Frozen Embryos Do Not Freeze the Age Limit: Punjab and Haryana High Court on Section 21(g), ART Act

A couple creates nine embryos in November 2023, when both are forty-seven. Two transfers fail. Four embryos are still frozen at the clinic. Then the wife turns fifty, and the clinic says it can go no further without a court order.

Can a woman who was eligible when her embryos were frozen use them after she crosses the age limit in the ART Act? Can her husband, who is still under fifty-five, keep the couple eligible? On 5 November 2026, in Veena Devi and another v. Union of India and others, CWP-18704-2026 and connected cases, the Punjab and Haryana High Court answered both questions no. It then added a third answer that many couples will find more useful than the first two.

Read the full judgment (PDF, 23 pages) →

The Case at a Glance

The Facts, Briefly

Six writ petitions were heard together. In each, one spouse, either the husband or the wife, had crossed the maximum age in Section 21(g). The Court took the facts from the lead petition.

The wife is a primary school teacher; the husband is an agriculturist. On 22 November 2023, when both were forty-seven, nine embryos were created and cryopreserved at the clinic (respondent no.4). The first frozen embryo transfer, in July 2024, failed. The second, in February 2025, led to a pregnancy that had to be terminated after five or six weeks. Four embryos remained frozen, as the clinic confirmed by a letter dated 28 April 2026.

The wife turned fifty on 10 December 2025. Her husband was still below fifty-five. The clinic did not dispute any of this. It told the Court that she appeared to be in good health for her age, with no major condition that would prevent her from carrying a child, and that it had no objection to one more transfer if the Court permitted it. It could not proceed on its own, because it is bound by the Act.

The couple asked for two things: a mandamus allowing the wife to complete her treatment with the frozen embryos, and a declaration that the age limit in Section 21(g) must be read with reference to the commissioning couple as a unit.

The Arguments

For the petitioners

• The couple is the unit. The husband’s right to have a child through ART still subsists, but he can only exercise it with his own wife. If even one spouse is within the limit, the procedure should be allowed. This, they argued, is the harmonious and purposive reading of Section 21(g). They relied on Manjit Kaur v. Union of India, 2025 NCPHHC 174633, where a coordinate bench of the same High Court had allowed a couple to proceed because one spouse was within the limit.
• An accrued right. The treatment began in November 2023, in full compliance with the Act. The embryo transfers are a continuation of the same process, and the right to complete it accrued when the embryos were lawfully created and frozen.

For the Union of India

• The age limits were fixed after the Parliamentary Standing Committee on Health and Welfare recommended a minimum of twenty-one for both, and a maximum of fifty for women and fifty-five for men. The Gauhati High Court has already upheld Section 21(g) in Pankaj Kumar Das v. Union of India, 2025 SCC OnLine Gau 5083.
• An expert committee constituted by the Department of Health Research had, in a report dated 21 January 2026, found the limits reasonable on medical, genetic, psychological and child-welfare grounds.
• The Act defines a “commissioning couple” and a “woman”, but prescribes no age for the couple as a composite unit. Under the ART Rules, 2022 (Rule 13), a woman can avail ART even when her husband is past the maximum age.
• ART works in treatment cycles, each a fresh and independent round of treatment, and the eligibility criteria must be satisfied at the start of every cycle.

The Statutory Scheme

The Court set out the provisions on which everything turns.

• Section 2(1)(a) defines assisted reproductive technology as all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte outside the human body and transferring the gamete or the embryo into the reproductive system of a woman.
• Section 2(1)(e): a “commissioning couple” is an infertile married couple who approach an ART clinic or bank.
• Section 2(1)(h): a “gamete donor” provides sperm or oocyte to enable “an infertile couple or woman” to have a child.
• Section 2(1)(u): a “woman” is any woman above twenty-one who approaches an ART clinic or bank.
• Section 21(a): clinics and banks must ensure that the commissioning couple, woman and gamete donors are eligible under the prescribed criteria.
• Section 21(g): clinics shall apply ART services (i) to a woman above twenty-one and below fifty, and (ii) to a man above twenty-one and below fifty-five.

From the definition in Section 2(1)(a), the Court drew out two distinct stages: (i) preservation of sperm or oocyte and/or fertilisation outside the body, and (ii) transfer of the gamete or embryo into the woman’s reproductive system. That two-stage reading decides the second issue.

Holding 1: No “Couple Age” in Section 21(g)

The Court held that the legislature prescribed distinct limits for a woman and a man, and deliberately prescribed none for the couple. It also did not provide that the procedure may go ahead if one spouse is within the limit. In the Court’s words (para 8.4):

“A provision which has not been provided for specifically, cannot ordinarily be read into the enactment as it would be expanding the scope of the enactment itself. This is nothing short of re-framing the statute which is beyond the scope of judicial interpretation.”

The words of Section 21(g) are unequivocal. Giving them effect is not impossible, absurd, or inconsistent with any other provision. There was therefore no casus omissus to supply, and the literal rule applied. The Court relied on Padma Sundara Rao v. State of Tamil Nadu, (2002) 3 SCC 533, and Independent Sugar Corporation Ltd. v. Girish Sriram Juneja, (2025) 5 SCC 209: the intention of the legislature is gathered from the words used and the words not used.

Sanchita Ghosh not followed

The Calcutta High Court in Sanchita Ghosh v. Union of India, 2024 SCC OnLine Cal 12155, had held that because the Act puts no restriction on commissioning couples, a couple remains eligible unless both spouses are past the limit. Manjit Kaur had followed that view.

