The High Court finally addressed the complex issue of the legal parentage of children born to transgender parents based on the intersectionality arising between the Gender Recognition Act (GRA) 2004 and the Human Fertilisation and Embryology Act (HFEA) 2008.
Facts:
DZ was born in 2023, followed by AZ in 2024, to a couple referred to as the applicant (FZ) and the respondent (MZ), respectively. The applicant is a transgender man who obtained a Gender Recognition Certificate (GRC) in 2021, which legally recognises him as a male for most purposes under the GRA 2004. In 2022, he married the respondent, who is a natal woman. The family functions as a traditional unit, with both individuals acting as parents to the children, although in this case, the legal status of the applicant in relation to each child was the primary focus of the proceedings.
DZ was conceived via artificial insemination using a known donor’s sperm during a period when the parents were not yet married, a conception which took place outside of a licensed clinic. When the parents went to register the birth, the applicant presented his GRC to the registrar. After a brief consultation, the registrar mistakenly registered the applicant as DZ’s “father”. Later that year, the local council notified the parents that this was a legal error because, under HEFA 2008, an unmarried partner in a private conception arrangement does not automatically acquire parental status. Consequently, the donor remained the legal father in the eyes of the law, despite having no active role in the child’s life.
AZ was conceived using the same donor and method as DZ. However, by the time of AZ’s conception, the applicant and respondent were legally married. This change in marital status triggered different provisions of the HEFA 2008, specifically Section 35, which generally treats the husband of a woman who undergoes assisted conception as the legal father of the child.
The applicant sought a declaration of parentage to be named as AZ’s father on the birth certificate, arguing that, since he was married to the mother as a man, he should fall within the standard marriage provisions of HEFA 2008. The Court was, therefore, required to determine whether the status of “fatherhood” on AZ’s birth certificate was a matter in which the acquired male gender of the applicant should be recognised, or whether the biological “carve-out” in relation to parenthood meant that he could not be legally classified as a father.
Decision:
The High Court granted a step-parent adoption and a quashing of the original birth registration for DZ to secure the applicant’s legal status. However, for AZ, the Court refused a declaration of parentage, ruling that Section 12 of the GRA 2004 prevents a transgender man from being registered as a “father”, despite his legal recognition and marriage.
Under HEFA 2008, the applicant did not satisfy the conditions of “agreed fatherhood”, meaning that the biological donor remained the legal father. To remedy this, the Court determined that a step-parent adoption was the only legal mechanism by which legal parenthood could be conferred upon the applicant, allowing the original birth certificate to be quashed via judicial review to ensure a fresh registration that would protect the applicant’s privacy.
Regarding the second child, AZ, the Court’s reasoning centred on the tension between Section 9 of the GRA 2004, which recognises acquired gender for most purposes, and Section 12, which explicitly states that a change in gender does not affect a person’s status as a father or mother. The Judge concluded that, because the parenthood provisions of HEFA 2008 specifically concern “status,” Section 12 functions as a ‘total carve-out,’ one that prevents a transgender man from being registered as a father, regardless of his marriage to the birth mother.
Implications:
The most immediate implication is the confirmation that Section 12 of the GRA 2004 operates as a “hard barrier,” one which courts are unwilling to bypass. It establishes that while a GRC changes a person’s sex for most legal purposes—such as marriage or employment—it does not carry over into the realm of parenthood.
For transgender men, this means that, even if they are legally recognised as male and are married to the woman who gives birth, they cannot be registered as a “father” under current legislation. This creates a specific legal “lacuna” in which a transgender man may find himself unable to be registered as either a father (due to Section 12) or a second female parent (because he is legally a man), potentially leaving him with no automatic legal parenthood at birth.
The case highlights the vital importance of step-parent adoption. The Court’s willingness to quash a birth certificate to allow for a de novo registration is a significant win for privacy, as it prevents the “marking” of official documents that would otherwise ‘out’ a transgender parent. It provides a blueprint for how transgender parents can secure their legal rights and protect their children’s privacy, even if the primary statutes remain restrictive.
