EXPERIMENTAL AND CLINICAL TRANSPLANTATION

Key words : Ethics, Family law, Gender identity, Human rights, Uterus transplantation

Consider the following scenario: A transgender woman (she/her pronouns) undergoes fertility preservation with sperm cryopreservation prior to medical and surgical transition. After this process, she undergoes uterus transplant (UTx) successfully. The uterus is implanted with an embryo that was conceived through in vitro fertilization with her cryopreserved sperm. She carries and gives birth to a child to whom she contributed male genetic material. In this scenario, what parental title should she be given on the child’s birth certificate?

As a society, we have now evolved from considering genetics and/or chromosomal sex as the only contributing factors toward gender recognition. We have legally accepted an individual’s right to the decision to self-identify as “male” or “female” or to otherwise establish one’s place on a spectrum of gender, such as nonbinary or genderqueer. However, a consensus regarding the legal and ethical recognition of “motherhood” and “fatherhood,” or more generally “parenthood” in theoretical scenarios like the one posed above, has yet to be reached.

Since 2014, when the first child was born to a woman who had undergone UTx, the field has grown rapidly, with more than 70 reported cases and 23 live births among more than 10 countries.¹ Although previously considered an experimental procedure, UTx is expanding rapidly and en route to becoming an accessible clinical option. Some institutions have considered expanding the field of UTx to include transgender recipients and donors.² Multiple publications have advocated for the rights of the transgender population to experience and participate in birth and parenthood.^2-4

Prior to undergoing UTx, cisgender females with absolute uterine infertility undergo in vitro fertilization procedures to stimulate the ovaries, procure oocytes, and produce an embryo for implantation. For transgender women, patients have various options for fertility preservation prior to UTx (ie, sperm cryopreservation, surgical sperm extraction, surgical biopsy of testicular tissue) to facilitate the biologic contribution of a male sex cell (sperm) to the embryo that the patient would carry in her transplanted uterus. An argument may be made to define a transgender woman as the child’s “father” on the basis of their male genetic contribution. Conversely, one could argue that a transgender woman who carried and gave birth to the child would be her child’s “mother.” Here, we raise the following considerations regarding parental designation in the context of rapidly evolving gender constructs and surgical reproductive options.

Although UTx has not been performed in transgender women yet, transgender men have given birth to children from their functional uterus and oocytes. Margaria has described the cases of 2 transgender men who became pregnant and each gave birth to a child.5 These men had already legally changed their gender to male. However, they were assigned to be the legal mothers of their children at birth registration. Both men initiated proceedings to be legally assigned as fathers or, alternatively, as parents. They argued that their children had been born after each had legally transitioned to a male gender identity and that any obstacle to their recognition as fathers breached their right to respect for family and private life. In both cases, the courts ruled⁶ that the transgender men would legally remain recognized as their children’s mothers. The courts argued for the need to uphold a consistent scheme for birth registration that included either recognition based on genetic contribution or the birthing process (ie, maternal designation assigned to the parent who gives birth to the child). Ruling in favor of assigning parenthood based on one’s genetic contribution to the child discourages the attribution of 2 mothers or 2 fathers to a child. Additionally, the courts ruled that it was in the child’s best interest to know of their legal biologic ancestry. Of note, other countries such as Sweden, Canada, and the United States already allow for transgender male parents to be registered as the father or parent of their child.6 The controversy over transgender male parenthood designation foreshadows the potential for ethical and legal dilemmas to impact transgender female UTx recipients. Although a transgender female individual may be recognized as a woman (gender identity) in her day-to-day life (social gender role) and may have legally transitioned to be female prior to UTx, it is possible that a court may still consider her a father of a child for whom she contributed sperm to the embryo that she carries in her transplanted uterus.

If a court were to rule that a UTx recipient is the legal female father of their child, the decision may be viewed as an infringement on the rights and fair treatment of transgender individuals. Transgender individuals already face high levels of stigma and discrimination, and the controversial designation as a female father would likely exacerbate intolerance against those who are not cisgender. Legal docu-mentation incongruent to one’s gender identity also carries the risk of unintentional disclosure of one’s transgender identity without consent. In addition to dysphoria, such a hapless identity disclosure could lead to untoward or dangerous situations for the transgender individual. The current designations of mother and father also lack inclusivity for nonbinary individuals who give birth or choose to parent children. As the number of transgender and nonbinary individuals increases, society has begun to recognize that the long-standing binary scheme for gender identity is unduly restrictive and outdated.⁷ However, these views have not yet permeated into more complex scenarios such as transgender men giving birth or UTx parenthood designation.

Although courts may argue that parenthood designation based on genetic contribution promotes a child’s ability to understand their origins from 1 father and 1 mother, this may undermine the desired family structure of the parents. It may confuse the child when they learn that their mother, who has filled the role of mother from birth, is legally designated as their father. A child may feel distrust, anger, and resentment toward their parents or society. As the previously mentioned court rulings were based on decisions to protect the child, it can be argued that assigning parenthood based on genetic contribution would oppose this very goal. Furthermore, the strict heterosexual family construct (1 father and 1 mother) does not apply to some situations, such as a single parent or homosexual parent households.

Interestingly, a primary element of the arguments for transgender male motherhood may support the designation of post-UTx transgender female parents as mothers. Rather than the genetic contribution serving as the basis for designation, the parenthood could be viewed from a perspective that emphasizes the reproductive experience, and therefore the title of mother should be given to the individual who carries and gives birth to the child.⁸ In the setting of a transgender man giving birth, this argument is counterproductive. However, in the case of a transgender woman after UTx, this perspective allows her to claim the title of mother due to her birthing experience. The egg donor, in a sense, would then be considered the father (better known as the biologic or genetic parent), as they were the individual who contributed gametes, but did not participate in carrying the fetus or the birth process.

It appears that UTx in transgender female patients will soon become a reality, and so we must preemptively plan for the challenges that these parents will face. Many have suggested that de-gendering legal parenthood may be the simplest and most ethical solution.⁵ By abandoning dichotomous mother/father terminology, marginalized groups and unconventional families will benefit. For transgender individuals, the debate regarding whether motherhood or fatherhood should be based on genetic contribution, birthing process, or patient desire would be a non-issue. A similar argument has been proposed for the deemphasis of sex classification. If there is no clear purpose or benefit to designating a parent as a mother or a father, then why do we need it at all?⁹ The ultimate goal should be to provide a child with unconditional love and care from their guardians, regardless of gender or title. Stereotypical social and legal constructs that prioritize cisgender individuals will likely persist, so it is up to future generations to continue the fight for equal rights for transgender individuals and uphold standards of justice and equality for all future parents.

Volume: 21 Issue: 1 January 2023

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