Trans Man Historic Plea: Kerala HC to Decide on Egg Freezing Before Sex Change Surgery

A year ago, a fertility clinic in Kerala denied a 28-year-old transgender man the opportunity to freeze his eggs, citing legal restrictions. According to the Assisted Reproductive Technology (ART) Act, fertility services are only available to men and women within specific age limits. Hari Devageeth, a resident of Attingal in Thiruvananthapuram, was assigned female at birth but identifies as a man. Since his gender identity did not align with the legal definition of a woman, he was denied the procedure. In response, he approached the High Court, requesting that the hospital be directed to allow him to cryopreserve his eggs.

Beyond his personal case, Hari’s legal action seeks to establish a precedent that could help other LGBTQ+ individuals secure reproductive rights before undergoing gender-affirming surgery. He has the support of his mother and partner in this fight. Currently in the midst of his transition, Hari has undergone hormone therapy and breast removal surgery. His subsequent actions include more procedures, such as the removal of his ovaries. Realizing that this would rid him of his biological childbearing capabilities for life, he attempted to freeze his eggs for future use.

“I haven’t decided yet whether I want children, but I don’t want to lose the option,” Hari shared in an interview with Onmanorama. Though he had always considered egg freezing, financial constraints delayed the process. “The procedure alone costs around Rs 90,000, while medication and storage bring the total to nearly Rs 2 lakh. I could only afford it last year,” he explained. Hari, who is working in Bengaluru at present, pointed out that the expense is a major hindrance for most transgender people.

Indian law does not stop transgender individuals from having children biologically, yet access to assisted reproductive technology is unclear. Zahad, a trans man from Kerala, was the first recorded trans individual in India to deliver a baby in 2023 after having conceived naturally with his partner, Ziya Paval. However, Hari’s case differs as he seeks to preserve his reproductive ability before fully transitioning.

Dinu Veyil, founder of Dhisha Foundation and a supporter of Hari’s case, explained the legal issue: “In Zahad’s case, conception happened naturally. But if Hari is willing to freeze his eggs, he comes under the ART Act, which permits only sperm donation by men and egg donation by women." The ART Act 2021, which regulates fertility treatments like in-vitro fertilization (IVF), sperm and egg donation, and surrogacy, only allows males aged 21-55 years to donate sperm and females aged 23-35 years to donate eggs.

Hari received his transgender identity card on September 15, 2023, legally acknowledging him as a man. His petition argues that gender identity-based denial of access to cryopreservation is violative of Article 21 of the Indian Constitution, which guarantees the right to life and reproductive autonomy.

His attorney, Advocate A.K. Preetha, said that though long-term legal changes are needed, they're requesting immediate relief so Hari may continue to transition without losing reproductive choices. “If permitted to freeze his eggs, he will need approval from the National ART and Surrogacy Board for any future IVF procedures,” she told Onmanorama.

The petition contends that excluding transgender individuals from assisted reproductive services is discriminatory and unconstitutional. It argues that the provisions in the ART Act are in opposition to the Transgender Persons (Protection of Rights) Act, 2019, and associated rules of 2020 prohibiting discrimination against transgender individuals in health care. In addition, it argues that refusing access to egg cryopreservation is against reproductive and social justice principles.

The Kerala High Court has sent notices to the state government, Union government, National ART and Surrogacy Board, and private hospital. The court ruling may be a landmark in both legal and medical history, as transgender people would enjoy the same reproductive rights as cisgender people. Further, it argues that the restriction of access to egg cryopreservation is against social and reproductive justice principles.

If the ruling favors Hari, it may prompt policy reforms that prevent transgender individuals from being denied fertility services based on gender identity. This case is part of a broader movement toward recognizing transgender rights in India. The next hearing is scheduled for February 18, and its outcome could shape the future of reproductive rights for transgender individuals across the country.

(Input from various sources)

(Rehash/Sai Sindhuja K/MSM)