Becoming Parents: Parentage, Parenthood, Parental Responsibility
-
Parentage: biological rel to the child / person who carried the child
Legal parenthood = 2 ppl who are the legal but not nec genetic parents (allowed to be
born legally fatherless but not motherless)
birth mother can give up her legal status and a child can have either 1 or 2 parents of
either sex
parental resp for child can be held by an unlimited number of ppl: legal parents, step
parent or local authority may req resp for a child taken into care
What is a parent?
Re G (children) [2006] UKHL 43 at paras 33-35, Baroness Hale
‘There are at least 3 ways in which a person may be or become a natural parent of a child,
each of which may be a very significant factor in the child's welfare, depending upon the
circumstances of the particular case. The first is genetic parenthood: the provision of the
gametes which produce the child. This can be of deep significance on many levels. […] The
second is gestational parenthood: the conceiving and bearing of the child. […] The third is
social and psychological parenthood: the relationship which develops through the child
demanding and the parent providing for the child's needs, initially at the most basic level of
feeding, nurturing, comforting and loving, and later at the more sophisticated level of
guiding, socialising, educating and protecting.’
- noteworthy that L.Hale includes all these diff versions of being a parent in the category
of natural parent = any one or more of these could be a legal parent
- sometimes a child has more than 2 adults in his life who meet these legal definitions of
parent
- can have a genetic parent but not nec that this be legal parents
- gestational parent = person who was preg, carried and gave birth to the child = will
always, under current law, be the legal mother of the child at the moment of birth but
may give up that legal status via adoption/surrogacy arrangement
- social/psychological parent = by fulfilling those parental roles in a child’s life, despite not
nec having any genetic or gestational connection to the child = may/may not even have
a legal connection to the child
Genetic Parentage
2 ways of creating a child
- sexual intercourse
- assisted reproduction
who the legal parents of the child will be will differ depending on which of the above applies
EXAMPLE: in a case where a hband had a vasectomy but couple changed their minds and
decided they did want another child so decided to use sperm donor – the q of whether the
hband or the sperm donor is the father of the child – depends on whether they used a
licensed clinic to conceive w the donated sperm or if wife conceived by having sex w sperm
donor
Assisted reprod can either be through a licensed clinic w a known or anonymous egg/sperm
donor - or - informal insemination at home = w/o clinic using known sperm donor
*socially infertile = no medical problem but you don’t want to have sex w men so use sperm
donor instead (eg single women w/o a partner or lesbian couples)
clinic regulated insemination = very expensive = takes people upwards of 3 attempts
informal arrangements such as online sperm banks = much cheaper
Human Fertilisation and Embryology Acts 1990 and 2008
- technically allowed fertility clinics to treat lesbian couples and single women, in the
sense that there was no prohibition
- but the act required clinics to “have regard for the need for a father” in deciding
whether to treat someone
- 1990 Act also had not provided any mechanism for 2 women to be the legal parents of
any resulting child
= while a lesbian couple could get treatment at a gay friendly clinic, only the woman who
gave birth to the child would legally be its parent
2008 = Act revised => req to have reg for need for a father REPLACED w a req to have regard
for the child’s need for supportive parenting
Additionally, the provisions that allowed a non-genetically rel father to be the legal father of
a child born to his wife/partner as a result of sperm donation were extended to female
partners who were now referred to as = the ‘second female parent’
*presumably to avoid confusion w using title of “mother” which Is given to birth mothers and
parl assumed a woman would not want the label father
Parenthood – Mothers
Legal parentage:
- mother of the child is the woman who was preg w and gave birth to the child
- seems obvious but consider a situation where a woman is unable to carry a preg to term
= her eggs and her partners sperm used to create an embryo which is implanted in a
surrogate = during the preg the surrogacy decided she wants to keep the baby = who
should have legal motherhood in this situation?
-
general principle in UK law = mother is the person who gives birth to the child
Parenthood – Mothers
The Ampthill Peerage Case [1977] AC 547 at 577
- Q – whether a child should succeed the barony of Amphtill
- Lord Simon: ‘Motherhood, although also a legal relationship, is based on fact, being
proved demonstrably by parturition’
1) women who is pregnant will always be the legal mother
2) every child must have one and only one legal mother = not poss to be born w/o a
legal mother in UK law or to be born w 1+ legal mother
This assumption was reflected in this Act:
Human Fertilisation and Embryology Act 2008
s33(1):
‘The woman who is carrying or has carried a child as a result of the placing in her of an
embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the
child’.
= gestational mother is the legal mother
s.47: explicitly states that a woman is not to be treated as a mother or female parent merely
because of egg donation
Why gestation?
