Sayantan Datta and Pushpesh Kumar

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In this short essay, we analyse the medicolegal conundrums around a surgeon’s attempt to transplant a uterus in the body of a transgender woman. Through our analysis of this case, we argue that uterus transplantation for transgender women lies in a liminal space between “experimental” and “therapeutic” medical procedures, prompting us to ask what it means for a collision between medical fantasy and legislative desires to further push transgender bodies in liminal spaces, who already occupy liminal sociological identities at the intersections of invisibility-hypervisibility and desirable-undesirable.

In May 2022, Narendra Kaushik, a Delhi-based plastic surgeon who specialises in gender affirmation surgeries (also known as sex reassignment surgeries), made headlines by claiming that he would soon attempt to transplant a donated uterus in the body of a transgender woman. As a journalist-academic duo, we had reported on Kaushik’s claims through interviews with a transgender woman who wished to remain anonymous, other plastic surgeons specialising in gender affirmation surgeries, one transplant surgeon, and a bioethicist. Our arguments in the report were around two broad concerns with Kaushik’s claims: his regressive understanding of (trans)femininity and (trans)womanhood, and the (absence of) legal and ethical provisions governing such a surgical procedure. In this essay, we first turn our attention to how recent legislative and medical discourses shift the construction of transgender bodies from being inherently unreproductive to seeking procreative interventions, while simultaneously denying them the possibilities of these interventions. Then, we demonstrate how medicolegal conundrums further liminalise transgender bodies, which already exist in liminal sociological spaces.

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When interviewed about his intentions of transplanting a uterus in the body of a transgender woman, Kaushik expressed the belief that “every transgender woman wants to be as female as possible.” Having a uterus – and consequently, being able to gestate – was, for Kaushik, the “aesthetic ideal” of femininity, and by intervening as a plastic surgeon, he would be the one to enable transgender women to achieve this aesthetic ideal.

Kaushik’s interest in endowing procreative abilities to the bodies of transgender women marks a reticent shift in conceptualizing the relationship between transgender bodies and reproductive abilities. Until the recent past, the “unreproductivity” of transgender bodies has been one of the focal points around which legislative and judicial discourses have attempted to define transgender identities. For instance, consider the Supreme Court’s judgement in the case of NALSA v. Union of India, where the judges attempted to define “Hijras” – a culturally complex and highly visible transfeminine group in India – as follows:

“Hijras are not men by virtue of anatomy appearance [,] and psychologically, they are also not women, though they are like women with no female reproduction organ and no menstruation. Since hijras do not have reproduction capacities as either men or women, they are neither men nor women and claim to be an institutional ‘third gender’. Among hijras, there are emasculated (castrated, nirvana) men, non-emasculated men (not castrated/akva/akka) and inter-sexed persons (hermaphrodites).” (p. 10, para 11)

One cannot help but notice how the diverse social and cultural practices that are crucial to identifying as a Hijra are backgrounded to foreground procreative potentials – or, more accurately, their lack – in the court’s attempt to define what makes one a Hijra. The use of the phrase “anatomy appearance” clearly invokes biological essentialism, even as the judgement itself tries to step away and grant the rights of self-identification to transgender persons. More importantly, Hijras become “not women” – and simultaneously, “like women” – precisely because they lack procreative potentials, which coalesce as “reproduction organ” and “menstruation” in the judgement. The sentence that follows, makes the ability to procreate even more central to the Court’s definition of a Hijra: it doesn’t shy away from clearly attributing the cause of Hijras being “neither men nor women” to their lack of “reproduction capacities”. Genitals – or sex organs – then become the lens through which Hijras can be neatly categorised: “emasculated”, “non-emasculated” or “inter-sexed”. In the Court’s eye, the emasculation – a term literally meaning “deprived of one’s male role or identity” – occurs not through sartorial and cultural practices of Hijras, but through “castration”.

In the recent past, however, discourses in science and reproductive biology have attempted to construct transgender bodies as those in pursuit of procreative abilities. Kaushik’s claims are a case in point. Other such cases include a recent 2021 paper in Obstetrics and Gynecology, which reported that of the 182 respondents surveyed by the authors, 94% expressed a “desire to have children in the future”. The study also claimed that 94% and 88% of the respondents agreed respectively to the ideas that “the ability to gestate and give birth to children, and [to] menstruate would enhance perceptions of their femininity.”

