WP/41971/2026 of DHANALAKSHMI Vs The National Assistant Reproductive Technology on 26 October 2026

Order

This writ petition is filed for the following relief: “To direct the respondents to permit and facilitate the petitioners to undergo Frozen Embryo Transfer (FET) using the four embryos already formed and cryopreserved on 04.03.2020.”

2. The petitioners got married on 06.11.2016 and have been desirous of having a child. Due to difficulties in conceiving naturally, the petitioners approached the 3rd respondent fertility centre and underwent appropriate medical evaluation, counselling and In-Vitro Fertilisation (IVF) treatment. Pursuant to the aforesaid IVF treatment, four embryos were formed and were cryopreserved on 04.03.2020, for future embryo transfer. Since the 1st petitioner is now aged about 51 years, the 3rd respondent / fertility centre expressed that appropriate permission from the Court is required before proceeding with the FET. Therefore, the petitioners are before this Court.

3. Heard the learned counsels on the either side and perused the records.

4. In a similar matter in WP.No.25862 of 2026 dated 08.07.2026, the Coordinate Bench of this Court was considering the request of the petitioners to undergo frozen embryo transfer using embryos created in 2017, prior to the coming into effect of the Assisted Reproductive Technology (Regulation) Act, 2021, herein after called the ART Act. In the case on hand also the embryos have been cryopreserved on 04.03.2020, prior to coming into force of the ART Act.

5. The learned Judge in the above referred case had extracted the provisions of Section 21 (g) of the ART Act and placed reliance upon the judgement of the Hon’ble Supreme Court in the case of Vijaya Kumari S. and another Vs. Union of India – WP (C). No.331 of 2024, where the learned Judges had considered the criteria relating to the age limit, where they have stated as follows: “15.9 We therefore hold that creation of embyros and freezing of the same is crystallization of the said process as it clearly demonstrates the intention of the couples ie., intending couples, in the instant cases. The earlier stages, namely, (I) Visit to surrogacy clinic, (ii) Counselling of the patient, (iii) Obtaining of the various permissions / certificates from Appropriate Authorities under Section 4 of the Act, (iv) Extraction of gametes of Stage A, are no doubt part of surrogacy procedure but are stages prior to the crystallization of the intention of the souple to undertake a surrogacy procedure an interpretation we are giving in the context of age barriers. Therefore, when there was no age restriction at the stage of creation of embryos and freezing them i.e., prior to the enfocement of the Act, when the intending couples are at the threshold of Stage B, the age restriction under the Act cannot be permitted to operate retrospectively on such intending couples as in the present cases so as to frustrate not just the surrogacy procedure but also their right to have a surrogate child or become parents, the latter being a constitutional right under Article 21 of the Constitution.”

6. The learned Judge had also relied upon the judgement of the Division Bench of the Delhi High Court, where the petitioners were not seeking initiation of fresh IVF cycle or creation of fresh embryos after crossing statutory age. The embryos in that case also have been preserved, when the parties have been in the prescribed age limit. The learned Judges had observed as follows: “24. However, in the facts of the present case, concerns relating to maternal health and welfare of child though legitimate and substantial, stand safeguarded. The Petitioners had already undergone medical evaluation, counselling and requisite treatment under expert supervision before commencement of the ART process. The material on record would indicate that the Petitioners were declared medically fit for undergoing the procedure.

25. The Respondents have not placed any medical opinion indicating that utilisation of the existing cryopreserved embryos would pose any immediate or exceptional medical risk beyond the general policy concerns underlying the enactment.

26. The distinction between initiation of a fresh ART cycle after crossing the statutory age threshold and continuation of an already commenced treatment involving existing cryopreserved embryos cannot be lost sight of. The Punjab and Haryana High Court in the case of Pushpa v. Union of India, recently, while coming across a case where the petitioner-wife had crossed the age of 50 years, permitted continuation of IVF treatment noting that the issue stood covered the earlier decision in Sarbjit Kaur. In the opinion of this Court, the latter category stands on a materially different footing and warrants a purposive interpretation consistent with constitutional protections available to reproductive choice and decisional autonomy.

27. This Court is also conscious of the fact that reproductive rights and access to parenthood in the contemporary constitutional jurisprudence cannot be reduced to purely technical or pedantic application of statutory conditions divorced from factual context in which such rights are asserted. The ART Act is fundamentally regulatory in character. The object of the enactment is to ensure ethical and safe ART practices and not to create insurmountable barriers defeating legitimate continuation of treatment processes already lawfully undertaken.

28. In view of the peculiar facts of the case, this Court is of the considered opinion that denial of permission to utilise the remaining five cryopreserved embryos solely on account of the Petitioners having marginally crossed age threshold of the ART process would not subserve the object of the ART Act.” Ultimately, the learned Judge had allowed the writ petition.

7. Therefore, following suit and considering the fact that embryos had been preserved in the year 2020 prior to the ART Act and that they were within the age limit prescribed under Section 21 (g) of the ART Act, this writ petition is allowed directing the 3rd respondent fertility centre to evaluate the medical condition and fitness of the petitioners before undertaking embryo transfer procedure. The 3rd respondent shall proceed with the procedure only if in its considered opinion the same would not pose any medical risk to the petitioners beyond the general policy concerns the underlying the enactment. The 3rd respondent shall also evaluate the possible psychological and hormonal impacts that the procedure and subsequent pregnancy could have on the 1st petitioner. No costs. 26-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No KAN

To

1. The National Assistant Reproductive Technology and Surrogacy Board, Rep by its Chairperson Ministry of Health and Family Welfare Room No.156-A, Nirman Bhavan New Delhi-110 011

2. The State Assisted Reproductive Technology and Surrogacy Board Rep by its Chairperson Directorate of Medical and Rural Health Services DMS Complex Anna salai, Teynampet Chennai-600 006

3. Sudha Fertility Centre Pvt Ltd 410, Bharathiyar Road, New Siddhapudur Coimbatore-641 044

P.T.ASHA J. KAN WP No. 41971 of 2026 26-10-2026