Gender and parenthood: Tthe case for realignment

Medical Law Review

Volumn 16, Issue 2, 2008, Pages 261-283

  McGuinness, Sheelagh ^b   Alghrani, Amel ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; COUNSELING; FEMALE; GENDER IDENTITY; HUMAN; HUMAN RIGHTS; INFERTILITY; INFERTILITY THERAPY; LEGAL ASPECT; MALE; PARENT; PSYCHOLOGICAL ASPECT; REPRODUCTIVE RIGHTS; TRANSSEXUALISM; UNITED KINGDOM;

COUNSELING; FEMALE; GENDER IDENTITY; GREAT BRITAIN; HUMAN RIGHTS; HUMANS; INFERTILITY; MALE; PARENTS; REPRODUCTIVE RIGHTS; REPRODUCTIVE TECHNIQUES, ASSISTED; TRANSSEXUALISM;

EID: 47049106081     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwn010     Document Type: Article

References (111)

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11. A. Apoola et al. 'Access to Infertility Investigations and Treatment in Couples Infected with HIV: Questionnaire Survey' (2001) 323 British Medical Journal 1285.
12. See Review of the Human Fertilisation and Embryology Act: Proposals for revised legislation (including establishment of the Regulatory Authority for Tissue and Embryos), Cm 6989, December 2006; Human Tissues and Embryos (Draft) Bill (Cm 7087); Joint Committee on the Human Tissue and Embryos (Draft) Bill, Draft HL Paper 169-I and HC Paper 630-I; Written and oral evidence published as Vol. II. Government Response to the Report from the Joint Committee on the Human Tissue and Embryos (Draft) Bill, Cm 7209; Most recently, Human Fertilisation and Embryology Bill [HL]. We will use the new proposed legislation which the government is considering as a starting point for our discussion. The time is ripe to address the present deficiencies and allow individuals who have undergone sex reassignment surgery to achieve their potential for genetic parenthood should they desire it. At the time of writing, it seems however that this is something that is going to be overlooked.
13. W. Fageh et al. 'Transplantation of the Human Uterus' (2002) 76 International Journal of Gynaecology & Obstetrics 245-251
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16. The focus of this paper will be attempts to remove discrimination in practice. We will not focus on legal measures against discrimination.
17. D. S. Dooley, 'Immoral Because They Are Bad, Bad Because They AreWrong: Sexual Orientation and Presumptions of Parental Unfitness in Custody Disputes' (1990) 26 California Western Law Review 395-424
18. Judith G. Fowler, 'Homosexual Parents: Implications for Custody Cases' (1995) 33 Family and Conciliation Courts Review 361-376.
19. S. Golombok et al., 'Children in Lesbian and Single-Parent Households: Psychosexual and Psychiatric Appraisal' (1983) 24 Journal of Child Psychology and Psychiatry 551-572
20. R. W. Chan et al. 'Psychological Adjustment Among Children Conceived via Donor Insemination by Lesbian and Heterosexual Mothers' (1998) 69 Child Development 443-457.
21. R. Green, 'Sexual Identity of 37 Children Raised by Homosexual or Transsexual Parents' (1978) 135 American Journal of Psychiatry 692-697; R. Green, 'Transsexuals' Children' (1998) 2 The International Journal of Transgenderism. http://www.symposium.com//ijt/ijtc0601.htm (accessed on 08 November 2007).
22. P. De Sutter 'Gender Reassignment and assisted reproduction; Present and Future Reproductive Options for Transsexual People' (2001) 16 Human Reproduction 612-614 at 612. It is also a mental disorder as per F64.0 of the ICD-10.
23. D Brothers and W. C Ford 'Gender Reassignment and Assisted Reproduction: An Ethical Analysis' (2000) 15 Human Reproduction 737-738.
24. For the purposes of this paper, we will take gender to be primarily a psychosocial concept and sex primarily to be a biological feature. For a discussion of this in relation to the Gender Recognition Act 2004, see J. Coggon, N. Hammond and S. Holm, 'Transsexuals in Sport-Fairness and Freedom, Regulation and Law', Sports, Ethics and Philosophy (2008), 2, pp. 4-17.
