Judgement Summary: Kerala High Court rules trans man cannot be denied right to freeze his eggs before gender reaffirmation surgery

ON MAY 15, the Kerala High Court in Hari Devageeth v. Union of India allowed the inclusion of a transgender person for the purposes of cryopreservation of his gametes under the Assistive Reproductive Technologies (Regulation) Act, 2021 (‘ART Act’).

The case arose when twenty-eight year old Hari Devageeth, a transman, approached an ART clinic for freezing and storing his egg before the completion of his Gender Reaffirming Surgery and was denied service. The clinic noted that the no provision under the ART Act laid down the cryopreservation of gametes to also extend for transgender persons. It noted that the Act extended benefits only to definitive distinct categories of a ‘commissioning couple’ and ‘woman’. 

What both parties argued

Senior Advocate Anand Grover, appearing for the petitioner, argued that the petitioner, even after reaffirming his gender as a man, must be recognised as a transgender person within the wide-ranging expanse of the term in accordance with the law. He noted that the ART Act was beneficial in nature. And so, he emphasised the imperative need to interpret the statute in adherence with the constitutional guarantees as it addressed the various modalities of facilitating parenthood by ‘freezing gametes, embryos, embryonic tissues’. 

He placed reliance on Section 45 of the ART Act which lays down that the ‘provisions of the ART Act shall be in addition to and not in derogation of any other laws that are in time being in force.’ Sections 7(3) and 3(d) of the Transgenders Person (Protection of Rights) Act, 2019, he noted, prohibit any form of discrimination to be meted to a transgender person either by a person or an establishment and prohibits any ‘denial, discontinuation of or unfair treatment’ in providing any healthcare services respectively. Building on this, he submitted that the ART services would come well within the expanse of the term ‘healthcare services’. He questioned if the petitioner would be denied treatment for cervical cancer, a cancer which finds increasing prevalence amongst women, solely because of the petitioner’s trans identity.

Additionally, Grover submitted that Section 2(1)(u) of the ART Act which defines the term ‘woman’ contained no coherent rationale for excluding a transgender person, especially one who possessed the reproductive organs of a woman. He relied on Supriyo@Supriya Chakraborty v. Union of India (2023) to argue that since the Supreme Court had acknowledged a transgender person’s right to marry a person of the opposite sex irrespective of being a cisgender or a transgender person, married transgender couples would be covered under the term ‘commissioning couple’ of the Act. He noted that the petitioner, being unmarried, would still be covered under the term ‘patients’ provided in Section 2(1)(n).

In his submissions, Grover put forth the harrowing feeling that the petitioner had to endure due to menstruation as he is still in the process of a complete transition. If the benefit of cryopreserving his gamete was withdrawn as an alternative, it would unavoidably leave him with the recourse of engaging in a sexual intercourse with a male person to carry the pregnancy to a full term, all of which would only exacerbate the ordeal.

The Union of India, represented by Advocate K.A. Venugopal, submitted that while the right to natural procreation was recognised as a fundamental right, the right to avail services under the ART Act was merely a statutory right. Venugopal urged the Court to undertake a literal interpretation of the state contesting the inclusion of a ‘transman’ or a ‘man’ within the ambit of the term ‘woman’ under Section 2(1)(u) of the ART Act. He cautioned the Court against reading down the provisions of the ART Act, since no challenge had been posed to the vires of such statutory provisions. He noted that since the petitioner had changed his gender to ‘man’, he was no longer a transgender person under the 2019 Act’s definition.