Issues surrounding transgender rights and gender identity have been somewhat at the forefront of Scottish Government policy in recent times. This remains a controversial area, especially in the realms of family law where legal status and evolving social norms can often be difficult to reconcile. In the recent English decision of FZ v MZ [2025] EWHC 3338, a transgender man with a Gender Recognition Certificate (GRC) has been required to adopt his own children in order to become their legal father. The decision confirms that biological sex as opposed to acquired gender remains the determinative factor in defining legal parenthood, creating an ongoing difficulty for transgender parents who seek legal recognition of the practical reality of their family lives.
The facts
The case concerned a couple, FZ and MZ, who were both born female, but FZ identifies as male and received a Gender Recognition Certificate (GRC) in 2021. MZ gave birth to the couple’s first child (DZ) in the summer of 2022, at which time the couple were not yet married. DZ was conceived using artificial insemination with sperm from a known donor in a private arrangement - not through a licensed fertility clinic. When the couple went to register the birth of DZ, FZ showed the registrar his GRC. Had FZ been born male and married to MZ, he would have been presumed to be the legal father of the child, but FZ was neither. Despite this, the registrar proceeded to register MZ as the mother and erroneously registered FZ as the father of DZ,
MZ and FZ then married in late 2022, and in 2023 the couple had another child together (AZ) following the same process as before - the only difference being that they were married by the time AZ was born.
In respect of DZ, the registrar’s office later realised that they had made a mistake in registering FZ as DZ’s father. They wrote to the couple explaining that the father of the child, in law, was deemed to be the known sperm donor, and not FZ. In relation to AZ, a question arose as to whether FZ, a transgender man married to AZ’s mother at the time of AZ’s conception, could be registered as AZ’s father. FZ and MZ applied to the court to correct the issue with DZ’s birth registration. They also sought a declarator to enable FZ to be registered as the father of AZ.
What the law tells us – who are the legal parents of the children?
The law governing parenthood in these circumstances can be found in the Human Fertilisation and Embryology Act 2008 (the 2008 Act). The rules are the same in both England and Scotland. Under the 2008 Act, the mother of a child born through assisted conception is the woman who gives birth to the child. This is true whether or not that woman is the genetic mother of the child. This can create legal complexities whereby a surrogate, for example, will be the child’s legal mother on birth, regardless of her genetic or indeed emotional connection to the child. In these circumstances a parental order is required to transfer legal parenthood from the surrogate to the intended parents. In the present case, as MZ was the gestational and biological mother of both children, she is their legal mother.
When it comes to fatherhood, the situation is more complex. The 2008 Act provides that a child can only have one legal father. Section 35 of the Act provides a mechanism whereby a husband may become the legal father of a child born through assisted conception, even where he is not the biological father, provided that he was married to the woman at the time of the procedure resulting in conception and that he had consented to the procedure. Sections 36 and 37 of the 2008 Act provide for unmarried intended fathers to be recognised as the child’s legal father in certain circumstances. One of the key conditions is that the conception must have taken place at a UK licensed clinic. Accordingly, FZ could not be registered as DZ’s father because he was not married to MZ at the time of DZ’s conception, and it did not occur at a licensed clinic. The common law principles therefore prevailed and the sperm donor was deemed to be DZ’s legal father.
At first glance, the registration of AZ’s birth appeared to be more straightforward as FZ was married to MZ by the time of AZ’s conception. Unfortunately for FZ and MZ, the interplay between the 2008 Act and the Gender Recognition Act 2004 (GRA 2004) created another layer of complexity.
The GRA 2004 established a legal framework in the UK for transgender people to change their legal gender. Under that Act, individuals who have lived in their acquired gender for at least two years can apply for a Gender Recognition Certificate. Obtaining a GRC allows the holder to be legally recognised as their self-identified gender across all areas of life. For example, it enables them to obtain an updated birth certificate, marry or form a civil partnership in their gender (just a FZ had done) and have their gender recorded on their death certificate.
FZ argued that section 35 applied to him: he was in receipt of a GRC so was legally male; he was married to the MZ at the time of AZ’s conception; and he had consented to the assisted reproduction procedure undergone by MZ. The court considered the provisions of the 2008 Act in light of the GRA 2004, In particular, the court had regard to section 12 of the GRA 2004 which states that: ‘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 father or mother of a child’. Ultimately, the court disagreed that FZ should be considered male for the purposes of AZ’s parentage - his birth sex was to prevail. The judge considered that section 12 of the GRA 2004 was deliberately drafted to limit the reach of acquired gender in relation to parenthood – essentially it is a statutory exception to the rule that a GRC requires recognition of a person’s acquired gender in “all areas of life”.
However, the judge did also recognise that FZ was put at a disadvantage as a transgender man and that there may be a lacuna in the law – albeit that was a matter for parliament rather than the court to review.
The court’s solution
In order to obtain full legal parentage of both children, FZ was required to formally adopt them. FZ’s application proceeded as a step-parent adoption, and adoption orders were duly granted for both children - ultimately cementing FZ’s legal status as their parent. That said, the fact that a transgender parent must adopt their own child in order to secure legal parentage raises serious questions about equality and the rights of transgender parents under our current legal framework.
Undoubtedly, the intersection of modern family life, gender recognition, and legal parenthood creates issues which are sensitive and complex to address, but as society continues to evolve it is likely that transgender rights within family structures will require further consideration by the courts and parliaments north and south of the border. For more information on LGBTQ+ family law matters, please get in touch with one of our family lawyers today.
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