Re G (Children) (Residence: Same-Sex Partner) [2006] 1 FCR 436, para 34,
‘While this may be partly for reasons of certainty and convenience, it also recognises a
deeper truth: that the process of carrying a child and giving him birth (which may well be
followed by breast-feeding for some months) brings with it, in the vast majority of cases, a
very special relationship between mother and child, a relationship which is different from
any other.’ per Baroness Hale
-
-
Surrogacy:
woman carries a fetus and gives birth w/o ever intending to be the mother of the child
instead, acting on behalf of the intended parents
surrogate does this completely altruistically as surrogates are not allowed to be paid in
this country – can claim reasonable expenses only
a person may use a surrogate if unable to carry a preg to term eg medical condition
embryo may be created using a womans eggs and her partners/donor sperm => this is
then implanted into surrogate OR she may have eggs from a sep egg donor OR surrogate
may also be an egg donor
surrogate may / may not be genetically rel to the child and intended mother may/may
not be genetically rel to child
-
surrogate may also be acting on behalf of a gay couple
Current Law: surrogate / gestational mother will be the legal mother of the child at the
moment of child’s birth
= if surrogate is married: her husband/wife will be the legal parent s.35.1 HFA 2008
UNLESS it can be shown that partner did not consent to her acting as a surrogate
= regardless of who the genetic father is – doesn’t rely on spouse of surrogate being child’s
genetic father
generally = where a married woman gives birth via donor insemination, her husband is only
the father if he intended to be treated as the father and consented to that treatment
= this follows the law on other situations in rel to motherhood but in terms of fatherhood,
law here is diff from other forms of assisted reprod
Surrogacy Agreement:
- b/w woman carrying the fetus through preg (surrogacy) and the intended parents
- surrogacy agreements are not legally recognised or enforceable for public policy reasons
- but HFEA s.54 does allow a court to order that the commissioning parents are the legal
parents, provided certain conditions are met = via a parental order
- if a parental order is made = parents can apply to re register the birth of the child w their
names on the birth certificate = become the legal parents of the child
Conditions to be met to get a parental order:
Section 54 HFEA
1.
(a) Child carried by a woman as a result of artificial insemination
= If surrogates preg was created through her having sex w the intended father, a
parental order cannot be made
(b) the gametes of at least one of the applicants were used
= either sperm/egg/both must come from commissioning couple = either intended
mother/father must be genetically rel to the child
(c) the following conditions are satisfied:
2. Applicants must be spouses, civil partners, cohabitants
= in an enduring family relationship and not within the prohibited degrees of rel to one
another
= cannot become an intended parent w your sibling for example
s54A: or a single person (law changed following Re Z)
o prev, rule (2) meant that single ppl couldn’t get parental orders – seen as discrim
towards men as single fathers can’t get preg and raise a child alone w/o surrogacy
o law has recently changed following Re Z
o allows parental orders to be given to a single applicant who meets all the above
criteria just like a couple
Re Z (A Child))1
- a man wanted to be a single father via surrogacy
- claimed discrim on grounds of his status as a single person under art.14 ECHR + Art 8
(right to family life)
- successful - court issued a declaration of incompatibility
= law changed a result of this declaration via. anew addition to s.54 = s.54 A
3. Apply for the order within 6 months of the child’s birth
4. At the time of applying for the order, the child’s home must be with the applicants and
at least one must be domiciled in UK
5. At the time of the order both applicants must be over 18
6. Court must be satisfied that both the woman who carried the child and any other
man/woman who is a legal parent under HFEA have ‘freely and with full
understanding of what is involved’ agreed to the order being made.
7. s.6 doesn’t require agreement of any parent who can’t be found, agreement of the
gestational mother is invalid for the first 6 weeks after the birth.
= if surrogate is married and hband disappeared = his agreement won’t be req
= within first 6w after birth, if surrogate agrees = not valid at that point, needs to agree
again after 6w
= commissioning parents thus have to wait until 6w after child born to ask gestational
mother for consent to parental order but baby doesn’t have to be living w surrogate for
that time = if both parties agree, can live w intended period during that time
8. Court is satisfied that no money/benefit (other than for expenses) has been given or
received by any of the applicants, unless authorised by the court.
1
(Surrogate Father: Parental Order [2016] EWHC 1191 (fam))
What counts as a reasonable expense?
> Re X and Y (Foreign Surrogacy) [2008] EWCA 3030 (Fam)
- surrogate mother in Ukraine paid £25k = legal acc to Ukrainian law
- payment = rather than for expenses
- her intention was to use this money to buy a flat
- J Hedley had to balance the public policy considerations (opp to commercial surrogacy)
w the welfare of the child
= Q – how to strike this balance?
