Transgender man is to remain registered as child’s mother

This is an important decision regarding the wish of a transgender man, to be recognised as the father on the birth certificate of the child he has given birth to after receiving a Gender Recognition certificate confirming his gender as male. The President of the Family Division held that whilst the person’s gender was ‘male’, their parental status which derived from the biological role of giving birth was that of ‘mother’ and hence he must remain registered as the child’s mother.

In the matter of TT and YY [2019] EWHC 2384 (Fam) – http://www.bailii.org/ew/cases/EWHC/Fam/2019/2384.html

The important issue in this case is set out at paragraph 1 of Sir Andrew McFarlane’s Judgment, which states :

1. “In this case the court is required to define the term ‘mother’ under the law of England and Wales. Down the centuries, no court has previously been required to determine the definition of ‘mother’ under English common law and, it seems, that there have been few comparable decisions made in other courts elsewhere in the Western World. Hitherto, a person who has given birth to a child has always been regarded as that child’s mother. The issue arises in modern times where an individual, who was born female, undergoes gender transition and becomes legally recognised as male before going on to conceive, carry and give birth to a child, with the result that the parent who has given birth is legally a man rather than a woman. The question posed to this court is: Is that man the ‘mother’ or the ‘father’ of his child?”

2. In Re the Human Fertilisation and Embryology Act 2008 (Cases A, B, C, D, E, F, G and H) [2015] EWHC 2602 (Fam), Sir James Munby P encapsulated [at paragraph 3] the importance of the issue of parenthood:

The question of who, in law, is or are the parent(s) of a child born as a result of treatment carried out under this legislation – the issue which confronts me here…. It is, as a moment’s reflection will make obvious, a question of the most fundamental gravity and importance. What, after all, to any child, to any parent, never mind to future generations and indeed to society at large, can be more important, emotionally, psychologically, socially and legally, than the answer to the question: Who is my parent? Is this my child?”

In the present case, that the Claimant is in every sense the parent of his child is not in doubt. The question raised here is: ‘Is this person my mother or my father?’……..

194. In terms of assessing the ‘best interests’ of a child in these circumstances, the AIRE Centre, correctly in my view, submitted that ‘a balance must be struck between the parent’s individual right to privacy and the child’s right to know about their biological identity’.”

This case is interesting reading for family solicitors and gives helpful consideration of the relevant parts of the Human Fertilisation and Embryology Act 2008, Gender Recognition Act 2004 and case law.

Sir Andrew McFarlane’s decision states:

279. “The principal conclusion at the centre of this extensive judgment can be shortly stated. It is that 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’.”

Deborah Piccos

Vice Chair SAHCA

Consultant Solicitor Advocate at TV Edwards LLP

October 2019