Mens Pregnancies and Nonbinary Pregnancies in The Law: Ontic Injustice and/or Invisibilization

Introduction

Procreation is political. The choices of if, when, and how to procreate, or not to procreate, are indeed personal decisions. However, they are not only personal. The broader social context in which individuals are situated – including the resources and support they have (or do not have), and how they are (and are not) treated by social institutions – necessarily frame what choices individuals (feel they) do or do not have. In England and Wales, ¹ procreation is subject to considerable legal regulation. Much of which, has a material impact on the decisions that marginalised populations, especially trans, nonbinary, and gender diverse individuals, can or could want to make. The law genders the pregnant body in the regulation of assisted procreation (in who becomes pregnant), in the regulation of abortion (in determining which pregnancies can be ended), and in the language used to describe the birth-giver’s legal relationship to a resulting child. The law makes no space for pregnant men and nonbinary people: in some instances, the law is signalling that pregnant men and nonbinary people do not exist, and in other contexts, it actively misgenders pregnant men and nonbinary people: setting out that men/nonbinary people who are pregnant or are trying to become pregnant are, in fact, legally women in this context. In both cases, there are substantive harms to individuals, ranging from limiting men and nonbinary people who can become pregnant’s access to procreative services to psychological harms undermining an individual’s sense of self-worth and of self-expression. Where the law denies people autonomy and the ability to be themselves in building their families it amounts structural violence wherein legal systems come to influence social relations and negatively impact on individuals’ wellbeing. There are numerous examples, provided throughout this paper, in which the practical import of what the law says about (formerly) pregnant men and nonbinary people is hard to overstate – it limits people’s ability to become pregnant or access healthcare channels to end unwanted pregnancies. What the law says can sometimes matter to those affected as much as what the effect of that law is. The law is a sharp tool for social engineering in the expressive effect it creates (Sunstein, 1996).

I argue that the law surrounding pregnancy harms pregnant men and nonbinary people on multiple axes, and while some are potentially contradictory accounts of harm, the reality is that the harm experienced by individuals differs depending on their broader social circumstances. In Section II, I set out the pertinent background assumptions on which my argument is premised. In Section III, I set out, and defend the utility of, using the concept of ‘ontic injustice' (Jenkins, 2023) to understand the harms perpetuated by legal frameworks characterised by misgendering.

In Section VI, I explore how the law attributes parental status on the basis of birth-giving: the person who sustains a pregnancy and births is the legal mother. I argue that this is an instance of ontic injustice (Jenkins, 2023) – the law expressly takes the position that birthing men are ‘mothers’, widely considered to be a sexed female role – and this causes serious moral injury. In Section V, I explore the regulation of fertility treatment, which can be subject to conflicting interpretations regarding the permissibility of treatment establishing pregnancy in a man. How this matter comes to be settled in terms of interpreting the existing law is unclear but is in every event clearly unsatisfactory for pregnant men. Their treatment could be considered unlawful if their sex is respected, treatment could be considered lawful by misgendering the man with the capacity to become pregnant (thus subjecting pregnant men to ontic injustice), or it could be considered not to be unlawful on the grounds that the law is silent on the matter (harmful on its own in rendering the pregnant man invisible). In Section VI, I highlight the gendered language in the criminal regulation of abortion and both its serious putative and protective effects. What these effects are will depend on who ‘pregnant woman’ is taken to include. Reading ‘woman’ as inclusive of men perpetuates the harmful ontic injustice outlined earlier. Reading ‘woman’ as exclusive of men is helpful to protect pregnant men from the harms of being misgendered as well as the harms of the criminalisation of abortion (though things get more complicated for abortions later in pregnancy). Problems related to the uncertain legality of abortion for men could come to affect access.

I focus on the law in England and Wales (as the jurisdiction in which I am trained), however, the account I provide has wider significance as many jurisdictions regulate pregnancies along similar gendered lines. The harms I outline are relevant in other jurisdictions and result from law fixed long before the height of transphobic politics and media representation across all regions of the United Kingdom. However, it is also notable that the harms I describe – of the denial of individual identity and simultaneously of invisibilization – epitomises the current political climate in the UK. Trans people are routinely subject to rhetoric that seeks to erase their existence and/or purposively misgender them.

Preliminaries on Sex, Gender, and Law

First, individuals may change their legal sex/gender in England and Wales. The Gender Recognition Act 2004 (GRA 2004) ² enables people to obtain a gender recognition certificate meaning that, from the date of issue, their legal gender becomes their affirmed gender. Per the GRA 2004, section 9(1):

Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

The GRA 2004 explains in section 9(2) that this ‘does not affect things done, or effects occurring before the certificate is issued’. To obtain a gender recognition certificate, an individual must meet a number of requirements, many of which have been critiqued for perpetuating a ‘mental illness’ model of transition (Sharpe, 2007). While there has been scope for legal transition since 2004, there remains no legal recognition of nonbinary identities – persons are either legally male or female. This was confirmed by the Supreme Court in R (on the application of Elan-Cane) (Appellant) v Secretary of State for the Home Department [2021] UKSC 56. It is important to acknowledge the harm of failing to recognise nonbinary identities causes to people whose gender identity is grounded in fluidity (Oakes-Monger, 2023, p. 105; Renz, 2020a, 2020b). The lack of legal recognition for nonbinary identities, nonbinary individuals have reported, undermines their identities (Gascoigne, 2024). The binary construction of sex in the law means that one is only either a man or a woman, and if one is a man, one cannot be a woman (and vice versa). I, therefore, focus primarily on individuals who are legally male and seek to become pregnant/are pregnant – but the harms I describe apply to nonbinary individuals particularly in that they are always misgendered by the law because they are always forced into the gender binary.

