The age restrictions under Section 21(g) of the ART Act do not act as a bar to the continuation of reproductive treatment involving pre-existing cryopreserved embryos if the treatment was initiated while the commissioning couple was within the legally prescribed age limits.

JUDGEMENT :

PURUSHAINDRA KUMAR KAURAV, J.

1. The instant petition is seeking directions permitting the Petitioners to undergo frozen embryo transfer ("FET Procedure") of their remaining five cryopreserved,[Cryopreservation refers to the preservation by means of freezing at very low temperatures (usually in liquid nitrogen) so that cells, tissues or embryos can be stored for future use without losing viability.] embryos at Respondent no. 5- Cloudnine Hospital, Dwarka, (“Hospital”) under the provisions of the Assisted Reproductive Technology Regulation Act, 2021 (“ART Act”).

FACTUAL MATRIX

2. The facts appear to be that the Petitioners are a married couple who after the unfortunate demise of their son on 10.05.2025, approached Hospital for the Assisted Reproductive Technology ("ART") services in the nature of the In Vitro-Fertilization ("IVF") treatment under Respondent no. 6 – Fellowship Doctor/Gynaecologist Doctor at the Hospital (“Concerned Doctor”).

3. At the relevant time when the Petitioners" approached Respondent no. 5, they were within the age limit as prescribed under Section 21(g) of the ART Act. Pursuant thereto, the Petitioners underwent medical evaluation, counselling and investigations and, thereafter, were declared medically fit for treatment. Necessary consent forms including consent for freezing of embryos, frozen embryo transfer and allied procedures, were executed on 07.03.2026. However, the transfer was unsuccessful and the Beta-HCG test,[Beta-HCG (Beta Human Chorionic Gonadotropin) test refers to a blood test used to detect pregnancy by measuring the level of the hCG hormone produced after implantation of the embryo.] which was conducted turned out to be negative.

4. Presently, five cryopreserved embryos belonging to the Petitioners remain preserved with the Hospital. The Petitioners contend that notwithstanding the unsuccessful transfer, the remaining embryos ought to be permitted to be utilised through further FET Procedure. However, the Hospital and the Concerned Doctor declined to proceed further on the ground that Petitioner No.1 had crossed the upper age limit prescribed under Section 21(g) of ART Act. Aggrieved thereby, the Petitioners" have filed the present petition.

SUBMISSIONS MADE BY THE PARTIES

5. Learned counsels Mohit Khandelwal and Deepak Dahiya appearing on behalf of the Petitioners has made the following submissions:

i. The Petitioners were within the permissible age limit when they began the treatment with Respondent Nos. 5 and 6 and that they attained the threshold age prescribed under Section 21(g) of the ART Act during the course of the treatment.

ii. The age restriction under Section 21(g) cannot operate mechanically once embryos have already been created and cryopreserved. The remaining embryos constitute the Petitioners' reproductive material and form part of their decisional autonomy and reproductive choice protected under Article 21 of the Constitution. Reliance is placed upon 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 forms an integral facet of privacy and personal liberty.

iii. The Petitioners further submit that the ART Act does not prescribe any separate upper age limit for a “commissioning couple” and that Section 21(g) imposes age condi