Transgender parents conceiving children

Parents who are transgender, non-binary or gender diverse conceive children in a range of different ways. You may be able to conceive without medical intervention if one partner can carry a pregnancy and the other can provide sperm. Alternatively you may be conceiving with the help of an egg, sperm or embryo donor and/or a surrogate.

This guide steers you through what you need to know about UK law.

Legal rights in relation to stored gametes and embryos

You may have stored eggs, sperm or embryos to preserve your fertility during a gender affirmation medical process. UK law and the rules set by the Human Fertilisation and Embryology Authority dictate the framework for gametes and embryos stored in the UK, including requirements as to consent and the period for which they can be stored.  Find out more about the law on stored eggs, sperm and embryos.

The absence of UK law on transgender parenthood

It appears that no consideration was given to the possibility of trans parents conceiving children after a social or legal gender transition when either the Gender Recognition Act 2004 or the Human Fertilisation and Embryology Act 2008 was enacted and so neither piece of key legislation makes any explicit provision for you. As a trans parent conceiving a child, this means your legal parenthood status is governed by wider law created for cisgender parents which is both prescriptive and gender based, and does not always produce the right outcomes.

How does UK law work if I am a trans parent who gives birth?

If you give birth to a child in England and Wales, you will be recorded as your child’s ‘mother’, even if you identify as male or non-binary and even if you have a gender recognition certificate confirming you are legally male.

In the case of Re TT (2019), Freddy McConnell was a trans man (legally male, with a gender recognition certificate granted prior to conception) who gave birth to a son in the UK. He asked to be recorded as his son’s ‘parent’ or ‘father’ on the birth certificate, but the English birth registration authorities refused to record him as anything but the ‘mother’.  He challenged that in the High Court, and later the Court of Appeal, and was refused permission to appeal further.  At each level the court ruled that he could only be registered as the ‘mother’.

The court said that being a mother did not rely on being legally female and that it was important that birth registration records captured who had given birth to children in a consistent way.  There was also some suggestion that section 12 of the Gender Recognition Act 2004 (which says that the fact a person’s gender has changed does not affect their status as the mother or father of a child) meant that legal gender transitions should be ignored when determining the parenthood status of a transgender parent.

The court’s rationale is open to criticism, not least because it completely overlooked the fact that birth certificates issued after surrogacy arrangements do not record birth parents, and because section 12 of the Gender Recognition Act was clearly designed to protect the status of transgender parents who already had children when they transitioned rather than to deal with parents conceiving children afterwards.  However, the possibility of further appeal in this case now appears to be exhausted which means that, unless Parliament changes the law, the UK legal position is currently that parents who give birth in England and Wales must be registered as the ‘mother’.

If I am the partner of the parent giving birth, will I be a mother, father or parent?

It is worth emphasising that there is as yet no clear case law setting out the correct interpretation of the law as it applies to trans parents who are not birth parents.  The interpretation of the law set out in this guidance is therefore based on our reading of the legislation, combined with some limited experience of dealing with birth registrations in these situations on the ground.

If you conceive through artificial insemination or embryo transfer, the Human Fertilisation and Embryology Act 2008 governs who the legal parenthood of your child.  In many cases the statutory rules are more favourable to recognising your appropriate gender identity, particularly if you have a gender recognition certificate confirming your legal gender before the artificial insemination or embryo transfer which leads to your child’s conception.  If so, the rules work as follows:

• If you are legally a man and are either married to or in a civil partnership with your child’s birth parent at the time of conception, or conceive at a UK licensed fertility clinic and are nominated by the birth parent to be the father prior to conception, then you will be your child’s legal ‘father’ according to the legislation. You can, we believe, quite properly be registered on your child’s birth certificate as the ‘father’ even if you were assigned female at birth.
• Similar rules apply if you are legally a woman and are either married to or in a civil partnership with your child’s birth parent at the time of conception, or if you conceive at a UK licensed fertility clinic and have been nominated to be the second parent prior to conception. You will then be your child’s legal ‘parent’ according to the legislation on assisted reproduction and can, we believe, quite properly be registered as such on your child’s birth certificate as the second ‘parent’ (in the same way as if you were a cisgender second female parent). This is the case even if you were assigned male at birth and even if you provide the sperm to conceive your child.

Find out more about legal parenthood following artificial insemination or embryo transfer.

If you fall outside the rules in the Human Fertilisation and Embryology Act 2008, the law is less favourable.  This might be, for example, because you conceive through intercourse, or because you are unmarried and are conceiving through home insemination or at a clinic overseas.  In such cases, if you provide the sperm to conceive your child you will be the legal ‘father’; if you do not provide the sperm you will not be your child’s legal parent at all, but you may be able to become a legal ‘parent’ via a post-birth adoption process. Find out more about adopting after conceiving a child and about securing parental rights in ways other than adoption.

What happens if my child is born through surrogacy and I am a transgender parent?

Surrogacy is where someone carries a pregnancy for you without intending to act as a parent.  If you are considering surrogacy to create your family you will need to work through your options and decide whether you want to look for a surrogate in the UK or to follow an international surrogacy path.  Find out more about surrogacy in the UK.  Find out more about international surrogacy.

Under UK law, your surrogate will initially be treated as your child’s legal mother and, if she is married, her spouse or civil partner will be your child’s other legal parent.  If your child is born in the UK this is what will be recorded on your child’s initial birth certificate; if your child is born outside the UK the initial birth certificate will be registered according to the law in the country where your child is born, although will not be recognised by UK law.

As the intended parent/s, you then need to make a court application after the birth to become your child’s legal parent/s for the purposes of UK law.  This is a court process designed to remedy the legal issues in surrogacy cases, and it fully and permanently transfers legal parenthood to the intended parent/s.  You can make a joint application if you are a couple or you can apply as a single parent, although you (or at least one of you if you are a couple) needs to be your child’s biological parent to be eligible.  At the end of the court process your child will be issued with a UK birth certificate (or a replacement UK birth certificate) which recognises the transfer of parenthood. The birth certificate issued after a parental order is made records all parents, irrespective of their gender identity, as ‘parents’. Find out more about parental orders after surrogacy.

How does UK law work if I already have children when I transition?

Section 12 of the Gender Recognition Act 2004 states: The fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the mother or father of a child.

This was intended to protect the existing legal parenthood of trans parents who have children before they change legal gender.  It means that you will remain your children’s legal father if you become legally female, and you will remain your children’s legal mother if you become legally male. That may not reflect how you identify your name and relationship with your child, but you will not lose any legal status or rights in respect of your children as a result of changing your legal gender.

As far as we are aware it is not possible, under the current law, for your children’s birth certificates to be changed retrospectively to include your revised name or legal gender.

Should the law on parenthood be changed for transgender parents?

Without a doubt. UK law needs to be more flexible to allow parents to choose the parental title recorded on their children’s birth certificates, or otherwise to make all documents concerning legal parenthood gender neutral. It is important for children that their birth certificates, and the law more generally, recognises the realities of their lives and relationships.

At the moment it seems that the most likely route to law reform is a legislative one, so do write to your MP if you agree that this is important.

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