Second, gender and sex are often described colloquially as distinct phenomena – gender describing how a person identifies and sex describing their physiological features. In reality, the terms describing what are considered the two biological sexes, ‘male’ and ‘female’, are gendered concepts used as descriptors of assemblages of physiological and biological traits sorted into a binary (Butler, 1994; Fausto-Sterling, 2000; Hines, 2020). In practice, sex ‘is itself already gender in disguise’ (Srinivasan, 2021, xii). A person is gendered from birth in the way that visible sex organs are used to assign their gender (and not simply to note their sex) (Butler, 1994; Fausto-Sterling, 2000; Hines, 2020). Indeed, this is something that the GRA 2004 has accounted for in describing a gender recognition certificate as legal recognition of a person’s affirmed gender and sex. Consequently, resorting to biological sex assigned at birth to describe an individual’s physicality, describing transmasculine people’s bodies as female or transfeminine people’s bodies as female, is unauthentic and perpetuates the harm of misgendering (Toze, 2018, p. 196). The language we use to describe bodies and their reproductive capacities, thus, can easily slide into ‘gender in disguise’ and perpetuates a ‘myth of binary biological gender’ that, in effect, stipulates that bodies are static and unchanging. In the context of procreation, such assumptions are at their most pervasive: reproductive capacities are closely tied to ‘social constructions of whether a body should be considered female or male’ (Toze, 2018). I talk about reproductive capacities literally; I describe individuals who may be assigned female at birth as ‘persons with the physiology to become pregnant’ as opposed to assuming that particular reproductive capacities are associated with particular sexes assigned at birth. This better avoids perpetuating cis-hetero-normativity around procreation.

Third, men and nonbinary people can and do become pregnant (Karaian, 2013, p. 217). That these people are likely to have been born with a uterus and vagina ³ does not detract from this statement as fact (Drouillard, 2021, p. 129). Given the social reading in of gender from sex, and the pressure facing people seeking gender-affirming treatment to comply with certain notions of femaleness/maleness, it is often assumed that persons who wish to transition to being a man (or just away from female) always want to be rid of any procreative capacities typically sexed female – such as the ability to become pregnant. ⁴ Little space is made, in social and medical terms, for dissonant sex and gender modes of being. However, many transmasculine and nonbinary individuals retain their capacity to become pregnant after social/medical transition (Obedin-Maliver & Makadon, 2016). They will do so for a variety of highly personal reasons. Just one factor in their decision is the complex interplay between a person’s subjective conception of their procreative capacities and their preferences. As Drouillard (2021) explains:

‘One’s reproductive sex need not be erased to make one’s body coincide as much as possible with one’s gender of identification. Of course, it can be, but that should be one’s choice. One can choose to remove their reproductive organs as a form of gender expression, or one may keep the reproductive organs they were born with yet reject that these organs were sexed prior to self-identification’ (129).

That some men choose to have the capacity to become pregnant does not make them less male. Indeed, some nonbinary people report that they did not find their embodied experience of being pregnant inherently dysphoric, rather the language used by others to describe their pregnancy was a source of dysphoria (Fischer, 2021, 82). That (legal) men can and do get pregnant is a fact that the law must be attentive to (Brown, 2023, 2). While men get pregnant and birth, there can be significant barriers to/within this journey. As Love (2022) explains, medical, social, and legal barriers are such that ‘the road to trans pregnancy is not necessarily easy or even possible for all’ (38). There is no legal requirement in England and Wales that a person must undergo any changes to their physicality, nor give up their fertility/procreative capacities, to transition (Love, 2022). However, there is a culture of normalisation assuming persons always want/need sex and gender congruence (Oakes-Monger, 2023, 105). This may have/ is potentially likely to have deterred some trans people from pursuing pregnancy. At work here, also limiting trans and nonbinary access to or undertaking of procreation, is repronormativity – heteronormativity being enforced in what procreations are state-sanctioned (Weissman, 2016). Repronormativity also manifests in notions of procreation as compulsory (Roseneil et al., 2016) and the ways in which bodies gendered female are valued and the ‘objectification and sexualization’ and indeed gendering of the pregnant body (Carapeto et al., 2024). This explicitly operates to render male and nonbinary experiences of pregnancy invisible (Carapeto et al., 2024) and prevent their normalisation.

Finally, I understand ‘gendering’ to be a process, rather than a singular isolated event, in which a logic of oppression is directed toward certain bodies through social institutions like language and the law. Following Chadwick (2022), understanding gendering – in form and content – means ‘tracing certain kinds of oppressive logics and sociomaterial conditions rather than reiterating a mode of difference that is intrinsic to particular bodies’ (246). Frequently, gendering is a function of ‘cisgenderism’ (‘the cultural and systemic ideology that denies, denigrates, or pathologizes self-identified gender identities that do not align with assigned gender at birth’) (Lennon & Mistler, 2014, p. 63). I trace the spaces in which the law constructs oppressive logics and sociomaterial conditions rooted in cisgenderism in the regulation of procreation. Procreation, I argue, is constructed as a site of exceptionalism. The law recognises a person’s affirmed gender except with respect to their role in procreation, which is constructed as fundamentally rooted in a binary conception of biological sex. Effectively, the law signals to transmasculine people that ‘you may be a man in every place and space except your procreative life’. This undermines legal recognition of a person’s chosen gender and propagates a moral injury in the labelling of, and subsequent subjugation of all persons who can sustain pregnancies, as women. There is also arguably a sinister form of misogyny at work here in the refusal to allow people with physiology assigned female at birth, who have historically been subjugated on the basis of their capacity to birth, the realisation of their moral worth in self-describing their identity because of this capacity to birth. An ungenerous reader may claim that it is my argument that embodies misogyny in erasing women and/or arguing that a moral injury occurs where a person is constructed as a woman rather than a man. ⁵ It is not erasing women to recognise that some people who can get pregnant and birth are not women. The moral injury occurs because the realisation of a person’s moral value is diminished where they are socially constructed as being a social kind (a type of person) that does not match their experience – it occurs equally where a nonbinary individual is sexed as either male or female, or where a trans woman is sexed male.