25. P. De Sutter 'Gender Reassignment and Assisted Reproduction; Present and Future Reproductive Options for Transsexual People' (2001) 16 Human Reproduction 612-614 at 612.
26. Consider the recent discussion about the lack of funding available for cancer fertility services for cancer patients: http://news.bbc.co.uk/1/ hi/health/7187291.stm (accessed 07 February 2008); http://www.cancerbackup.org.uk/News/Mediacentre/Pressreleasesstatements/ 2008/96619968 (accessed 7 February 2008); http://www.politics.co.uk/ press-releases/
27. The Harry Benjamin International Gender Dysphoria Associations Standards Of Care For Gender Identity Disorders, Sixth Version at 17.
28. For the views of one of the authors on reproductive liberty, see A. Alghrani and J. Harris 'Reproductive Liberty: Should the Foundation of Families Be Regulated?' (2006) 18 Child and Family Law Quarterly 191-210.
29. P. De Sutter et al. 'The Desire to Have Children and the Preservation of Fertility in Transsexual Women: A Survey' (2001) 6 The International Journal of Transgenderism. http://www.symposion.com/ijt/ijtvo06no03_02.htm (accessed on 8 January 2007).
30. P. De Sutter 'Gender Reassignment and Assisted Reproduction; Present and Future Reproductive Options for Transsexual People' (2001) 16 Human Reproduction 612-614 at 612.
31. See the provisions for same sex parents in the Human Fertilisation and Embryology Bill.
32. Royal College of Physicians, Royal College of Radiologists, Royal College of Obstetricians and Gynaecologists. The Effects of Cancer Treatment on Reproductive Functions: Guidance and Management. Report of a Working Party (RCP 2007).
33. S. Sheldon 'Fragmenting Fatherhood: The Regulation of Reproductive Technologies' (2005) 68 Modern Law Review 523-553
34. L. Smith 'Is Three a Crowd? Lesbian Mothers' Perspectives on Parental Status in Law' (2006) 18 Child and Family Law Quarterly 231-252. Both Sheldon and Smith suggest, in footnotes, that in the wake of the Gender Recognition Act 2004, s. 28 of the Human Fertilisation and Embryology Act would allow for a female-male transsexual to be recognised as the father of a child. This would be premised on his position as the male partner in a recognised heterosexual relationship. Later in this article we discuss this possibility further. Neither Sheldon nor Smith discuss this possibility in much detail. The situation may be complicated if a male-female transsexual wished to use her own gametes.
35. P. De Sutter 'Gender Reassignment and Assisted Reproduction' (2001) 16 Human Reproduction 612-614 at 612.
36. Ibid.
37. A. Lawrence 'Meeting the Reproductive Needs of Transsexual Patients' The 2nd International Congress on Sex and Gender Issues 21/06/1997 http://www.annelawrence.com/repro.html
38. Surrogacy is 'the practice whereby one woman carries a child for another with the intention that the child should be handed over after birth'. Report of the Committee of Enquiry into Human Fertilisation and Embryology (Warnock Committee Report), Cmnd. 9314, 1984, para 8.1.
39. HFEA Code of Practice, 7th edition, S.7.6.9.
40. Surrogacy Arrangements Act 1985.
41. Human Fertilisation and Embryology Act 1990, section 27(1) 'The woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child'. Clause 33 of the Human Fertilisation and Embryology Bill re-enacts this section. 'It will remain the case that the woman who carries a child following assisted reproduction anywhere in the world is the child's mother, unless the child is subsequently adopted or parenthood is transferred through a parental order'. See the Explanatory Notes for the Human Fertilisation and Embryology Bill at p. 29.
