Court Rules Transgender Individuals Retain Right to Cryopreserve Oocytes, Asserts Violation of Article 21
In a significant judgment that bolsters the rights of transgender individuals, the Kerala High Court has ruled that a biologically female transgender person, who identifies as male, retains the right to cryopreserve oocytes under the Assisted Reproductive Technology (Regulation) Act, 2021, prior to undergoing gender reassignment surgery. The court, presided over by Justice Shoba Annamma Eapen, found that the denial of such services infringes on the fundamental right to reproduction, protected under Article 21 of the Indian Constitution.
The case was brought forth by Hari Devageeth, who was assigned female at birth but identifies as male. Devageeth sought permission to cryopreserve his oocytes before completing gender reassignment surgery, a request initially denied by an ART clinic citing the lack of provisions for transgender individuals under the ART Act.
The court emphasized that the right to reproductive choice, a facet of the right to life and personal liberty under Article 21, includes the right to cryopreserve gametes for future use. It asserted that denying ART services based on self-perceived gender identity is unconstitutional.
Justice Eapen noted that while the ART Act currently limits services to commissioning couples and women, the term "woman" should be interpreted to include biological women, regardless of their gender identity, to ensure compliance with constitutional principles of equality and non-discrimination.
The judgment highlighted the critical role of the Transgender Persons (Protection of Rights) Act, 2019, affirming that a certificate indicating gender as 'male' does not negate reproductive rights if reproductive organs remain intact. The court directed the petitioner to approach an ART bank for cryopreservation, emphasizing the state's duty to protect the reproductive rights of transgender individuals.
This ruling marks a significant step forward in recognizing and protecting the reproductive rights of transgender persons in India, setting a precedent for future cases involving similar issues.
Bottom line:-
Assisted Reproductive Technology (ART) services - Transgender rights - A biological woman, identifying as male, retains the right to cryopreserve oocytes under Article 21 of the Constitution. Denial of such services would violate the fundamental right to reproduction.
Statutory provision(s): Article 21 of the Constitution of India, Assisted Reproductive Technology (Regulation) Act, 2021, Transgender Persons (Protection of Rights) Act, 2019, Surrogacy (Regulation) Act, 2021
Hari Devageeth v. Union of India, (Kerala) : Law Finder Doc id # 2901025
