In a landmark decision championing reproductive autonomy, the Kerala High Court has permitted a transgender man to retrieve and cryopreserve his eggs before undergoing complete gender reassignment surgery. Delivering the order on May 15, Justice Shoba Annamma Eapen ruled that denying these services to a biologically female individual violates the fundamental right to life and reproduction guaranteed under Article 21 of the Indian Constitution.
The ruling addresses a crucial gap between statutory language and the lived realities of transgender individuals seeking to preserve their biological lineage before medical transitions.
The legal battle began after the petitioner, a transgender man, was turned away by a private fertility centre. Having already undergone hormone therapy and breast removal surgery, the petitioner had retained his uterus and ovaries. He sought to freeze his oocytes (eggs) to preserve his option to have children later in life.
However, the private clinic refused the procedure, claiming that the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act) and its accompanying rules do not explicitly permit cryopreservation for transgender individuals.
Agrieved by the refusal, the petitioner moved the Kerala High Court, arguing that a rigid, gender-based denial of fertility services is arbitrary and infringes upon personal reproductive choice.
During the proceedings, the Union government opposed the plea. Government counsel argued that the ART Act strictly limits fertility services to “commissioning couples” and “women.” The Union government further contended that because the petitioner had obtained an official gender certificate designating him as “male” under the Transgender Persons (Protection of Rights) Act, he could no longer claim statutory benefits reserved for a “woman.”
In response, the petitioner argued that treating him strictly as a male—without acknowledging his transgender status—was a legal misconception. His legal team asserted that denying fertility preservation violated:
- Article 14 (Equality before law)
- Article 15 (Prohibition of discrimination on grounds of sex)
- Article 21 (Protection of life and personal liberty)
To support their case, the petitioner relied on landmark Supreme Court precedents, including National Legal Services Authority (NALSA) v. Union of India and Supriyo v. Union of India, alongside the Central Government’s own Standard Operating Procedures (SOP) on transgender healthcare, which recognize fertility preservation as a valid healthcare option.
While the High Court declined to rule on the constitutional validity of Section 21(g) of the ART Act because it was not directly challenged, Justice Eapen meticulously dismantled the legal barriers keeping the petitioner from accessing healthcare.
The court noted that Section 21(g) of the Act regulates services for women aged 21 to 50 and men aged 21 to 55, and observed that “woman” under Section 2(1)(u) must mean a biological woman to avail of assisted reproductive technologies. Crucially, the court highlighted that biological sex and gender identity are entirely distinct concepts.
“Biological sex denotes biological attributes,” such as chromosomes, hormones, and anatomy, the court explained, while gender encompasses a person’s “deeply felt internal identity and social role.”
Because the petitioner’s biological uterus and ovaries remain fully intact, the court concluded he has the biological capacity to seek egg retrieval. Furthermore, the court recognized that while the petitioner could technically conceive naturally, the state cannot insist on natural conception since his self-perceived gender identity is male.
“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 held.
With this ruling, the Kerala High Court directed the petitioner to approach an ART bank, which must retrieve and cryopreserve his oocytes so they can be used for reproduction at a later stage in his life.
In a broader directive aimed at systemic reform, the High Court emphasized that the government has a “bounden duty” to raise awareness among transgender individuals regarding the preservation of their oocytes or sperm before they begin medical treatments for gender reassignment.
