Case: Hari Devageeth v. Union of India (Kerala High Court, 2026)
The petitioner, a trans man who was assigned female at birth, had undergone hormone therapy and breast removal surgery but had not completed full gender reassignment surgery. Before undergoing hysterectomy and removal of ovaries, the petitioner sought cryopreservation of oocytes (egg freezing) for future reproductive use. The fertility clinic refused the request on the ground that the Assisted Reproductive Technology (Regulation) Act, 2021 (“ART Act”) permits ART services only to a “woman” or a “commissioning couple” and does not expressly provide ART services to transgender persons. The petitioner challenged this refusal before the Kerala High Court, arguing that denial of fertility preservation violated Articles 14, 15 and 21 of the Constitution and discriminated against transgender persons on the basis of gender identity.
The Court examined the provisions of the Transgender Persons (Protection of Rights) Act, 2019 and the ART Act, 2021. It noted that the petitioner had legally changed gender identity to “male” under Section 7 of the Transgender Act, but biologically retained reproductive organs including the uterus and ovaries. The Court observed that the ART Act does not expressly include or exclude transgender persons. However, the statute uses terms such as “woman,” “female,” and “commissioning couple.” The Court distinguished between “gender identity” and “biological sex,” holding that ART services are biologically linked to reproductive capability. The Court further held that the petitioner had not properly challenged the statutory definition of “woman” under the ART Act. Therefore, the constitutional validity of the provision could not be conclusively decided in the present petition. The judgment also discussed important precedents relating to transgender rights, privacy, and reproductive autonomy.
The Court further acknowledged that transgender persons cannot be denied constitutional protection merely because statutory frameworks have not evolved to expressly recognize their reproductive realities. The judgment highlighted the growing need for legislative clarity and inclusive interpretation in reproductive healthcare laws. It observed that evolving notions of gender identity, bodily autonomy, and reproductive choice require sensitive judicial consideration, particularly in cases where denial of medical assistance may adversely affect the dignity, mental well-being, and decisional autonomy of transgender individuals.
The Court declined to strike down Section 21(g) of the ART Act or issue a broader declaration regarding the constitutional validity of the provision. However, it left open the petitioner’s right to challenge the statutory provisions in an appropriately instituted proceeding.
The judgment is significant for recognising that biological reproductive capacity and gender identity are distinct concepts in law and medicine. While the Court did not conclusively rule on the inclusion of transgender persons under the ART framework, it acknowledged the importance of reproductive autonomy and opened judicial discussion on fertility preservation rights for transgender individuals in India.
Written by Adv. K. Sri Hamsa
