Who’s the mother?

A landmark ruling has laid down a legal definition of the term ‘mother’ in English common law, in the context of legal parenthood status, following a claim involving gender transition. The ruling is in line with the traditionally accepted meaning of what a mother is, so in that sense, it is not ground-breaking.

Rather, the significant lies in the background against which the claim was brought: the huge cultural shift towards gender and how it is defined.

What’s the background?

In the matter of TT and YY [2019] EWHC 2384 (Fam), the claimant’s (TT) gender was registered female at birth but she was diagnosed as gender dysphoric. For many years, TT has lived as a transgender male but always hoped to become the biological parent of a child. TT subsequently underwent fertility treatment and was artificially inseminated by inter-uterine insemination; conceived – and gave birth.

Meanwhile, a gender recognition certificate was granted confirming TT’s gender as male. This was issued prior to the baby’s birth so at the time of birth, TT was legally male “for all purposes” under the Gender Recognition Act 2004.

On attempting to register the birth, TT explained the factual background to the Registrar and insisted on being registered as the child’s ‘father’. The Registrar declined his request and said that TT could only be registered as the ‘mother’.

TT sought a judicial review of the Registrar’s decision and made an application for a declaration of parentage, that he should be recognised as ‘father’. In the alternative, TT argued that if the court ruled that domestic law require his gender to be registered as ‘mother’, his human rights would be breached justifying the court to make a declaration of incompatibility under the Human Rights Act 1998. There were also secondary applications including for the grant of parental responsibility for the child from TT.

TT’s case was, in a nutshell, “since the State permitted TT to undergo hormone treatment, live his life as a man for a significant part of his adult life and then, after he had gone through the required procedure and obtained a Gender Recognition Certificate, permitted him to undergo artificial insemination with led to the birth of YY, the State should reasonably be expected to accept the consequences and take all the measures needed to enable TT to live [a] normal [life], free from discrimination in any circumstances, under his new identity and with respect for [his] right to private and family life”.

What did the court decide?

The key issue for the court was: in circumstances where an individual was born female who subsequently transitioned and acquired full legal recognition as male, becomes pregnant and gives birth - is that person to be registered as ‘mother’ or ‘father’? Or as the President of the Family Division put it – it was not in doubt that TT is “in every sense the parent of his child”; the question is: “Is this person my mother or my father?”

The court gives an very detailed ruling examining closely the legal framework and provides extensive analysis of the issues which interested practitioners will find particularly useful. The President concluded:

… there is a material difference between a person’s gender and their status as a parent. Being a ‘mother’, whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth. It is now medically and legally possible for an individual, whose gender is recognised in law as male, to become pregnant and give birth to their child. Whilst that person’s gender is ‘male’, their parental status, which derives from their biological role in giving birth, is that of ‘mother’.”

He also confirmed that none of the relevant Acts of Parliament (ie. the Human Fertilisation and Embryology Acts 1990 and 2008 and the GRA alter this outcome.

On what basis did he reach this conclusion? The President commented that the impact of gender change with respect to parenthood is a new and developing area of law, not only domestically, but also across the globe.

There is little reported case law on the topic except for one similar case which the President gave careful attention to. On the facts of the case of R (JK) v The Registrar General (The Secretary of State for the Home Department and others intervening) [2015] EWHC 990, the transgender woman who was the father of the two children and remained registered as 'father' following the court's ruling, was, by a time soon after the second child's birth, to be recognised for all purposes as female. The GR certificate did not affect her status as ‘father’ (she was a “female father”).

The President also considered the relevant statutory framework, notably the GRA, the Human Fertilisation and Embryology Acts, the Births and Deaths Registration Act and commented that discerning the approach in domestic law to the issue was no easy task. There is a dearth of authority at common law on the definition of a 'mother' which, he noted, is unsurprising because “until recent times, there will have been no doubt that a woman who gives birth to a child is that child's mother”.

So in the absence of any statutory definition of 'mother', the position at common law must be the essential starting point in any analysis. The position at common law, before recent legislative changes, is that the person who carries a pregnancy and gives birth to a child is the 'mother'. The attribution of motherhood is a consequence of the individual's unique role in the biological process of pregnancy and birth.

Does the introduction of the GRA change the position for those such as TT? The court said no, rejecting the argument that following the GRA TT must, as a matter of law, be 'father' rather than 'mother'. The President made clear that the impact of the GRA does not alter the common law position that a person who gives birth to a child is that child's mother - irrespective of their legal gender at the time of birth.

TT’s argument that the English domestic law is incompatible with Article 8 ECHR was also rejected. Though the President accepted that, from TT’s perspective in particular, there is a substantial interference of TT’s Art 8 rights is substantial, this was justified as being in accordance with the law, “for a legitimate purpose and otherwise necessary, proportionate and fair”.

In practical terms, a declaration of parentage was to be issued confirming TT as the child’s mother; and TT would therefore automatically have parental responsibility for the child under the Children Act 1989.

 

 

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