Kerala HC Directs ART Bank to Cryopreserve Transman's Oocytes, Leaves Constitutional Challenge to Section 21(g) Open
A transman with intact reproductive organs was denied oocyte cryopreservation by an ART clinic citing the ART Act; the Kerala High Court ordered an ART bank to proceed, grounding the right in Article 21.
The High Court of Kerala, in a judgment delivered on 15 May 2026, directed that Hari Devageeth, a 28-year-old transman, who was female at birth and retains intact reproductive organs, be permitted to cryopreserve his oocytes at an Assisted Reproductive Technology (ART) bank of his choice before completing gender-affirming surgery. Justice Shoba Annamma Eapen, sitting singly at Ernakulam, partly allowed the writ petition after finding that the petitioner, being biologically female with a functioning uterus, possesses the right to preserve oocytes as a facet of the right to life and reproductive autonomy under Article 21 of the Constitution. The court declined to rule on the constitutional validity of Section 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021, leaving that challenge open for a properly framed petition.
The Dispute Before the Court
Hari Devageeth holds a transgender identity card issued by the District Collector, Thiruvananthapuram, dated 1 March 2023 under Section 6 of the Transgender Persons (Protection of Rights) Act, 2019. After undergoing hormonal therapy and breast removal surgery in 2023, he obtained a revised certificate on 13 September 2023 under Section 7 of the Transgender Act recording his gender as “male.” Sex reassignment surgery, including total abdominal hysterectomy, remained incomplete.
Wanting to preserve his oocytes before that surgery, the petitioner approached the fifth respondent, KIMS Fertility Centre, part of the Kerala Institute of Medical Sciences, Thiruvananthapuram, in July 2024. An ultrasonography of the abdomen and pelvis was conducted and showed no significant abnormality, confirming the uterus and ovaries were intact. When the petitioner disclosed his Section 7 certificate showing gender as “male,” the clinic refused to proceed, stating that the ART Act and the Rules framed under it contain no provision permitting cryopreservation of gametes for a transgender person.
Aggrieved, the petitioner filed WP(C) No. 5306 of 2025 seeking, among other reliefs, a declaration that Section 21 of the ART Act, in so far as it limits ART services to a “commissioning couple” or “woman,” violates Articles 14, 15 and 21 of the Constitution, and a reading down of Section 21(g) to include transmen and transwomen within the terms “man” and “woman.” A writ of mandamus was also sought directing the Union of India, the National ART and Surrogacy Board, and the State of Kerala to grant the necessary permission to the clinic.
The Statutory Framework in Contention
The ART Act, enacted in 2021, regulates assisted reproductive technology practices across the country. Section 21(g) authorises ART clinics to apply ART services to a woman above 21 years and below 50 years, and to a man above 21 years and below 55 years. The term “woman” is defined in Section 2(1)(u) as “any woman above the age of twenty-one years who approaches an assisted reproductive technology clinic or assisted reproductive technology bank for obtaining the authorised services of the clinic or bank.” A “commissioning couple” under Section 2(1)(e) means an infertile married couple. The Act does not expressly include or exclude transgender persons within either definition.
The Transgender Act, which came into force in January 2020, defines “transgender person” in Section 2(k) to include a trans-man or trans-woman “whether or not such person has undergone Sex Reassignment Surgery or hormone therapy.” The proviso to Section 7(3) of the Transgender Act states that a change in gender and the issue of a revised certificate “shall not affect the rights and entitlements of such person under this Act.” Section 3(d) prohibits denial or discontinuation of healthcare services to transgender persons, and Section 15(d) casts a duty on the appropriate Government to bring out a health manual related to sex reassignment surgery in accordance with World Professional Association for Transgender Health guidelines.
Section 45 of the ART Act provides that its provisions are “in addition to, and not in derogation of” any other law in force, including the Transgender Act.
Positions of the Parties
Senior Counsel Sri Anand Grover, appearing for the petitioner, argued that the petitioner is both a man and a transgender person in law, and that the proviso to Section 7(3) of the Transgender Act preserves all rights and entitlements of a transgender person even after a gender-change certificate is issued. He contended that the ART Act is a beneficial statute and must receive a purposive interpretation consistent with Articles 14, 15 and 21. He relied on the Supreme Court's judgment in National Legal Services Authority v. Union of India [(2014) 5 SCC 438] for the proposition that self-determination of gender identity is protected under Article 21, and on Suchita Srivastava v. Chandigarh Administration [(2009) 9 SCC 1] for the right to reproductive choices as a dimension of personal liberty. He also relied on Justice K.S. Puttaswamy v. Union of India [AIR 2017 SC 4161] for decisional autonomy in reproductive choices, and on A (Mother of X) v. State of Maharashtra [2024 INSC 371] for the proposition that the term “woman” in reproductive health legislation embraces transgender persons. The Standard Operating Procedures for Medical Treatment of Transgender Persons (Ext.P4 SOP) issued by the Ministry of Health and Family Welfare, he argued, specifically provides for fertility preservation including cryopreservation of oocytes for female-to-male transgender persons before gender-affirming surgery, and carries legally binding force as a measure under Section 15(d) of the Transgender Act.
The Central Government Counsel, Sri K. Arjun Venugopal, countered that the right to avail ART services is a statutory right, not a fundamental right, and that the literal rule of interpretation governs unambiguous statutory language. He relied on M/s. Hiralal Ratanlal v. STO [AIR 1973 SC 1034] and Prakash Nath Khanna v. CIT [(2004) 9 SCC 686] for the primacy of plain language. He argued that since the petitioner holds a Section 7 certificate recording gender as “male,” he cannot claim to be a “woman” for the purpose of ART services. He also pointed to the 129th Report of the Parliamentary Standing Committee on Health and Family Welfare (Ext.R1(a)), contending that the suggestion to bring the LGBTQ community within the ART Act was not accepted during the legislative process. He further argued that the Ext.P4 SOP is not issued under the Transgender Act, carries no statutory force, and that any conflict between the SOP and the ART Act must be resolved in favour of the Act.
