The Punjab adn Haryana High Court has made it clear that the law cannot be used to deny older couples the chance to have children through assisted medical science. The ruling came as Justice Suvir Sehgal set aside a State appellate authority’s order denying IVF and other services to a married couple, who lost their only son last year.
The court ruled that there was no legal bar on the couple’s age, use of a donor egg, medical risks involved, or the fact that they have a living child, and permitted them to proceed with IVF.
Allowing the writ petition, Justice Sehgal quashed the February 6, 2025, order that had denied the couple access to Assisted Reproductive Technology after holding that all grounds cited by the authority were “not tenable” and contrary to the scheme and spirit of the law.
The petitioners, a married couple aged 47 and over 56 years, had two children – a daughter married in 2020 and a son who died in July 2024 due to jaundice.After the tragedy, they approached a gynecologist for IVF but were turned away on the ground that the husband had crossed 55 years and that the wife, having attained menopause, would require a donor oocyte, which was claimed to be impermissible under the ART Act.
Their initial petition was disposed of with a direction to the authority concerned to take a decision “in light of statutory provisions as well as judicial precedents”. But their case was rejected compelling them to move the court again.
Rejecting one of the objections, justice Sehgal relied on earlier rulings to reiterate there was no age restriction for a “commissioning couple” under the ART Act. Referring to a High Court decision following a Calcutta High Court verdict, the court observed that the age bar cited by the authority “was no longer a hurdle”.
Turning to the principal objection, justice Sehgal observed it was stated that the woman had reached menopause. As oocyte or a cell in an ovary was unavailable for fertilisation, IVF would have to be carried out by donor oocyte, which was impermissible under the ART Act. An oocyte donor is a fertile woman who provides her eggs for another individual or couple.
The Bench held that the denial on this ground ran directly against the statutory framework. The court observed that the ART Act itself recognised gamete donation and provided for ART banks to source such gametes. “A gamete has been described to mean both sperm and oocyte…. When the provisions are read together, it is evident that the statutory framework explicitly provides for gamete donors as well as oocyte donation.”
Referring to the legislative intent, Justice Sehgal added: “The primary purpose of the ART Act is to regulate and supervise the ART clinics and banks, so as to prevent their misuse and avoid unsafe and unethical practices.The intent of the statute would stand defeated if the reasoning given by the respondent (for rejecting their case) is accepted.”
Calling the rejection legally unsustainable,the court held: “This ground actually violates the very spirit of ART Act as well as the Surrogacy (Regulation) Act,2021. It, thus, cannot withstand judicial scrutiny and is rejected.”
On concerns raised about medical risks and possible genetic abnormalities, Justice Sehgal observed the doctor’s affidavit certified the wife’s fitness to carry a pregnancy and the husband’s normal sperm count. The court observed that the couple had been fully informed of the risks and was willing to undertake them.
Justice Sehgal made it clear: “The risks involved in undergoing an ART procedure and chances of the genetic abnormality in the offspring are not an embargo from undergoing the procedure under the ART Act.”
The court also dismissed the objection that IVF could not be opted for as the couple had one living child, holding that no such prohibition exists in the statute.