This paper illustrates that procreation is a site of exceptionalism in which ontic moral injury and oppression is occurring as a matter of course because of the law as written and as it plays out. It is significant that procreation is the space in which the law undermines a person’s sense of self and denying the reality of that self. Procreation is such an intimate life space that relates a person to how they see their future with themselves and others and in how they see their body in (not) creating that future.

Ontic Injustice

The term ‘ontic injustice’, coined by Jenkins (2023) refers to the existence of a specific type of injustice in which individuals are wronged in how their identity is or is not recognised by others and institutions. Jenkins (2023) defines ontic injustice as occurring where an individual is:

‘[C]onstructed as a member of a certain social kind where that construction consists, at least in part, of their falling under to a set of social constraints and enablements that is wrongful to them’ (109).

Individuals can suffer harm by the very fact of being socially constructed to be something they are not (Jenkins, 2023, 13). Being socially constructed in his way means that their true identity is not being recognised, and they are being labelled/recognised in a wholly different way entirely that does not match their experiences. Misgendering individuals is clearly ontic in nature in the sense that it results from, and encompasses social signalling that, the individual is not who they are, but as who others/institutions deem them to be. The wrong in this is a form of moral injury; an affront to an individual’s value or dignity (or realisation thereof). In developing her conceptualisation of ontic injustice and it’s constituting a moral injury Jenkins (2023) relies on Hampton’s conception of moral injury as

‘damage to the realization of a victim’s value, or damage to the acknowledgement of the victim’s value, accomplished through behaviour whose meaning is such that the victim is diminished in value’ (Hampton, 1991, 1671).

If we take the position that human persons have value then behaviours that undermine the notion that they do, for example, dehumanising treatment constitutes a moral injury. Importantly, we must recognise that this ‘moral injury is related to the risk of material or psychological harm, it is not identical with such risk’ (Jenkins, 2023, p. 28; emphasis added). The harm that results from dehumanising treatment is hugely significant, but this does not take away from the fact that to dehumanise in itself, that is to attempt to diminish another individual in signalling through behaviour that they have lesser or no value, is a harm before we even begin thinking about what the consequences of that behaviour are. The misgendering of individuals is the notion of excluding individuals from the gender categories to which they identify (Kapusta, 2016, p. 501), or imposing gender categorisation on them at all. Misgendering is the source of significant psychological harms to individuals including, but not limited to, depression and anxiety (Kapusta, 2016, p. 504). However, alongside but independent of these harms, there is also the moral injury of the dehumanisation of the individual in an epistemic sense. Kapusta (2016) explains that beyond this still, misgendering means a person is denied ‘the worth a person recognizes in her own agency and her own life plans inasmuch as they are her own’ (505). Jenkins’ (2023) concept of ontic injustice names this epistemic moral injury – misgendering - and explains that it is an affront to an individual’s dignity and the realisation of their moral value as an individual.

Ontic injustice can also be understood as ontic oppression, Jenkins (2023) when the injustice that occurs amounts not only a moral injury as a general wrong but is specifically oppressive, in the sense that systematic social limitations that result from the injustice come to constrain (71). Oppressive conditions are the placing of systematic social limitations on group of individuals that share a particular feature/set of features that marginalise and subordinate them: that place them as a group in a circumstance of lesser power/status (Jenkins, 2023). The wrong of ontic oppression is, at its root, the same as that of ontic injustice more generally – the moral injury that results where persons suffer damage in the failure to acknowledge their value appropriately (Jenkins, 2023, p. 51). However, it also has broader impacts because in addition to, for example, misgendering amounting to moral injury that same misgendering, where systematic and group-based, creates constraints that result in individuals experiencing marginalisation in a practical sense, for example, a lack of access (based on a lack of entitlement) to services (Jenkins, 2023, p. 172). Where institutions like the law, that function to constrain behaviour and describe social circumstances, misgender it can amount to an ontic oppression because it systematically marginalises individuals within a group from, as will be illustrated, from activities they may wish to pursue or ways of describing their relationships with others within systems that reflect what they are in reality.

The question remains as to why using these concepts of ‘ontic injustice’ and ‘ontic oppression’ are necessary to invoke in the examination of how the law surrounding pregnancy harms pregnant men and nonbinary people. It might be argued that the interests of men and nonbinary birth-givers are suitably addressed by considering the importance of law being accurate (describing people as they are) and the importance of non-discrimination in contexts as critical to individual’s wellbeing as procreation. ⁶ Examining the systematic, group-based, subordination of individuals through the lens of the social construction of their identity (which is critical to ‘ontic injustice/oppression’) helps make visible the moral injury at the heart of their treatment that has been explained. Essentially it allows us to see the mechanics of what is occurring and name it, and recognises that this is a wrong in itself. The law causes harm in its misgendering (as I will illustrate) even if the letter of the law is not known to the individual being misgendered and thus they may experience minimal psychological distress: the moral injury, ontic in nature, is occurring and needs addressing. Jenkins (2023) explains that the concept of ontic oppression can also be useful because it ‘does not require us to make as many judgements about what forms of treatment are appropriate for different sorts of people, because we depend on a prior commitment to the claim that each of these forms of treatment is wrongful wherever it occurs as part of a systemic set of limitations applied on the basis of group membership’ (83). Essentially, ontic oppression can help to firm up the case for non-discrimination.

In what follows, I illustrate how the pregnant body is sexed female by the law at several points in the course of procreation and this constitutes moral injury as diminishment of value in the way elucidated by Jenkins. In places this also amounts to ontic oppression by placing a (potential) constraint on behaviour. I begin by discussing the law of birth-giving and parenthood because the law on this matter is more settled and thus is instructive for other contexts.

Gendering the (Formerly) Pregnant Body: Legal Parenthood

In Ampthill Peerage Case [1977] AC 547, Lord Simon held that ‘[m]otherhood, although a legal relationship, is based on a fact, being proved demonstrably by parturition’ (577). The Human Fertilisation and Embryology Act 2008, section 33(1) codified this rule, stipulating that:

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.

