Union Opposes Trans Man's Plea To Preserve Eggs; Says ART Act Does Not Cover Transgender Persons

The Union Government has told the Kerala High Court that a trans man cannot seek the benefit of assisted reproductive technologies under the Assisted Reproductive Technology Regulation Act 2021, asserting that transgender persons are outside the statutory framework of the law. The stand was taken in a counter affidavit filed in response to a writ petition by a 28-year-old person, assigned female at birth and identifying as a man, seeking permission to cryopreserve his eggs before undergoing gender-affirming surgery.

The Centre argued that the ART Act permits ART procedures only for a “commissioning couple” (defined strictly as a married man and woman) or for a single woman, and expressly excludes single men and transgender persons from eligibility. Cryopreservation of oocytes, it said, is an ART service that cannot be made available to a trans man.

The affidavit stated that Parliament consciously restricted ART services to these categories after extensive expert consultations and deliberations in Parliamentary committees. The exclusion of transgender persons, the Centre said, was shaped by factors such as the best interests of the child, Indian social structure, and legal parentage issues. The Union relied on extracts of the Parliamentary Standing Committee Report to show that demands to include LGBTQIA+ persons and live-in couples had been rejected.

The Centre also questioned the petitioner's locus standi, noting that he holds an identity card showing his gender as “male” and not “transgender” under the Transgender Persons (Protection of Rights) Act 2019. It further argued that once the petitioner undergoes hysterectomy(removal of uterus) and removal of ovaries, he cannot personally use the cryopreserved eggs. The only option available for the petitioner is to seek surrogacy. However, the petitioner cannot invoke  the Surrogacy Regulation Act 2021 as well, the affidavit pointed out. The Surrogacy Act also excludes transgender persons.

"Since the petitioner has not stated how he proposes to use the cryo-preserved gamete, assuming he is permitted to do so, the petitioner has not made out a case how he is aggrieved by the provisions of the ART Act," the Centre stated.

The Centre also pointed out that neither the Juvenile Justice (Care and Protection of Children) Act 2015 nor the Hindu Adoptions and Maintenance Act 1956 permit a transgender person to adopt a child. The affidavit filed by Vahboi Singsit, Under Secretary in the Ministry of Health and Family Welfare, also relied on the Supreme Court's judgment in Supriyo which held that queer couples do not have the right to marry or adopt a child.

Maintaining that the question of allowing transgender persons to avail ART services is a policy decision, the Centre argued that judicial interference in such a matter is undesirable, as it is for the domain experts to decide the issue, considering the impact on the welfare of children.

The petitioner has not completed his sex reassignment surgery and has only undergone breast removal surgery in 2023. He submitted that he wants to cryopreserve his eggs before his sex reassignment surgery.

In his writ petition, the petitioner submitted that transgender men can also experience pregnancy. It was submitted that denial of permission to egg cryopreservation amounts to a denial of reproductive choice, thus violating his right to reproduction under Article 21 of the Constitution.

He submitted that there is no absolute restriction on undergoing the fertilisation process and thus he must be allowed to cryopreserve his eggs. He further contended that denying this permission would be a violation of his right to access healthcare, which is protected under Article 21 of the Constitution as well as the Transgender Persons Protection Act, 2019. Additionally, he stated that the Transgender Persons Protection of Rights Rules, 2020, prohibits discrimination.

Case Title: Hari Devageeth v Union of India

Case No: WP(C) 5306/2025