What is a“Mother”, in law?
30 September 2019
A person who undergoes the physical and biological process of carrying a pregnancy and giving birth, irrespective of gender? This was the ruling of the Rt. Hon. Sir Andrew McFarlane P, President of the Family Division, on 25th September in TT, R(on the application of) v The Registrar General for England and Wales  EWHC 2384 (Fam) . He decided that the Claimant, (known as “TT”), who was legally recognised as male at the time of giving birth to his child, (“YY”), is correctly registered as “mother” on YY’s birth certificate. Factual Background
TT’s registered gender at birth was female. He has lived for many years as a transgender male. In 2016, he engaged in treatment to become pregnant through use of inter-uterine insemination (“IUI”) using donor sperm (pausing hormone treatment in order to conceive). He subsequently gave birth to YY. Before attending the fertility clinic, a Gender Recognition Certificate (“GRC”) was granted confirming his gender as male. TT’s experiences of fertility treatment, pregnancy and birth are explored in depth in the 2019 film “Seahorse”.
By the Births and Deaths Registration Act 1953 and the Registration of Births and Deaths Regulations 1987 (“BDRA” and “RBDR”), the birth of every child in England and Wales must be registered by entering the details prescribed on a ‘Form 1’. This includes details relating to the identity of the ‘father’ (more recently, ‘father/parent’), and the ‘mother’. The Registrar refused to register TT as the father, insisting that he be registered as mother.
By his claim, TT sought a declaration that as a matter of law he is to be regarded as YY’s father and he should be so registered. If domestic law required that he be registered as ‘mother’, the outcome would be a breach of both TT and YY’s Article 8 rights under the ECHR.
The judgment is one of the first domestic cases to deal with the impact of gender change with respect to parenthood. The case of R (JK) v The Registrar General (The Secretary of State for the Home Department and others intervening)  EWHC 990 (Admin);  1 All ER 354 brought by JK, a transgender woman who challenged her registration as the “father” of her two children on their birth certificates, guided the court’s ECHR analysis; however, it had little direct bearing on the first part of the claim relating to domestic statutory interpretation (§§36-42).
Domestic Law: was the Registrar General required to register TT as the father?
The court framed its task as defining, for the first time, the legal term “mother” (§1). The sole authority cited in support of a common law definition was a passage from Lord Simon’s judgment in The Ampthill Peerage  AC 547 at 577:
“[m]otherhood, although a legal relationship, is based on a fact, being proved demonstrably by parturition.”
Whilst this was acknowledged to be looking back to a time where “conception and pregnancy other than through sexual intercourse was unknown and when gender was primarily determined by genital examination at birth and then maintained for life” (§133), it was essentially adopted as the starting point. The question became whether this was dislodged by statutory developments – namely, by the Gender Recognition Act 2004 (“GRA”), and/or the Human Fertilisation and Embryology Acts 1990 and 2008 (“the HFEA Acts”).
S9 of the GRA provides that:
- “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender…”
- “Subsection (1) does not affect things done, or events occurring, before the certificate is issued…”
Section 12 ‘Parenthood’ provides that: “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.”
TT argued that sections 9 and 12 of the GRA require that following the issue of a GRC, the individual is to be regarded as having acquired that gender “for all purposes”, including parentage. Section 12 applied retrospectively: it was “designed to protect the child of a parent who subsequently transitions, by providing legal certainty… regarding pre-existing familial relationships” (§85). Key to TT’s case was the assumption that for all purposes, the gender of a parent determines whether that parent is a ‘mother’ or a ‘father’.
The President disagreed, finding that “the essence” of a mother’s role is in the biological process of conception, pregnancy and birth, rather than their particular sex or gender (§139). As in JK,
“the law has, in recent times, readily recognised mothers, who are to be regarded as male, and fathers, who are to be regarded as female” (§§140–142).
He further held that if s12 of the GRA were entirely retrospective, it would be otiose where section 9(2) is explicit that issuing a certificate “does not affect” previous events. (§§142-145).
It was agreed that the provisions of HFEA 2008 did not directly provide a statutory answer to TT’s claim to be a “father”; however, its provisions guided the court’s analysis.
Section 33 provides a meaning of “mother” where ‘an embryo’ or ‘sperm and eggs’ are placed into the womb of the person who then carries the pregnancy. It provides that:
“(1)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.” Section 33 was not factually engaged; however, it was considered “difficult to envisage that Parliament would have intended the binary alternative outcome” where the difference was the specific process of assisted reproduction (§165).
