Introduction

Assisted reproductive technology (ART) in India operates within a detailed statutory framework. The Assisted Reproductive Technology (Regulation) Act, 2021 regulates ART clinics, ART banks, donors, commissioning couples and the treatment process. It also protects the confidentiality of patients and donors and recognises specific rights for children born through ART.

A recent Gujarat High Court decision concerning a couple seeking IVF after the wife crossed the statutory age limit has brought these provisions into focus. The Court allowed the couple to approach an ART clinic after considering the statutory age requirements applicable to the commissioning couple.

What Does the ART Act Say About IVF Eligibility?

Section 21(g) of the ART Act, 2021 prescribes age limits for ART services. An ART clinic can provide services to a woman above 21 years and below 50 years of age. For a man, the prescribed age range is above 21 years and below 55 years.

The provision is therefore directly relevant when a couple approaches a clinic for IVF. The Gujarat case involved a woman who had crossed 50, while her husband was 54. The Court relied on the statutory framework and previous judicial decisions concerning the interpretation of the age requirement for a commissioning couple.

The ruling does not remove the statutory age limits for all IVF procedures. It concerns the manner in which the eligibility requirement applies to a married couple seeking ART services.

Who Is a Commissioning Couple Under the ART Act?

Section 2(1)(e) of the ART Act defines a commissioning couple as an infertile married couple who approach an ART clinic or ART bank to obtain authorised services.

This definition becomes important when determining who is seeking ART treatment. The law regulates ART services through the relationship between the clinic, the commissioning couple or woman, and the gamete donor.

The age requirement under Section 21(g) therefore operates alongside the statutory definition of a commissioning couple rather than in isolation.

How Does the ART Act Protect Confidentiality?

Confidentiality is an important part of the ART framework. Section 21(e) of the ART Act requires ART clinics and banks to keep information relating to the commissioning couple, woman and donor confidential. Information concerning treatment also cannot be disclosed except in specified circumstances.

The Act permits disclosure to the National Registry database, in a medical emergency at the request of the commissioning couple to whom the information relates, or pursuant to an order of a court of competent jurisdiction. This protection covers sensitive information connected with infertility treatment, donor involvement and ART procedures. The confidentiality requirement also explains why courts and reports dealing with certain ART disputes can withhold the identities of the individuals involved.

Section 27(6) separately addresses donor information. ART banks collect prescribed information about sperm and oocyte donors and are required to obtain a written undertaking concerning the confidentiality of that information.

What Consent Is Required Before IVF Treatment?

The ART Act also places informed consent at the centre of the treatment process. Section 22 of the ART Act requires written informed consent from all parties seeking ART before treatment or a procedure is performed. The provision also deals with consent relating to the cryopreservation of human embryos and gametes in cases involving death or incapacity. Human reproductive material cannot be used to create or use an embryo without the specific written consent required under the Act. A commissioning couple can also withdraw consent before the human embryos or gametes are transferred to the concerned woman’s uterus.

What Information Must ART Clinics Give to Patients?

Section 21(c) of the ART Act requires clinics to provide professional counselling to the commissioning couple and woman about the implications and chances of success of ART procedures. The clinic also has to explain the advantages, disadvantages, costs, medical side effects and risks associated with the procedure, including the risk of multiple pregnancy. Section 21(d) further requires clinics to make the commissioning couple or woman aware of the rights of a child born through ART.

What Rights Does a Child Born Through IVF Have?

The ART Act specifically addresses the legal status of a child born through assisted reproductive technology. Section 31(1) of the ART Act provides that a child born through ART is deemed to be the biological child of the commissioning couple. The child is entitled to the rights and privileges available to a natural child from the commissioning couple under the law. Section 31(2) also provides that a donor relinquishes parental rights over a child born from the donor’s gamete.

The provision also ensures that the child’s legal relationship with the commissioning couple does not depend on whether the genetic material came entirely from the couple.

How Does the ART Act Regulate Gamete Donors?

The Act also places restrictions on the sourcing and use of gametes. Section 27 of the ART Act requires the screening of gamete donors and the collection, screening and storage of semen to be carried out through registered ART banks. The provision prescribes the age range for sperm donors and oocyte donors and requires medical examination for prescribed diseases. The provision also restricts a bank from supplying the sperm or oocyte of a single donor to more than one commissioning couple. An oocyte donor can donate only once in her lifetime, and not more than seven oocytes can be retrieved from her under the statutory framework.

How Are Embryos and Gametes Regulated After Collection?

Section 28 of the ART Act regulates the storage and handling of human gametes, gonadal tissues and embryos. It requires standards relating to their security, recording and identification. The Act also places a maximum period of ten years on the storage of a donor gamete or embryo. After that period, the material can be allowed to perish or be donated to a registered research organisation in accordance with the statutory requirements and consent framework.

What Restrictions Apply to the Use of Human Reproductive Material?

Section 29 of the ART Act prohibits the sale, transfer or use of gametes, zygotes and embryos, or information relating to them, except in the circumstances permitted by the Act. The provision also regulates the transfer of a person’s own gametes and embryos for personal use with the permission of the National Board. The law therefore treats human reproductive material as subject to specific regulatory safeguards rather than as ordinary commercial property.

Does the ART Act Permit Sex Selection?

The ART framework also contains restrictions against sex selection. Section 26 of the ART Act prohibits an ART clinic from offering a couple or woman a child of a predetermined sex. The provision also prohibits acts intended to determine the sex of a child through ART. An exception exists for identifying or treating a sex-linked disorder or disease within the statutory framework.

The provision works alongside the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, creating a legal restriction against using ART for sex selection.

What Is the Larger Legal Framework for ART in India?

The ART Act is not limited to regulating IVF treatment. Its statutory framework covers the registration and regulation of ART clinics and banks, national and state-level regulatory authorities, informed consent, medical counselling, donor screening, confidentiality, embryo storage, reproductive material, sex selection and the rights of children born through ART.

The Act also provides for offences and penalties for violations. Sections 33 to 37 deal with offences, penalties, cognizance and offences committed by ART clinics or banks. Sections 42 and 43 provide the Central Government and National Board with rule-making and regulation-making powers.

What Does the Gujarat HC Decision Mean for IVF After 50?

The Gujarat High Court decision does not turn the ART Act’s age restriction into a general entitlement to IVF after 50. The Court dealt with a specific dispute involving a commissioning couple where the wife had crossed 50 but the husband was 54. The Court considered the statutory language and previous High Court decisions before allowing the couple to approach an ART clinic.

The final medical decision remains with the authorised ART clinic and treating medical professionals. The judgment therefore operates within the existing statutory framework rather than replacing it.

What Are the Legal Protections Under the ART Act?

The ART Act creates safeguards at every stage of assisted reproduction. Section 21 regulates the duties of clinics and banks. Section 22 protects informed consent. Section 23 deals with record keeping. Section 24 regulates the use of human gametes and embryos by ART clinics. Section 26 prohibits sex selection. Section 27 regulates gamete sourcing and donor confidentiality. Section 28 regulates storage and handling of reproductive material. Section 29 restricts the sale and transfer of gametes, zygotes and embryos. Section 31 establishes the legal rights of children born through ART.

The law therefore treats IVF as part of a regulated reproductive healthcare system. The age requirement is only one component of that framework. Confidentiality, consent, donor regulation, child rights and ethical medical practice form equally important parts of the legal structure governing ART in India.