- 3 Qs must be asked
1. Were the payments disproportionate to reasonable expenses?
2. Were intended parents acting in good faith in their dealings w the surrogate?
3. Were they trying or helping another to defraud the authorities?
- in this case the payments were not so disproportionate to the reasonable expenses that
granting the parents an order would offend public policy
- intended parents and surrogate had tried to comply w their perceptions of both English
and Ukrainian law and children’s welfare req the parental order
- Held = £25k payment retrospectively authorised
- Judgement: it’s almost impossible to imagine a set of circumstances in which, by the time
the case comes to court, the welfare of any child, particularly a foreign child, would not
be gravely compromised at the very least but a refusal to make an order
> Re Human Fertilisation and Embryology Act 2008; Re A, B and C (Infants) [2016] EWFC 33
- Issue: attempt to defraud the authorities
- intended parents had initially attempted to mislead the court about the payments they
made although the surrogates had not been party to that deception
- in this case, three separate surrogates had been paid b/w £8-15k each for 3 separate
surrogacy agreements for the two men who were the intended fathers
- intended parents and surrogates admitted that the payments incl items that were not
reasonable expenses
= asked for retrospective authorisation from the courts
- judge decided all the payments were reasonable and did not req authorisation
= took a generous approach to this and found that the surrogate mothers had acted
altruistically and not for financial gain and that any amount over and above their
reasonable expenses was modest
- Listed some items considered to be reasonable expenses:
o replacement of a mattress / bedding
o loss of earnings
o hygiene products
o maternity clothes
o physiotherapy
o travel to appts and to give birth
-
o communicating w the intended parents
o childcare for surrogates children
o takeaway meals for surrogates fam when preg sickness made it imposs for her to
cook
o holidays for recovery after birth
emphasised that although courts do have to scrutinise surrogacy payments to prevent
commercial surrogacy, the children’s welfare is the most imp policy consideration
Child’s welfare must be the paramount consideration
- checklist of factors in s.1 Adoption and Children Act 2002 must be applied by the court
Any surrogacy agreement made b/w the surrogate and commissioning couple will not be
recog but court does have discretion to make a parental order in favour of the
commissioning couple if all of the criteria in s54 HFEA are satisfied
- once parental order made = child will be treated as the child of the commissioning
parents and will have exclusive parental resp, which takes away the surrogate’s legal
claim to be the mother of the child
- intended parents can req legal parental status only after child born and only w the
continuing cooperation of the surrogate
- have NO rights If surrogate refuses to handover the baby
- in the absence of a parental order – surrogate is legal mother, if she is married then her
spouse/cp will be child’s father/second f parent
= if surrogate unmarried then genetic father = legal father – unless he’s a sperm donor,
providing sperm to a licensed clinic
= if genetic father is an anonymous sperm donor to licensed clinic, child will be legally
fatherless and will have only surrogate mother as parent at birth
- despite lack of enforceability = baby handed over to commissioning parents in around
95% of cases
When the s54 requirements are not complied with…
= where the reqs are not quite met, courts have demonstrated some flexibility in enforcing
them as seen already in rel to reasonable expenses
> Re A (A Child: Surrogacy: Section 54 Criteria) [2020] EWHC 1426 (Fam)
- couple had created an embryo from their egg and sperm for a surrogate preg
- entered into a surrogacy agreement w a licenced clinic in 2005
- 2006 = while the couple were having a trial separation – no longer together = the ebryo
was successfully implanted into surrogate = preg
- while she was preg they split up permanently = intended father had minimal
involvement w the preg
-
after child born – intended father said he did not want to be involved in child’s life so
intended mother applied for a parental order under s.54
= but this was BEFORE law changed to allow single parents to apply so she was unable
to apply under s.54 criteria
- she made the application and the proceedings were stayed = application lodged w the
court but put on pause
- after law changed in 2019 = intended mother applied for the stay to be lifted
- by this point, intended father now did wish to be involved
- parents now making a joint app = intended father currently had indirect contact w child
w a view to make direct contact in the future (letters etc rather than physically visiting
child)
- Q = could court still make joint parental order?
- outside of the 6m time frame by this point –
- issue of whether the child’s home is w the applicants – currently living w intended
mother and have separate homes at the time so can the criteria of living at home w the
applicants be met?
