Court says strict application of the 50-year upper age bar under the Assisted Reproductive Technology Act would operate retroactively in the petitioners’ peculiar case; clinic permitted to proceed with treatment using donor oocyte.
The Madras High Court has permitted a foreign couple settled in the United Kingdom to undergo Assisted Reproductive Technology (ART) treatment in India, despite the first petitioner-wife having crossed the statutory upper age limit of 50 years by just 18 days.
Justice D. Bharatha Chakravarthy, while disposing of the writ petition filed by Akitha Samuel and another, held that the facts of the case were “extraordinary and peculiar” and that a strict application of the age restriction under Section 21(g)(i) of the Assisted Reproductive Technology (Regulation) Act, 2021 would amount to giving the law retroactive or retrospective effect in their case.
According to the court, the petitioners are Sri Lankan nationals permanently settled in the United Kingdom. They had begun fertility treatment as early as 2013 and had frozen embryos much before the ART Act came into force. After unsuccessful attempts and miscarriages, they approached a fertility clinic in Chennai in 2023. The wife later underwent surgery for fibroids, and the couple’s treatment plan shifted to using the husband’s sperm and a third-party donor oocyte, with embryo transfer to the wife.
The court noted that the couple had applied for a medical visa in time and that the visa was granted on June 30, 2026. However, by the time they arrived in India on September 7, 2026, the wife had already crossed the age of 50 on August 24, 2026. The delay was only 18 days.
The petitioners argued that their case was covered by earlier decisions, including rulings of the Gujarat High Court, Madhya Pradesh High Court, and Madras High Court, as well as a Supreme Court judgment in Vijaya Kumari S. v. Union of India. They submitted that since their fertility treatment had commenced long before the Act and their intention to continue treatment had crystallized earlier, the age bar should not be rigidly enforced.
The Union of India and state authorities opposed the plea, contending that the Act applies to treatment in India regardless of nationality and that the age limit must be strictly followed. They argued that the petitioners, if aggrieved, should challenge the validity of the statutory age restriction itself.
Rejecting a rigid approach in the specific facts of the case, the court observed that Parliament fixed the age limit keeping in mind Indian conditions, life expectancy, and the welfare of children to be born and brought up in India. In this case, however, the petitioners were foreign nationals seeking medical support in India under medical tourism, and the child would be raised abroad. The court also placed emphasis on the fact that the couple had been pursuing fertility treatment since 2013, and that the delay in reaching India after visa approval was minimal and unintended.
Relying on the spirit of the Supreme Court’s ruling in Vijaya Kumari, the court held that the upper age limit of 50 years need not be applied to the first petitioner in this case. It directed the fifth respondent clinic, or any other clinic, to proceed with the ART procedure according to law.
At the same time, the court clarified that the treatment would be undertaken entirely at the petitioners’ own risk, and that the clinic would be free to use a third-party donor oocyte. The judge also made it clear that the order was confined to the peculiar facts of the case and should not be treated as a general dilution of the statutory age limit.
Bottom Line :
Assisted Reproductive Technology (Regulation) Act, 2021 - Foreign nationals seeking IVF/ART treatment in India - Wife crossed upper age limit of 50 years by 18 days - Petitioners had commenced fertility treatment long prior to Act and had applied for visa within time - In peculiar facts, strict application of age bar held liable to operate retrospectively/retroactively - Clinic directed to perform ART procedure, with liberty to use third party donor oocyte and treatment to be undertaken at petitioners' own risk.
Statutory provision(s): Assisted Reproductive Technology (Regulation) Act, 2021 Section 21(g)(i), Constitution of India, 1950 Article 226
Akitha Samuel v. Union of India, (Madras) : Law Finder Doc id # 2984436