That the birth-giver is the legal mother of the resulting child has come to be considered one of the most immutable maxims of family law (Mahmoud & Romanis, 2023). The legal father of the child is determined on the basis of a number of rules that, in fact, are about the relationship to the pregnant person. ⁷ The attribution of parenthood has been subject to much critique in that it does not account for the social, psychological, and emotional reality of families where the birth-giver is not the social mother of the child. ⁸ There is a monstrous disjuncture between the lived experience of family and how that family is legally recorded. What does this mean for birthing men?

The GRA 2004 sets out legal parenthood as an exception to the effect of a gender recognition certificate. Section 12 stipulates:

The fact that a person’s gender has become the acquired gender under this Act does not affect the status of the person as the father or mother of a child.

This provision is not explicit about whether the exception to legal recognition of an individual’s affirmed gender is retrospective or retrospective and prospective. Toze, writing in 2018, noted that ‘it is unclear whether these provisions are intended to apply to children born after the parent’s gender recognition, or indeed whether this possibility was even considered’ (Toze, 2018, p. 202). The explanatory notes to the GRA 2004 provide little clarification. They advise that persons will retain their ‘original status as either father or mother of a child’ to ensure the continuity of parental rights and responsibilities (UK Government, 2004, para 43). While there are only references to retrospective application, there is not an explicit exclusion of prospective application (Toze, 2018).

Freddy McConnell sought recognition on his child’s birth certificate as the father of his child, however, the Registrar General determined that, as the birth-giver, Freddy must be registered as the mother (despite his being a man). Freddy brought a legal challenge against this decision. In making him the legal mother, the law failed to properly recognise the role that he plays in his child’s life as their father, as well as his (legal) gender. The High Court decision, R (on the application of TT) v The Registrar General for England and Wales [2019] EWHC 2384 (Fam), held that:

‘[t]he status of a person as the father or mother of a child is not affected by the acquisition of gender under the Act, even where the relevant birth has taken place after the issue of a GR certificate’ (para 280, per McFarlane P).

Even though, ‘[f]or all other purposes, be they social, psychological, or emotional, [he] will be a male parent to his child and therefore his “father,” Freddy is the legal mother of his child’ (High Court Decision, para 147). The ruling determined that the legal status of mother arises wholly from the biological role an individual takes in the ‘process of conception, pregnancy and birth’ and that being a father or mother ‘with respect to the conception, pregnancy and birth of a child is not necessarily gender specific… it is now possible, and recognised by the law, for a “mother” to have an acquired gender of male, and for a “father” to have an acquired gender of female’ (para 280). The matter was appealed to the Court of Appeal that concurred, in R (on the application of Alfred McConnell) v The Registrar General for England and Wales [2020] EWCA Civ 559, that Freddy was the legal mother (determined by law as a matter of conception, pregnancy and birth), that ‘mother’ as a legal term was not sexed/gendered but designating a role played, and that legal parental status is an exception to a gender recognition certificate. The Court of Appeal concludes that the ‘provision [creating parenthood as an exception to a GRA] is not limited to events occurring before a certificate was issued’ unlike other provisions of the GRA – which, they suggest – may have been deliberate on the part of lawmakers (paras 31 and 33).

The law, and the decisions interpreting them, mean for trans men that they are their affirmed gender except when it comes to procreation, whereby their gender is determined by their (socially sexed) biological contribution to procreation. This is reflective of the loud transphobic rhetoric (widespread within popular media), much from trans-exclusionary feminist voices, that focuses on the reproductive role of women as exemplifying the significance of sex – and what makes women women/female (Hines, 2020). While the Court sought to claim that ‘mother’ was, in legal terms, a gender-neutral term intended to describe only a person’s role in birth-giving, it actually amounted to a ‘curious reinforcement of gender in reiterating a link between [biology assigned female at birth] … and a term that remains gendered in its popular use’ (Romanis, 2020a, 231). While some philosophers suggest that ‘mothering’ could be unsexed labour, they continue to sex pregnancy and its relationship to motherhood (Ruddick, 1989, 36). Socially, it remains pervasive that the term mother is used for people who are assigned female, and father used for people who are assigned male. This description – and the underlying assumption that mothers are women and men are fathers – has been socially reinforced across cultures across thousands of years. Rosenblum et al. (2010), reflecting on their experience of becoming a parent while trying to resist the social sexing of their parenting (being consistently presumed to be a ‘father’ who must be parenting with a corresponding ‘mother’ based on assumptions about their sex), writes that:

‘Parenting is a sexed endeavor – both society and law establish explicit rules binding people to the roles of “mothers” and “fathers” based on their sex’ (emphasis added) (269).

The sexed nature of motherhood is legally reinforced, despite the fact that the Court seemingly ignored it in McConnell. The Court of Appeal was pains to stress that they could not read the term ‘mother’ as inclusive of ‘parent’ or ‘father’ without this amounting to ‘judicial legislation’ (para 35). Yet, they did not address the fact that the provision defining mother in the Human Fertilisation and Embryology Act 2008 (section 33) uses gender-specific language: ‘the woman’ who birth-gives ‘and no other woman, is to be treated as the mother’ (emphasis added). The Court of Appeal’s reasoning is such that, in law a birth-giver is a mother, a mother is a woman, a man who gives birth is, therefore,– in this context – held to be a woman. We can see how a legal parental status of ‘mother’ or ‘father’ is not sex-neutral in how much it matters to those affected – people have brought legal challenges to change their legal parental status from what is assigned to them to something that is more in line with their identity. ⁹ With the label mother used for men who are birth-givers, the law sexes those men: in relation to any children they birth, they will always be considered women in the eyes of the law. This is a clear instance of ontic injustice.

