3.7 The Transsexual Man as a Father Transsexual men and their female partners often form families by bringing children into their domestic unit. Sometimes these are the biological children of the transsexual man, born prior to changeover, sometimes the children of the female partner from a previous relationship. On occasion, though, female partners have children within their relationship with the transsexual man. These children are conceived by the female partner either having intercourse with a biological male, or by artificial insemination using donor sperm. Many partners of transsexual men now seek the help of donor insemination services provided through licensed Fertility Clinics. Clinics are bound to keep as their paramount concern the welfare of any child who is born by the treatment they provide. The transsexual man cannot keep their status a secret in this process. Many clinics will not treat single women at all, because of the requirement in Section 13(5) of the 1990 Human Fertilisation and Embryology Act that: a woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father). This is used by some clinics to avoid any obligation to treat single women[36]. Hence the transsexual man needs to be involved in the application for treatment in order for the first barriers to be crossed. Secondly, a male parent will be investigated as to whether they are the cause of infertility within the relationship. This requires the giving of sperm samples etc. it is far easier for the transsexual man to be open about the situation from the beginning. The consultant, in these cases, often refers the matter of the treatment of the partner of a transsexual man to his Ethical Committee, which advises doctors on whether certain treatments or experimental work they may do are within ethical boundaries. The role of the Ethical Committee in fertility treatment cases is merely advisory; it is not a decision making body[37]. As such it is doubtful whether a committee could veto the decision of a doctor to provide fertility treatment. It was held that a decision by an Ethical Committee could be reviewed where, for example, there was a policy of refusing treatment to anyone who, for example, was Jewish or Black. Once treatment is obtained and a child conceived and born, the transsexual man is not in a position to be registered as the child's father[38]. The mother of the child can choose to give the child her partner's surname and this will be entered upon the child's birth certificate. However the full certificate has a space for the completion of the father's details. (The shortened form of the child's birth certificate has no space for details of the child's parents, so may be preferred by the family as documentary evidence of the child's birth.) Undoubtedly many transsexual men ignore the law and, with their partner's consent, register themselves as the father of the child, just as many other non-biological fathers do. However unlike other social fathers, the transsexual man is committing an offence under the 1953 Registration of Births and Deaths Act. This would be on the grounds that he is not entitled to be treated as the father of the child under Section 28 of the 1990 Human Fertilisation and Embryology Act, even though he is compelled to agree to be such a father in order that his partner may receive treatment. Section 28 provides that, if treatment using donated sperm is provided for a woman living with a man, and the embryo was not created using the sperm of that man, that man will be treated as the father of the child for all purposes. As the transsexual man is not a "man" under English law, he cannot become the father of the child, though he will be allowed to share parenting under the provisions of the Children Act 1989. In law the transsexual man and his partner are currently treated as if two cohabiting women, and as such the decision made in a Manchester High Court on the 24th June 1994 is relevant. In this case a lesbian couple obtained joint legal recognition as parents of a two year old baby. A joint residence order was made in respect of the two women, the judge holding that the child's welfare was his first and paramount consideration and that the evidence in the case overwhelmingly pointed to the making of such an order[39]. Such an order would thus be available to a transsexual man and his partner, but there are limitations to the implications of this. Various anomalies at law appear. The transsexual man may claim the additional tax allowance that is available to the parent of a child if he can show that he maintains the child. At the same time, for all welfare benefits purposes, the child's mother will remain at law as a single parent. This means that she may claim the additional single parents allowance; if she is entitled (either by not working, or by working only part-time), she will qualify to claim income support for herself and the child, or family credit.[40] Currently the Child Support Agency is obliged to ask mothers, who are claiming benefits, for details of the child's father, in order that a claim for maintenance may be made to him. Children who are born using artificial insemination by donor provided by a licensed clinic to a transsexual man's partner, currently have no father at law, so in practice the mother merely needs to inform the CSA of the nature of the child's conception, and any further action is dropped. Finally it is important that the transsexual man writes a will leaving their property, or any tenancies they may have, appropriately because their partner and children (if not their own biological children) are not covered by the intestacy rules that provide for family dependants. 