Introduction
The Union Government has firmly opposed a transgender man’s plea in the Kerala High Court to preserve his eggs, arguing that the Assisted Reproductive Technology (ART) Regulation Act of 2021 does not protect transgender persons. The controversy centers on whether ART services, including oocyte cryopreservation, should be available to those outside traditional gender categories.
Facts of the Case
A 28-year-old person, assigned female at birth but identifying as male, petitioned the Kerala High Court for permission to cryopreserve his eggs before undergoing further gender-affirming surgery. He has already had breast removal surgery in 2023 but has not completed sex reassignment. He approached a fertility clinic after being denied egg-freezing services on the basis of his gender identity.
In his petition, he argued that transgender men are capable of pregnancy and that refusing to preserve his eggs denies him reproductive choice, a violation of his fundamental rights under Article 21 of the Constitution. He also invoked the Transgender Persons (Protection of Rights) Act, 2019, and its rules (2020), which prohibit discrimination in medical care based on gender identity.
What the Court (or Rather, the Union) Says
In its counter-affidavit, the Union Government rejected the plea, stating that the ART Act permits assisted reproductive technology only for “commissioning couples”, limited to married men and women, or for single women. According to the government, the law excludes single men and transgender persons, making them ineligible for ART services like cryopreservation of oocytes.
The government defended this exclusion by pointing out that Parliament deliberately designed the ART Act this way after expert consultations and parliamentary committee deliberations. Their argument weighs concerns such as the welfare of the child, social structure in India, and legal parentage. The Union cited a Parliamentary Standing Committee report showing that attempts to expand eligibility to LGBTQIA+ people and live-in couples were rejected.
The Union also challenged the petitioner’s standing because his identity card lists him as “male,” not “transgender,” under the Transgender Persons (Protection of Rights) Act. They added that once he undergoes removal of his uterus and ovaries, he cannot use the stored eggs himself, his only recourse would be surrogacy. But surrogacy is also blocked: the Surrogacy (Regulation) Act, 2021, excludes transgender persons, according to the government.
On top of that, the government said adoption is not an option either, citing that existing adoption laws (such as the Juvenile Justice Act, 2015, and the Hindu Adoptions and Maintenance Act, 1956) do not authorize adoption by transgender persons. They also leaned on the Supreme Court’s “Supriyo” judgment to argue that queer couples lack the legal right to adopt or marry, reinforcing their view that the issue is broader than fertility access.
Ultimately, the Union stated that changing the ART Act to include transgender people is a policy decision, and not something for courts to decide.
Implications
If the court sides with the petitioner, it could set a powerful precedent for reproductive rights of transgender individuals. It would challenge the ART Act’s current structure and potentially open doors for more inclusive fertility preservation. That would help affirm that transgender men also deserve medical autonomy over their reproductive futures.
On the other hand, the government’s strong resistance signals the deeply rooted institutional barriers. Their argument leans heavily on legislative intent, parliamentary debates, and existing social-legal frameworks, suggesting that reform via court may be difficult.
If the court defers to the government, the ruling would underscore that parity in reproductive technologies remains contingent on future policy changes rather than judicial mandate. It may prompt advocacy for legislative reform, calling on Parliament and regulatory bodies to explicitly include transgender persons in ART law.
