A 28-year-old trans man has approached the Kerala High Court challenging the Assisted Reproductive Technology (ART) Act and its exclusion of transgender individuals from accessing fertility preservation services. He argued that the act is limited to couples and women, and is “discriminatory” and “violates” the right to life and right to make reproductive choices. He also asked the court to intervene and direct KIMS Fertility Centre, a private hospital in Thiruvananthapuram, to provide fertility preservation services to him, including cryopreservation of oocytes.
The case came up before Justice CS Dias, on Tuesday, February 11, and was posted to February 18 for further hearing. The judge has issued notices to KIMS and the government to respond.
The trans man had approached the private hospital seeking to freeze and store his eggs before his gender affirmation procedures. The hospital, however, refused stating that there was no provision in the ART Act to preserve the eggs of a trans person.
The act only refers to “commissioning couple”, “man” and “woman” in its purview, and excludes trans persons. “The Act therefore is discriminatory and violative of constitutional provisions,” he contended. A commissioning couple refers to a couple who are using assisted reproductive technology (ART) to have a child.
Further, stating that using ART is the only option available to trans persons to fulfil their right of procreation, he said that denying the right of procreation by way of ART techniques amounts to “direct and hostile discrimination on the basis of sex” and hence is violative of Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth). He also added that the right to make reproductive choices is a facet of personal liberty and denial of ART services is also violative of Article 21 (protection of life and personal liberty) of the Constitution of India.
The trans man, therefore, sought the court to declare parts of the act that exclude transgender persons as violative and strike them down, and asked that the terms “woman” and “man” should also include trans women and trans men. Further, he also sought the court to direct the private hospital in Thiruvananthapuram to freeze his eggs as interim relief.