Madras HC Upholds ART Age Cap: “No Legal Right Beyond 50” as Court Cites Risks and Difficulty of Supporting Child in Elderly Year
Sanchayita Lahkar
The Madras High Court has upheld the rejection of a request to avail Assisted Reproductive Technology (ART) services by a woman aged above 50 years. The Single Bench of Justice S. Sounthar, declined to interfere with the decision of the Secretary to Government of India, Ministry of Health and Family Welfare, rejecting the petitioner’s application based on Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021.
The Court observed that “Section 21(g) of the ART Act creates a legal right for woman above the age of 21 years and below the age of 50 years to demand ART services as a matter of right, subject to conditions prescribed under Act.” It further held that “the woman outside the age bracket prescribed under the section, though may desire for ART services, however, cannot claim said services, as a legal right and enforce the same in the Court of Law.”
The petitioner challenged the order dated 12th July 2024, passed by the Secretary to the Government of India, Ministry of Health and Family Welfare, rejecting her representation seeking permission to avail ART services with the use of donor gametes. The rejection was based on Section 21(g) of the ART Act.
The petitioner, through counsel, argued that Section 2(u) of the ART Act defines ‘woman’ as “any woman above the age of twenty-one years who approaches an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the authorised services of the clinic or bank.” It was submitted that since the definition did not specify any upper age limit, the petitioner should be entitled to seek ART services regardless of her age.
The petitioner’s counsel further referred to Section 2(e) of the Act, defining ‘commissioning couple’ as “an infertile married couple who approach an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the services authorised of the said clinic or bank.” It was argued that neither Section 2(u) nor Section 2(e) imposed an upper age limit and, therefore, Section 21(g) should not be read as a bar.
The petitioner’s counsel also drew attention to the Surrogacy (Regulation) Act, 2021, where the expression ‘intending woman’ is accompanied by a prescribed upper age limit, whereas in the ART Act, no such limit is included in the definition section. It was submitted that the absence of an upper age limit in the definition section implied that women above 50 years should not be excluded.
It was further contended that Section 21(g) merely imposes a duty on ART clinics to mandatorily provide services to women between the ages of 21 and 50 years but does not expressly prohibit women above 50 from availing such services voluntarily.
The respondents, represented by the Government Advocate and the Central Government Standing Counsel, relied on Section 21(g) of the ART Act, submitting that ART clinics are permitted to provide services only to women aged between 21 and 50 years. They maintained that the statutory language is mandatory, and therefore, the petitioner could not be permitted to avail the services as requested.
The statutory provisions referred to included Section 27(2)(b) of the ART Act, which prescribes that ART banks shall obtain oocytes from females aged between 23 and 35 years. The respondents submitted that a similar approach governs the eligibility for recipients under Section 21(g), which specifies the permissible age range for women seeking ART services.
Justice S. Sounthar examined the relevant provisions of the ART Act and the submissions of the parties. The Court stated that “a perusal of Section 21(g) of ART Act would make it clear that ART Clinics are duty bound to apply the Assisted Reproductive Technology (ART) services to the woman above the age of 21 years and below the age of 50 years.”
The Court recorded that the definition under Section 2(u) does not prescribe an upper age limit but does not override the specific mandate of Section 21(g). It was observed, “when the specific Section 21(g) of ART Act gives a restrictive meaning to the word ‘Woman’ by prescribing both upper and lower age limits, the same will prevail over the definition in the general definition section.”
The Court further stated that “in the considered view of this Court, legislature in its wisdom purposefully avoided incorporation of upper age limit in the definition of the word ‘Woman’.” It noted that while Section 2(u) defines ‘woman’ in broad terms, the operational provision restricting ART services to women below 50 years is found in Section 21(g).
The Court referred to Section 27(2)(b) of the Act, which limits oocyte donations to females aged between 23 and 35 years. Justice Sounthar recorded that “since two different upper age limits are prescribed for a woman, who is donor and woman, who is recipient, the legislature in order to avoid confusion would have consciously omitted the upper age limit in the definition of the word 'Woman'.”
The Court also examined Clause 5(d) of the Statement of Objects and Reasons of the ART Act, noting that the legislative intent was consistent with Section 21(g). It recorded that “Clause 5(d) of Statement of Objects and Reasons clearly declares that assisted reproductive technology services shall be available to a woman above the legal age of marriage and below the age of 50 years.”
On the issue of reproductive autonomy, the Court acknowledged that “the reproductive autonomy is held to be one of the essential feature of right to life under Article 21 of the Constitution of India.” However, it recorded that reproductive autonomy must be balanced with corresponding duties, particularly regarding the welfare of the child to be born.
The Court stated that “a woman, who asks for ART services for begetting a child is duty bound to take care of the child atleast till he/she attains the majority age of 18 years.” It further noted, “in India, the retirement age is 60 years, therefore, it is highly doubtful whether the woman/commissioning couple getting a child after 50 years of age will be in a position to support the child for 18 years.”
In terms of health risks, the Court stated that “by virtue of ageing process, the risk to the life of mother above the age of 50 years is more than the mother below the age of 50 years. The risk to pregnancy is also very much high after 50 years.”
In response to the petitioner’s argument that excluding women aged “50 years and one day” was arbitrary, the Court recorded, “whenever, the legislature wants to fix a limit by drawing a line, these kind of imbalance is bound to happen.” It held that such legislative cut-offs were permissible and not irrational.
The Court dismissed the petition. The order stated, “in view of the discussions made earlier, I do not find any error in the order passed by the 7th respondent in denying the request of the petitioner for ART services by relying on Section 21(g) of the Act.” The Court concluded, “accordingly, the Writ Petition stands dismissed. No costs. Consequently, the connected writ miscellaneous petitions are closed.”
Advocates Representing the Parties
For the Petitioner : Mr. G.R. Hari
For the Respondent : Mr. E. Sundaram, Government Advocate , Mr. K.S. Jeyaganesan, Central Government Standing Counsel
Case Title: Kavitha Anand versus The State of Tamil Nadu and Others
Neutral Citation: 2025:MHC:360
Case Number: W.P.No.35158 of 2024
Bench: Justice S. Sounthar
[Read/Download order]
