Parenthood lacuna revealed as trans man required to adopt own children

A recent judgment has revealed a parenthood lacuna, with a transgender man required to adopt his own children.

December’s family law judgment handed down by Mrs Justice Lieven of the Family Division of the High Court of Justice is a blow to many advocates of transgender parenthood. It determined that biological sex, rather than acquired sex or gender, remains determinative for the status of parenthood.

The decision denied a transgender man automatic legal parenthood in relation to his daughter, notwithstanding his marriage to the child’s mother, his lived parental role as father and his possession of a Gender Recognition Certificate (GRC) recognising him as a man. While framed as a careful exercise in statutory interpretation, the outcome exposed the profound difficulty some transgender parents face – and will continue to face for the time being – when seeking legal recognition of their family lives.

Although it is a decision from an English court, FZ v MZ & FZ v Y Council [2025] EWHC 3338 (Fam) is not an abstract English anomaly. It is a warning shot as to how transgender parenthood may be treated in Scotland if similar facts arise, given the legislative framework considered by the court – principally the Gender Recognition Act 2004 and the Human Fertilisation and Embryology Act 2008 – applies both north and south of the border.  

The factual background

Briefly, FZ and MZ were both born female. They met in 2020. FZ was issued with a full GRC in 2021. The older child, DZ, was conceived using IVF at which time FZ was legally recognised as a transgender man. The parties married in 2022. DZ was born after marriage. Their second child AZ was conceived, and born, after marriage.

The first problem: birth registration

The first child, DZ, conceived in summer 2022, prior to the parties’ marriage at the end of 2022, was born in 2023. When the birth was registered, FZ attended the registry office with his GRC advising he was a transgender man. Had FZ been of the male sex, married to the birth mother, he would have been presumed to be the legal father and could have been properly named as father on DZ’s birth certificate. The registrar registered MZ as the mother but erroneously registered FZ as the father of the child.

As the applicant was not married to the respondent at the time of DZ’s conception, he did not fall within the ambit of Section 35 of the Human Fertilisation and Embryology Act 2008 (HFEA 2008) which, paraphrased, provides that if, at the time of conception, the birth mother is married or in a civil partnership with a man, and the man’s sperm is not used to create the embryo, then that man is still to be treated as the father of the child (unless he did not consent to the treatment, and certain other exclusions do not apply).

Had the parties wished for FZ to acquire legal status as a parent at the time of conception (when the parties were unmarried), they would have had to have complied with the “agreed fatherhood provisions” in Sections 36 and 37 HFEA 2008. But unfortunately for FZ, he did not fall within the ambit of Section 36 because the agreed fatherhood conditions were not satisfied.

These provisions require inter alia that the conception must have taken place at a UK licensed clinic, with the relevant notices in respect of parenthood provided to the “person responsible” at the clinic. As conception had not occurred within such a treatment centre, the 2008 statutory parenthood provisions did not apply. Common law principles therefore prevailed and the known sperm donor was the child’s legal father.

To correct this anomaly in legal status and to reflect the reality of the family life lived by father and child, the court ultimately granted a declaration of non-parentage for FZ in respect of DZ, but also granted an adoption order to confer legal parenthood on him. The court recognised that adoption would provide confirmation of the parenting partnership he and his wife wished to provide DZ. Most importantly, it was the only order the court could grant which would fully secure legal and emotional permanence for DZ and her future.

Following judicial review proceedings, an order was also made quashing the original birth registration so that a fresh, clean registration could be made.

The second problem: a statutory scheme that excludes transgender parents

If correction of the birth certificate for DZ and all the ramifications of that weren’t complicated enough, their second child, AZ, was also conceived using donor sperm through privately arranged artificial insemination. But this time around, the parents were married at the time of AZ’s conception, therefore Section 35 HFEA 2008 came into play.

Remember that, paraphrased, Section 35 states that at the time of conception, if the birth mother was married or in a civil partnership with a man, and the man’s sperm was not used to create the embryo, then that man is still to be treated as the father of the child (unless he did not consent to the treatment, and other exclusions do not apply).

At the heart of the case lay the interaction between two statutes with very different aims: HFEA 2008 and the Gender Recognition Act 2004 (GRA 2004).

