The Madras High Court has permitted a foreign national, who had crossed the age of 50, to undergo In Vitro Fertilization (IVF) treatment in Chennai after observing that the Parliament had fixed the upper age limit under the Assisted Reproductive Technology (Regulation) Act of 2021 only by taking into consideration the life expectancy in India and not in other countries.
Justice D. Bharatha Chakravarthy said, though the 2021 Act would apply to foreign nationals too, it must also be borne in mind that the Parliament had fixed the upper age limit of 50 for women and 55 for their husbands on the basis of life expectancy in the country, the conditions of life here and and also to ensure the welfare of the minor children to be born and brought up in India.
In the present case, the judge recorded the submissions of advocate Shabnam Banu that the writ petitioner and her husband were basically Sri Lankan nationals who had settled down permanently in the U.K. and they intend to bring up their children too in the U.K. The couple had come down to Chennai on a medical visa for undergoing IVF treatment at G.G. Hospital.
The judge also took note that the couple had commenced the treatment at the U.K. in 2013 and frozen the embryos much before the 2021 Act came into force in India. However, since the treatment in the foreign country resulted in miscarriages, they had flown down to Chennai in 2023 where the first petitioner was diagnosed of fibroids and was advised to undergo a surgery to remove them.
Pursuant to the surgery, the couple went back to UK for the purpose of healing and decided to return to India after a break. During the break, they agreed upon a course of treatment which was to use the sperm of the second writ petitioner (husband) and get oocyte from a qualified donor below 50 years of age and then transfer the fertilized embryos by way of IVF into the first petitioner (wife).
The petitioners obtained medical visa to come to India on June 30, 2026 but landed here only on September 7, 2026 by when the first petitioner had crossed the age of 50 years on August 24, 2026. Since the hospital expressed reservations over continuing the IVF treatment in violation of the provisions of the ART Act, they chose to approach the High Court and obtain a judicial order.
Justice Chakravarthy took into consideration that the petitioners had frozen their embryos in 2013, undergoing treatment in India since 2023 and the proposed oocyte donor was below 50 years of age. He also underlined that the first petitioner had obtained Indian medical visa when she was well within the prescribed age limit but unwittingly landed in Chennai 18 days after completing 50 years of age.
“This unfortunate human error gives rise to an extraordinary circumstance” where the court could declare that the 50 years upper age limit need not be applied to the first petitioner, the judge wrote and ordered that the couple would be entitled to continue the IVF treatment at any clinic of their choice and that the clinic concerned would be free to use oocyte from a third party donor.
“It is made clear that the order is passed taking into account the very peculiar facts and circumstances of the case where both the petitioners are foreign nationals and have approached our country only for the technical support they are receiving from the fifth respondent (GG Hospital) by way of medical tourism and secondly, even the visa was applied in time, but however they missed the timeline only by 18 days,” the judge concluded.
Published – September 23, 2026 12:22 am IST
