Transgender parents and UK fertility law

February 28, 2016
There is growing awareness in the UK of the fertility needs of transgender people. Hormone therapy and gender reassignment surgery often affect fertility and so, like cancer patients having chemotherapy, a transgender man or woman going through a gender transition will be encouraged to consider fertility preservation treatment. If they want to have children in the future, a female to male (FTM) transgender man may want to save and store his eggs, and a male to female (MTF) transgender woman may want to save and store her sperm.  The timing of fertility preservation often needs careful medical planning alongside other treatments, since storing eggs usually means IVF and hormone treatment, and sperm needs to be collected before its healthy production is affected.

But, medical issues aside, how does UK law affect transgender fertility patients, both when they store their gametes (eggs or sperm) and when they later use them to have a family?

Eggs and sperm in storage

In the UK, legal rules dictate how long eggs, sperm or embryos can be stored.  The basic storage period is ten years, but for transgender patients storing gametes because the medical treatment they are having will make them ‘prematurely infertile’, the basic period can be extended every ten years, up to a maximum of 55 years. A doctor has to certify premature infertility at the date of the renewal, and the patient has to consent to the storage renewal. That means there is no time pressure to start a family, although the renewals of storage do have to be kept up to date.

Under UK law no one owns gametes (or embryos created with them) while they are in storage; instead they are governed by the rules on consent.  The person who has given the genetic material (or each of them, in the case of embryos) has to give written signed consent to the storage, and has to consent to how the stored gametes are ultimately used. Consent can be varied at any time before the gametes are used.  That means that the intended parent has ongoing control over his or her own gametes (together with the other genetic provider if the gametes are fertilised and stored as embryos).

Becoming a transgender parent

In the UK a person can legally change gender by obtaining a gender recognition certificate once they have been living in their acquired gender for at least 2 years and with medical evidence of gender dysphoria. The change is retrospective and the transgender person will be issued with a new birth certificate in their acquired gender.

The law makes it clear that, if a person changes legal gender, they do not lose their legal status as the ‘mother’ or ‘father’ of an existing child.  That means that a transgender woman remains her children’s legal father if she legally becomes a woman, and a transgender man remains his children’s legal mother if he legally becomes a man.

The law does not, however, say specifically what the position is for transgender parents who conceive after having transitioned.  However, it is arguable that the same rule applies, enabling transgender parents to at least claim the parenthood status they would have had under their previous gender.  In other words, if a transgender man gives birth, the fact that he is legally a man does not stop him being the child’s legal ‘mother’; a transgender woman who is the biological father of a child carried by her female partner is not stopped from being the legal ‘father’. The legal labels may not be ideal in terms of parental identity (and how the child perceives him or her), but there is at least a recognition of legal parenthood.

However, that is very often not the end of the story. Most transgender intended parents need the help of a donor and/or a surrogate to have a family after transitioning, which means the UK legal parenthood rules on donation and surrogacy apply. These override the basic common law on parenthood, but in some cases can in fact be helpful, enabling a transgender parent to have a more appropriate (or at least a gender neutral) parental title in law. Here are two examples:

Example 1: Alice and John

John is a FTM transgender man who stored his eggs before transitioning and changing legal gender. He is married to Alice. They decide to have a child using his stored eggs and donor sperm. Alice carries the pregnancy and give birth to John’s biological child.

The law says that Alice, as the birth mother, is the only legal mother. John is not, therefore, recognised in law as a ‘mother’ even though his eggs were used to conceive the child.  However, since John is legally Alice’s husband, the law says that he is the child’s ‘father’ (and that the sperm donor has no legal status or responsibilities).  It means that Alice and John can, appropriately, be registered on their child’s birth certificate as mother and father respectively.

Example 2:  Stefi and Rich (and Kirsten and Bill)

Stefi is a MTF transgender woman who stored her sperm before transitioning. Rich is her (male) partner. They decide they both want to conceive biological children together through surrogacy. An agency in the US introduces them to Kirsten (married to Bill), who agrees to act as their gestational surrogate. They create embryos with eggs from a US donor and sperm from each of them, and two embryos are transferred to Kirsten, who becomes pregnant with twins. Stefi and Rich are each the biological father of one of the children, who are born in the USA.

In the US the gestational surrogacy contract is legally recognised, which means that the law upholds what everyone intended as to their legal status at birth.  Stefi and Rich are therefore named as the ‘mother’ and ‘father’ on the children’s US birth certificates, and Kirsten and Bill have no legal responsibilities.

UK law is more complicated: notwithstanding the legal position in the USA, it treats Kirsten and Bill as the legal parents of the children (as the woman who gave birth and her husband). Like other parents through surrogacy, Stefi and Rich apply to the UK family court for a parental order which enables UK birth certificates to be issued for their children.  Under UK law they can’t choose how they are recorded on the birth certificates, but (as is always the case for surrogacy parents) the UK birth certificates ultimately record them both gender-neutrally as the children’s legal ‘parents’.

These examples show how the law can work well, but in other situations the outcomes are not so straightforward.  Each case is fact-specific, and transgender parents should consider carefully how best to manage the legalities if they are planning a family.  In the long term, the law may catch up by recognising what parents of all genders intend when they make arrangements to conceive a child.

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