42. See M. Hutchinson, BBC News 'Womb transplant baby 'within three years'" Tuesday, 1 July 2003. http://news.bbc.co.uk/1/hi/health/ 3035628.stm
43. and L. Andrews, Male Pregnancy Is in the Future (2002) The Daily Princeton, Wednesday May 8. Accessible at http://www.dailyprincetonian.com/archives/2002/05/08/opinion/5154.shtml
44. P. De Sutter et al. 'The Desire to have Children and the Preservation of Fertility in Transsexual Women: A Survey' (2002) 6 The International Journal of Transgenderism. http://www.symposion.com/ijt/ijtvo06no03_02.htm (accessed on 8 January 2007).
45. All of this depends on a licensed clinic being prepared to facilitate it.
46. A. Lawrence, 'Meeting the Reproductive Needs of Transsexual Patients'. The Second International Congress on Sex and Gender Issues, 21 June 1997 http://www.annelawrence.com/repro.html
47. S. Sheldon, 'Case Commentary Evans v. Amicus Healthcare; Hadley Midland Fertility Services - Revealing cracks in the "twin pillars"?' (2004) 16(4) Child and Family Law Quarterly 437-452.
48. Human Fertilisation and Embryology Act, s.13(5).
49. Human Fertilisation and Embryology Act, Schedule 3.
50. The Human Fertilisation and Embryology Authority is required to provide guidance on this provision via its code of practice for licence-holders. In relation to the need for a father, the current guidance states: 'Where the child will have no legal father the treatment centre is expected to assess the prospective mother's ability to meet the child's/ children's needs and the ability of other persons within the family or social circle willing to share responsibility for those needs'. ( Human Fertilisation and Embryology Authority Code of Practice, 7th Edition, paragraph G.3.3.3.). The new Bill will remove 'the need of the child for a father' from this section. See the Human Fertilisation and Embryology Bill, cl.14(2)(b). It will be replaced by the child's need for 'supportive parenting'.
51. E. Jackson, "Conception and the Irrelevance of the Welfare Principle' (2002) 65 M.L.R. 176
52. S. Millns "Making Social Judgements that Go Beyond the Purely Medical: The Reproductive Revolution and Access to Fertility Treatment Services" in J. Bridgeman and S. Millns (eds) Law and Body Politics: Regulating the Female Body (Dartmouth 1995)
53. E. Sutherland, 'Man Not Included - Single Women, Female Couples and Procreative Freedom The UK' (2003) 15 Child and Family Law Quarterly 155.
54. P. Banzet and M. Revol 'The Surgical Experience' (1996) 180 Bull. Acad. Natl. Med. 1395-1402 as quoted in D. Brothers and W. C. Ford 'Gender Reassignment and Assisted Reproduction: An Ethical Analysis' (2000) 15 Human Reproduction 737-738 at 737.
55. P. De Sutter et al. 'The Desire to Have Children and the Preservation of Fertility in Transsexual Women: A Survey' (2002) 6 The International Journal of Transgenderism http://www.symposion.com/ijt/ijtvo06no03_02.htm (Accessed on 08/01/2007
56. A. Lawrence, 'Factors Associated With Satisfaction or Regret Following Male-to-Female Sex Reassignment Surgery' (2003) 32, Archives of Sexual Behavior, 299-315
57. G. De Cuypere et al. 'Long-term Follow-up: Psychosocial Outcome of Belgian Transsexuals after Sex Reassignment Surgery (2006) 15 Sexologies 126-133. All these citations suggest that sex reassignment surgery offers an improvement in psychological functioning. However, it seems to be true that the incidence of suicide amongst post-operative transsexuals is higher than that of the general population. Whether this necessarily justifies prohibitions on treatment on the basis of the welfare of the child remains unclear. The final study cited, which is also the most recent, suggests that certain factors influence the incidence of suicide including the age of the individual when they first appear for treatment and the acceptance that they receive post-operatively. This suggests to us that improved access to sex reassignment surgery and societal acceptance of transsexualsmay lead to lower incidence of suicide over time. However, we acknowledge the role that hormone treatments may have on the incidence of suicide. Given this uncertainty we suggest that a blanket prohibition on treatment will be inappropriate although in some cases treatment may be legitimately refused.
