States have long used sex classification—as male or female—to help identify people relative to their rights (e.g., protection, education, voting) and duties (taxes, contributions to defense). Even so, most governments allow people to change this fundament of their identity—their sex as known to the state—as long as they follow certain procedures. In this analysis, I explore the meaning of “civic sex,” as I will call it, in relation to parental identity. That is, I want to ask whether the state must know people’s sex in order to recognize parenthood. I will explore this question relative to the ways in which conventionally gendered parenthood—with males as fathers and females as mothers—is being undone by shifting criteria in the way that the state classifies people by sex and by emerging reproductive options, with synthetic gametes being perhaps the closest to hand.
As a way to start this analysis, I will ask, first, why the state classifies people as sexed: as male or female? One answer to this question is that people are only male or female according to the traits that they have, and the state is only registering this descriptor in more or less the same way that it records age as a personal descriptor, as a useful tool of identification. That argument would go forward on assumptions such as the following: someone with a particular kind of genitalia is male, whereas someone with another kind of genitalia is female. Or, to mention another standard by which the state might sex people, someone with a particular genetic complement is male, whereas someone with another genetic complement is female. The state neither creates nor sustains these traits, whatever traits are taken as the defining elements of sex, and classification by sex simply mirrors those traits as a way of establishing people’s identities.
Approaches such as these in characterizing people’s sex can, however, only succeed so far, because human bodies confound any simple cleaving of human beings into male or female. To mention one instance of the inadequacy of a binary sex typology, I will note that some people exhibit intersex conditions in the sense they have both testicular and ovarian tissue. Footnote 1 Other blurry boundaries of sex identity are well known: mosaicism, variant human sex chromosome complements (XXY, XXYY, and 45X), and developmental genital variation. In its totality, this variation shows that not all people are male or female in the sense that their sex can be read from their bodies simpliciter. Footnote 2 Because human bodies do not divide categorically by sex, classifications by the state are ultimately normative in nature; namely, they involve evaluations about which bodies qualify as male and which qualify as female as a matter of civic identity. As normative, sex classifications cannot be simply descriptive; they cannot be simply mirrors of fact.
Another shortcoming of classification standards that rely only on body traits as indicators of sex—no matter the specific list of traits—is that people can understand their identities to be at odds with the sex assigned according to those standards. Transgender people assert identities as male or female no matter that they have female-typical or male-typical bodies, respectively. In response to this dissonance between gender identity and body traits, some states have incorporated psychological traits into sex classification standards: They recognize people’s sex according to their asserted gender identity, which leaves biogenetic standards behind. Footnote 3 This kind of shift in criteria of civic sex does not make the criteria of sex classification any less normative, but it does help the state to better express people’s experience of their identity.
This shift in incorporating gender identity into sex classification standards is in some sense only the beginning of the need for rethinking civic identity as sexed at all, especially in regard to determinations of parenthood. For example, certain developments in assisted reproductive treatments—if perfected—will further undercut the rationale through which the state has traditionally classified its people by sex. Specifically, certain innovations in assisted reproduction erode presumed equations between maleness and paternity and between femaleness and maternity, with the effect of undercutting the relative importance for the state to know people as sexed as male or as female in regard to identifying parental rights and duties. To show the effect of these innovations on the state’s interest in classification by sex, I will first discuss how certain civic standards in sex classification are already undercutting conventional understandings of gendered parenthood. I will then discuss these issues in turn, for their significance in regarded to civic parental sex: synthetic gametes, transgender identities, uterus transplantation, and human gestation outside the human body.
Bodies, Gender Identities, and Civic Sex
As mentioned, states do not treat people’s civic sex as unchangeable once a record is in place, but allowance of change from male to female or from female to male works to undercut the expectation that people with male-typical bodies will be fathers to their children and people with female-typical bodies will be mothers to their children. Unless people looking for sex reclassification were sterilized, people recognized by the state as male could still be mothers to their children and people recognized by the state as female could still be fathers to their children, although some states have required sterilization before reclassifying people’s sex. That requirement of sterilization functionally preserved the link between males and fatherhood and females and motherhood: No transgender man after gender transition could become a mother by relying on naturally produced ova, and no transgender woman could after transition become a father by relying on naturally produced sperm.
