Madras High Court allows foreigners above 50 years to undergo IVF treatment

The Madras High Court has allowed a foreign national above the age of 50 to undergo in-vitro fertilization (IVF) treatment in Chennai after finding that Parliament had set the upper age limit under the Assisted Reproduction (Regulation) Act, 2021 only with regard to life expectancy in India and not in other countries.

Justice D. Bharatha Chakravarthy said that while the 2021 Act will also apply to foreign nationals, it should also be remembered that Parliament has fixed the upper age limit of 50 years for women and 55 years for their husbands based on the average life expectancy in the country, living conditions here and also to ensure the welfare of minor children who are to be born and brought up in India.

In this case, the judge recorded the submission of advocate Shabnam Banu that the plaintiff and her husband were essentially Sri Lankan nationals who had settled permanently in the UK and intended to bring up their children in the UK as well. The couple came to Chennai on a medical visa to undergo IVF treatment at GG Hospital.

The judge also noted that the couple started treatment in the UK in 2013 and froze the embryos well before the 2021 law came into force in India. However, as treatment in a foreign country led to miscarriages, they flew to Chennai in 2023 where the first applicant was diagnosed with fibroids and advised to undergo surgery to remove them.

Following the surgery, the couple returned to the UK for recuperation and decided to return to India after a break. During the break, they agreed on a treatment procedure that consisted of using the sperm of the second applicant (the husband) and obtaining an oocyte from a qualified donor under the age of 50, and then transferring the fertilized embryos by IVF to the first applicant (the wife).

The petitioners obtained a medical visa to enter India on 30 June 2026 but landed here only on 7 September 2026 when the first petitioner crossed the age of 50 years on 24 August 2026. As the hospital expressed reservations about continuing the IVF treatment in violation of the provisions of the ART Act, they decided to approach the Supreme Court and seek an injunction.

Justice Chakravarthy took into consideration that the petitioners had frozen their embryos in 2013, they are undergoing treatment in India from 2023 and the proposed oocyte donor is under 50 years of age. He also pointed out that the first applicant obtained an Indian medical visa when she was within the prescribed age limit but unknowingly landed in Chennai 18 days after turning 50 years of age.

“This unfortunate human error creates an extraordinary circumstance” where the court could declare that the upper age limit of 50 years may not apply to the first petitioner, the judge wrote, ordering that the couple would be entitled to continue IVF treatment at any clinic of their choice and that the clinic in question would be allowed to use an oocyte from a third-party donor.

“It is clear that the order is made keeping in mind the very peculiar facts and circumstances of the case where both the petitioners are foreign nationals and have come to our country only because of the technical support they are receiving from the fifth respondent (GG Hospital) through medical tourism and secondly, the visa was also applied for in time but they missed the deadline by only 18 days,” the judge concluded.

Published – 23 Sep 2026 0:22 IST