58. P. De Sutter 'Gender Reassignment and Assisted Reproduction' (2001) 16 Human Reproduction 612-614.
59. D. Brothers and W. C. Ford 'Gender Reassignment and Assisted Reproduction: An Ethical Analysis' (2000) 15 Human Reproduction 737-738 at 737.
60. L. Webster 'Female to Male Gender Reassignment' (1998) 25 Br. J. Sex. Med. 8-10.
61. R. Green, 'Sexual Identity of 37 Children Raised by Homosexual or Transsexual Parents' (1978) 135 American Journal of Psychiatry 692-697
62. R. Green, 'Transsexuals' Children' (1998) 2 The International Journal of Transgenderism. http://www.symposium.com//ijt/ijtc0601.htm (accessed on 8 November 2007).
63. D. Brothers and W. C. Ford 'Gender Reassignment and Assisted Reproduction: An Ethical Analysis' (2000) 15 Human Reproduction 737-738 at 738.
64. 'Fertility Preservation and Reproduction in Cancer Patients' The Ethics Committee of the American Society for Reproductive Medicine http://www.asrm.org/Media/Ethics/FertilityPreservation.pdf p.2 (accessed on 27 June 2007).
65. Ibid, http://www.asrm.org/Media/Ethics/FertilityPreservation.pdf p. 4 (accessed 27 June 2007).
66. 'Managing the Treatment of Male Fertility Patients - RCN Guidance for Oncology and Haematology Nurses'.
67. Review of the Common Law Provisions Relating to the Removal of Gametes and of the Consent Provisions in the Human Fertilisation and Embryology Acts 1990 (HMSO London 1997) para. 2.6.
68. Human Fertilisation and Embryology Bill [HL], Schedule 3, s.12.
69. S. Edwards, Sex and Gender in the Legal Process (Blackstone Press Ltd 1996).
70. Joint Committee on the Human Tissue and Embryos (Draft) Bill, Draft HL Paper 169-I and HC Paper 630-I. Written and oral evidence published as Volume II.
71. Case of X, Y and Z v. The United Kingdom, (75/1995/581/667) Judgment, Strasbourg 22 April 1997. http://www.pfc.org.uk/node/340
72. C. Lind 'Case Commentary: Perception of Sex in the Legal Determination of Fatherhood' (1997) 9 Child and Family Law Quarterly 401-408.
73. Case of X, Y AND Z v. The United Kingdom, (75/1995/581/667) Judgment, Strasbourg 22 April 1997 http://www.pfc.org.uk/node/340
74. See S. Fovargue 'ReAR(IVF: Paternity of Child): assisting conception for the single infertile' (2006) 18 Child and Family Law Quarterly 423-444.
75. Re R (IVF: Paternity of Child) [2005] 2 FLR 843 at 859 per Lord Walker of Gestingthorpe.
76. R -v- HFEA Ex Parte Diane Blood [1997] 2 All ER 687.
77. We are grateful to an anonymous reviewer for this point.
78. Given the current flux in the law, we acknowledge that this may have changed by the time the paper goes to print. This is a commentary on the Human Fertilisation and Embryology Bill as it stands at the time of writing.
79. It could be argued that conceptual difficulties with parenthood are due to technological advances more generally. See L. J. Hill, 'What Does It Mean to Be a 'Parent'? The Claims of Biology as the Basis for Parental Rights' (1991) 66 New York University Law Review at 354 'In this manner, science has distilled the various phases of procreation- coitus, conception, and gestation- into their component parts, wreaking havoc on our prevailing conceptions of parenthood...'.
80. It is worth noting that defining parents according to a male/female dichotomy is problematic in other areas. See the remarks of Lady Hale as reported in 'Lesbians Should Both Be Called Mother' The Telegraph http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/06/19/ nlesbians119.xml (accessed on 20 June 2006).
81. Human Fertilisation and Embryology Bill, cl 33(1).
82. Ibid, cl. 35(1).
83. Ibid, cl. 42(1).
84. Human Fertilisation and Embryology Act 1990, schedule 3, para 5. (as amended by Human Fertilisation and Embryo Bill, s. 41).