The requirement that transgender people must be sterilized as a condition of their sex reclassification has, however, lost and continues to lose political and legal support. In 2011, for example, Sweden struck down a law requiring sterilization prior to reclassification. Footnote 4 In 2015, the European Court of Human Rights held that a Turkish transgender man should not have had to have been sterilized before going forward with body modification surgery, a decision that voided sterilization requirements across all European countries under that court’s jurisdiction. A growing number of states no longer require sterilization as a condition of reclassifying people’s recorded sex; however, some still require some evidence of body modification. For example, in the United States, Illinois requires “an affidavit by a physician that he [sic] has performed an operation on a person, and that by reason of the operation the sex designation on such person’s birth record should be changed.” Footnote 5 Illinois law does not specify either the nature or the scope of any such “operation.” That state requires only that some unspecified operation has occurred and that in consequence of that operation, that person is entitled to modify his or her sex as recorded at birth and in downstream legal records. Ordinarily, people will choose these modifications to align their bodies with an idealized gender appearance; however, this kind of requirement does not necessarily undo people’s abilities to have genetically related children after their sex reclassification by the state. Under existing legal standards, therefore, people recognized as men may still be capable of producing ova, and people recognized as women may still be capable of producing sperm. In these instances, the equation between maleness and paternity and between femaleness and maternity is broken, at least as far as civic equations between civic sex and parental role are concerned.
In contrast to approaches requiring sterilization or body modification, some jurisdictions around the world have moved to permit changes to people’s recorded sex classification without requiring body modification at all. For example, The Netherlands allows its adult citizens to change their legally recorded sex without evidence of body modifications, although it does require that a health professional affirm the need for that change by reason of psychological status; namely, a transgender identity. Footnote 6 New York State has also moved to allow people to alter the sex given on their birth certificates without proof of body modifications, although it does require evidence that they are in treatment for gender dysphoria. Footnote 7 Argentina allows changes to various legal records and identity documents without a requirement of surgery and/or psychiatric diagnosis. Footnote 8 Australia goes even further, with its option to recognize people as “intersex” or even “indeterminate” as a matter of civic records. Moreover, not all legal documents in Australia must harmonize under a single classification; a birth certificate may indicate one sex while a passport may indicate another sex, if there are reasons to believe that the individual may benefit from recording sex differently in those documents. Footnote 9 For example, a transgender woman might find it dangerous to travel in particular parts of the world while documented as female if her appearance is female-atypical in some way (read: masculine) and that appearance makes her vulnerable to acts of violence and discrimination.
At present, then, states now identify peoples’ sex in one of three ways: Either the state records a sex by reason of a newborn’s conformity to certain anatomical and/or genetic traits, the state reclassifies sex in the wake of certain body modifications, or the state accepts from an adult a reported sex identity that is different from the designation recorded at birth and without reference to the body per se. In the first case, the traits of the body are taken to be determinative of sex; in the second case, the traits of the body also play a role in sex reclassification; whereas in the third case, asserted gender identity serves as the foundation of one’s sex as known by the state. Even if most people assert a sex identity that is concordant with their sex as designated at birth, by accepting sex identities according to psychological traits, the jurisdictions mentioned prescind from the requirement that a state know its citizens as male or as female according to the properties of their bodies. In states that rely on these two standards in classifying people by sex, people with male-typical bodies may be known by the state as male or as female; people with female-typical bodies may be recognized by the law as female or as male, differentiated according to gender identity, no matter that the same kind of bodies are involved. Footnote 10
The indeterminacy—that is, the descriptive ambiguity—that inheres in civic designations of male and female under these terms does not necessarily undercut the value of that identifier in all ways. By observing certain record-keeping procedures, the state remains able to identify people regardless of their classified sex at any given moment. The state may well have important purposes for identifying people by sex, such as to protect against sex-based discrimination. However, nothing about being identifiable to the state requires that people exhibit a fixed sex identity as male or female across the entirety of their lives, any more than the state requires a fixed chronological age as the basis of identifiability. For purposes of this discussion, I will note, moreover, that the designations of civic sex—made according to different standards—become less useful as predictors of a person’s parental role, because a person’s role as mother or father cannot be predicted from them necessarily. Bodies sexed as male or as female are typically construed as fathers or mothers of their children respectively; however, under some standards of sex classification, a man might be the mother and/or father of children, as might a woman, depending on choices made on either side of a change in civic sex.
Emerging Challenges to Civic Sex Standards
Certain developments in fertility medicine stand to uncouple further the presumption that males and females can be only fathers and mothers to their children, according to their biogenetic capacities.