Men who are birth-givers are wronged by the law labelling them as mothers and their explicit exclusion from being legal fathers: if one is the legal mother, one cannot be the legal father. They are also implicitly and explicitly being constructed as women, as opposed to men, because of their birth-giving. This subjects them to social constraints that amount to oppression – for example, on legal documentation, they cannot be named as the father of the child. For some men, this amounts to a bigger constraint, psychological in nature, due to self-limiting behaviour. Self-limiting behaviour should not be understood as self-imposed because it is a manifestation of a social structure (Jenkins, 2023, 109). The disjuncture between identity and legal parental status may effectively deter men who wish to become parents and who want to or are willing to do so through their own generative work in pregnancy from pursuing pregnancy (Brown, 2023, 10). Men who can become pregnant ‘actively have to choose between starting a family knowing they will be (legally) misgendered, or abandon hopes of a family due to the lack of correct legal acknowledgment’ (Davies 2020, 183). In such cases, individuals are – by virtue of being understood to be of one social kind rather than another – subjected to a moral injury of the nature Jenkins (2023) describes: ‘one that takes the form of damage to the acknowledgement of [their]… value’ (40). As was noted earlier, and is important to reiterate, ‘[t]his damage is an additional wrong over and above the wrong of being placed at risk of material and psychological harm’ (Jenkins, 2023, 40). The construction of birth-givers as necessarily making a person a ‘woman’, and explicitly preventing them from being recognised as a ‘man’ which aligns with their experience, is a diminishment of their moral value as an individual. The injury is also great for persons who experience parental status as another instance in which their existence outside of the gender binary is not recognised at all.

The harm caused by these social constraints I have noted are considerable, both in the sense that the construction of a birth-giver as a mother affects the procreative decisions men with the capacity to become pregnant can make, but also innately in how being constructed as a mother, where this conflicts with one’s expression of self and identity, dehumanises birth-givers who are not women and denies their lived experience and sense of self. The extent to which may impact on the procreative decisions that men and nonbinary people make could mean that the social construction of birthers does not amount only to ontic injustice, but to ontic oppression. It is significant that it is the law that does it doing the harmful construction as how we are described in law permeates so many aspects of our lives. There is a clear case for legislative reform allowing birth-givers to adopt whatever language is preferable on their child’s birth certificate (Lind et al., 2024). Renz (2020a) notes the importance of some reform to the law here being critical for nonbinary people who are forced into the gender binary in the attribution of parental status in assisted procreation. Some have suggested that we ought to remove parental gender from birth certificates entirely (Lind et al., 2024), while others have tentatively wondered whether that might constitute a new form of misgendering to those who see some kind of gendered parenting term, that reflects their identity, as potentially important so it might be a case of expanding the choice for individuals in how their parental status is described (Romanis & Brown, 2025) to best minimise the incidence of moral injury and/or invisibilization. This conversation feeds into what should be a broader conversation, beyond the scope of this paper, about the purpose of birth registration/birth certificates and the functions they do, and should, serve (Davis, 2024).

Gendering the (Putatively) Pregnant Body: Fertility Treatment

While men with the capacity to become pregnant may not require fertility treatment to become pregnant, for those wanting/needing assisted conception, how they are treated by fertility clinics matters. The Human Fertilisation and Embryology Acts 1990 and 2008 (HFE Acts) determine the permissible conditions for fertility treatment in licensed clinics. Section s.3ZA of the HFE Act 1990 (as inserted by the HFE Act 2008), dictates that, in the course of treatment,

no person shall place in a woman – (a) an embryo other than a permitted embryo… or (b) any gametes other than permitted eggs or permitted sperm.

The provision stipulates that:

“woman” and “man” include respectively a girl and a boy (from birth)

Section 3 ZA also defines a permitted embryo is defined as the result of the fertilisation of a permitted egg by permitted sperm. It defines a permitted sperm is ‘produced by or extracted from the testes of a man’ and permitted eggs are ‘extracted from the ovaries of a woman’. The Act, thus, does not permit the use of sperm produced in the testes of a woman, nor an egg extracted from the ovaries of a man. Such a prohibition could have been intended to limit any cross-species procreation, rather than to prohibit trans procreation, though– if interpreted literally – has the effect of rendering it unlawful to use the eggs of a legally male person (or the sperm of a legally female person). It is significant that the definition of a woman and a man for the purposes of the Act are ‘a girl and a boy (from birth)’ (emphasis added) because this amendment was made post-GRA 2004. It is unclear if it would be lawful for fertility treatment (the implantation of a permitted embryo) to be provided to a person who is (legally) a man and has the capacity to become pregnant (Dunne & Brown, 2024). Such an individual is not ‘a girl from birth’ – since they may have been assigned female at birth but are not a girl/ no longer legally a girl. This question was raised in the McConnell litigation, though dismissed as an ancillary matter (High Court decision, paras 160–169).

Hammond-Browning argues that the HFE Act 2008 potentially prevents a trans woman (AMAB) receiving fertility treatment following uterus transplant on the basis of similar reasoning (though a woman, a trans woman is not in legal terms a ‘girl from birth’) (Hammond-Browning, 2019, p. 1322). On this reading, the treatment of a man with the capacity to become pregnant would be unlawful. For some, the complexities are readily solved by reverting to biology: a person with the capacity to become pregnant is necessarily ‘a girl from birth’ and thus treatment is lawful. The law here, they may argue, is not referring to one’s legal sex but rather ‘biological sex’. Representatives for the government in McConnell at first instance made this argument: treatment services provided to a man to become pregnant must be found to be regulated activity within the HFE Act to avoid severe adverse outcomes. They submitted that men seeking to become pregnant are ‘therefore “a woman” for the purposes of the HFEA legislation’ (High Court decision, para 156). It is easy to see how a court might adopt such an interpretation, since they did with respect to determining the parental status of a formerly pregnant man: he was a mother and thus ‘a woman’ for the purposes of the relevant provision of the HFE Act 2008.