As (the lack of) procreative potentials and aspirations become central to medicolegal discourse’s understanding of transgender bodies, one would expect that ways of reproduction would be made increasingly available to transgender persons. However, medicolegal conundrums – steeped in discriminatory ideologies as they are – continue to ensure that access to procreation remains limited for transgender persons. As a result of this limited access, possibilities of maintenance – and perhaps, bolstering – of the image of the unreproductive transgender remain.

Medicolegal conundrums in assisted reproduction

Jensoor Dayara, a doctor who also identifies as transgender woman, aspires to be a mother through surrogacy after her medical transition. However, having preserved her semen at a hospital to become the biological “mother” of her own child through surrogacy, she now finds herself in a legal quandary as the Surrogacy (Regulation) Act 2021 is opaque and unclear about an intending transgender woman’s surrogacy. Thus, Dayara is now exploring the possibility of finding a surrogate mother outside India.

Dayara is perhaps only one of the many, as in India, assisted reproductive technologies are available only to cisgender women who are unable to conceive biologically and are governed by two recent legislations: The Assisted Reproductive Technology (Regulation) Act 2021, and The Surrogacy (Regulation) Act 2021. There are two key features of these legislations towards which we shall turn our attention in this section, especially in the context of surrogacy: one, the introduction of the perceived benevolent nation-state into assisted reproduction practice, and an altruistic framing of surrogacy.

For heterosexual couples intending to avail surrogacy, The Surrogacy (Regulation) Act 2021 makes it compulsory for the couple, or the “intending woman” (the one seeking surrogacy) and the potential surrogate mother to seek an order from a court of the magistrate. In absence of the necessary certificates – a “certificate of essentiality” from the District Medical Board and the aforementioned Court order – the 2021 Act claims that the court shall presume malevolence: that the surrogate mother was compelled by “her husband, the intending couple or any other relative”. Under this presumption, people found guilty might be levied a fine of five lac rupees along with an imprisonment extending up to five years.

Further, according to The Surrogacy (Regulation) Act 2021, a “woman” can seek surrogacy if she has no uterus, a missing uterus or an ‘abnormal’ uterus, or if the uterus is surgically removed due to medical conditions such as uterine cancer. However, for this clause to include transgender women, the state needs to see them as equal to cisgender women.

As a result of the dictum that introduces the District Medical Board and the Court into the process of seeking surrogacy, and the Act’s altruistic framing that forbids commercial surrogacy and requires that the surrogate mother be a “close relative”, transgender women seeking surrogacy must contend with two spaces that they have almost universal tensions with: One, medical and legal institutions, and two, institutions of natal family. Thus, by making these confrontations and contestations mandatory, the Surrogacy (Regulation) Act 2021 denies procreative possibilities to transgender women, even as medical practices appear to gear up to turn these possibilities into realities.

Further, one is compelled to ask whether bodies that are expected to conform to hegemonic and oppressive forms of procreative parenthood – those of cisgender women – would ‘lend’ their uteri for those who are seen necessarily as incapable of conventional biogenetic parenthood. In fact, when biogenetic parenthood for transgender women becomes a transaction with cisgender women in the backdrop of economies of ‘borrowing’ and ‘lending’, we must ask what that means for the construction of womanhood itself? That is, what womanhood is established as hegemonic by becoming the ‘lender’ in the political economy of procreation, gestation and birth, and what womanhood is demonstrated as incomplete and requiring the “borrowing” of hegemonic bodies? Thus, by constructing transgender women as having strong aspirations of biogenetic procreation, while simultaneously denying them ways in which these aspirations can be met, transgender women are recast as incomplete and at the mercy of the benevolent state-science nexus. It is clear that the state-science nexus neither wishes the procreative transgender, nor does it desire the unreproductive transgender. It desires, riding over the bodies of transgender women, to bolster the political economy of procreation and the perceived benevolence of the state-science nexus.

Making of the liminal transgender: Rhetoric of experimentation and therapy

Locating our arguments in the political economy of procreation, we now turn our attention back to the procedure of transplanting a uterus into the body of a transgender woman. One of the key points that had emerged in our previous deliberations on the issue with bioethicists was the conundrum regarding whether uterus transplantation can be considered an “experimental” or “therapeutic” technique. These concerns were pointed out by an anonymous respondent, lawyer and bioethicist Rohin Bhatt, and transplant surgeon Sanjay Nagral.

At the time of writing this report, uterus transplantation for transgender women appears to be largely an unregulated experimental procedure. The Montreal Criteria for Ethical Feasibility of Uterine Transplantation (2012), for example, considers only “genetic females” to be able to receive a transplanted uterus, and the guidelines of the World Professional Association for Transgender Health (WPATH; 2012) do not even consider ovarian or uterine transplants as required for care of transgender and gender non-conforming people.

