ART Act | Statutory Age Limits Cannot Be Relaxed Merely Because Treatment Commenced Prior To Enactment: Kerala High Court

"Insofar as the judgment of the Division Bench in Nandhini has not been relied on or pointed out while rendering the judgment in W.P.(C) No.28787 of 2026, this Court is of the opinion that merely because the Punjab and Haryana High Court has held that the services are to be extended upon furnishing an undertaking, similar treatment does not require to be extended to the petitioners." Affirming the mandatory nature of statutory age caps, the Kerala High Court single bench of Justice Harisankar V. Menon on Thursday (October 22, 2026) held that married couples who exceed the upper age limits prescribed under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 cannot be permitted to avail ART services merely because their treatment commenced prior to the enactment or by furnishing undertakings before authorities.

The batch of writ petitions was instituted by several married couples where either the husband or the wife had crossed the age ceiling fixed under the Assisted Reproductive Technology (Regulation) Act, 2021. The petitioners sought directions to continue assisted reproductive procedures, contending that they had commenced medical treatment before the statutory age threshold was enforced and therefore had an accrued right to complete the procedures.

Whether married couples who commenced treatment prior to the statutory enactment can be exempted from the age caps under Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 upon submitting an undertaking?

Whether the relaxation extended to intending parents under the Surrogacy (Regulation) Act, 2021 can be transposed to override express statutory bars under the Assisted Reproductive Technology (Regulation) Act, 2021?

Division Bench Precedent Strictly Binds In Enforcing Statutory Age Ceilings

The Court examined the reliance placed by the petitioners on the Punjab and Haryana High Court rulings in Dr. Pushpa v. Union of India and Sarbjit Kaur v. State of Punjab, as well as a coordinate bench decision of the Kerala High Court in WP(C) No. 28787 of 2026, wherein couples were allowed to continue ART treatments upon furnishing undertakings before the relevant authorities.

Justice Menon observed that the earlier coordinate bench judgment permitting relaxation had failed to consider the binding ruling of the Division Bench of the High Court in Union of India v. Nandhini K. [2025 KHC Online 2087]. The Division Bench had categorically upheld the validity of the age restrictions under Section 21(g) of the Act and reversed any leniency shown to couples facing similar situations.

The bench also noted the Division Bench judgment in W.A. No. 701 of 2024, which held that granting judicial permission through interim orders to undergo procedures contrary to the statutory age bar would amount to overruling legislative provisions, an impermissible exercise of writ jurisdiction.

Rulings Under Surrogacy Law Cannot Override Specific Provisions Of ART Act

Addressing the petitioners' reliance on the Supreme Court judgment in Vijaya Kumari S. v. Union of India [(2026) 2 SCC 96], which extended protection to couples who initiated procedures prior to the legislative enactment, the Court clarified that statutory contexts cannot be conflated.

The bench highlighted that while the Supreme Court in Vijaya Kumari S. addressed provisions under the Surrogacy (Regulation) Act, 2021, the binding Division Bench in Nandhini had specifically and authoritatively interpreted the statutory scheme and age caps under the ART Act.

The Court held that even if certain statutory provisions under both enactments appear pari materia, the explicit Division Bench ruling governing the ART Act precluded the single bench from granting exemptions based on surrogacy precedents.

Holding that judicial orders cannot carve out exceptions to defeating mandatory statutory caps, the High Court dismissed the entire batch of writ petitions and refused to grant any relaxation to the petitioners who have exceeded the age limits set out under Section 21(g) of the ART Act.

Date of Decision: October 22, 2026