Kerala HC allows transgender man to preserve his eggs before sex reassignment surgery

Kochi: High court on Friday granted permission to a transman, who was assigned female at birth, to cryopreserve his gametes for potential future reproduction before undergoing sex reassignment surgery.Justice Shoba Annamma Eapen partly allowed the petition filed by a 28-year-old transman from Attingal, challenging the action of a private fertility centre which had denied his request to freeze his eggs on the ground that Assisted Reproductive Technology (Regulation) Act, 2021, does not contain provisions permitting the cryopreservation of gametes for transgender persons. The petitioner approached HC while undergoing treatment as part of his gender transition process. Allowing the petition, HC clarified that it was leaving open the petitioner's challenge to the constitutional validity of the provision in the ART Act that excludes transgender persons from availing ART services.During hearing, the central govt submitted that transgender persons cannot avail the benefits of assisted reproductive technology under the existing ART Act and Rules in India, and that their exclusion was made after detailed discussions and deliberations in parliamentary committees. It was further submitted that the question of whether transgender persons should be permitted to avail ART services is a matter of policy and that experts must determine the implications of such a decision, particularly from the perspective of the welfare of children born through ART.However, HC observed that the petitioner, having been assigned female at birth and being biologically an adult female, though identifying as a transman, has the right to seek retrieval of oocytes, and that denial of the same would amount to a violation of the right to life, including the right to reproduction, guaranteed under Article 21 of the Constitution of India. HC further noted that the petitioner is currently undergoing treatment for sex reassignment, including breast removal surgery. In order to complete the transition process, he is required to undergo gender-affirming surgery, including the removal of the uterus. At this stage, the petitioner has the right to avail ART services as a female, HC observed. Accordingly, it directed the petitioner to approach an ART bank of his choice, following which the ART bank concerned shall take necessary steps to retrieve and cryopreserve the petitioner's oocytes for use in reproduction at a later stage in life.HC also noted that no awareness or counselling had been provided to the petitioner by any govt authority regarding the possibility of availing ART services before undergoing the treatment. The bench therefore observed that it would be appropriate for the central govt to consider the necessity of formulating a health manual relating to sex reassignment surgery in accordance with the guidelines issued by the World Professional Association for Transgender Health.