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Does the legal definition of a 'mother' suit modern society?

Oct 16, 2019, 12:49 PM
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Date : Oct 16, 2019, 12:48 PM
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We recently saw the High Court decide that a transgender man who gave birth with the help of fertility treatment cannot be legally registered as the father (or parent) of his child. The case has also provided the first legal definition of a mother.

This case highlighted just one of the difficulties faced by non-traditional families living in today's society, where the law as it stands can feel antiquated and sits at odds with the realities of modern life. 

For example, a family living near Bristol recently featured in the national press regarding their choice not to reveal their child's sex and to raise them as gender-neutral.  When they became parents, Jake and Hobbit decided that this was the only way to mitigate unconscious gender bias and that they will let their child, Anoush, choose their own gender when they are old enough.

How is a 'mother' currently defined?

The judge in this case, the President of the Family Division, Sir Andrew MacFarlane, has provided the first legal definition of a mother.  He ruled that being a child's "mother" or "father" is not necessarily gender specific and that a person's gender can be different to their status as a parent. 

Being a mother, he ruled, is the status given to the person who undergoes the physical and biological process of being pregnant, carrying and giving birth to a child.  This has historically, of course, been associated with being female. The judge decided that the definition should remain the same, despite it being medically and legally possible for someone recognised as being male to become pregnant and give birth.  On this basis, Mr McConnell should be registered as his son's mother.

MacFarlane P found that the decision to register Mr McConnell as the baby's mother was not a breach of his human rights, or those of his son.  Mr McConnell had asserted that the decision breached his human right to respect for private and family life, and had accused the General Register Office (responsibly for registering births and deaths in England and Wales) of discrimination.

The judge did however recognise that the 'social and psychological reality' of the father's relationship with his child did not work alongside the law as it stands in this country. He noted the 'pressing need for Government and Parliament to address square-on the question of the status of a trans-male who has become pregnant and given birth to a child'. 

Is change on the horizon?

Awareness of gender identity is gradually changing, and there is a notable move away from the constraints of the terms 'male' and 'female' in many areas of modern life. 

Mr McConnell's case, and the case of the child being raised gender neutral raise important questions about what information should appear on a birth certificate, and the reasons behind this:

  • Should parents be defined as 'mother' and 'father', or simply appear as 'parents'?
  • What is the purpose of identifying a child by gender at birth registration, other than for statistics?
  • Should there be an option to legally identify a child as gender-neutral?
  • Should it be more straightforward to register a deceased parent on a birth certificate?

At present, although a 'mother' must be listed, there is no legal requirement to have a father on the birth certificate. In the case of a same-sex couple, a second mother can be registered, but only listed as 'parent', rather than mother.  We have acted for clients in the past who have sought to add their deceased partner to a child's birth certificate, where they have sadly passed away before the child's birth. At present, the General Register Office requires a court order to be able to do so, adding another level of stress to what is already undoubtedly a difficult time for a new parent.

The decision in the McConnell case will be disappointing for many non-traditional families and many see the decision as a clear breach of human rights.  The law surrounding registration of births does not reflect the reality of modern society as a whole, and not just for transgender parents.  The Government needs to think hard about how this issue can be addressed and to ensure that birth certificates can be both legally and factually accurate. 

Legal systems in many other countries have been significantly more progressive in addressing the realities of modern family structures: in the Netherlands, for example, transgender men who give birth are registered as fathers, rather than mothers.  In Canada and Sweden, birth certificates are gender neutral.

It remains to be seen whether this case will be sufficient for the Government to recognise the pressing need to review both the definition of mother and the format of birth certificates.  With Brexit dominating the work of the Government at present, and indeed for the foreseeable future, family law reform is not high on the agenda.  However, with other liberal countries leading the way with this, it is hoped that it is only a matter of time before we follow suit.

It is thought that Mr McConnell will seek to appeal the ruling at the Court of Appeal.

This article was first published by Sarah Green at TLT Solicitors and is reproduced with permission.

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