Synthetic Gametes
Animals produce sperm and ova according to their biogenetic capacities; however, through certain interventions, male-typical rodents can be the source of sperm or ova and female-typical rodents can be the source of ova or sperm. Footnote 11 These synthetic gametes have been used successfully to produce offspring that have then had offspring of their own. Male and female animals may be, then, both fathers and/or mothers to their offspring. The study of synthetic gametes for human beings is still in its infancy, comparatively speaking, and there may be obstacles to synthetic gametes in human beings that have no parallel in animal models. Footnote 12 For the sake of the discussion, however, I will suppose that some option of synthetic gametes becomes possible for human beings.
First, synthetic gametes would be useful to infertile people who cannot produce gametes at all. Such individuals might have, for example, been treated as children with chemotherapy that has left them infertile. Or an adolescent might lose his testicles to an accident, and a woman might have been born without ovaries. These people could rely on synthetic gametes to have children as fathers and mothers in sex-typical ways: using their own stem cells to produce sperm and ova, respectively. The use of synthetic gametes would simply extend the existing range of infertility treatments without, by itself, disrupting expectations of gendered parenthood.
In one sense, the same might be said about transgender people who rely on synthetic gametes to have children. To have children in a manner that aligns with their gender identity, transgender men could rely on synthetic sperm and transgender women could rely on synthetic ova, as men and as women respectively. Many, maybe even most transgender men express the desire to have children, Footnote 13 and although the conditions under which transgender men imagine their parenthood have not been studied, I suspect that many would want to be genetically related to their children as fathers, and not just be fathers of children to whom they are genetically related as mothers; the same interest might also be expected in a parallel way from transgender women. Synthetic gametes would allow transgender people to have children as women or as men in accord with their gender identity, as a way of expressing and consolidating that identity.
Synthetic gametes would, however, complicate the civic parental identity of some transgender people in relation to their genetically related children. Some transgender people have had children prior to their gender transitions with naturally produced gametes; some might even have children after gender transitions involving sterilization, by relying on stored, naturally produced gametes or even embryos. Footnote 14 Because not all gender transitions involve sterilization, some post-transition transgender men and transgender women will be able to rely on newly produced gametes to have genetically related children. Add to these options the prospect of synthetic gametes to have genetically related children, and the same person might be known to the state as the genetic mother of children and the genetic father of children. In this instance, synthetic gametes would disrupt the expectation that people must be either mothers or fathers to their children, as a matter of genetics and as a matter of parental identity. Footnote 15
Synthetic gametes would also create an opportunity for same-sex couples to function as the sole source of gametes involved in the conception of their children. Footnote 16 At present, same-sex couples must always reach outside their relationship for donor sperm or ova, as the case may be, when they have children by means other than adoption. By contrast, if one man in a same-sex couple could offer synthetic ova, while the other offers natural sperm, these men could produce their own genetically related children. Footnote 17 Female same-sex couples could mix their naturally occurring ova with their synthesized sperm as well. Footnote 18 Same-sex couples would thereby have available to them one benefit that is now only available to opposite-sex couples; namely, children who are theirs as a matter of shared genetics. Footnote 19
Beyond opening the prospect of parenthood to transgender people and same-sex couples in novel ways, synthetic gametes might very well allow anyone to be both a genetic mother and a genetic father to children. A genetic male might rely on naturally produced sperm in order to have children as their genetic father, but he might also turn to synthetic ova—derived from his own body—in order to have children as their genetic mother. A genetic female might also rely on both her own naturally produced ova to have genetically related children but also turn to synthetic sperm—derived from her own body—in order to have children as their genetic father. This use of synthetic gametes might not be undertaken as a response to infertility strictly speaking, but some men might believe, for example, that they would be better as genetic mothers to their children than fathers, and some women might believe that they would be better as genetic fathers to their children than mothers. In this way, the genetic role of parent would be elective for each and every person, perhaps a choice subject to moral evaluation as well: All things considered, should one be a genetic father or a genetic mother of one’s children? In some instances, might it be better to rely on synthetic gametes in a cross-sex way rather than rely on naturally produced gametes in order to have one’s children?