Not explored in depth was how the HEFA licensing scheme applied to TT at the time of his treatment. The Human Fertilisation and Embryology Authority declined the court’s invitation to appear; however, considerable “ambiguity” was noted (§159).
European Convention on Human Rights
Again, the precise question as to whether insistence on registration of TT as “mother” infringed the Article 8 (alone or with Article 14) rights of TT or YY found little direct analysis in ECtHR case law.
TT argued that he was placed in precisely in the unacceptable “intermediate zone” identified by the ECtHR in Goodwin v United Kingdom (2002) 35 EHRR 18, where the UK was held to have breached Article 8 in failing to recognise the acquired gender of a trans-gender woman in law. TT argued that an individual in his position would have to choose either to have a family, and enter a state of legal limbo in relation to gender, or abandon the prospect of parenthood and retain their acquired gender for all purposes. On the basis of the Goodwin decision, a strict and narrow margin of appreciation would be applied to any state which sought to establish an exception (§§207-210). Further, whilst the risk of unwanted disclosure of the Birth Certificate details might be small, the impact of such disclosure and its deterrent effect were significant (§211).
TT and YY further adopted the submissions of the AIRE centre. If the primary case of TT and YY failed, it was said that the current legislative framework would have a harmful impact on the children of transgender parents through the state’s inability to recognise the child’s parent appropriately (§§173-4; 202-206).
The Rt. Hon. Sir Andrew McFarlane P noted the view of the ECtHR that
“the right to gender identity and personal development is a fundamental aspect of the right to respect for private life” (as held in Van Kück v Germany no. 35968/97).
In approaching proportionality, a weight of a
“high order must therefore attach to these rights… such as to require clear and substantial grounds before it could be said that any interference is justified and proportionate” (§255).
However, the specific rights of YY required close analysis: the best interests of the child were the “primary” consideration (§261). In Mennesson v France (Application No: 65192/11), the ECtHR observed that every person must be able to establish details of the identity of their parents, and that this was “an essential aspect of an individual’s identity” (§96, Mennesson). By extension, a core element of that right must normally include the right to know who gave birth to them (§256). The evidence produced by YY’s Litigation Friend did not, in the opinion of the court, adequately explore this need (§260).
Further, Parliament had made a social and political judgment and afforded priority to the need for clarity as to parental status, with “sound child-focussed reasons in favour of striking the balance in that way” (§263). The “single element” of recording the person who gives birth as the mother was at the “centre of the coherent and certain scheme”, which was of a high order of importance in social policy (§265-266). It was accepted that the number of occasions where a full birth certificate may be produced and TT’s status as mother disclosed, would be small, and so the admittedly significant adverse impact for TT was outweighed by the interests of third parties and society at large (§272).
The application for a declaration of incompatibility therefore failed.
The impact of the decision
As acknowledged by the judge, at the centre of the case was the purported need to register the person who gives birth to the child as “mother”. He considered that it was this title, rather than the need to register birth, to which TT objected: “if the registration scheme were to record the identity of the person who carried and gave birth to a child as the ‘gestational parent’ or some similar gender-neutral phrase, then, as I understand TT’s and YY’s case, there would be no issue” (§268). Indeed, if the conclusion on the first aspect of the case, namely that “the term ‘mother’ is free-standing and separate from consideration of legal gender…” (§251) is accepted, there appears to be little compelling reason for a gendered term to be used for birth registration. TT’s forceful submission was that as gendered terms, the ascription of the registration “mother” or “father” go “to the very heart of the nature of gender dysphoria” (§213), and it is inescapable that the decision endorses a tension between legal parentage and social/psychological parentage in transgender cases.
Within the constraints of the language currently used in the ‘Form 1’, the court’s concerns provide sound, though of course challengeable, reasons for registering TT as “mother”. However, the specific justification for the use of the terms “mother” and “father”, as opposed to gender neutral terms, is likely to be explored further as a matter of policy. The President commented that his conclusion that
“the term ‘mother’ is free-standing and separate from consideration of legal gender… is not TT’s perspective and is unlikely to be the perspective of others who, like TT, suffer from gender dysphoria” (§251).
He further makes an explicit request to the Government and to Parliament to specifically consider the status of a trans-male who has become pregnant and given birth to a child. He noted that
“the issue which has most properly and bravely been raised by the Claimant… is, at its core, a matter of public policy rather than law… the existing legislation and the extant domestic and ECHR caselaw… do not themselves directly engage with the central question” (§125).
The judgment carefully and at length engages with a wealth of domestic and international authorities on issues relating to both parents and children in transgender families, the exposition of which should inform both public debate and future legal development.
For further information see The Guardian.