E-Paper
Only son lost to jaundice, HC allows ART for Punjab couple
Couple aged 56 and 47 had been seeking approval to conceive through assisted reproductive technology since 2024
A Punjab couple who lost their only son to jaundice and married off their daughter in 2020 may now have a child with the help of assisted reproductive technology (ART) after the high court’s intervention.
A 56-year-old male and a 47-year-old female had been approaching the authorities in Punjab for the same since 2024; however, were not being allowed due to various reasons.
“No restriction could be pointed out by the state counsel in any statute, which debars the petitioners from undergoing the ART treatment. All the grounds given in the impugned order passed by respondent No.2 are not tenable and are turned down,” the bench of justice Suvir Sehgal said in its January 22 order quashing the decision of the state appellate authority, designated by the government to deal with such cases. The couple had approached the high court in March 2025, challenging the decision of the appellate authority.
The couple, having two children, got their daughter married off in 2020, and their son died in July 2024 due to jaundice. The woman had reached menopause four years earlier and is not able to conceive a child. The couple approached a gynaecologist but were informed that they could not be given ART treatment as the husband had crossed the threshold age of 55 years and is debarred under the Assisted Reproductive Technology (Regulation) Act, 2021. As per the report of the gynaecologist, both were stated to be healthy and further opined that they can undergo In-Vitro Fertilisation (IVF) treatment.
The argument from authorities was that the husband had crossed the upper age prescribed under the ART Act, and the woman had reached menopause, and as no oocyte (egg) is available for fertilisation, IVF would have to be carried out by the donor oocyte, which is not permissible under the ART Act. It was also argued that the woman will be a high-risk case of conception after menopause, which can complicate her health. The last objection was with regard to petitioners having a child and opting for IVF, which may be a deterrent towards sex determination.
The court observed that there is no age restriction for a commissioning couple as defined under the ART Act. A woman, if she is above the age of 21 years and below the age of 50 years and a man, if he is above the age of 21 years and below the age of 55 years, can avail ART services. Also, the statute reinforces age restrictions on an individual of a certain gender and not to a couple, the court added.
The court also rejected the argument that IVF would have to be carried out by the donor oocyte, which is not permissible under the law. “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 is accepted. This ground, in fact, violates the very spirit of the ART Act as well as the Surrogacy (Regulation) Act, 2021,” the court said, adding that the statutory framework explicitly provides for oocyte donation.
As regards apprehensions around ill health effects on the woman, the court took note of the gynaecologist’s report stating that the woman is healthy and fit to carry a pregnancy. Also, the doctor had certified that the couple was aware of the risks involved in the IVF treatment and petitioners are willing to undertake. As of argument that the couple has one living child, the court said that there is no bar in the ART Act for a couple to opt for IVF when they have one living child.
