If you have changed or are considering changing gender, you might want to know whether you can still have children, and how the law affects your family if you do. Hormone therapy and gender reassignment surgery usually impairs fertility, so you might want to store your gametes to use later, in which case the law governs how long you can store them for and the conditions of storage. If you are planning children having changed gender, you need to know more about your treatment options under UK law, and whether you will legally be your child's mother or father.
Storing gametes (eggs or sperm) in the UK
The World Professional Association for Transgender Health's Standards of Care state:
"Many transgender, transsexual and gender nonconforming people will want to have children. Because feminizing/masculnizing hormone therapy limits fertility, it is desirable for patients to make decisions concerning fertility before starting hormone therapy or underoing surgery to remove/alter their reproductive organs... MtF patients, especially those who have not already reproduced, should be informed about sperm preservation options and encouraged to consider banking their sperm prior to hormone therapy... Reproductive options for FtM patients might include oocyte (egg) or embryo freezing. The frozen gametes and embryo could later be used with a surrogate woman to carry a pregnancy."
The basic storage period for eggs or sperm in the UK is ten years. However, if you are storing eggs or sperm in anticipation of hormone therapy or surgery that will render you 'prematurely infertile', you can extend this storage period every ten years, up to a maximum of 55 years. It is important that you renew your storage period before each ten-year period expires, when a doctor also has to certify that you are prematurely infertile. Find out more about the storage rules for gametes in the UK.
Possible family building options
Fertility treatment for transsexual intended parents can take many different forms, depending on your personal circumstances, current fertility and whether you have gametes in storage. If you are conceiving your own biological child, you might be:
- A FtM transsexual carrying a pregnancy using your own eggs
- A FtM transsexual transferring your stored eggs to your female partner, or to a surrogate, who will carry the pregnancy
- A MtF transsexual transferring your sperm to a female partner, or to a surrogate, through insemination or IVF.
There are also routes to parenthood that do not involve you being a biological parent, including:
- Carrying a pregnancy, as a FtM transsexual, using donated eggs and sperm (or gametes from a male or female partner)
- Your female partner carrying a pregnancy with donated sperm
- Surrogacy using donated gametes (although UK law requires a genetic connection with at least one parent, so generally speaking you need to use your partner's gametes).
Will I be my child's legal parent?
The law is largely silent on questions of legal parenthood for transsexual parents. We hope that the law will at some point be properly reviewed and structured, but for the time being, you can work within the existing rules to some extent to secure your legal status as a parent and to protect your and your child's position (even if the parenthood label you have is inflexible or inappropriate).
Section 12 of the Gender Recognition Act 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 provision was designed to cater for transsexuals who change legal gender with existing children (so the parent-child relationship is not disrupted by the legal change of gender). However, our view is that this section should also apply to children conceived after a gender transition, enabling you to claim the parenthood status you would have had under your previous gender. In other words, you will be a 'mother' (even if you are legally a man) if you give birth, and a 'father' if you are the biological father but are legally a woman. Strictly speaking this is untested as a point of law in the courts, but we have some prior experience of the UK Home Office accepting this in respect of British nationality questions.
Although this is also untested, our view is that you might also be able to claim parenthood under your new gender (if this is your legal gender as the result of a Gender Recognition Certificate). Where you are conceiving through assisted reproduction, the Human Fertilisation and Embryology Act 2008 dictates whether you are a 'mother', 'father' or 'parent'.
Since 6 April 2009, these rules have allowed the partner of the woman who gives birth to be the other parent irrespective of gender. You will be the 'father' if you are a legal man married to the birth mother or formally nominated as the father before conception at a UK-licensed fertility clinic. You will be the other 'parent' if you are a legal woman in a civil partnership with the birth mother or formally nominated as the other parent before conception at a UK-licensed fertility clinic. Find out more about the law on donor conception.
If a surrogate is carrying your child and handing it over to you, she is treated as the legal mother of the child, and you need to apply to reassign legal parenthood after the birth. The process of applying for a parental order makes you and your partner 'mother' and 'father' on your child's UK birth certificate if you are an opposite-sex couple, or 'parent' and 'parent' if you are a male or female same-sex couple. You need to be in a relationship and to use gametes from at least one of you to be eligible to apply for a parental order. If you are not eligible, other options, including adoption, might be available but they are complex). Find out more about the law on surrogacy.
How we can help
We having leading experitise on fertility law and parenthood law following assisted reproduction. We work with transsexual parents building families and storing gametes for future treatment. Contact us if we can:
- Advise on fertility preservation and baby planning options
- Help with parentage issues, including nationality, parenthood nomination forms, birth registration and court processes to acquire parenthood and parental responsibility
- Help with obtaining Gender Recognition Certificates in the UK, including advice to transsexual people who have legally changed gender in another jurisdiction.