Justice Dahiya respectfully declined to subscribe to it. The “lack of restriction for commissioning couples”, he held, is alien to the scheme of the Act. The Act fixes different maximum ages for a man and a woman, apparently because of their individual biological reproductive capacities. As para 8.6 puts it:

“The role of the couple as a unit becomes relevant after the process fructifies. While their joint effort may be relevant for parenting, but for ART/IVF services under the Act individual potential of the woman and the man matters.”

Holding 2: Frozen Embryos Do Not Freeze the Age Limit

The petitioners’ accrued-right argument was rejected (para 8.7). Section 21(g) says the clinic shall apply ART services only to a woman below fifty and a man below fifty-five. So the limit must be satisfied on the day the service is availed or the procedure is undertaken. Since the procedure has two stages, the limit must be met at each stage.

Freezing embryos while the woman was forty-seven satisfied the first stage. It does not entitle her to the second stage, the transfer into her reproductive system, after she has crossed fifty. That, the Court said, would violate the stipulations of the Act. The Union’s description of ART as cyclical, with eligibility tested at the start of each cycle, points the same way.

The Expert Committee Report

The Court also relied on the report of the committee on the implications of conception at advanced parental age, constituted by the Department of Health Research, Ministry of Health and Family Welfare. Its five members were drawn from AIIMS, New Delhi and JNU, three of them also expert members of the National ART and Surrogacy Board.

The report records that pregnancy beyond fifty is “inherently high-risk”. It lists the risks: hypertensive disorders, gestational diabetes, abnormal placentation and haemorrhage, preterm birth, and a sharp rise in chromosomal abnormalities in embryos after thirty-five. It notes that advanced paternal age independently raises the risk of new genetic mutations. It also notes the reduced caregiving capacity of parents over fifty through a child’s formative years. It concluded that the limits of fifty and fifty-five, under both the ART Act and the Surrogacy (Regulation) Act, 2021, are reasonable and founded on well-established medical, genetic, epigenetic, psychosocial and child-welfare considerations. The Court said this vindicated the legislative choice.

The Court’s conclusion on the first issue (para 8.9): when either a woman or a man crosses the maximum prescribed age, their right to avail services or undertake procedures under the ART Act does not survive.

Holding 3: A Woman’s Independent Right

The petitioners had argued that a woman can use ART only through and with her husband, so refusing him on age grounds frustrates her right as well. The Court called this “misconceived” (para 9.1).

Reading together the definitions of “commissioning couple” and “woman”, the reference to “an infertile couple or a woman” in the definition of gamete donor, and the clinics’ duties under Section 21, the Court held that ART services can be availed either by a couple or by a woman on her own. Nothing requires that only a couple approach the clinic. A woman, married or not, has an independent right under the Act.

So a husband past fifty-five does not, by itself, disqualify his wife, provided she is below fifty. The women petitioners who had not crossed fifty were told that they may avail the services under the Act if they wish (para 9.2).

What the Judgment Does Not Decide

• Constitutional validity. The Court expressly noted that the validity of Section 21(g) was not challenged before it. The challenge has been rejected by the Gauhati High Court in Pankaj Kumar Das, as the Union pointed out; the question remains open to be raised in other proceedings.
• The conflict within the High Court. Manjit Kaur (2025), also a single-bench decision of this Court, took the opposite view by following Sanchita Ghosh. This judgment does not record a reference to a larger bench. Until a Division Bench or the Supreme Court settles the point, both coordinate-bench views are on record. Couples and counsel should watch for an intra-court appeal.

What This Means in Practice

• For couples where the wife is near fifty: embryos frozen today cannot be transferred after her fiftieth birthday. Plan transfers with the date in mind; the limit is “below fifty”, tested on the day of the procedure.
• For couples where only the husband is past fifty-five: the wife, if below fifty, can approach a clinic on her own as a “woman” under Section 2(1)(u). The husband’s age does not shut the door on her.
• For clinics: eligibility must be checked afresh at every stage and every treatment cycle, not only at the time of embryo creation.
• For petitions now pending: relief built on Manjit Kaur or Sanchita Ghosh will now face this judgment, which examines both and declines to follow them.

Quick Revision

• Section 21(g): woman 21 to below 50; man 21 to below 55. Separate limits; no couple age.
• When tested: on the day of each stage of the procedure (creation/fertilisation, and transfer).
• Frozen embryos: no vested right to transfer after the woman crosses fifty.
• Woman alone: may avail ART independently; husband’s age is irrelevant to her eligibility.
• Precedents: Sanchita Ghosh (Cal, 2024) not followed; Padma Sundara Rao (2002) and Independent Sugar Corporation (2025) applied; Pankaj Kumar Das (Gau, 2025) noted.

Download the full judgment: Veena Devi v. Union of India, CWP-18704-2026 (PDF) →

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Disclaimer: This case analysis is based on the full text of the judgment of the Punjab and Haryana High Court in Veena Devi and another v. Union of India and others, CWP-18704-2026 and connected cases, dated 5 November 2026, and is intended for general information and legal education only. It does not constitute legal or medical advice. Provisions and citations should be verified against the bare Act and the full text of the judgments cited before being relied upon. Anyone considering ART treatment or proceedings of this kind should consult a qualified advocate and a registered medical practitioner. Please read our Disclaimer for more details.