This interpretation rests on a flawed understanding of gender and sex as static and unmoveable (which it is not, in either fact or in law), and it also flies in the face of the spirit of the GRA 2004, which is explicit that persons are to be treated as their legal sex. The exception related to legal parentage cannot apply here since the provision at issue is not about the attribution of parenthood, but rather about whether an individual can be provided with fertility treatment. Consequently, if we are properly recognising the (legal) gender of the man who can become pregnant – treatment for them to become pregnant is unlawful. While this avoids perpetuating ontic injustice, the government is correct that the exclusion of men receiving fertility treatment from the scope of the Act raises other problems. For example, where donor sperm is used, – the 2008 Act specifies the donor is not the legal father (section 41), however, if treatment were considered to have taken place outside the legislative scheme (e.g. people do not seek the assistance of a clinic and instead inseminate at home), the sperm donor would be considered the legal father. This disregards the intentions of the sperm donor and of the man seeking to become pregnant (and their partner if they have one) and has serious practical import.

The provision could be read in a wholly different way – such is the complex art of interpreting the law. The HFE Act 1990, as amended by the HFE Act 2008 (s.3 ZA), is explicit that ‘no person shall place in a woman – (a) an embryo other than a permitted embryo’. Thus, the provision mandates that only a permitted embryo may be placed in a woman (defined as a girl from birth); it does not expressly say that permitted embryos may only be placed in women (defined as a girl from birth). The ordinary meaning of the words in the provision are seemingly instructive of what embryos can be used, rather than limiting fertility treatment to only women with the physiology to become pregnant. Read this way, the legislation omits acknowledgement of pregnancies sustained by men (Alghrani, 2019; Romanis, 2025). The treatment is not unlawful, and the legislative scheme of the HFE Act may protect the parties involved in the ways designed (e.g. in the regulation of parental status) and do so without misgendering the man seeking to become pregnant (and thus perpetuating a moral injury).

Krajewska and Cahill-O’Callaghan (2020) introduce the concept of invisibilization as a ‘device to analyse the state of invisibility, in which actors who are denied presence in law remain outside the common field of vision, taking actions that can potentially have legal consequences without being challenged so long as they comply with social mores’ (88). They use this device to examine the status of the single man unable to become pregnant who seeks fertility treatment to become a single parent (with the assistance of a surrogate). The position of such an individual is characterised by uncertainty. They note ‘the absence of single men from the text of the HFE Acts has created uncertainty concerning their legal status in the context of infertility treatment and has indirectly precluded them from accessing’ treatment (2020, 89). Much like single men who cannot become pregnant, men who can become pregnant are wholly absent from the legislative text and the law seemingly gives the impression, therefore, that they do not exist. The absence of a legal basis for treatment might make some clinics reluctant to treat men with the capacity to become pregnant. Even without this implication, law is a powerful and pervasive social instrument and in disregarding the possibility of men sustaining a pregnancy (Toze, 2018), this constitutes a systemic silencing of a group of individuals who may feel pressured to comply with misgendering ‘social mores’ around procreation in order to access fertility clinics – for example, a willingness to accept and sign paperwork reiterating their future status (if treatment is successful) as a mother. Such signalling reiterates the exceptionalism of pregnancies sustained by men – that pregnancy is a female activity – potentially preventing male and nonbinary people from wanting to become pregnant (even if they had not previously thought of it this way).

The Human Fertilisation and Embryology Authority’s (HFEA) Code of Practice, though silent on the lawfulness of treatment to enable men to become pregnant, provides guidance about how to provide such treatment, thus implying its permissiveness. Such silence could be premised on either on treating men with the capacity to become pregnant in ways incongruent with their (legal) sex or taking the position that there is no express prohibition on fertility treatment for the purposes of pregnancy in men. I think the second is more likely, as the Code provides guidance about respecting an individual’s affirmed sex during fertility treatment (Human Fertilisation and Embryology Authority, 2023, paras 4.15–4.21). Fertility clinics have an ‘important role to play in normalising and affirming the conception-related needs of men, trans/masculine, and nonbinary people’ (Riggs et al., 2020). Where clinics prove challenging experiences for individuals (or are just too expensive) individuals can and do engage in ‘innovative pragmatism’ to become pregnant – using donor material without the assistance of a clinic (Riggs et al., 2020). It is not to downplay the importance of innovative pragmatism for individuals to point out, however, that such practices are devoid of the legal protections in the HFE Acts – like that of the legal parents being those who intend to be the parents (as has been seen in cases like M v F (Legal Paternity) [2013] EWHC 1901 (Fam)). For this reason, HFEA guidance is critical in ensuring that men have access to respectful fertility treatment. Though, guidance alone is insufficient as clinics could refuse to provide treatment on other grounds, or individuals could struggle to afford it. There is a clear case here for legislative reform acknowledging the existence of men seeking fertility treatment to become pregnant.

Gendering the Pregnant Body: Accessing Abortion

Some pregnancies are unwanted. For some pregnant men/nonbinary people, the embodiment of pregnancy is something dysphoric to their sense of self (as is the case for some women experiencing unwanted pregnancy, or even a wanted pregnancy) (Tongue, 2024); for others, there may be something specific to this pregnancy (the timing, their circumstances) making the pregnancy unwanted. In any case, abortion is as critical a resource for men and nonbinary people as it is for women. Despite the importance of abortion access receiving increasing international recognition, for example, from the World Health Organization (2022) and United Nations Committee on the Elimination of Discrimination Against Women (2018), and the perception that England and Wales provide a paradigmatic example of good abortion access, the law in England and Wales is not an abortion-supportive regime (Romanis, 2023a, p. 384). Abortion remains a criminal matter in England and Wales on the basis of archaic Victorian legislation. The Offences Against the Person Act 1861, section 58 criminalises abortion at any point in a pregnancy:

Every woman, being with child who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony….

