The Punjab and Haryana High Court has held that the age restriction under the Assisted Reproductive Technology (ART) Act, 2021, does not bar a woman from undergoing embryo transfer when the embryos were lawfully created prior to the Act’s enactment. This ruling affirms that legislative restrictions on reproductive technology cannot be applied retroactively to pre-existing medical arrangements, safeguarding the rights of individuals who acted in reliance on prior legal permissibility.
Background & Facts
The Dispute
The petitioners, a married couple residing in Canada, sought to continue Assisted Reproductive Technology (ART) treatment to conceive a second child using embryos created in 2019. Petitioner No.1, Veena Kumar alias Avinash Kaur Dhillon, was 47 years old at the time of embryo creation. She and her husband approached Respondent No.4, Jindal IVF and Sant Memorial Nursing Home, for ART services. After Preimplantation Genetic Testing (PGT), four embryos were created on 17.12.2019. One embryo resulted in the birth of a female child. The petitioners now seek to use the remaining three preserved embryos for a second pregnancy.
Key Facts
- Petitioner No.1 was 47 years old on 17.12.2019, when embryos were created
- Petitioner No.1 turned 50 years old in 2022
- The ART Act, 2021, came into force on 25.01.2022, prohibiting ART for women above 50 years
- Respondent No.4 confirmed that Petitioner No.1 is in good health with no medical contraindications to pregnancy
- The petitioners have already successfully conceived and delivered one child using the same batch of embryos
- No legal challenge was raised at the time of embryo creation or storage
Procedural History
- 17.12.2019: Four embryos created via PGT at Jindal IVF and Sant Memorial Nursing Home
- 25.01.2022: ART Act, 2021, notified and came into force
- 2023: Petitioner No.1 turned 50 years old
- 2025: Petitioners sought to proceed with embryo transfer; hospital declined citing ART Act, 2021
- 24.06.2025: Writ Petition (CWP No.24686-2025(O&M)) filed before the High Court of Punjab and Haryana
- 02.04.2026: Hearing conducted before Justice Jagmohan Bansal
The Parties' Positions
The petitioners argued that the ART Act, 2021, cannot be applied retroactively to invalidate a medical procedure initiated and completed under prior lawful conditions. They emphasized that the embryos were created before the Act’s enforcement and that their reliance on the then-existing legal framework must be protected.
The respondents did not dispute the factual or legal basis of the petitioners’ claim but sought an undertaking from the petitioners to indemnify Respondent No.3 (the Union of India) against any potential health risks arising from the procedure.
Relief Sought
The petitioners sought a direction to the respondents to permit Petitioner No.1 to undergo embryo transfer using the three remaining embryos created on 17.12.2019, and to allow the hospital to proceed with the treatment without legal impediment.
The Legal Issue
The central question was whether the age restriction under the ART Act, 2021, which prohibits ART for women above 50 years, applies retroactively to embryos lawfully created before the Act came into force.
Arguments Presented
For the Petitioner
Learned counsel for the petitioners relied on the judgment of this Court in Sarbjit Kaur and another v. State of Punjab and others dated 22.01.2026, which held that the ART Act, 2021, does not invalidate procedures initiated under prior lawful conditions. The petitioners were on even stronger footing because they were below the age limit at the time of embryo creation, and the embryos were lawfully stored. They argued that retroactive application would violate the principle of legitimate expectation and the right to reproductive autonomy under Article 21 of the Constitution.
For the Respondent
The respondents did not contest the applicability of the Sarbjit Kaur precedent. However, they sought an undertaking from the petitioners indemnifying Respondent No.3 against any medical complications arising from the procedure, citing potential liability under public health law.
The Court's Analysis
The Court examined the temporal scope of the ART Act, 2021, and found no express provision for retroactive application. The Court emphasized that laws affecting fundamental rights, particularly those concerning bodily autonomy and reproductive choice, must be interpreted strictly and prospectively unless a clear legislative intent to the contrary is expressed.
"The Act regulates future conduct; it does not nullify rights lawfully acquired under the regime that existed at the time of embryo creation."
The Court noted that the petitioners acted in good faith, underwent a lawful medical procedure, and stored embryos in compliance with prevailing standards. To deny them the right to proceed now, merely because they have aged beyond the statutory limit, would amount to an arbitrary deprivation of their reproductive rights.
The Court also distinguished the present case from hypothetical scenarios involving new ART cycles initiated after 2022, clarifying that the ruling applies only to pre-existing, lawfully created embryos.
The Verdict
The petition was allowed. The Court directed the petitioners to furnish an undertaking before Respondent No.3 (Union of India) indemnifying against any medical injury arising from the embryo transfer. Respondent No.4, Jindal IVF and Sant Memorial Nursing Home, is permitted to proceed with the embryo transfer using the three embryos created on 17.12.2019. All pending miscellaneous applications are disposed of.
What This Means For Similar Cases
Retroactive Application of ART Regulations Is Invalid
- Practitioners may now argue that any ART regulation enacted after embryo creation cannot invalidate pre-existing lawful medical arrangements
- Clinics must honor storage agreements and treatment plans initiated before statutory restrictions took effect
- Patients who created embryos before age limits were imposed retain the right to use them, regardless of current age
Reproductive Autonomy Is Protected Under Article 21
- The judgment reinforces that reproductive choices made under lawful conditions are protected by the right to life and personal liberty
- Courts will not permit statutory changes to nullify reliance interests without explicit retroactive language
- Medical institutions must assess eligibility based on the legal framework in force at the time of treatment initiation, not at the time of procedure
Indemnity Undertakings Are Permissible but Not Mandatory
- While courts may permit indemnity undertakings as a precaution, they cannot be used as a condition to deny a fundamental right
- Such undertakings must be reasonable, non-coercive, and limited to liability arising from the procedure itself
- Refusal to accept a reasonable undertaking cannot be grounds to block treatment
