The Kerala High Court observed that a person's self-perceived gender identity is legally separate from their biological sex. The Court ruled that an adult individual who is biologically female retains the fundamental right to preserve oocytes, regardless of whether they have legally transitioned to a male identity, provided their reproductive organs are fully functional.

The Single-Judge Bench established that the denial of reproductive healthcare services to a transman before undergoing complete gender affirmation surgery constitutes a direct violation of the right to personal liberty, bodily integrity, and reproductive autonomy. The Court emphasised that reproductive choices, as protected under Article 21 of the Constitution of India, encompass the entitlement of an individual to preserve their gametes for future procreation.

Justice Shoba Annamma Eapen noted that to avail the services under Assisted Reproductive Technology (Regulation) Act, 2021 the ‘woman’ in Section 2(1)(u) should be a biological woman above 21 years, but it does not define who qualifies as a woman. Therefore, it observed, “…The definition of ‘biological woman’ in the medical parlance is a person having female organs such as breasts, uterus, fallopian tubes, ovaries, vagina etc. Thus, only a person with biological sex as a woman can avail the ART services. Biological sex is different from gender identity. Thus, the definition of ‘woman’ in the ART Act can only be that of a woman who is biologically a woman. Sex and gender are conceptually and legally distinct…The petitioner, biologically being an adult female person, has got the right to seek retrieval of oocytes, denial of which will amount to violation of right to life that includes right to reproduction, under Article 21 of the Constitution of India”.

Senior Advocate Anand Grover appeared for the petitioner, K. Arjun Venugopal, Central Government Counsel and Government Pleader Shameer P.M. appeared for the respondents.

The petitioner, a 28-year-old individual who was assigned female at birth, identifies as a man and holds a legal transgender identity card. Although the petitioner underwent hormone therapy and a bilateral mastectomy, complete sex reassignment surgery was not finalized, leaving his ovaries and uterus intact.

Desiring to preserve his gametes for future reproduction, the petitioner approached KIMS Fertility Centre to freeze his eggs. The clinic declined the request, citing a lack of specific statutory enablement for transgender persons under the Assisted Reproductive Technology (Regulation) Act, 2021.

Aggrieved by the exclusion, the petitioner moved the High Court, challenging the vires of Section 21 of the ART Act. The petitioner argued that restricting reproductive technology solely to commissioning couples and women is discriminatory and effaces the reproductive rights of transgender individuals.

The Union of India strongly opposed the petition, asserting that the petitioner's legal status as a male disentitled him from claiming benefits reserved exclusively for women under the ART Act. The Government further contended that the exclusion was a conscious legislative policy decision intended to protect the welfare of children born through artificial means.

The Court relying on the precedent set by the Supreme Court of India in Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1, the Bench reaffirmed that reproductive autonomy is an essential dimension of personal liberty under Article 21.

It observed that because the petitioner’s female reproductive system remains biologically intact and functional, he possesses the inherent right to utilize medical technology to preserve his oocytes, which cannot be defeated by a restrictive reading of statutory definitions.

“…Sex and gender are conceptually and legally distinct. While sex denotes biological attributes, gender encompasses identity, expression and social experience. Sex also refers to biological attributes such as chromosomes, hormones and anatomy. Gender refers to a person’s deeply felt internal identity and social role. In the present case, as per Ext.P2, the abdomen and pelvis ultrasonography report, the uterus, ovaries etc. of the petitioner are intact. There is no challenge to Ext.P2. Exts.P2 and P3 are the certificates issued under the self-perceived gender identity, that has got nothing to do with the biological identity unless and until the reproductive organs are removed from the body of the petitioner. There is no restriction for the petitioner to conceive naturally, which cannot be insisted since the self perceived gender identity of the petitioner is male”, the Bench noted.

“The petitioner, being a biological woman, has all the rights to preserve the oocytes since the apex court in Suchita Srivastava (supra), has held that the right to reproduction is a fundamental right under Article 21 of the Indian constitution, right to life. There is naturally inbuilt motherhood in a woman. It is the biological and the neurological systems that prepare a woman’s body and brain for caregiving… The petitioner is also undergoing all these natural hormonal processes. As long as the reproductive organs are intact, there is nothing wrong in the petitioner seeking retrieval of oocytes…”, the Bench further noted.

Accordingly, the Court directed the appropriate ART bank to immediately take necessary steps to retrieve and cryopreserve the oocytes of the petitioner to ensure his right to reproduction at a later stage in life. The challenge regarding the constitutional validity of Section 21(g) of the ART Act was left open.

“…the petitioner has the right to live with dignity and the reproductive rights are also guaranteed under Article 21 of the Constitution of India. Merely because the petitioner had approached an ART clinic instead of an ART bank, it would not be appropriate to deny such benefit to the petitioner. Considering the peculiar facts of the present case, I find it appropriate to direct the petitioner to approach the nearest ART bank for the purpose of cryopreservation of his gametes”, the Bench further observed.

Cause Title: X v. Union of India & Others (Neutral Citation: 2026:KER:33711)

Appearances:

Petitioner: Anand Grover, Senior Advocate with Tripti Tandon, Dhanuja M.S., Legith T. Kottakkal, and Daniel Jose, Advocates.

Respondents: K. Arjun Venugopal, Central Government Counsel, Shameer P.M., Government Pleader G. Sivasankar, Advocate.

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Justice Shoba Annamma EapenKerala High Court

Agatha Shukla