Taking these possibilities to their ultimate parental conclusion, Daniela Cutas and Anna Smajdor have argued for the importance of research aimed at allowing one single person to be both mother and father to a child, a possibility that is, of course, completely hypothetical under present conditions of science but nonetheless philosophically interesting. Footnote 20 Under such a prospect the state would have in one person both mother and father of a child, undoing the very possibility of distinguishing parents according to the sex of their bodies or their given genetics. If the state relies on a standard of “giving birth” to identify the child’s mother, a child conceived with the gametes of a single person would still have a mother that way, but no separately identifiable and male father.
Uterus Transplants
The presumptions undergirding civic sex classification also come under stress from possible outcomes in uterus transplantation. Clinicians have succeeded in transplanting uteruses into women who lack them, giving those women the opportunity to gestate a child. Footnote 21 Success on this clinical front has provoked pro-and-con discussion about uterus transplantation and gestation in transgender women and men. Footnote 22 In 2012, a study group, defended the ethical feasibility of uterus transplantation initially only in relation to genetic females. In 2013, that group modified its recommendations and opened the door to uterus transplantation to transgender women and men, at least as a matter of morality. Footnote 23 Some transgender women will almost certainly want the intervention, and some men would no doubt also pursue the option were it available. For the sake of the argument, I will suppose that dedicated lines of research will open the prospect of uterus transplantation for transgender women and cisgender men interested in gestating a child.
Uterus transplants for transgender women would help consolidate their female identity as they gestate children but could blur their role in parental relationships to children. If they use their own naturally produced gametes in the conception of a child, transgender women would be the genetic father of children; if they were to use synthetic gametes in the conception of a child, transgender women would be the genetic mother of children. There would be no obvious reason for their not pursuing both roles serially. Similarly, uterus transplants for men would undo the state’s ability to assume that a person’s sex necessarily means anything about the gestational role formerly reserved to women alone, and men who gestate could assume a function hitherto vouchsafed to women as a way of sharing in the maternity of children. These people would then give birth by cesarian delivery, because that kind of delivery would be necessary in that context. Even so, because giving birth is the legal standard of motherhood in many jurisdictions, these transgender women and cisgender men would be mothers of their children regardless of their previous or current male identities as known to the state.
ExCG
ExCG refers to the range of imagined methods by which a human being could be gestated outside a human body, one would hope without risk greater than that involved in gestation in vivo. The prospects for this kind of gestation for human beings are entirely speculative at this point; however, ExCG opens a number of interesting questions bearing on parental identity. Footnote 24 Some women with uterine incapacity might be interested in ExCG as a way of gestating, especially as it would avoid the risks of uterus transplantation. Some women unable to gestate children on their own might look to ExCG because they harbor objections to gestational surrogacy and do not want to have a child by shifting the costs of gestation to other women. Footnote 25 In fact, in the name of protecting women as a class from the harms of pregnancy and in the name of securing for women social opportunities equal to those of men, some commentators have called for making research into the development of ExCG a high priority. Footnote 26
No matter where ExCG figures in women’s expectations of how to have children or where it belongs in the order of competing research priorities, what is relevant to the discussion here is that ExCG would undercut the link between gestation and any body at all. That link is, of course, important to states that specify that a woman who gives birth to a child is the mother of that child. However, if no woman—or man for that matter—gestates a child, the state cannot rely on in vivo gestation and/or birth as an indicator of motherhood or indeed of parenthood at all. In this sense, ExCG would de-sex parenthood, as far as the state is concerned. The state could still assume that any child gestated by ExCG had genetic parents, but it would no longer be able to rely on a gestational relationship as a standard of maternity. If a child produced this way were, moreover, conceived through synthetic gametes, neither would the state be able to assume that the progenitors of a child were genetic males or females, let alone whether they expressed themselves in social roles as fathers or mothers.
