A year ago, a fertility clinic denied a 28-year-old Kerala trans man an option to freeze eggs. The reason was that under the existing provisions of the Assisted Reproductive Technology Act, the clinics shall provide services only to a woman and a man within the prescribed age range. Hari Devageeth, a resident of Attingal, Thiruvananthapuram, who was assigned female at birth – did not fit the definition of a woman, as his self-perceived gender identity is 'man'. When his gender identity came in the way of his reproductive choice, he moved to the High Court seeking direction to the hospital to cryopreserve his eggs.

While doing so, he is also seeking a legal precedent that could benefit other LGBTQ+ individuals who wish to preserve their reproductive abilities ahead of sex-assignment surgery. In his pursuit to uphold his reproductive choice, he has the support of his mother and partner. Hari is currently going through various phases of sex-assignment surgery and has undergone hormone therapy and breast removal surgery. Once this is completed, all feminine features will be lost, including the removal of ovaries. It was at this point that Hari decided to freeze eggs to use them for reproduction at a later stage in his life.

“I still haven’t decided about having kids. But if my partner and I choose to have them in the future, I do not want to be left without a choice,” Hari told Onmanorama. Though cryopreservation was always on his mind, it took Hari several years of hard work to save enough money for the procedure ahead of his sex-reassignment surgery.

“It is an expensive process. While the procedure costs around Rs 90,000, the medication and storage process totals at least Rs 2 lakh. I was not in a position to pursue this until last year,” he said. Hari, who is currently working in Bengaluru.

While the law does not restrict natural procreation for transgender individuals, it remains evasive regarding their access to assisted reproductive technologies. In 2023, Zahad, a trans man from Kerala, became the first known transgender person in India to give birth after conceiving naturally with his partner, Ziya Paval.

“In Ziya’s and Zahad’s case, they chose to have a baby through natural means. In Hari’s case, cryopreserving eggs would put him under the Assisted Reproductive Technology (ART) Act. Under this act, only men can donate sperm, and women can donate eggs,” says Dinu Veyil, founder of Dhisha Foundation, who is helping Hari with the case.

The ART Act of 2021 – the only law in the country that governs assisted reproductive technologies, including in-vitro fertilisation (IVF), sperm and egg donation, and surrogacy – sets eligibility criteria for gamete donation. Men between the ages of 21 and 55 can donate sperm, while women between the ages of 23 and 35 can donate eggs.

With a transgender identity card issued on September 15, 2023, Hari now legally identifies as a man. In his plea, he argues that restricting egg cryopreservation based on gender identity violates Article 21 (Right to Life) of the Indian Constitution, which includes the right to reproductive autonomy.

Advocate A K Preetha, who represents Hari in the High Court, said that while statutory changes are necessary in the long run, they seek interim relief so that Hari can continue his medical transition without losing the ability to preserve his reproductive options. “If cryopreservation is allowed, he will require approval from the National ART and Surrogacy Board for any future IVF procedure,” Adv Preetha told Onmanorama.

According to the petition, excluding trans man and trans woman from the purview of the act denies the reproductive rights of transgenders and is discriminatory and violative of constitutional provisions. The plea further asserts that refusing egg preservation restricts access to healthcare, violating Article 21 of the Constitution. This contradicts the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020, both of which prohibit such discrimination. It also contends that excluding transgender individuals from assisted reproduction services is a violation of social and reproductive justice, which is a fundamental constitutional right.