‘Right to life includes reproduction’: Kerala High Court allows transgender man to freeze eggs after private clinic’s refusal

Biological sex different from gender identity

• At the outset, the Kerala High Court declined to adjudicate on the constitutional validity of Section 21(g) of the ART Act due to the absence of a specific challenge to the definition of “woman” under the statute.
• Section 21 of the Act deals with the general duties of assisted reproductive technology clinics and banks. Clause 21(g) says that the clinics shall apply assisted reproductive technology services to a woman above the age of 21 years and below the age of 50 years and to a man above the age of 21 years and below the age of 55 years.
• It observed that the ‘woman’ in Section 2(1)(u) must be a biological woman to avail ART services. The Kerala High Court further noted that the ART Act does not define who all are included within the term “woman”.
• The court remarked that biological sex is different from gender identity, where sex denotes biological attributes, gender encompasses identity, expression and social experience.

• Sex also refers to “biological attributes” such as chromosomes, hormones and anatomy, while gender refers to a person’s “deeply felt internal identity and social role”, it added.
• The Kerala High Court asserted that the uterus and ovaries of the petitioner were intact and that there is no restriction for the petitioner to conceive naturally, which cannot be insisted since the self-perceived gender identity of the petitioner is male.
• The court further emphasised that it is the bounden duty of the appropriate government to give proper awareness to the transgender persons regarding preservation of their oocytes or sperms, before they start treatment for gender change.
• Holding that the petitioner has the right to live with dignity and the reproductive rights are also guaranteed under Article 21, the Kerala High Court directed him to approach an ART bank, which shall retrieve the oocytes of the petitioner and cryopreserve the same to use them for reproduction at a later stage in life.

Plea for cryopreservation of oocytes

The petitioner had sought permission to cryopreserve his oocytes before undergoing complete gender reassignment surgery. He had undergone hormone therapy and breast removal surgery but retained his uterus and ovaries.

The petitioner approached a private fertility centre for the freezing and storage of eggs. However, the clinic refused, stating that the ART Act and Rules did not expressly permit cryopreservation for transgender persons.

Feeling aggrieved, the petitioner moved the Kerala High Court, alleging that such a gender-based classification is arbitrary and interferes with the choice of reproduction.

Before the court, the Union government argued that ART services are statutorily restricted to “commissioning couples” and “women” under the ART Act and that transgender persons were consciously excluded from the framework by Parliament.

It also contended that after obtaining a gender certificate as “male” under the Transgender Persons (Protection of Rights) Act, the petitioner could not claim benefits meant for a “woman.”

The petitioner argued before the Kerala High Court that denying fertility preservation based on gender identity violated Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex) and 21 (protection of life and personal liberty) of the Constitution.

Reliance was placed on the Supreme Court’s decisions in National Legal Services Authority v Union of India and Supriyo v Union of India, as well as the Centre’s Standard Operating Procedures (SOP) on transgender healthcare, which recognise fertility preservation options for transgender persons.

It was argued that, being a transgender person, the petitioner is entitled to preserve his oocytes, and that it is a misconception to treat him solely as a male and not as a transgender person.

It was further argued that the ART Act must be interpreted to include the broad definition of transgender person.