A man (trans man),s Right to seek permission to cryopreserve his eggs and the verdict ?

 

A man (trans man),s  Right to seek permission to cryopreserve his eggs and the verdict ?

1. Facts & statutory background

Facts

In the case titled Hari Devageeth v. Union of India (WP(C) No. 5306/2025), a 28-year-old individual, assigned female at birth and self-identifying as a man (trans man), has petitioned the Kerala High Court seeking permission to cryopreserve his eggs before undergoing gender-affirming surgery. According to the news report, the petitioner has already undergone breast removal in 2023 but not yet full sex reassignment. He argues that transgender men can become pregnant and thus preservation of eggs is part of his reproductive autonomy. 

The Union Government (via counter-affidavit) takes the position that the ART Act only permits assisted reproductive technology services for (i) a “commissioning couple” (defined in the Act as a married man and woman) or (ii) a single woman; and explicitly does not extend eligibility to single men, transgender persons, or trans men seeking cryopreservation. The affidavit also points out that once the petitioner undergoes hysterectomy/ovary removal, he cannot personally use the cryopreserved eggs, and that the alternate avenue (surrogacy) is also statutorily barred to transgender persons under the Surrogacy ( Regulation) Act, 2021. The government emphasises that Parliament, via the Standing Committee report, consciously excluded transgender and LGBTQIA+ persons after deliberations, citing child- welfare, Indian social structure and parentage issues.

Statutory framework – ART Act, 2021

Key provisions of the ART Act relevant to the issue include:

The Act regulates assisted reproductive technologies (ART) clinics and banks.

“Commissioning couple” is defined under Section 2(1)(j) as “a legally married man and woman” who intend to have a child through ART, or “a woman who intends to have a child by using her gamete and the gamete of the man who intends to be the father of the child and where such woman is living as wife of that man”.

Single woman (i.e., a woman alone) is eligible under the Act.

The Act does not expressly mention transgender persons or trans men as a separate category of eligible commissioning entity.

The Act requires registration of clinics, traceability of gametes/embryos, safeguards for child welfare, counselling, informed consent, etc.

Cryopreservation of oocytes/gametes is covered as part of services offered by ART banks/clinics under the Act.

Thus, on its face, the statutory scheme contemplates two classes only: married heterosexual couples, and single women. Trans men or transgender persons are not referenced. The government’s position is that the legislative exclusion is deliberate. The petition raises constitutional challenges.

2. Legal issues posed

The petition throws up multiple intersectional issues:

Right to reproductive autonomy: Does the petitioner’s right to preserve his eggs before gender-affirming surgery flow from the fundamental right to life and personal liberty (Article 21) and right to health (Article 21) under the Constitution of India? If so, can the state deny such preservation on the basis of legislative exclusion?

Equality and non-discrimination (Article 14 and Article 15): Does the exclusion of transgender persons or trans men from eligibility under the ART Act amount to discrimination on the basis of gender identity or sex? Are transgender persons a “protected class” under Article 15?

Statutory interpretation of the ART Act: Does the wording of the Act permit interpretation to include transgender persons (especially trans men), or is the legislative exclusion explicit (or implied)? How should the definition of “commissioning couple” or “single woman” be interpreted in light of the law on transgender rights?

Parentage, welfare of child and policy considerations: What are the welfare considerations stated by the government (child welfare, Indian social structure, legal parentage issues)? How have courts treated such policy arguments when constitutional rights are engaged?

Intersection with the Transgender Persons (Protection of Rights) Act, 2019 (TPA 2019): Does the TPA 2019 and its rules (2020) obligate the state to ensure non-discrimination and equal access to healthcare, including reproductive healthcare, for transgender persons? Is denial of ART services a contravention of the protections under TPA 2019?

Precedential landscape: What do the past judgments of the Supreme Court and High Courts say about transgender rights (especially parenthood, ART access) and reproductive technology laws (if any)? How do they guide the KHC?

Thus, the legal stakes are high: access to reproductive technology, identity rights, gender justice, statutory interpretation, and constitutional safeguards all converge.

3. Government’s stand & the Kerala High Court’s intervention

Government’s stand

The Union Government, through its affidavit, asserts that Parliament after expert deliberations deliberately restricted eligibility under the ART Act to “commissioning couple” (married man and woman) and single women. The exclusion of transgender persons and single men (including trans men) is deliberate. Live Law

The government further contends the petitioner’s locus is doubtful, noting his gender identity card records “male” (and not transgender). Live Law

It argues that if the petitioner undergoes hysterectomy/ovary removal he cannot personally use the cryopreserved gametes; and in any case trans persons are precluded from surrogacy under the Surrogacy Act. Live Law

The government treats the question of extending ART services to transgender persons as a policy matter best left to Parliament/experts rather than courts interfering. Live Law

It invokes the 2018 decision of Navtej Singh Jhajj v. Union of India and companion LGBTQ-rights cases (via the “Supriyo” reference) to buttress that the right to marriage/adoption for queer couples is not yet available, and thereby supports exclusion of trans persons in ART and surrogacy. Live Law

Kerala High Court’s involvement

The KHC has admitted the petition (WP(C) No. 5306/2025) and will now examine the constitutional claim and statutory interpretation issue raised by the petitioner. The High Court now has to consider whether the petitioner is entitled to access egg cryopreservation under the ART Act despite the government’s stand. The reported news piece does not yet indicate final judgment, but raises deep questions. Live Law

Of immediate importance: the High Court will need to weigh legislative exclusion against fundamental rights and interpret the ART Act in light of the Transgender Persons (Protection of Rights) Act, 2019 (“TPA 2019”). The court will also assess whether exclusion of transgender persons rationally relates to legitimate state aim (child welfare, parentage) or is unconstitutional discrimination.

4. Relevant jurisprudence

Here are key judgments and legal authorities which will likely inform the High Court’s analysis:

Transgender rights and constitutional equality

National Legal Services Authority v. Union of India (2014) 5 SCC 438: A landmark ruling recognising that transgender persons have the right to self-identify their gender; discrimination on the basis of gender identity violates Articles 14, 15, 19 and 21. The Court held that transgender persons are socially and educationally backward and entitled to reservation and affirmative action.

Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India (2017) 10 SCC 1: Right to privacy is a fundamental right, which extends to gender identity, sexual orientation and personal autonomy (including decisions about one’s body).