Pregnant Man, Other Transgender Parents Face Legal Questions

'Pregnant Man': Birth Certificate 'Flawed'

The potential trouble spot, according to legal experts, is not the wording on the birth certificate but the possibility that Nancy Beatie's parental rights could be revoked.

Barbara Walters with Thomas Beatie and his baby daughter. Watch the interview Friday on "20/20" at 10 p.m. ET.

(Steve Fenn/ ABC )

As the biological parent, Thomas Beatie has legally secure rights. His wife, on the other hand, is not biologically related to their baby but is granted parental rights by virtue of her marriage to Thomas Beatie.

So if the validity of their marriage were challenged, experts say, Nancy Beatie's parental rights could be in jeopardy.

"There is litigation in other states over whether their marriage would be recognized," said Nancy Polikoff, a law professor at American University in Washington, D.C.

Polikoff envisioned a scenario in which the Beaties moved to a state that refuses to recognize Thomas Beatie's legal sex change in Hawaii. If that happens, his marriage would be revoked as an illegal same-sex marriage and Nancy Beatie's parental status could be questioned.

That would be a nightmare for the Beaties.

"Oh, I think we're very worried," Nancy Beatie said. "We're both very worried."

Said Thomas Beatie: "If something were to happen to me, I want to make sure that Nancy has custody over her daughter."

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In 2002, when he was already in a relationship with Nancy, Thomas Beatie had sex reassignment surgery to remove his breasts. With a letter from a doctor certifying his psychological testing and irreversible surgery, Thomas Beatie was allowed to legally change his birth certificate from female to male and his name from Tracy to Thomas in the state of Hawaii. The couple married in 2003 and he became pregnant after his wife inseminated him with sperm purchased on the Internet and a syringe purchased at a pet store. The couple were rejected by nine doctors when they sought artificial insemination. Susan was born June 29.

In order to secure Nancy Beatie's parental rights, lawyers advise the Beaties to do what many same-sex couples with children do -- have Nancy Beatie, as the nonbiological parent, adopt their baby.

"When there is a slight question whether the marriage will be upheld by a court if it's challenged, the nonbiological parent will take the step of adopting the child, not because it's always necessary but just to make absolutely sure that the parent-child relationship is legally protected," Columbia's Goldberg said.

Polikoff of American University said, "Adoption will guarantee recognition in all states."

The Beaties agree that adoption would protect them, but they don't want to do that as a matter of principle. They see themselves as a legally married heterosexual couple. They note that they file taxes jointly as husband and wife.

"We shouldn't have to adopt our own daughter," Thomas Beatie said.

The Beaties are seeking legal representation to pursue a change in the birth certificate.

"I feel that it's a flawed document," he said. "We'd like to see this process remedied for the next child, for the next pregnant man."