Can a father give birth to a child?

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'.”

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Freddy McConnell, a transgender man who gave birth in 2018 following fertility treatment, has lost his appeal to be legally registered as his child’s ‘father’ or otherwise ‘parent’ or ‘gestational parent’ rather than ‘mother’. The Court of Appeal judgment, which was handed down recently, confirmed that it was correct in law for Mr McConnell to be registered on his child’s birth certificate as the ‘mother’, and that this requirement did not violate his rights to a private and family life under Article 8 of the European Convention on Human Rights (“Article 8”). Mr McConnell has indicated that he plans to appeal to the Supreme Court and, if successful, his son will become the first person born in England and Wales to not legally have a mother.

Background

Mr McConnell was registered female at birth before transitioning and being registered male. He was biologically able to become pregnant and, by the time of his baby’s birth, he had legally become a man. When he registered his child’s birth, he was told that the law requires those who have given birth to be registered as mothers on a child’s birth certificate. Mr McConnell sought a judicial review of that decision and, in the alternative, a declaration that the requirement was incompatible with his human rights. Mr McConnell’s case first came before Sir Andrew McFarlane, the President of the Family Division of the High Court, in September 2019. He argued that the correct interpretation of the Gender Recognition Act 2004 required the Registrar General to register him as 'father' on his son’s birth certificate because, following the issue of a Gender Recognition Certificate, Mr McConnell acquired his male gender 'for all purposes' including his status as parent to his child. Mr McConnell further argued that, if he must under English law be registered as his son’s 'mother', that result is a clear breach of his right to a private and family life under Article 8. He said that being regarded as male for all purposes save for parenthood when, as a 'mother', he would be regarded as female, would place him (and others in similar circumstances) in an impossible dilemma of having to choose between either having a family or remaining childless and recognised fully in law and for all purposes in their acquired gender. In his decision at first instance, Sir Andrew McFarlane found that there is a material difference between a person's gender and their status as a parent. He said that: 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'.”

In his conclusions, Sir Andrew McFarlane confirmed the following:

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a) 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'; b) The status of being a 'mother' arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth; c) Being a 'mother' or a 'father' with respect to the conception, pregnancy and birth of a child is not necessarily gender specific, although until recent decades it invariably was so. 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; d) […] The status of a person as the father or mother of a child is not affected by the acquisition of gender under the Gender Recognition Act, even where the relevant birth has taken place after the issue of a Gender Recognition Certificate. In considering the Article 8 claim, the judge found that such interference was justified and that there was therefore no breach of Mr McConnell’s Article 8 rights.

Appeal

Mr McConnell appealed and his case was further considered by the Court of Appeal on 4 and 5 March. The judgment was handed down recently. The Court of Appeal upheld the first instance decision and dismissed the appeals. In its judgment, as well as analysing the legislation as Sir Andrew McFarlane had done, the court highlighted the difference between the roles of the courts, who interpret and uphold the law, and Parliament, who make it. The appeal judgment referred to the operation of courts as focusing usually on narrow issues, on the basis of relatively limited evidence adduced by parties in the context of particular litigation. In contrast, Parliament has the ability to obtain wider information from expert bodies which can advise on the reform of the law. Parliament is able to act upon draft legislation, which often follows a public consultation and in which many differing views can be advanced by members of the public. In making these (and other) points, the court highlighted that they had no idea, for example, whether all trans men would object to the use of the word ‘mother’ to refer to them when they have given birth to a child. The court also commented that it did not have evidence before it as to how other members of society would feel if they were no longer to be referred to on their child’s birth certificate as a mother or a father but simply as ‘parent 1’ and ‘parent 2’. In providing this commentary, the court sought to illustrate how inapt the issues raised by Mr McConnell were for determination by the courts as compared with Parliament stating: “If there is to be reform of the complicated, inter-linked legislation in this context, it must be for Parliament and not for this Court.” Another important aspect of the court’s consideration was the role of The United Nations Convention on the Rights of the Child which provides that, in all actions concerning children, including action by legislative bodies, “the best interests of the child shall be a primary consideration”. The court found that such consideration had been given by Parliament in enacting “a carefully crafted set of provisions which balance the rights of transgender people and others, including their children” and when coming to the view that every child should have a mother and should be able to discover (in this case on the long form birth certificate which Mr McConnell sought the right to change) who their mother was.

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Implications

The implication of the judgments for Mr McConnell and other trans parents is that they are currently still forced to be referred to on official documentation as a gender with which they do not identify and do not legally hold. Stonewall, a charitable organisation that promotes and campaigns for the rights of LGBTQ individuals, has commented on the case and highlighted the need for the legislation to be updated to ensure that “trans people are recognised for who they are in all areas of their lives”. Although Mr McConnell did not have the outcome he had hoped for, the fact that the President of the Family Division was required to undertake an in-depth analysis of our domestic legislation regarding the status of ‘mother’ and that he found that being a 'mother' with respect to conception, pregnancy and birth is not necessarily gender specific is significant and will hopefully lead to a thorough exploration of this and other issues facing trans parents.

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