Thomas Beatie, a transgender father of three, is fighting an Arizona judge to get a divorce from his wife of nine years, Nancy Beatie, with a decision due next month.
He then went on to have two sons in 2009 and 2010 – Austin Alexander and Jensen James.
Before marrying his wife and starting a family, Mr Beatie transitioned from female to male in 2002.
However, he decided not to have his female reproductive organs removed, because his wife Nancy was infertile.
After transitioning, Mr Beatie was able to register legally as male and married his wife.
The couple, who live in Arizona, are now seeking to end their nine-year marriage but are finding it difficult.
A judge has questioned whether the state’s same-sex marriage ban prevents him from ending the union – along with recognising the marriage’s validity – even though the couple are of opposite gender.
Judge Douglas Gerlach of the Maricopa County Family Court said in late June that he was unable to find any legal authority that defines a man as someone who can give birth.
The judge is expected to issue a decision next month.
In 2010, Guinness World Records recognised Mr Beatie as the world’s “First Married Man to Give Birth.”