Conclusions
Sex classification that relies on biometric identification—practiced in an either-or, forced-choice way—fails to reflect the complexity of human genetics, anatomy, and gender identity. As practiced, the categories of civic sex are only descriptive approximations that must necessarily involve some suspension of gender disbelief. Civic sex classification takes on moral interest not only in terms of its own conceptual integrity, but also as it functions as the basis of access to social goods. For example, classifying people by sex has until recently offered the state a way to identify couples entitled to marry, namely a man and a woman, and to identify couples excludable from marriage, namely two men or two women. Footnote 27 In 2015, the United States Supreme Court set this exclusion aside as unconstitutional, with the effect that the United States—joining a meaningful number of other countries around the world—no longer asserts any interest in the sex of the parties coming forward to marry. Footnote 28 To the extent that marriage is open to opposite-sex and same-sex couples alike, the sex of the people coming forward to marry is now a matter of indifference to the state. Footnote 29
The question I have been pressing here is whether the state should be indifferent to sex identities in other ways too, specifically in regard to parental roles differentiated according to sex. With the acceptance of transgender identities (once thought of as disordered), society has given up the conceptual standard that only people with male-typical bodies may participate in male identity and that only people with female-typical bodies may participate in female identity. Footnote 30 Without that background assumption in place, the state can recognize transgender people—depending on their body modifications and choices about gametes—as both mother and father to their children simultaneously. New and emerging possibilities in fertility medicine also throw gendered parental identities into question; namely, identities that presume that certain roles and relationships belong to people by reason of a sex recognized as such by the state. The development of synthetic gametes could, for example, open the prospect of both genetic motherhood and genetic fatherhood to every person, over and above the parental role available to them by the gametes they produced with their given bodies. The way synthetic gametes were involved in their choices to have children, therefore, rather than someone’s genetic sex or someone’s civic sex, would predict their relationship to those children. In a similar way, the prospect of uterus transplants for men would also undercut the idea that motherhood—as a matter of gestation—belonged only to people of a certain sex. A once-defining function of women might, therefore, someday be accessed by any adult healthy enough for the venture.
Taken together, these sorts of developments undercut the value of state designations of people as male (with the implication that only the role of father is open to them on the basis of that designation) or female (with the implication that only the role of mother is open to them on the basis of that designation). To put these matters in sharp relief, imagine a child conceived in vitro with synthetic gametes derived in a cross-sex way; namely, sperm from a genetically typical female and ova from a genetically typical male, after which the child is then gestated by ExCG. In this example, no genetic female has offered ova; no genetic male has offered sperm; and no cisgender woman, no transgender woman, and no cisgender man has gestated the child. What seems most relevant to the state from an example such as this is not ultimately the sex of the adults involved in the child’s origins so much as responsibility for the child. Who produced the synthetic gametes? Who orchestrated the in vitro fertilization (IVF) by which an embryo was conceived? Who made the decision to gestate the embryo by ExCG? Of all the parties involved, who has moral and legal responsibility as parent or parents to the child regardless of what their sex is as known by the state?
The ultimate question at hand here is whether the state must identify the sex of anyone involved for the purposes of assigning parenthood and its attendant rights and duties. I will suggest that the state might move to answer questions about parental responsibility in this scenario without a determination of whether the responsible parties are male or female in some defined sense. The state might simply designate the responsible parties—whoever they might be —as the child’s parents, just that and nothing more. Footnote 31 The child produced this way would have a mother and father in a genetic sense, by reason of the sex-typed gametes involved in its conception, and the child could have a social mother and social father or maybe two mothers or two fathers, depending on the social identities of the people who raise that child. Footnote 32 The question is whether the state must know the party or parties responsible as parents to the child as sexed.
None of these observations mean that the state has no interests in the genetics and social origins of the child, only that assignment of responsibility for a child might proceed without assuming that its parents are one sex or another, that these parents will persist in a given civic sex, that they will assume sex-typical gender roles, that they will assume sex-typical parental roles, or that they will have participated in the conception and gestation of the child in a sex-typical way. After withdrawing from such assumptions, the state remains free, of course, to record relationships between adults and children, but it could do so without classifying those relationships in terms of gendered parenthood. None of these assumptions means either that parents cannot assume roles as mothers and fathers to their children. People remain free to express themselves as gendered in relation to their children. Nothing about these observations means that children cannot see their parents as mothers or fathers and relate to them that way. These observations do not suggest, however, that matters of parenthood must be gendered by the state.
Many of the developments in fertility medicine under discussion here will emerge only in the future if they emerge at all; however, it is unclear that we as a society have to wait for the actual emergence of these reproductive innovations in order to conceptualize parentage in a de-sexed way, at least as far as the state is concerned. Designation by the state as mother—predicated on a female body/identity—or designation by the state as father—predicated on a male body/identity—means what exactly by way of differential moral responsibility for children? By what moral principle should being male or female confer more parental right on someone in relationship to children or more duty of care in relationship to children, as far as the state is concerned? Absent a moral account of why parental civic identity must be gendered in relation to children, there is little reason for the state to know parents as sexed as it does its work to secure the welfare of children, and reproductive innovations such as synthetic gametes will only make that point more plainly as they open new prospects for parenthood that further undermine existing assumptions about bodies and roles.