Abortion can be lawfully provided (and thus is not criminal) when the provisions in the Abortion Act 1967, dictating the who, when, where, and why of the abortion (Romanis et al., 2022), are complied with. Per Section 1 of the Abortion Act 1967, a person does not commit the offence of unlawful procurement of miscarriage where a pregnancy is terminated by a registered medical practitioner, after two registered medical practitioners have formed the opinion in good faith that one of the following grounds apply:

 (a)  … the pregnancy has not exceeded its twenty-fourth week and that continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical and mental health of the pregnant woman or any existing children of her family; or

These grounds specify the provision of abortion to a ‘pregnant woman’. So ‘what is the legal position of a pregnant man who seeks an abortion?’ (Fynes, 2014, p. 52). Prima facie literally interpreting the statute does not provide for the lawful termination of pregnant men’s pregnancies. It refers only to terminating women’s pregnancies and men’s pregnancies are not women’s pregnancies. However, if the AA 1967 does not apply to men then the 1861 Act establishing the offence must be read as there being no offence in the terminating of a (pregnant) man’s pregnancy; it uses the same gender-specific language. The law provides no basis for the termination of a man’s pregnancy but does not criminalise it either. Therefore, the termination of man’s pregnancy (before the fetus was deemed capable of being born alive) needs no legal basis, since it would not be unlawful. The distinction between the earlier and later-term pregnancy is due to an additional a criminal offence later in a pregnancy (‘child destruction’) committed where ‘any person who, with intent to destroy the life of a child capable of being born alive, by wilful act causes a child to die before it has an existence independent of its mother’ (Section 1 of the Infant Life Preservation Act 1929). This offence can be committed by a pregnant man in the current state of the law, since McConnell has (questionably) established that mother is a ‘gender-neutral’ term as a matter of law (see analysis of the Court of Appeal decision above). Thus, a pregnant man commits this offence unless termination was undertaken ‘in good faith’ to save their life. No other defence from the AA 1967 is applicable as literal interpretation of the aforementioned grounds render them inapplicable since the person having the termination would not be a pregnant woman.

Some spaces in which the law genders the pregnant body have a punitive effect – as the examples of parental status and fertility treatment clearly illustrate. However, abortion is a much more complex site of gendering – wherein gendering can be read as having both a putative and a protective effect. The protective effect emerges from this literal interpretation of the crime of unlawful miscarriage – that it is not a crime for a man to (be assisted with) terminating their pregnancy before the fetus was deemed ‘capable of being born alive’. There have long been calls, in academic scholarship and by abortion providers, to decriminalise abortion (Sheldon & Wellings, 2020). Criminal regulation propagates abortion stigma (Cook, 2014) and, in some circumstances, there is a strong likelihood of individuals falling foul of the criminal law and facing life imprisonment for abortion (Romanis, 2023b). Were pregnant men able to lawfully self-administer abortion medications without committing a crime, this could be an important relief for men who may fear accessing formal channels of reproductive healthcare (because of concerns about misgendering) (Fix et al., 2020). They could self-manage at home, without engaging the support of health professionals unless medically necessary. The punitive effect of a literal interpretation of abortion law (excluding men from the offence of unlawful miscarriage, but also from the grounds in the AA 1967) could result in the circumstances in which after the point at which the ‘fetus is capable of being born alive’ men could have an abortion only where necessary to save their life. They are excluded from those other grounds available to pregnant women, such as where necessary to prevent grave and permanent injury to health, or where there is a fetal abnormality. Limited access to abortion later in pregnancy could result in a serious infringement on health (and risk life), as well as constituting a serious affront to reproductive autonomy. While the AA 1967 leaves much to be desired, the grounds for abortion are clear resulting in access to abortion becoming widely available in England and Wales (notwithstanding substantial legal and non-legal barriers) (Parsons & Romanis, 2021). If men are read to be excluded from this scheme, we potentially run into the same problem as the HFE Act 2008 whereby pregnant men are subject to invisibilization, potentially limiting their access to formal healthcare services.

Fynes (2014) suggests an alternative interpretation; that it is likely that pregnant woman would be read by a court as inclusive of pregnant men because, she claims, the ‘policy justification behind the illegality of abortion, namely, the sanctity of life, applies with equal force regardless of whether a woman or a man gives birth’ (52). While Fynes is here mistaken about the policy justification for the criminalisation of abortion in England and Wales (a close examination of the offence reveals that the offence is designed to protect pregnant people as opposed to making a statement about the sanctity of life) (Romanis, 2023b), the point is a valid one. The criminalisation of abortion was initially intended to protect pregnant people from the dangers of clandestine abortion (Romanis, 2023b), and the AA 1967 was introduced principally as a public health measure with the same objective – to protect pregnant people from the risks of clandestine abortion (Jackson, 2001; Sheldon 1997, 2014). Though it is pertinent to note that the law serves a limited purpose in ensuring safety in contemporary conditions because of the safety of self-managed abortion (Gomperts et al., 2008), the objective of the law must be thought to be equally important regardless of the (legal) sex of the pregnant person. An ‘updating construction’ approach to interpreting the statute might lead to the conclusion that all pregnancies were intended to be regulated by the criminal law. One might even argue that there is a problem of sex discrimination if the offence of unlawful miscarriage and grounds for legality in the AA 1967 applied to legal women and not to legal men: women who have abortions run the risk of committing this crime, men who have abortions do not.

