When the transgender dad gives birth, will he legally be the father?

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June 13 2008 5:32 PM

Will the Transgender Dad Be a Father?

What goes on the birth certificate.

Baby
Who's your daddy?

As people across the country fête their fathers this weekend, a transgender man in Oregon will enter the final weeks of his first successful pregnancy. Thomas Beatie, who's male according to state law but who retains his female reproductive organs, underwent artificial insemination because his wife was unable to bear children. Will the baby's birth certificate register Beatie as the father or the mother?

Nathan Heller Nathan Heller

Nathan Heller is staff writer for The New Yorker and a film and TV critic for Vogue. You can follow him on Twitter.

The mother, but it can subsequently be changed. Oregon statutes define live birth to include "expulsion or extraction [of the living child] from its mother," and the state's Department of Human Services interprets this clause and others to mean that a birth certificate must declare the childbearer (in this case, Beatie) to be the mother. It doesn't need to be his permanent status, though. As soon as the initial paperwork is squared away at the hospital, Beatie and his wife are free to petition for a court order to have a new birth certificate issued, this time listing Beatie as the father and his wife as the mother.

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This switcheroo is a well-established legal procedure, even though Beatie's circumstances have no clear precedent in Oregon law. It's commonly used in cases of surrogacy, when a "gestational carrier" is pregnant with the embryo of people who will claim parentage at birth. A preliminary birth certificate names the childbearer as mother; another follows with the destined parents replacing her. Beatie would approach this process as if he were his own surrogate. He'd effectively change his status from birth mother to destined father and allow his wife to claim motherhood. Lesbian couples in Oregon sometimes use a similar formality: A biological mother can adopt her own child with her lesbian partner, making the two women equal parents (though one may end up in the "father" slot of the birth certificate).

Maneuvers like that may soon be unnecessary; there's a growing trend to award same-sex couples equal parentage from the start, even when one woman has no biological relationship to the child. And Beatie may have other options, anyway. Conceivably, he could avoid even a temporary "mother" status by invoking a 2007 state amendment (PDF) that outlaws discrimination on the basis of sexual orientation, defined to include "gender identity, regardless of whether the individual's gender identity, appearance, expression or behavior differs from that traditionally associated with the individual's sex at birth." To call Beatie a mother, a lawyer might argue, would be to treat him as something other than a man—an illegal discrimination against his current sexual orientation.

Either way, Beatie's change to the original birth certificate would be largely symbolic: There are few, if any, circumstances under which his designation as mother versus father would have broader legal effects. Even if he and his wife were to split, for instance, decisions about parenting (the technical term for custody) wouldn't take his paternity into account. These rulings are forbidden to show gender preference in Oregon—and the law tends to favor shared-parenting arrangements, anyway. What's relevant to such decisions is whether Beatie is his child's parent, and no one disagrees that he is.

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Explainer thanks Leslie Harris at the University of Oregon School of Law, Mara Keisling at the National Center for Transgender Equality, Shannon Price Minter at the National Center for Lesbian Rights, and Jennifer Woodward at the Oregon Department of Human Services.