GRA 2004 was enacted to provide legal recognition to transgender people in their acquired gender. Section 9(1) provides that, where a full GRC is issued, the person’s gender “becomes for all purposes” the acquired gender. This is understandably understood as conferring full legal recognition across all areas of life. Although the provision was originally drafted with biological parenthood in mind, its implications have become far broader.

HFEA 2008, by contrast, was intended to create clarity and certainty around legal parenthood following assisted reproduction.

This raised the question of whether a married transgender man, who was neither a biological nor gestational parent, could be registered as the child’s father on the birth certificate?

The applicant’s case was that Section 35 HFEA 2008 applied squarely to him. He was legally male, married to the mother, consented to the conception and was neither biologically nor gestationally connected to the child.

But although under Section 9(1) GRA 2004, a person with a GRC is for all purposes the acquired gender, Section 9(3) makes Section 9(1) subject to the other provisions in the Act. Therefore “the general effect of Section 9(1) of the GRA is displaced to the extent that an exception to it applies. For present purposes the relevant exception is contained in  Section 12. It follows that, although for most purposes a person must be regarded in law as being of their acquired gender after the certificate has been issued, where an exception applies, they are still to be treated as having their gender at birth” (emphasis added; R (on the application of McConnell) v The Registrar General for England and Wales [2020]).

FZ argued that Section 12 GRA 2004 should not be read so as to exclude him from statutory parenthood where biological reality was not in issue. Mrs Justice Lieven rejected that argument. She held that Section 12 operated to prevent a person’s acquired gender from determining parenthood status in any context, not merely biological parenthood. As a result, although FZ was legally male for most purposes, he was not ‘a man’ for the purposes of Section 35 HFEA 2008. Equally, he could not be registered as a second female parent under Section 42, because that provision applies only where a woman is married to a woman.

Article 8 ECHR and proportionality

It was then argued that the refusal to register FZ as a legal parent under any provision, as male or female, interfered with his right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR). Mrs Justice Lieven accepted that Article 8 was engaged. She acknowledged that birth registration is an important aspect of family life and identity, and that the applicant’s lived role was that of a parent and father. However, she concluded that the interference with his Article 8 right was justified and proportionate.

She emphasised that issues of parenthood, gender recognition and birth registration involve complex questions of social policy, morality and ethics. Parliament was therefore entitled to a wide margin of appreciation. The maintenance of a coherent and intelligible birth registration system was identified as a legitimate aim.

The judge considered that Section 12 GRA 2004 deliberately limited the reach of acquired gender in relation to parenthood, and that it was not for the court to extend it. As the judge observed, this left the applicant falling entirely outside the statutory parenthood scheme. Mrs Justice Lieven acknowledged that this produced a potential “lacuna or inconsistency” in the law, but considered that resolving it was a matter for Parliament rather than the courts.

The practical outcome

So again, the outcome for FZ was not ideal. He had no automatic legal parenthood or parental responsibility at birth in respect of his second child either. To obtain full legal parenthood, he would need – once again – to adopt his own child, notwithstanding the reality he lived as a married father.

From a practitioner’s perspective, the court’s workaround to use step-parent adoption as a solution is problematic. Adoption is not a neutral administrative process. It involves detailed assessment, delay, expense and emotional intrusion. It is also conceptually ill-suited to recognising an existing parent-child relationship within a settled family unit where there has only ever been two parents.

That a transgender parent should be required to adopt their own child, not because of safeguarding concerns but because of statutory gaps, raises serious questions about equality and dignity, even if those questions did not succeed under the ECHR analysis.

The avoidable risk: unlicensed fertility treatment

The HFEA 2008 regime is designed to provide certainty. Licensed clinics ensure that proper consents are obtained, that parenthood is allocated at the point of conception, and that families do not later find themselves reliant on common law rules or retrospective remedies. By proceeding privately, the parties removed themselves from the statutory safety net of licensed treatment and exposed themselves to a legal landscape that was far less protective, particularly for a transgender parent already navigating statutory complexity. Had licensed treatment been used, the statutory framework might have provided a clearer route to recognition.

FZ v MZ & FZ v Y Council exposes the fragility of transgender parenthood within the current legal framework. There is no separate Scottish parenthood regime for assisted reproduction – the underlying allocation of legal parenthood following assisted conception is UK-wide. It confirms that while gender recognition may be granted “for all purposes”, parenthood remains a contested and excluded space. Sex matters.