Fynes raises the case of R v John Matthews (CC, 28 October 1996) in which the trial judge directed the jury that, as Fynes puts it ‘the word woman included a post-operative transgender woman’ (Fynes, 2014, p. 52). She suggests the same reasoning would bring the pregnant man within the remit of the AA 1967 (and the offence of unlawful miscarriage) (Fynes, 2014). However, the central matter of that case was not whether a transwoman was a woman but if nonconsensual penile penetration of a (termed) ‘artificial vagina’ is rape (because the relevant statute referred to rape as nonconsensual penile penetration of the vagina). That the term vagina is inclusive of both (so termed in the case) ‘natural’ and ‘artificial’ vaginas. In this case, the judge confirms that two body parts of the same fundamental nature (being a vagina) are to be treated the same. This case, consequently, is of little help. To determine that the phrase ‘pregnant woman’ in the law includes any pregnant person including pregnant men is different: this actually goes against the meaning of ‘woman’ which in law is used to exclude ‘men’. This is an exercise in saying that a person of kind X (a man) is actually of kind Y (a woman) even though this serves to ‘recategorize’ the person. Until the introduction of gender-neutral drafting of statutes in 2011 (UK Government, 2020), it was standard practice for law to be written in the masculine form. In legal provisions individuals were referred to as ‘he’ to include all persons (men and women) (UK Government, 2020, para 2.1.13). Feminine language was used only when the purpose was to be explicit about the subject of the law being of the (legal) female sex. As such, the AA 1967 meant to exclude men, though this was likely because the concept of a pregnant man was something legislators did not even consider. Even if the matter at hand in R v John Matthews was as Fynes had described it (and not a different exercise), it is a very different thing to declare that a legal woman (who was born assigned male at birth) is a woman for the purposes of the criminal law than it is to declare that a legal man (who was born assigned female at birth) is a woman for the purposes of the law of abortion. That said, in the McConnell case the judges read the definition of the mother as the ‘woman’ who birthed the child to still be inclusive of a man who birthed a child and so despite the points I raised above, Fynes is correct that the approach a Court is likely to take is that ‘woman’ in abortion law is inclusive of men with the capacity to become pregnant. Interpreting the law in this way, we run into the same problems of ontic injustice as we did in the case of parental status. Men are constructed to be of the social kind ‘women’ for the purposes of abortion law. This constitutes a serious moral injury as has been described. There is inherent diminishment of the value of male/nonbinary individuals seeking abortions being constructed as women – a diminishment of their moral value in which they are recognised only as a social kind that they are not.

What to do then about abortion law? To change the law to be gender-neutral on the matter of abortion – for example, changing references to ‘pregnant women’ to ‘pregnant people’ – prevents the misgendering of pregnant men/nonbinary people but brings more people explicitly under the remit of an outdated criminal offence, for which there is a clear rationale to repeal (Sheldon, 2016; Sheldon & Wellings, 2020). Consequently, we should not ask for the ‘levelling down’ of rights for people who can become pregnant by changing/interpreting abortion law to include pregnant men (in a way that does not misgender them). Rather, we must consider the possibility that pregnant men may not commit the offence of unlawful procurement of miscarriage if they self-manage an abortion to bolster the case that it ought not to be criminal for women to do so either.

Conclusion

The law surrounding pregnancy – regulating who can become pregnant with assisted reproduction, who can end a pregnancy, and determining the legal consequences of a pregnancy for parental status – fails men and nonbinary people who can and do become pregnant. The law is only settled in the case of parental status, and the outcome here results in a severe moral injury to pregnant men – an ontic injustice – because the law re-categorises a a man who is a birth-giver and renders them ‘female’ for the purposes of their legal parenthood. There are also harmful consequences for men who are, but do not want to be, termed legal mothers: in the persistent misgendering of them in their legal relationship with their children. In the case of both fertility treatment and of abortion, the law refers to only pregnant women. How the law is interpreted in these contexts may perpetuate the same ontic injustice as the law surrounding parental status. These cases introduce other complexities. There is uncertainty because there are multiple ways the law can be interpreted, which leaves some men vulnerable to lacking access to treatment to become pregnant or to end pregnancies. There is also the harm of invisibilizing pregnant men as evidenced in relation to fertility treatment. If the law can be construed in a way to permit men sustaining a pregnancy without misgendering them but does so without mentioning pregnancies sustained by men, this renders the male pregnancy ‘other’. Abortion law illustrates that what the law says clearly matters and can perpetuate harm, but simply amending the law does not solve problems. The problems for men who need abortions as a result of the law and its possible interpretations should not be reduced to language: they are the consequence of abortion being criminal.

What the law says can sometimes matter as much as what the effect of that law is. While most people are unaware of the specifics of legal text, the overall message conveyed can still be heard, and furthermore, those harmed directly - or rendered invisible - by the law are those most likely to know of, and feel, the specifics causing harm. Changing the law where harms are identified does not eradicate all the difficulties experienced by men who can become pregnant on their pregnancy journeys. The law does not, of course, exist in isolation (Spade, 2011). Addressing sources of misgendering in the law can at least reduce some hardships of pregnant men’s and non-binary people's journeys (wherever they are going) resulting from legally entrenched cisgenderism.

In this article, I suggested changes that should be made to the law to rectify how it does or could fail pregnant men. These changes are critical but must not be considered a silver bullet in addressing all of the barriers and challenges to family building that men and nonbinary people who can become pregnant face. The harms caused by the law in the context of reproduction are reflective of broader problems in how gender identity is (and is not) recognised in English and Welsh law (Renz, 2020b). The way the law invisibilises the procreative experiences of some individuals – such as gender diverse people who need abortions – causes harm in terms of ensuring access to procreative choice, but also potentially perpetuates harmful political transphobic rhetoric about biological sex defining experiences and needs when this clearly is not true. Moreover, as is evident from the current debate about the need for law reform to the scheme of gender recognition more broadly (Renz, 2020b), there is clear evidence that the law is not appropriately recognising the identity of many individuals, especially nonbinary people. This is also true with legal statuses as much as it is identity itself. Being a parent, or not being a parent, and what kind of parent (mother/father) individuals are to children goes to the core of who they are. Where there are not provisions in place that allow people the parental status that reflects who they are, this affects whether or not they even feel able to procreate (and in what way they feel able to procreate). The law at present is not friendly to the procreative needs of trans and nonbinary individuals who want to become parents. Such a climate, making it harder for gender diverse people to procreate, perpetuates inequalities.