Introduction:

In a significant development concerning transgender rights and reproductive autonomy in India, the Kerala High Court recently permitted a transgender man to cryopreserve his eggs by allowing him to approach an Assisted Reproductive Technology (ART) bank of his choice. The order was passed in the case titled Hari Devageeth v. Union of India by Justice Sobha Annamma Eapen on May 15, 2026.

The Court directed that the ART bank concerned should take steps to retrieve the petitioner’s oocytes and cryopreserve them for future reproductive use. The decision came in a writ petition filed by a transgender man who challenged the refusal of a private hospital to permit egg cryopreservation on the ground that transgender persons fall outside the statutory framework established under the Assisted Reproductive Technology (Regulation) Act, 2021.

The case raised important constitutional and legal questions concerning the reproductive rights of transgender persons, the scope of healthcare protections under Article 21 of the Constitution, and the interpretation of statutory provisions regulating assisted reproductive technologies in India. While granting relief to the petitioner, the High Court also left open the constitutional challenge to Section 21(g) of the ART Act, which restricts ART services to women between the ages of 21 and 50 years and men between 21 and 55 years.

The petitioner before the Court was a person assigned female at birth who identified as a man. According to the pleadings, the petitioner had undergone breast removal surgery as part of gender affirmation procedures but had not yet undergone complete sex reassignment surgery, including hysterectomy or removal of ovaries. Before proceeding further with gender-affirming procedures, the petitioner sought to preserve his reproductive potential by cryopreserving his eggs.

However, KIMS Hospital allegedly refused permission for the procedure, citing restrictions under the ART Act and the absence of a legal framework expressly recognising transgender persons within assisted reproductive services. This refusal prompted the petitioner to approach the High Court seeking constitutional protection of reproductive choice and healthcare access.

The litigation quickly evolved into a broader debate regarding the rights of transgender persons to parenthood, reproductive healthcare, and equal treatment under Indian law. It also highlighted gaps within existing legislation governing ART services, surrogacy, and adoption, all of which largely continue to operate on binary gender assumptions.

The matter attracted significant attention because it brought into focus the intersection between gender identity, medical autonomy, constitutional dignity, and reproductive justice. Senior Advocate Anand Grover appeared on behalf of the petitioner and argued that denial of cryopreservation violated the petitioner’s fundamental rights. The Union Government opposed the plea, contending that existing statutory frameworks consciously excluded transgender persons from availing such services.

Although the High Court’s detailed judgment is awaited, the operative order permitting cryopreservation has already emerged as an important judicial intervention in the evolving jurisprudence surrounding transgender rights in India.

Arguments of the Parties:

The petitioner argued that the refusal to permit egg cryopreservation amounted to a direct infringement of his constitutional right to reproductive autonomy and healthcare. It was submitted that although the petitioner identified as a man, he had been assigned female at birth and retained reproductive organs capable of producing oocytes. Therefore, prior to undergoing further gender-affirming surgical procedures, he wished to preserve his eggs for possible future reproduction.

The petitioner clarified that he had not undergone complete sex reassignment surgery and had only undergone breast removal surgery. Since the uterus and ovaries remained intact, it was argued that the petitioner retained the biological capacity to reproduce. Counsel submitted that transgender men are capable of experiencing pregnancy and reproduction, and therefore, denying them access to fertility preservation services solely because of gender identity would be discriminatory and unconstitutional.

A central argument advanced by the petitioner was that reproductive choice forms an essential component of personal liberty protected under Article 21 of the Constitution. The plea asserted that the right to make decisions regarding reproduction, parenthood, and fertility preservation is inseparably connected with bodily autonomy, dignity, and privacy.

The petitioner contended that denial of cryopreservation effectively deprived him of the possibility of biological parenthood in the future. Once gender-affirming procedures such as hysterectomy or removal of ovaries are performed, the ability to retrieve oocytes would permanently cease. Therefore, refusal to permit cryopreservation would cause irreversible harm to the petitioner’s reproductive future.

The petitioner also relied upon the protections available under the Transgender Persons (Protection of Rights) Act, 2019 and the accompanying Rules of 2020. It was argued that the statutory framework expressly prohibits discrimination against transgender persons in matters relating to healthcare access. Consequently, exclusion from ART services merely because the petitioner was a transgender man amounted to unlawful discrimination prohibited by statute and constitutional principles of equality.

Another important submission made on behalf of the petitioner was that the ART Act did not contain any explicit prohibition against cryopreservation of eggs by transgender persons. According to the petitioner, while the legislation regulates eligibility for assisted reproductive procedures, it does not impose an absolute bar on fertility preservation. Therefore, the authorities could not rely upon legislative silence to deny healthcare access.

Senior Advocate Anand Grover argued that reproductive rights must be interpreted in a gender-inclusive manner consistent with constitutional morality and the recognition of transgender identity affirmed by the Supreme Court of India in landmark transgender rights jurisprudence. It was submitted that constitutional protections cannot be denied merely because statutory frameworks have failed to evolve alongside contemporary understandings of gender identity and reproductive health.

The Union Government opposed the plea and defended the existing legislative framework governing assisted reproductive technology and surrogacy in India. The Centre argued that the ART Act specifically permits assisted reproductive procedures only for a “commissioning couple” or a single woman. Under the statutory definition, a commissioning couple refers strictly to a legally married man and woman.

