Transgender Persons Must Be Made Aware Of Fertility Preservation Options Before Gender Reassignment Surgery: Kerala High Court

Justice Sobha Annamma Eapen remarked:

“It is the bounden duty of the appropriate Government to give proper awareness to the transgender persons regarding preservation of their oocytes or sperms, before they start treatment for change in their gender.”

The Court also highlighted the need for bringing about a Health Manual in accordance with World Professional Association for Transgender Health guidelines and Section 15(d) of the Transgender Act.

It was noted that the Ministry of Health, Family and Welfare had brought out a Standard Operating Procedure, which mentions that transgender persons wishing for Total Abdominal Hysterectomy and salpingoopherectomy must be informed about the option of fertility preservation and only then an informed decision for surgery may be taken.

“A duty is cast upon the Government to take measures to bring out a Health Manual related to sex reassignment surgery in accordance with the World Professional Association for Transgender Health guidelines…However, no guidelines have been framed by the Government so far though there is…SOP. …SOP is at the instance of the Government. They cannot, however, claim ignorance of the SOP and argue that the SOP is issued by another Department, namely MOF (Ministry of Health, Family and Welfare). The Transgender Act came into force in the year 2019 with effect from 10.01.2020. So far, the Government has not cared to issue any guidelines even after a lapse of six years, thereby placing the transgender persons in peril,” the Court added.

The Court was considering a plea preferred by a person, who was assigned female at birth but identifies as a male, seeking to cryopreserve his oocytes since he has only undergone breast removal surgery and not sex-change treatment.

He had also challenged the constitutionality of Section 21(g) of the Assisted Reproductive Technology Regulation Act, 2021, which provides that ART clinics are permitted to provide its services only to a woman between the ages of 21 to 50 years and a man between the ages of 21 to 55 years.

In the judgment, the Court had noted that the petitioner's female reproductive organs were intact and therefore, he can opt for retrieval of oocytes. It had permitted the petition to approach an ART bank of his choice and the ART bank is to take steps to retrieve his oocytes and cryopreserve the same in order to utilise it for reproduction at a later stage in life.

Case Title: Hari Devageeth v. Union of India

Case No: WP(C) 5306/2025

Citation: 2026 LiveLaw (Ker) 268

Counsel for the petitioner: Anand Grover (Sr.), Dhanuja M.S., Legith T. Kottakkal, Daniel Jose, Tripthi Tandon

Counsel for the respondents: K. Arjun Venugopal - Central Government Counsel, G. Sivasankar

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