that allowed treatment not help?
Because that September 2026 judgment had not considered the Division Bench decision in Nandhini, which upheld the age limit and binds a single judge.
Can the couples appeal?
The judgment does not discuss further remedies, but an intra-court writ appeal or a Supreme Court challenge is generally available against such a decision.
Conclusion
The Kerala High Court has chosen statutory discipline over sympathy: once a Division Bench has upheld the ART Act’s age limit, a single judge will not grant relief on an undertaking simply because another High Court has done so.
Practical takeaway: Couples near the statutory age should plan ART treatment within the limit; in Kerala, writ relief beyond it is unlikely unless a larger bench or the Supreme Court takes a different view.
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