Kerala High Court Allows Transgender Man To Preserve His Eggs

The Kerala High Court on Friday (May 15) allowed a transgender man to cryopreserve his eggs by permitting him to approach an ART bank of his choice.The ART bank will take steps to retrieve the oocytes of the petitioner and cryopreserve the same in order to utilise it for reproduction at a later stage in life.Justice Sobha Annamma Eapen noted that the petitioner is a person, who was assigned female at birth but identifies as a man, and that he had only undergone breast removal but not sex-reassignment surgery. Since the petitioner in the present case had female reproductive organs intact, the Court was of the opinion that he can opt for retrieval of oocytes:"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 development comes in a plea preferred by the transgender man against a private hospital's refusal to cryopreserve his eggs on the ground that transgender persons are outside the statutory framework of the Assisted Reproductive Technology Regulation Act, 2021.The Court, however, left open the challenge to the constitutionality of Section 21(g) of Assisted Reproductive Technology Regulation Act, 2021. As per this provision, 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."The petitioner raised a challenge in the writ petition that the transgenders are excluded from the ART Act. There is no challenge to the definition of 'woman' as well as retrieval and cryopreservation under the ART Act. Unless there is a challenge to the definition of 'woman' under Section 2(1)(u) of the ART Act, the statutory provisions cannot be struck down; and the petitioner cannot claim for striking down Section 21(g) of the ART Act, stating that it excludes transgenders from the purview of the Act, and claim that Section 21(g) of the ART Act is violative of Articles 14, 15 and 21 of the Constitution of India as it stands now. Since there is no proper challenge put forth by the petitioner in the writ petition, this Court is not inclined to decide on the issue regarding the constitutional validity of Section 21(g) of the ART Act; and it is thus left open, leaving the right of the petitioner to challenge the same in a properly instituted writ petition," the Court observed.Senior Advocate Anand Grover had appeared on behalf of the petitioner in the case. The Court also heard the arguments by the Central Government's counsel before reserving the verdict in the plea.The petitioner before the Court was a person assigned female at birth but identifying as a man. After KIMS Hospital, Thiruvananthapuram denied him permission, he came before the High Court seeking relief.In his plea, the petitioner had stated that he had not completed sex re-assignment surgery but had only under breast removal surgery. He had urged that even transmen can experience pregnancy and therefore, his wish was to cryopreserve his eggs before his sex reassignment surgery.It was stated that denying permission to egg cryopreservation amounts to a denial of reproductive choice, thus violating his fundamental right to reproduction under Article 21 of the Constitution.His argument was that there is no absolute restriction on undergoing the fertilisation process and therefore, 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 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.The Centre argued that the Act only permits ART procedures for “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. It was, thus, contended that cryopreservation of oocytes was an ART service that cannot be made available to a trans man.In its counter affidavit, the Centre argued that once the petitioner undergoes hysterectomy (removal of uterus) and removal of ovaries, he cannot personally use the cryopreserved eggs and his only option would be to seek surrogacy. However, since the Surrogacy Act also excludes transgender persons, the petitioner cannot invoke the Surrogacy Regulation Act, 2021 either, the affidavit pointed out. It was also submitted that the legislative framework under the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Hindu Adoptions and Maintenance Act, 1956 do not permit transpersons to adopt a child. Maintaining that the question of allowing transgender persons to avail ART services ...

Kerala High Court Allows Transgender Man To Preserve His Eggs

K. Salma Jennath

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Kerala High Court Allows Transgender Man To Preserve His Eggs

K. Salma Jennath

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