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Gender recognition and parenthood
Date:7 OCT 2019
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Barrister

Jeremy Ford, a Solicitor-Advocate at Cambridge Family Law Practice, acted pro bono on behalf of the Litigation Friend for the child at the centre of the landmark case of TT v Registrar General of England and Wales and Secretary of State for Health and Social Careheard by the President of the Family Division.  The judgment was handed down on 25 September 2019 and has been reported as TT, R (On the Application Of) v The Registrar General for England and Wales[2019] EWHC 2384 (Fam) (25 September 2019)

The case

The claimant, TT, is a transgender male who gave birth to his child in January 2018 arising from intrauterine insemination (IUI) fertility treatment using his own eggs.

TT was registered as female at birth and at the age of 22 he transitioned to live in the male gender. In January 2017 he applied for a Gender Recognition Certificate.  The certificate was issued on 11 April 2017.  Pursuant to the Gender Recognition Act 2004 s 9(1) this meant that he acquired the male gender for all purposes’.

The IUI took place on 21 April 2017 which led to the successful birth of YY.

The issue in the proceedings that followed was whether YY’s birth certificate should record TT as the father or mother.  The Registry Office contended that the birth certificate should say mother.   The Births, Deaths and Registrations Act 1953 requires that every child born in England & Wales must be registered so that a birth certificate may be issued.  The term mother or father are not defined.

 TT therefore brought a claim in Judicial Review to quash the decision of the Registrar General and, if unsuccessful, he sought a declaration that such registration breached the human rights of TT and YY and that the court should issue a Declaration of Incompatibility.

In due course, YY’s Litigation Friend issued an application for a Declaration of Parentage.  The Litigation Friend, a retired Cafcass High Court Team guardian, filed two statements and was of the view that the birth certificate should reflect the reality of YY’s life.

There was no challenge to the validity of the GR certificate.  The Human Fertilisation and Embryology Authority [‘HFEA’] was given notice of the proceedings but did not seek to intervene.  The President commented that it would have been valuable to hear from the HFEA in respect of whether or not the treating clinic was acting within its licence in providing treatment services to TT as they had registered him as male.  According to the Act clinics are only permitted to provide treatment services to women.

The Human Fertilisation and Embryology Act 2008 addresses the law in relation to parenthood in cases involving assisted reproduction and defines the terms mother and father.  The President determined that ss33-47 of the Act did not apply to this case.

The President considered that the circumstances of YY’s birth were not provided for in the legislation governing artificial insemination or for gender recognition.  The issue ‘bravely raised by the Claimant’ was ‘at its core, a matter of public policy rather than law’ and ‘there would seem to be a 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.’

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Given the absence of a statutory definition of mother the President considered that the position at common law had to be the starting point.  The President decided that:

  1. At common law a person whose egg is inseminated in their womb and who then becomes pregnant and gives birth to a child is that child’s mother;
  2. The status of being a mother arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth;
  3. Being a mother or a father with respect to the conception, pregnancy and birth of a child is not necessarily gender specific…It is now possible, and recognised by the law, for a mother to have an acquired gender of male, and for a father to have an acquired gender of female;
  4. The GRA 2004, s.12 may be both retrospective and prospective. If that is so then the status of a person as the father or mother of a child is not affected by the acquisition of gender under the Act, even where the relevant birth has taken place after the issue of a GR certificate

In support of determining what the common law position the President relied upon The Ampthill Peerage [1988] AC 546 and the words of Lord Simon, ‘motherhood, although a legal relationship, is based on a fact, being proved demonstrably by parturition.’  [Parturition means the action of giving birth to young; childbirth.]  His Lordship did treat this with caution given the case was 30 years old but still concluded that the common law position at that time did not indicate that there was any doubt as to the answer.  The President also noted that with the advent of IVF treatment and surrogacy and the HFEA 2008 that Parliament opted for holding that the ‘carrying’ or gestational mother, and no other, is to be treated as the mother of the child as the default position until a parental order is granted. 

It was accepted by the President that the current legislative scheme interfered substantially with TT and YY’s Article 8 rights (YY less so) but that there was justification for such interference as Parliament has decided that it is in the public interest (and the interests of all children) for there to be a record of the person who carried and gave birth to the child.  Accordingly, the Government’s aim to maintain an administratively coherent and certain scheme for the registration of births, and the need for the rights and interests of others to be respected and balanced, notably, but not exclusively, the right of the child to know the identity of the person who carried him or her was justified, for a legitimate purpose, necessary, proportionate and fair.  Therefore, the application for a Declaration of Incompatibility failed.

The President dismissed TT’s claim for judicial review and made a Declaration of Parentage under Family Law Act 1986 s 55A confirming that TT was YY’s mother which enabled automatic parental responsibility pursuant to Children Act 1989 s 2(2)(a).

 Conclusion

It was noted by the President that in circumstances where a transgender male undergoes a process of treatment whereby an embryo or sperm and eggs, are placed in their womb that s.33 HFEA would be engaged and that as a matter of statutory interpretation, that person would likely be the child’s mother irrespective of the male gender that they had acquired. The only difference in this case was that TT was treated via artificial insemination which meant that s.33 did not apply.

The President confirmed that the social, psychological and emotional reality for YY is that TT will be a male parent and therefore the father.  However, the decision displays the obvious tension between legal parentage and the social and psychological reality for this child and therefore the learned Judge invited that this be addressed by Parliament.

 

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