The fifth respondent, KIMS Fertility Centre, argued through its counsel Sri G. Sivasankar that it is an ART clinic, not an ART bank, and is statutorily barred from undertaking cryopreservation of oocytes. Under the ART Act, collection, storage and supply of gametes is the exclusive domain of ART banks; an ART clinic is authorised only to carry out ART procedures using gametes obtained from a bank. Any deviation would attract penal consequences under Section 37 of the ART Act. The clinic also contended that the writ petition was premature because the petitioner had not approached an ART bank.
How the Court Reasoned
Justice Eapen began by identifying the precise question: whether a person who is female at birth, whose self-perceived gender identity is male, but whose uterus remains intact, can be permitted to undergo cryopreservation of oocytes under Section 21(g) of the ART Act before completing gender transition, and whether denial of that right violates Article 21.
The court noted that the definitions of “commissioning couple” and “woman” in the ART Act neither include nor exclude transgender persons. However, it declined to rule on the constitutional validity of Section 21(g) because the petitioner had not challenged the definition of “woman” under Section 2(1)(u) or the provisions governing retrieval and cryopreservation. Without a proper challenge to those provisions, the court held, it was not open to strike down or read down Section 21(g). That question was expressly left open.
Instead, the court took what it described as “a different view.” It reasoned that the term “woman” in the ART Act, read in its ordinary and dictionary sense, means an adult human female, a person who can bear offspring or produce eggs. Biological sex, the court observed, is distinct from gender identity: sex denotes biological attributes such as chromosomes, hormones and anatomy, while gender refers to a person's deeply felt internal identity and social role. The Yogyakarta Principles, the court noted, similarly distinguish gender identity from biological sex.
On the facts, the ultrasonography report (Ext.P2) confirmed that the petitioner's uterus, ovaries and fallopian tubes are intact and that there is no significant abnormality. The court held that the petitioner, being biologically an adult female person with intact reproductive organs, falls within the meaning of “woman” for the purpose of availing ART services. The Section 7 certificate recording gender as “male” and the earlier transgender certificate (Ext.P3) reflect the petitioner's self-perceived gender identity, which, the court held, “has got nothing to do with the biological identity unless and until the reproductive organs are removed from the body of the petitioner.”
The court drew on Suchita Srivastava to hold that the right to make reproductive choices is a dimension of personal liberty under Article 21, encompassing the right to procreate as well as to abstain from procreating. Since the petitioner is biologically female with functioning reproductive organs, denial of the right to retrieve and preserve oocytes amounts to a violation of the right to life, which includes the right to reproduction.
The court also addressed the argument that the petitioner could procreate naturally. It acknowledged that there is no legal restriction on a transman marrying a transgender or cisgender woman and procreating naturally, but held that once the petitioner has decided to change his gender as “male,” he cannot be asked to procreate naturally and give birth to a child. The right to privacy, as affirmed in Justice K.S. Puttaswamy, protects decisional autonomy in reproductive choices.
On the Ext.P4 SOP, the court found that it is an internal communication issued by the Ministry of Health and Family Welfare and does not carry the force of a statutory rule. The SOP itself states that fertility preservation “should be as per prevailing law/Assisted Reproductive Technology (ART) Act,” which the court read as a reference to the age criteria under the ART Act rather than as an independent source of entitlement. The court therefore held that the petitioner cannot rely on the SOP alone to claim a right to cryopreservation.
On the clinic-versus-bank distinction, the court accepted the fifth respondent's position. Section 2(1)(b) of the ART Act defines an ART bank as an organisation responsible for collection, storage and supply of gametes and embryos. Section 2(1)(c) defines an ART clinic as premises equipped for carrying out ART procedures. The court held that the authority to cryopreserve oocytes lies with an ART bank, not an ART clinic. However, it held that the petitioner should not be denied the benefit merely because he had approached a clinic rather than a bank, given the peculiar facts of the case.
The court also recorded a significant observation on the Government's failure to issue health guidelines. Section 15(d) of the Transgender Act casts a duty on the appropriate Government to bring out a health manual related to sex reassignment surgery in accordance with World Professional Association for Transgender Health guidelines. The Transgender Act came into force in January 2020; as of the date of judgment, no such guidelines had been issued despite the passage of six years. The court noted that the Ext.P4 SOP does state that transgender patients wishing for total abdominal hysterectomy should be informed about the option of fertility preservation before surgery, but that no document was produced by the respondents to show that any such awareness or counselling was provided to the petitioner before he underwent breast removal surgery or obtained his Section 7 certificate. The court held that it is the bounden duty of the appropriate Government to give proper awareness to transgender persons regarding preservation of their oocytes or sperms before they begin treatment for gender change.
Outcome
The writ petition was partly allowed. The court issued the following directions:
First, the petitioner is directed to approach an ART bank of his choice. The ART bank so approached shall take steps to retrieve the petitioner's oocytes and cryopreserve them for use in reproduction at a later stage in life.
Second, the challenge to the constitutional validity of Section 21(g) of the ART Act is left open, preserving the petitioner's right to raise it in a properly instituted writ petition with appropriate pleadings and prayers, including a challenge to the definition of “woman” under Section 2(1)(u) and the provisions governing retrieval and cryopreservation.