Kerala High Court allows transgender man to preserve his eggs

The Kerala High Court on Friday granted relief to a transgender man who challenged a private fertility centre's refusal to provide him services to freeze and store his eggs [Hari Devageeth v Union of India & ors]..The private fertility centre had refused him such services on the ground that the Assisted Reproductive Technology (ART) Act, 2021, did not contain any provisions to permit the extension of such services for transgender persons.Justice Shoba Annamma Eapen today permitted the petitioner to approach any ART Bank of his choice for the cryopreservation of his eggs. The Court directed that the bank so approached shall take necessary steps to retrieve and preserve the petitioner's eggs so that it can be used for reproduction at a later stage in his life."As long as the reproductive organs are intact, there is nothing wrong in the petitioner seeking retrieval of oocytes. The petitioner, biologically being an adult female person, has got the right to seek retrieval of oocytes, denial of which will amount to violation of right to life that includes right to reproduction, under Article 21 of the Constitution of India," the Court added.However, the Court left open the petitioner's challenge to the constitutional validity of Section 21 of the ART Act. The petition was partly allowed on these terms. .The Court was dealing with a petition filed by Hari Devageeth, a 28-year-old transgender person who was assigned female gender at birth but presently identifies himself as a male.He submitted that he had undergone a breast removal surgery and that his gender affirming surgery was pending. He added that preservation his eggs before the next stage of his transition was essential to safeguard his future reproductive choices.He thus, approached KIMS Fertility Centre in Thiruvananthapuram seeking egg cryopreservation. However, despite medical reports showing no abnormalities, the centre allegedly declined his request to freeze and store his eggs solely on the basis of his gender identity.Aggrieved, Devageeth moved before the High Court challenging this decision..He contended that the hospital refused him services by citing the ART Act, 2021 and its Rules, which did not contain any provisions enabling cryopreservation services for transgender persons.It was pointed out that under Section 21 of the ART Act, assisted reproductive services were allowed only for a 'woman' or a 'commissioning couple', thereby excluding transgender persons from its scope.He argued that this classification was discriminatory as it effectively deprived transgender people of their right to reproduction, bodily autonomy and healthcare under Article 14 (right to equality) and Article 15 (prohibits State from discriminating on the basis of religion, race, caste, sex, or place of birth) of the Indian Constitution..He added that such exclusion of transgender persons also violates their fundamental rights under Article 21 of the Constitution, which included the right to life, personal liberty and reproductive choices.The petitioner further contended that restricting access to such medical procedures violated the Transgender Persons (Protection of Rights) Act, 2019, as well as the Transgender Persons (Protection of Rights) Rules, 2020, which explicitly prohibit discrimination in medical services based on gender identity.He also pointed out that the 2015 Transgender Policy of Kerala recognised the right of transgender individuals to access healthcare without any discrimination.The petitioner had urged the Court to direct the government authorities and the hospital to permit the preservation of his eggs, while also seeking a declaration that Section 21 of the ART Act is unconstitutional to the extent that it excluded transgender persons from its scope.The Union government had earlier countered that the ART Act intentionally limited assisted reproductive services to married couples and single women, based on a conscious policy decision taken after considering the welfare of children, the Indian family structure and social norms..Senior counsel Anand Grover along with advocates Dhanuja MS, Legith T Kottakkal and Daniel Jose appeared for petitioner Hari Devageeth.Central government counsel K Arjun Venugopal appeared for the Union government.KIMS Fertility Centre was represented by advocate G Sivasankar..[Read Judgment]