85. Ibid (emphasis ours).
86. Gender Recognition Act, s.22: Prohibition on disclosure of information.
87. Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004.
88. Again we acknowledge that this is so provided that the current Human Fertilisation and Embryology Bill goes through.
89. Human Fertilisation and Embryology Bill, Explanatory Notes, p.33 (Italics ours).
90. Human Fertilisation and Embryology Bill, Explanatory Notes, 32.
91. This is in accordance with s. 35(1) of the Human Fertilisation and Embryology Bill.
92. Again see the anecdotal evidence referred to in S. Sheldon 'Fragmenting Fatherhood: The Regulation of Reproductive Technologies' (2005) 68 Modern Law Review 523-553
93. L. Smith 'Is Three a Crowd? Lesbian Mothers' Perspectives on Parental Status in Law' (2006) 18 Child and Family Law Quarterly 231-252.
94. Gender Recognition Act 2004, s.12.
95. L. J. Hill, 'What Does It Mean to Be a 'Parent'? The Claims of Biology as the Basis for Parental Rights' (1991) 66 New York University Law Review 353-420.
96. Civil Partnership Act 2004, s. 75.
97. B. Hale, 'Equality in Equal Measure'. The Sixth Annual Law Reports Lecture 18/06/2007 http://www.lawreports.co.uk/AboutICLR/ Lecture%20PDF/ICLRLecture2007Lady%20HaleTrans.pdf p.18 (accessed on 26 June 2007).
98. S. Sheldon, 'Fragmenting Fatherhood: The Regulation of Reproductive Technologies' (2005) 68 M.L.R. 523-553 at 530.
99. S. Sheldon 'Fragmenting Fatherhood: The Regulation of Reproductive Technologies' (2005) 68 M.L.R. 523-553 at 540.
100. L. J. Hill, 'What Does It Mean to Be a 'Parent'? The Claims of Biology as the Basis for Parental Rights' (1991) 66 New York University Law Review 353-420 at 361.
101. J. Risman 'Intimate Relationships from a Microstructural Perspective: Men Who Mother' (1987) 1 Gender and Society 6-32
102. A. Doucet, 'Gender Equality and Gender Differences in Household Work and Parenting (1995) 18 Women's Studies International Forum 271-284
103. A Doucet, 'There's a Huge Gulf Between Me as a Male Carer and Women': Gender, Domestic Responsibility, and the Community as an Institutional Arena' (2000) 3 Community, Work and Family 163-184.
104. R. De Sousa, 'Gender Dichotomies, Sexual Continua, and Emotional Taxonomy' http://www.chass.utoronto.ca/~sousa/GENDEREMO.pdf (accessed on 3 November 2007).
105. This is often described as 'heterosexism - discrimination or prejudice against homosexuals on the assumption that heterosexuality is the norm'. http://www.askoxford.com/concise_oed/heterosexism?view=uk (accessed on 3 November 2007).
106. S. Gilmore, 'Case Commentary Bellinger v Bellinger - Not Quite Between the Ears And Between The Legs - Transsexualism and Marriage in the Lords' (2003) 15 Child and Family Law Quarterly 295-311.
107. S.1(c) of the Nullity of Marriage Act 1971, re-enacted in s.11(c) of the Matrimonial Causes Act 1973, provides that a marriage is void unless the parties are 'respectively male and female'. See also Corbett v. Corbett [1971] P 83, 104
108. and Bellinger v. Bellinger [2003] UKHL 21.
109. S. Gilmore, 'Case Commentary Bellinger v. Bellinger - Not Quite Between the Ears And Between The Legs - Transsexualism and Marriage in the Lords' (2003) 15 Child and Family Law Quarterly 295-311.
110. We thank an anonymous reviewer for this suggestion.
111. Gender Recognition Act: Explanatory Notes. http://www.opsi.gov.uk/acts/ en2004/2004en07.htm (accessed on 5 March 2008).