HARI DEVAGEETH Vs. UNION OF INDIA

JUDGEMENT

(1.) The question that arose for consideration in this case is whether a person, female at birth, whose self-perceived gender identity is male, can be permitted to undergo cryopreservation of oocytes under Sec. 21(g) of the Assisted Reproductive Technology (Regulation) Act, 2021 [for short, "ART Act"] before completing gender reassignment surgery.

(2.) The writ petition has been filed with the following prayers;

(3.) The petitioner herein, who was a female at birth, is a transgender whose self-perceived gender identity is 'man' as per Ext.P1 identity card issued by the District Collector, Thiruvananthapuram. In 2023, the petitioner underwent treatments including hormone therapy and breast removal surgery; however, sex reassignment surgery was not completed. Prior to the sex reassignment surgery, the petitioner wanted to cryopreserve his gametes so as to utilize the same for reproduction at a later stage in life; and hence, he approached the fifth respondent - an Assisted Reproductive Technology (ART) Clinic - for freezing and storing his eggs. As per Ext.P2, an ultrasonography (USG) of the abdomen and pelvis was conducted, which clearly indicates that no significant abnormalities were identified. However, when the petitioner approached the fifth respondent, they pleaded their inability, pointing out that there is no provision in the ART Act or the Rules framed thereunder, which enables them to cryopreserve the gametes of a transgender person, and hence, refused to cryopreserve the gametes. Aggrieved by the refusal of the fifth respondent to preserve the gametes on account of the ART Act and the Rules framed thereunder, which restricts/limits the benefits of the ART Act to a 'commissioning couple' or 'woman', and alleging that, such a gender-based classification is arbitrary and interferes with the choice of reproduction, the petitioner has come up before this Court.