3.8 Transsexual People and the Adoption of Children Adoption Agencies and the courts might, using the exhaustive criteria laid down in the Adoption Agency Regulations, consider transsexualism as a ground for refusing to make an adoption order, on the basis that having a transsexual parent is not in the best interests of the child[41]. There is no case law on this area though there was an unreported case in 1991 in which a judge refused to allow a lesbian woman to adopt a two year old boy who had been placed with her by Newcastle Social Services. As some local social services in London and elsewhere have recently changed their views, at least towards gay men and lesbian women adopting a child, there would seem to be no reason why a transsexual person should not do so too. Nevertheless, paragraph 16 to Statutory Guidance to the Children Act 1989 states that : it would be wrong arbitrarily to exclude any particular groups for consideration. But the chosen way of life of some adults may mean that they would not be able to provide a suitable environment for the care and nurture of a child. Even so, as the emphasis under the Children Act 1989 is now on what is in the best interests of the child, there is no reason why transsexualism should be a barrier to adoption of a child. However if a transsexual person lives with someone of the same natal sex (i.e. a transsexual woman lives with a male, or a transsexual man lives with a female), and that partner is the parent of a child, the transsexual would not be able to adopt that child without the original parent losing their parental rights. The Adoption Act 1976 Section 14 states that an adoption order may be made on the application of a married couple, but an adoption order shall not otherwise be made on the application of more than one person. As the transsexual person and their partner cannot get married, it is not possible for them to be joint parents though it may be possible for them to share parental rights and duties under the Children Act. 3.9 Transsexual People and Family Law: Conclusion Currently family law as regards transsexual people is in many areas unclear, and in those areas in which it is clear, it seems to penalise them for being transsexual. Transsexual people have little opportunity to cement in law the relationships in which they participate, and this penalises them, often unjustly. In practice, the courts provide little support when relationships break down, and the law will not allow them to affirm the relationships that work. Children, in particular, can feel the repercussions of this inadequacy. They can lose parents, or they can face legal stigmatisation, by apparently not belonging to the family they live with. Transsexual people, justifiably feel a level of financial and social insecurity that seems unnecessary. The moves taken with the Children Act are to be applauded, but it is yet to be seen whether in reality the courts will follow the spirit of the law in cases concerning transsexual people. It is of particular concern that the Adoption Act 1976 is restricted to single people or married couples. Because of the restrictions on marriage that the transsexual faces, along with the infertility they gain as a result of reassignment treatment and the requirements of most clinics in the field that they are unmarried or divorced, it proves impossible for them to become parents. The failure to afford the right to marry, is based upon the administrative issue of birth certificate registration and the judgement of an elderly judge, who because of his rather ancient medical training was unwilling to accept that there were new ideas in his field. This refusal is rooted in biological sex role theories that are long out of date, and which have little support from either the medical world and its current knowledge of sex differentiation, or from the current theoretical thought concerning gender, its meaning and the individual's experience of it. The compassionate and tolerant attitude to human sexuality that appears to be being adopted throughout other institutions seems to be sadly lacking in the institution of the law. The legal discourses participated in by English judges uphold an ideology of sex role differentiation that, in practice, can afford little relief to the transsexual. Kennedy summed it up, 26 years ago, when he said: The question which serves as a starting point is why there should be legal obstacles to the recognition of the transsexual's change. What business is it of the state that someone now wishes to be known as a woman where previously she was considered a man? Obviously the state has an interest in regulating behaviour of its citizens. So, equally obviously, the question becomes what disruption to normal regulation would be caused by recognising the change, always bearing in mind the rarity of the situation, and if some disruption were shown, is it sufficiently serious to warrant withholding recognition?[42] - by Prof. Stephen Whittle, UK			Home ·  About M.A.N. ·  Activism ·  F.A.Q.'s ·  Legal ·  Documents ·  Publications ·  Education ·  Health ·  Supporters ·  Links ·  Sitemap ·  Contact Related ·  Myths ·  Definitions ·  Intersex Condition ·  Focus & Priorities ·  mensaustnet
	Last modified: 28 January 2003

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