I’m Being Forced to Go Abroad to Give Birth

At the start of 2021, I contributed to a report by Transgender Europe (TGEU), a large non-profit whose mission is to “strengthen the rights and wellbeing of trans people in Europe and Central Asia.” The report was about trans parents’ freedom of movement, a defining principle of the European Union yet one that trans parents often cannot take advantage of due to administrative systems that fail to recognize our families. 

One of the other contributors was a fellow trans dad, and his testimony immediately jumped out. Benjamin (a pseudonym) explained how he’d traveled from his home country, Germany, to Sweden to give birth in 2019. If he’d given birth in Germany, he would have had to register on the birth certificate as ‘mother’ and under his deadname. But in Sweden, thanks to a court case brought by a different trans dad, trans parents are recognised as their legal gender on their children’s birth certificates: There, trans dads are listed as ‘father’ whether or not they are the birthing parent. 

The Transgender Europe report said that “Benjamin’s baby was

automatically granted the correct birth certificate” by Swedish authorities. It explained that the family had not encountered any administrative problems back home in Germany either. “This little paper [birth certificate] can make such a big difference!” Benjamin said.

When I read that, I knew I needed to give birth to my second child in Sweden, too, so that they could grow up with official documents that reflect and respect their reality. I’m sad and angry that this option did not exist when SJ was born—the Swedish law change happened a year later—but as a trans parent, partial wins can still make a huge difference. You have to seize on morsels of progress wherever and whenever you find them.

The positive Swedish law change is a “sliding doors moment,” like opening onto an alternative reality. It’s what we could have celebrated in the UK if an almost-identical court battle had gone differently—my own.

When SJ was born in 2018, I requested the local government registrar to register me as ‘father’ or ‘parent’ on his birth certificate. I was refused: ‘Mother’ was my only option, regardless of my legal gender and my own updated birth certificate, which says ‘male.’ I decided to challenge the government and was lucky to find pro bono representation from an experienced team with expertise in LGBT equality, family law, and human rights law. 

The case moved smoothly to the High Court. Everyone involved, whether on our side or the government's, seemed to agree on at least one point: This was an important test case, necessitated by an apparent contradiction in several English laws. One, from 2004, said that I was legally male, a fact no one was disputing. Yet, since 1977, common law has also defined ‘motherhood’ as “being proved demonstrably by parturition.” In other words, whoever gives birth is the child’s ‘mother’ and cannot be anything else.

This hasn’t only caused problems for trans parents. The common law

definition of ‘mother’ also discriminates against families created via surrogacy, because it forces the surrogate to register as ‘mother’ on the birth certificate. Amazingly—or nightmarishly, depending on your perspective—if the surrogate is married, her husband is registered as the ‘father.’ The actual parents, genetically related or not, must then go to court for a parental order, which will only go so far as to recognize them as ‘parent 1’ and ‘parent 2’. 

This biologically-essentialist definition also prevents non-birthing women from being recognized as mothers. For example, if a lesbian couple has a baby, whoever gave birth must register as ‘mother’ and whoever did not can only register as ‘parent 2,’ and only then if she is married to the implied “real” mother. If they are unmarried, ‘parent 2’ must adopt her child, regardless of genetic links. Put another way, on UK birth certificates, the word ‘parent’ is not gender-neutral. It is a euphemism for ‘second female parent,’ a label that makes many lesbians mums feel devalued.

All this was on my mind, heading into the courtroom in 2018: There are so many people who could benefit from clearer, more flexible, and more modern birth certificates. To make matters stranger, the 1977 law that gave us our prior, informal definition of ‘mother’ was actually about the technicalities of inheriting noble titles… England! Amirite? 

I must admit that, going in, I hadn’t understood that the judge’s priority would be the definition of ‘mother.’ To me, this was a case about recognizing the fact of contemporary transgender parenthood. It was about fixing a blatant—albeit historically understandable—contradiction in law. However, it seemed like the judge was determined not to focus on trans or queer families and our needs. He, the government, and the media could only really grasp the case in terms of preserving archaic bits of law, or by debating the proper roles of mothers and fathers.

In the end, the judge reached a conclusion that took pretty much everyone by surprise. He ruled that ‘mother’ and ‘father’ are no longer gender-specific. Rather than recognize trans parenthood—rather than update the outdated, binary, heteronormative Frankenstein’s monster of English family law—he entrenched and confused it further. 

So, I am legally a man but also legally a mother. Does this mean I am sometimes a man and sometimes a woman, because many laws use ‘mother’ and ‘woman/she’ interchangeably? I’m honestly still unclear. It almost seems as if the government, and now the courts, are saying, “Sure, we’ll recognise and protect you in law, as long as you don’t have kids.” What is this, if not de facto sterilization?

Another group inadvertently harmed by the judgement is trans dads whose partners give birth. When we were in court, the government argued that regardless of how a trans person becomes a parent, their legal gender recognition never applies. In other words, for parenthood, you are forever and always your sex assigned at birth.

This, above all else, shows how batshit the court’s judgement was, so allow me to explain. UK law says that if a woman gives birth, her husband or male partner is legally the ‘father.’ But in our case, the government argued that this doesn’t apply if the male partner is trans. If he’s trans, and even if he has legal gender recognition, he must be treated as the ‘second female parent’ and registered as ‘parent 2’ not ‘father.’ I suspect they only argued this to avoid being accused of discriminating against me on the basis of pregnancy, but the real-world consequences for trans people are harmful and illogical: Again, we can become parents, but no matter what, it results in our legal gender recognition being rescinded. 

We lost again in the Court of Appeal. As well as confirming the original decision, the appeal judges added insult to injury for all sorts of families when they implied that all children need a mother and that registering me as ‘mother’ was absolutely necessary for my child to understand his origins. As if erasing or undermining our actual, lived reality is in my child’s best interests.

The final chance for our case to succeed is at the European Court of Human Rights, but this process takes years. In the meantime, SJ doesn’t have a birth certificate. The government has agreed not to force me to register until I’ve exhausted my legal options.

Now, I’m seven months pregnant with baby #2. Throughout 2021, COVID travel restrictions made it seem like getting to Sweden to give birth would be impossible. Then, in October, with full credit to modern medicine’s ability to create effective vaccines, restrictions eased across Europe. Within a week, my mum, stepdad, and I had a plan, following closely in Benjamin’s pioneering footsteps. Seeing my anxiety over the financial implications, my mum started a crowdfunder. Within three weeks, thanks to wonderful community support and active allyship, we reached and passed our fundraising goal, covering travel, medical, and living costs in Sweden for at least a month early next year.

There are still unknowns that could scuttle this plan. Maybe baby will come early and unexpectedly while we’re still in the UK; maybe my local hospital will start pushing for early induction or a C-section because baby is on the small side, like their brother was; maybe the Omicron variant will wreak the kind of havoc a million memes are currently portending and European borders will close to non-EU citizens (bloody Brexit…).

I feel hopeful, but I know much of this is out of my control. I can only wait and see. 

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