According to the Government, transgender persons and single men were intentionally excluded from the categories of persons eligible to avail ART services. Since cryopreservation of oocytes forms part of ART services regulated under the statute, the petitioner could not claim access to such procedures contrary to the legislative scheme.

The Government further argued that once the petitioner underwent hysterectomy and removal of ovaries, he would no longer be able to personally utilise the cryopreserved eggs for pregnancy. In such circumstances, the only possible route for future parenthood would involve surrogacy. However, the Surrogacy (Regulation) Act, 2021 also excludes transgender persons from eligibility. Therefore, according to the Centre, the petitioner could not invoke reproductive rights under a statutory regime that consciously restricts access based on legislative policy.

The Centre additionally referred to adoption laws, including the Juvenile Justice (Care and Protection of Children) Act, 2015 and the Hindu Adoptions and Maintenance Act, 1956, arguing that the legislative framework does not presently recognise adoption rights for transgender persons in the manner sought by the petitioner.

The Union Government maintained that issues involving ART access, surrogacy, and parenthood for transgender persons involve complex policy considerations affecting child welfare, family structures, and medical ethics. Therefore, it was argued that such matters should remain within the domain of Parliament and expert bodies rather than being judicially restructured through constitutional interpretation.

According to the Centre, courts should exercise restraint in matters involving reproductive policy because these areas require balancing medical, social, ethical, and welfare concerns. The Government therefore urged the Court not to interfere with the statutory framework enacted by Parliament.

Court’s Judgment:

The Kerala High Court ultimately granted relief to the petitioner by permitting him to approach an ART bank of his choice for retrieval and cryopreservation of oocytes. Justice Sobha Annamma Eapen directed that the ART bank should take appropriate steps to retrieve the petitioner’s eggs and preserve them for possible future reproductive use.

Although the Court’s detailed reasoning is awaited, the operative portion of the order itself carries considerable constitutional and social significance. By allowing cryopreservation, the Court effectively recognised that a transgender person cannot be denied access to fertility preservation solely because existing statutes do not expressly include transgender identities within traditional categories governing reproductive services.

The order reflects an implicit acknowledgment that reproductive autonomy forms part of the broader guarantee of personal liberty and dignity under Article 21 of the Constitution. The petitioner had argued that denial of cryopreservation would permanently extinguish his opportunity for biological parenthood after future gender-affirming surgeries. The Court’s decision appears to accept the urgency and legitimacy of that concern.

Importantly, the Court did not conclusively adjudicate upon the constitutional validity of Section 21(g) of the ART Act. Instead, it left open the challenge to the provision for future consideration. This indicates that while interim substantive relief was granted to the petitioner, broader constitutional questions regarding exclusion of transgender persons from ART services remain unresolved.

The judgment is particularly important because it addresses the practical realities faced by transgender persons navigating healthcare systems structured around binary gender assumptions. Existing reproductive laws in India largely recognise only heterosexual married couples or single women as beneficiaries of ART services. Consequently, transgender individuals frequently encounter legal and administrative barriers when seeking fertility-related healthcare.

By permitting egg cryopreservation, the High Court appears to have prioritised constitutional values of dignity, autonomy, and non-discrimination over narrow statutory interpretation. The order is consistent with the expanding judicial recognition of transgender rights following landmark Supreme Court decisions affirming gender identity as an integral aspect of personal autonomy and constitutional equality.

The case also highlights the growing recognition of reproductive justice as extending beyond traditional heterosexual frameworks. Reproductive rights jurisprudence increasingly acknowledges that decisions concerning fertility, parenthood, and bodily autonomy cannot be confined to conventional gender categories.

Another important dimension of the case concerns healthcare discrimination. The petitioner had relied upon the Transgender Persons (Protection of Rights) Act, 2019, which prohibits discrimination in healthcare access. The Court’s decision indirectly reinforces the principle that healthcare institutions cannot deny essential medical services merely because an individual identifies as transgender.

At the same time, the Court adopted a cautious approach by refraining from immediately striking down statutory provisions or issuing sweeping declarations regarding ART eligibility for transgender persons generally. Instead, the relief granted was narrowly tailored to the petitioner’s immediate reproductive interests.

The Government’s concerns regarding surrogacy laws, adoption frameworks, and child welfare remain legally unresolved. Since the petitioner presently sought only cryopreservation and not immediate access to surrogacy or assisted pregnancy procedures, the Court appears to have confined its intervention to fertility preservation alone.

The judgment may nevertheless have wider implications for future litigation involving transgender parenthood, access to ART services, surrogacy rights, and adoption equality. It underscores the growing tension between evolving constitutional understandings of gender identity and statutory frameworks that continue to rely on rigid binary classifications.

The ruling also reflects the judiciary’s willingness to intervene where denial of healthcare access threatens irreversible consequences for individual autonomy and reproductive choice. By permitting cryopreservation before further gender-affirming procedures, the Court ensured that the petitioner’s future reproductive options remain preserved pending broader legal and policy developments.

Ultimately, the Kerala High Court’s decision marks an important step in Indian constitutional jurisprudence concerning transgender rights and reproductive freedom. While many legal questions remain open for future adjudication, the order affirms that transgender persons cannot be denied dignity, autonomy, and healthcare access merely because legislation has not yet fully adapted to contemporary understandings of gender and family.