Introduction
The Kerala High Court has allowed a transgender man to cryopreserve his eggs by permitting him to approach an Assisted Reproductive Technology (ART) bank of his choice. The Court directed that the petitioner’s oocytes be retrieved and cryopreserved for future reproductive use.
The case arose after a private hospital refused to provide the service on the ground that transgender persons are not covered under the Assisted Reproductive Technology (Regulation) Act, 2021.
Legal Issue
The primary issue before the Court was whether a transgender man could access egg cryopreservation services despite the statutory framework under the Assisted Reproductive Technology (Regulation) Act, 2021 allegedly excluding transgender persons from eligibility.
The Court also considered the petitioner’s claim that denial of cryopreservation violated his fundamental rights relating to reproductive autonomy, healthcare and equality.
Background
The petitioner, assigned female at birth but identifying as a man, approached the High Court after KIMS Hospital in Thiruvananthapuram denied permission to cryopreserve his eggs.
The petitioner informed the Court that he had undergone breast removal surgery but had not completed sex reassignment surgery. He argued that transgender men can experience pregnancy and therefore sought preservation of his eggs before undergoing further gender-affirming procedures.
It was contended that refusal to permit cryopreservation violated his reproductive choice and right to reproduction protected under Article 21 of the Constitution. The petitioner also relied upon protections available under the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020, which prohibit discrimination.
The Central Government opposed the plea, arguing that the ART Act permits services only for a “commissioning couple” consisting of a married man and woman or for a single woman, thereby excluding transgender persons and single men.
The Centre further argued that after hysterectomy and removal of ovaries, the petitioner could only use the preserved eggs through surrogacy, which is also unavailable to transgender persons under the Surrogacy (Regulation) Act, 2021.
Court’s Decision
Justice Sobha Annamma Eapen allowed the transgender man to cryopreserve his eggs and permitted him to approach an ART bank of his choice for retrieval and preservation of oocytes.
The Court directed the ART bank to undertake the necessary procedures so that the petitioner could preserve the eggs for future reproductive use.
However, the Court left open the constitutional challenge to Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021. The provision limits ART services to women between 21 and 50 years and men between 21 and 55 years.
A detailed judgment explaining the reasoning is awaited.
Conclusion
The Kerala High Court’s decision marks an important development concerning reproductive rights and access to healthcare for transgender persons. By permitting egg cryopreservation, the Court recognised the petitioner’s reproductive autonomy despite objections raised under the existing statutory framework governing ART and surrogacy services.
The constitutional validity of the restrictive provisions under the ART Act remains open for further adjudication.
Case Name
Hari Devageeth v. Union of India
