Can IVF be denied only because the husband crossed the age limit? The Calcutta High Court held that IVF/ART treatment cannot be denied when the wife is legally eligible and medically fit, merely because the husband has crossed the prescribed age limit.
KOLKATA: The Calcutta High Court, through Justice Krishna Rao, allowed a married couple to proceed with IVF through Assisted Reproductive Technology, even though the husband had crossed the age limit under the Assisted Reproductive Technology (Regulation) Act, 2021.
The couple approached the High Court after the clinic refused to continue the IVF process because the husband had completed 55 years of age. They had been married for around 20 years but could not have a child. After medical tests, both were found physically fit for IVF, but the husband’s age became the hurdle.
The couple argued that when they first approached the clinic, both husband and wife were within the age limit under Section 21(g) of the ART Act. However, during the process, the husband crossed 55 years, and the clinic asked them to get an order from the competent authority.
The Court noted that the wife was within the prescribed age limit and was medically fit to carry the embryo. The husband, however, was overage and was also medically unable to produce sperm. The couple had stated that they would use donor sperm and donor oocyte for the IVF procedure.
Justice Krishna Rao examined the scheme of the ART Act and observed that the Act does not make it compulsory that only a married couple together can avail ART services. The Court said,
“The Act does not bar an individual partner of a married couple to avail ARTs independently.”
The Court further made it clear that a married woman can independently approach an ART clinic if she is otherwise eligible. It observed:
“There is no provision in the Act which bars a married woman to approach the clinic individually for availing the benefit of ARTs.”
In this case, the wife was the person who would physically undergo the procedure and carry the pregnancy. The Court noted that the husband’s role was not physical in the IVF process because both sperm and oocyte were to be taken from donors. The Court therefore observed:
“Apart from being a supportive partner to the lady, the man does not have any role in the birth of the child.”
The Court accepted that the legislature had fixed an age limit for ART services to prevent misuse and ensure proper control. But it also said that the law cannot be applied in a manner that creates injustice. The Court observed:
“At the same time, the law cannot be interpreted or applied in such a manner that the same becomes unworkable.”
Justice Krishna Rao held that denying IVF to the wife only because the husband had crossed the age limit would be unfair.
The High Court finally held that the couple was eligible to avail ART facilities and directed the clinic to provide the IVF/ART treatment in accordance with law.
EXPLANATORY TABLE: LAWS AND PROVISIONS INVOLVED
| Law / Provision | Purpose | Relevance In This Case |
| Assisted Reproductive Technology (Regulation) Act, 2021 | Main law governing IVF/ART procedures in India. | Clinic refused IVF by relying on this law because husband crossed age limit. |
| Section 21(g)(i) and 21(g)(ii), ART Act, 2021 | Provides age eligibility for ART treatment. | Husband completed 55 years during the process, so clinic stopped treatment. |
| Section 21(g), ART Act, 2021 | Bars ART treatment if prescribed age criteria are not met. | Court examined whether wife can be denied IVF due to husband’s age. |
| Assisted Reproductive Technology (Regulation) Rules, 2022 | Provides consent, risk disclosure, and safeguards. | Court noted that ART involves informed consent and no guaranteed result. |
| “Commissioning Couple” | Infertile married couple seeking ART services. | Couple approached jointly, but Court said individual partner can also seek ART. |
| “Gamete Donor” | Person donating sperm or oocyte. | Donor sperm and oocyte were to be used in this case. |
| “Patients” | Individual or couple seeking infertility treatment. | Helped Court hold that even one individual can avail ART services. |
| “Woman” | Woman above 21 years seeking ART services. | Wife was eligible and medically fit, so treatment could not be denied. |
CASE DETAILS
- Case Title: Jayanta Dasgupta & Anr. Versus The State of West Bengal & Ors.
- Court: High Court at Calcutta
- Jurisdiction: Constitutional Writ Jurisdiction, Appellate Side
- Case Number: WPA 6558 of 2026
- Date of Order: 30.04.2026
- Bench / Judge: Justice Krishna Rao
- Counsels for Petitioners: Mr. Pappu Adhikari and Mr. Apurba Ghosh
KEY TAKEAWAYS
- A husband should not become the reason to deny a legal benefit when he has no actual physical role in the procedure.
- Men should not be treated as automatic legal hurdles in marriage-related matters; their real role and participation must be examined.
- This judgment shows that responsibility, eligibility, and restriction must be based on facts, not assumptions attached to being a husband.
- If the law says the husband has no physical participation in the ART process, then his age alone should not be used to punish the couple.
- No man should be blamed, burdened, or made decisive in a process where his role is only supportive.
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