However, since uterus transplantation is, in effect, an organ transplant, we must also look at The Transplantation of Human Organs and Tissues Act 1994, which allows transplants only for “therapeutic purposes”. While the law doesn’t specifically discuss uterus transplants, such transplants might be seen as “therapeutic” in cases where they help alleviate the recipient’s gender dysphoria.

Given that uterus transplants – even for cisgender women – are primarily considered “experimental” procedures and such transplants for transgender women might have a therapeutic potential, we contend that uterus transplants for transgender women – the procedure that Narendra Kaushik wishes to bring to life – lie in the liminal space between “experimental” and “therapeutic” interventions in the biomedical and medicolegal discourse.

Ethnologist Arnold van Gennep introduced in 1909 the idea of liminality, which he used to explain the concept of “in between-ness” during cultural and religious rites. Later, in 1980, psychoanalyst Julia Kristeva, in her book Powers of Horror: An Essay on Abjection, developed the idea further to locate female bodies as liminal^[1^]. For Kristeva, female bodies are liminal because they are seen as simultaneously marked by processes of life (e.g., being able to conceive and deliver children) and decay (e.g., undergoing menstruation). Descriptions of childbirth locate women’s bodies in a space where the supposed beauty of birth is co-portrayed as a violent act of expulsion. In birthing bodies, therefore, beauty and horror co-exist. In an Indian context, many transfeminine groups – for example, the Hijras – occupy a liminal position, not just in terms of gender, as Dutt and Roy (2015) have proposed, but also in their simultaneous invisibility to the nation-state when it comes to the granting of civil and substantive rights and hypervisibility in the civil society, as a result of their sartorial and cultural practices.

In Kaushik’s attempt to transplant a uterus into the body of a transgender woman, we see how medicolegal conundrums come together to exacerbate the liminality of being transgender in India. One way in which this is clearly demonstrated is in how uterus transplantation for transgender women lies in the liminal space between the “experimental” and “therapeutic”.

Further, one must notice how the transgender woman’s body becomes liminal through this ethically murky surgical intervention. On the one hand, having a uterus transplanted enables her to gestate, therefore helping her participate at least partly in conventional biogenetic motherhood; on the other hand, the uterus comes from a body that is not her own, and she can lay claim to the uterus only transiently (per established medical procedures, the transplanted uterus needs to be removed from the recipient’s body after one or two rounds of gestation). Thus, like Frankenstein’s monster, the transgender body – with its transplanted uterus – achieves the glories of symbolic order of biogenetic motherhood; yet, the glory is only transient, and she must return to her state of incompleteness once the symbolic order has been achieved.

However, as has been posited earlier, liminal positions are also generative. They make possible new transgender ways of being, while simultaneously countering the linearity of cisgender narratives. In closing this essay, we ask whether the proposed uterus transplant in the body of a transgender woman also opens hitherto unexplored generative potentials. For instance, in being subjects of medicolegal conundrums and interventions, do transgender bodies also challenge the perceived linearity of biogenetic motherhood? We ask if, in spatially shifting the womb – literally dislocating, relocating and eventually, discarding it – and introducing a temporal transience in its ownership, does a potential uterus transplant in the body of a transgender woman also decentre the womb as the aesthetic ideal of femininity? That is, in trying to endow transgender women with what he believes is femininity’s aesthetic ideal, is Kaushik – inadvertently – also enabling a counternarrative to the ideal itself?

The answers, at this point, are unclear. So are the procreative possibilities for transgender bodies. Yet, the conundrums continue, explicating the need for a more serious attention to material realities of transgender bodies and their interactions with the changing machineries of the state-science nexus. We hope this essay inspires future work that is able to unravel the tangles in which transgender bodies are caught and the knots that must be untied for their liberation.

^[1] Kristeva, J. (1982). Powers of horror (Vol. 98). University Presses of California, Columbia and Princeton.

Sayantan Datta (they/them) is an independent journalist writing at the intersections of science, gender, sexuality, health and caste. They are currently a faculty member at the Centre for Writing and Pedagogy, Krea University.

Pushpesh Kumar teaches sociology at the University of Hyderabad. He has edited the book, Sexuality, Abjection, and Queer Existence in Contemporary India from Routledge. He serves on the international advisory Board of the Community Development Journal published from OUP, UK, and Ireland.