The High Court judgment on this case was released today, 25 September 2019.
Bethan Carr, our surrogagcy and fertility law expert shares her views on the outcome.
“We have been eagerly awaiting the decision on the case brought to the High Court by TT (a transgender man) who conceived a child with the assistance of a sperm donor very shortly after changing his gender to be recognised as a man.
TT is the dad at the centre of this story, who gave birth to a little boy in January 2018. Upon registering the birth, the registrar informed TT that he would need to be recognised as his son’s mother as he gave birth to him.
TT, however, wished the birth certificate to reflect the reality in which he lives, and wished to be registered as his son’s ‘father’ or if this was not possible, then as a ‘parent’.
He bravely took his case to the High Court and it was heard, in early 2019, by the President of the Family Division (The Right Honourable Sir Andrew McFarlane). His judgment was released today and disappointingly TT was not successful. The President of the Family Division has not been able to go so far as to recognise TT as his son’s father.
His principal conclusion is as follows:
“… 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’.
Further to this, he decided that English law is not incompatible with the European Convention on Human Rights, and TT and his child’s right to respect for their private and family life.
This is incredibly disappointing for TT and his family, but also the trans community as a whole. The glimmer of hope is that despite his judgment, the President of the Family Division has highlighted the case as showing 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,’
but what weight does this really hold?
Clearly not much in the eyes of those representing TT and his son, who, it seems from the legal Twittersphere, are currently in the process of launching an appeal and continuing the fight.
On appeal, the Court could consider making a declaration of incompatibility which would ultimately hold far more weight. In essence, a declaration of incompatibility carries weight and the majority of declarations which have been made have prompted a legal change. We must, therefore, continue to watch this space, and keep working to ensure the law fully recognises modern families in our society.
The dad who gave birth
This week, we await the decision on a case brought to the High Court by a transgender man (TT) who has given birth to a child (YY) and does not want to be registered on the birth certificate as the mother. His preferred terminology is either “father” or a gender-neutral term such as “parent”.
A recent court ruling lifted anonymity for TT as news emerged of Freddy McConnell’s (TT) co-operation with a documentary entitled Seahorse following TT’s journey through IVF treatment, conception and the birth of YY.
The documentary is due to premiere at a film festival in New York this year and will also be published in the UK in a national newspaper. In the film TT is named throughout and in the credits. It is believed the BBC will broadcast the film later.
Prior to conception and during the pregnancy Mr McConnel stopped hormone treatment, however having already been granted a gender recognition certificate before fertility treatment, McConnell was legally male at the time of birth. On registering the birth, the registrar insisted he was registered as the mother, not the father as requested by McConnell.
The case now awaits a decision from Sir Andrew McFarlane, the most senior judge in the Family Division of the High Court and is expected at any time. However, questions have now been raised as to whether the government needs to review current fertility law as McConnell was able to access a sperm donor just 10 days after legally changing his gender to become a man.
Currently, there is not a consistent approach to access to fertility treatment for those who are transgender with access varying across the country. The Equality and Human Rights Commission (EHRC) initiated legal proceedings in August 2018 to address the inconsistencies. However, following the NHS agreeing to issue strict guidelines regarding the refusal to offer fertility preservation to trans patients the EHRC agreed not to pursue their legal claim.
This complicated and potentially law changing case currently before the court draws further attention to the fact the current laws need reviewing.
Shanika Varga, Solicitor at Stowe Family Law in Leeds said:
“There is no doubt that the law is in desperate need to reflect this progression of family within society, as opposed to preventing it. While the law cannot necessarily account for every eventuality, the evolution of society must be reflected in our legal system, otherwise, we are no better off than we were a century ago. The longer it takes to address cases like this one, the bigger the task is going to be.”
If the ruling goes in McConnell’s favour, then YY will become the first person to be born in England and Wales without a mother.
“It’s exciting to see this area progress and I hope this case shines the necessary spotlight on the changes that are required to ensure equality for everyone including having the same access to fertility treatments. Both society and the law need to pay attention to this important reminder that the law is in serious need of catching up to reflect the modern-day family structure.”
This article was originally published on 30 July 2019 by Shanika Varga from our Leeds office. It has since been updated.