If you are about to or in the process of transitioning genders, you may be wondering what will happen to the legal status of children you have conceived before transitioning.
Where you already have children, the law is straightforward. Your legal status as the parent of your child will not change after your transition and your parental rights and responsibilities and legal relationship with your child will not change. So if you were previously male and transition to be female, you will legally remain your child’s father, and all of the legal rights that come along with that.
That may not reflect the name or position that you have chosen for your family, although the legal protections will be in place for you.
If you have already transitioned and are now looking into creating your new family, there are no doubt many questions you will have about your legal parenthood for any new child.
Unfortunately, the current law has no clear legislation making it clear for transgender parents who conceive naturally after having transitioned. Our understanding from previous cases is that you could still currently rely on the parenthood status you would have had under your previous gender. So if you can still produce sperm but have now transitioned to be female, you could still claim to legally be the child’s ‘father’ even if you are a woman. This current legal position is not satisfactory from our point of view, and the law is currently being consulted on by the Scottish Government.
Where assisted conception comes in to play, there is some statutory provision for more suitable legal outcomes for such families.
Where your partner carries the child with the use of donor conception, you can be classified as the legal father or second parent if you are in a civil partnership or married at the time of conception. You can find out more about donor conception here.
If you are using a surrogate for this, the surrogate is the legal mother (and if she is married/has a civil partner, they will be the second parent). A Parental Order is then required to transfer the legal parenthood to you and your partner if you have one. You can find out more about surrogacy here.
If you would like to speak to one of our specialist family lawyers about your specific situation, please contact us.
