How does the law recognise transgender parents?

Rebecca Patience, family law solicitor based at our Lancaster office, considers a recent judgment on the legal status of a transgender parent.

A court ruling handed down on September 25, 2019, confirmed that a person who is born female but later becomes male and gives birth to a child, should be regarded in law as the child’s mother. 

The president of the family division, Sir Andrew McFarlane, was recently tasked with considering a judicial review brought by Mr McConnell, to challenge the decision that he should be recognised in law as his child’s mother.  

Mr McConnell was registered as female at birth. When he was 22 years old he made the decision to live his life as a male. He later had a double mastectomy and underwent testosterone therapy.

Following his transition, he was recognised legally as a male and his passport and health records were updated to confirm his gender to be male. 

In 2016 Mr McConnell made the decision to start a family and with the assistance of a sperm donor he became pregnant, after undergoing intrauterine insemination fertility treatment. In January 2018 Mr McConnell gave birth to a boy.  

Mr McConnell attended to register the birth of the child as the father. He was advised he could not be recorded on the birth certificate as the child’s ‘father’ nor ‘parent’. The reason for this being that, in law, Mr McConnell was recognised as the child’s mother. This is because of the specific legal definition of the term ‘mother’.  

The president of the family division confirmed 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.”  

In this case Mr McConnell physically gave birth to the child and so is considered in the eyes of the law to be the child’s mother. 

The president said: “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’.”

The impact of gender change with respect to parenthood is a new and developing area of law. The president highlighted in his judgment that there is a pressing need for government and parliament to address this issue.  

Gender neutral birth certificates are available in legal systems such as Canada and Sweden, where the legislation offers enhanced protection for the human rights of the transgender community. It has been suggested that the UK government should seek to reform legislation to ensure that the laws in this jurisdiction meet the needs of the different family structures that we now see in society. 

For additional information on parental status or to seek specialist legal advice from Harrison Drury’s family law team please contact Rebecca Patience on 01772 258321.