- Held: the fact that the joint app was made 2yrs after the time limit (6m) was not a bar to
the court making the order. A parental order enormously benefits the child and the
parents both agreed re: their commitment to the child’s welfare = so parents should
play an active role
- in light of the parents agreement/commitment to the child and the fact that there was
an enduring family rel b/w all of the parties, the child’s art8 family life rights were
engaged
- court also found that the term “home” in s.54 should be given a wider interpretation
= should not be restricted to cases where applicants live together under the same roof
- ultimately = was overwhelmingly in childs best interest that parental order was made as
this was the only order that would allow them to be recog as his parents rather than the
surrogate
= example of a situation where s.54 not strictly complied with but court still makes a
parental order as its in the best interests of the child
judge set of criteria as being of crucial sig in deciding whether s.54 criteria were met:
- fact that the intended parents were in an enduring rel prior to the surrogacy
arrangement and they desperately wanted a child
= so didn’t matter that they were no longer in a rel
- had both agreed to be in a surrogacy agreement and had each provided their gametes to
prod embryos
- child had spent his entire life in the care of the intended mother
- at the time of the app, both parents were committed to play key roles in the child’s life
and were committed to his care
- at time of app, both m and f wished to have a close and loving rel w the child
-
intended parents were committed to work together to promote the childs welfare and
best interests and wished to have their biological status recog in law
> Re JB (a child) (surrogacy: immigration) KB and another v RT [2016] EWHC 760 (Fam)
- child was held to have her home w the intended parents despite child being stranded in
india
> K v L and another [2019] EWFC 21
- parents deemed to be in an enduring rel even though they had separated
> Re X (Parental Order: Death of Intended Parent Prior to Birth) [2020] EWFC 39 (Fam)
- intended parents had entered into a surrogacy contract using a surrogate egg and
intended f’s sperm to create an embryo
- while S preg = intended f died suddenly
- child now being raised by intended mother who applied for a parental order under s.54
w the agreement of the S and her husband
- intended M wanted the order to be made in rel to both her and her deceased husband
= court agreed that a parental order was the only way to confer joint and equal
parenthood on both intended parents and only way to ensure child’s security and
identity in a life long way -> respecting both her Art8 right to fam life and Art14 right to
not be discriminated against in rel to the circs of her bith
- also noted that the intended mothers art14 rights were also engaged = she should not
be discrim against based on her rel status as a widow
- So even though intended father no longer alive at time of app of parental order = he was
still able to be recog as the father of the child
*court can refuse to grant parental order if excessive payments have been made to S
- in practice, often v little option for the court but to grant the parental order, even where
excessive payments have been paid
- where the child already in care of intended parents and S does not want to keep child
herself = court can do little else but grant the parental order regardless of payments
made
Whittington Hospital NHS Trust v XX [2020] UKSC 14
= about commercial payments for surrogacy arrangements
= tort case about damages for the loss of XX to gestate her own child as a result of the
Hosp’s actions
- XX = 29 y/o = undergone tests for cervical cancer at W.Hosp = all come back -ve
- later discovered that she had invasive cervical cancer
- by the time it was discovered, due to Hosps neg = too late to have procedure that
would’ve given her 95% cure and preserved her ability to have a child
-
instead, she would now have to undergo major surgery and chemo
had her eggs harvested and frozen but suff major complications from treatment and
permanent disability and psychiatric problems
although tort case = applicable as part of the damages were intended to cover a
commercial surrogacy arrangement in California (contrary to public interest in UK)
= but has never so far resulted in the order not being made for the intended parents
Summary:
- lawful to enter into a surrogacy agreement as long as its not for $$ as commercial
surrogacy not supposed to be allowed in Uk, but in practice, courts have never rejected
an application for a parental order where there were cocnerns about payment to S
- none of the commitments made under a S.Agreement are legally enforceable
Should surrogacy agreements be binding?
Why do you think the surrogate is given such power to go back on the agreement? Is there
another way the law could deal with this?
> Re N (A Child) [2007] EWCA Civ 1053
= illustrates the intended parents being exploited and vulnerable
- Mrs J and his wife entered into a S.A w Mrs.P
- Mrs.P secretly had no intention of handing over the baby = she wanted more children
but her husband had a vasectomy so was baso using Mr.J as an informal sperm donor to
get preg
- UK law = birth mother of child always the legal mother
= so Mr and Mrs P legal parents of the child
[even tho Mr J supplied the sperm] = where a married woman undergoes fertility
treatment w the consent of her hband, he is the legal father even if not genetic father
under HFEA
- Mrs P told the J’s she had miscarried and kept the child
= later found out that the child had in fact been born and applied for a residence order
- by this time child = 18m old and has a settled family life w Mr and Mrs P
- Mr Mrs P are childs legal parents
- one of the most imp principles underlying family law in rel to children = paramount
principle
= idea that the child’s welfare should be the paramount concern in all court proceedings
and usually its interests are not best served by disruption of their current living
arrangements
- Held = child should be handed over to the J’s and issued a residence order in favour of
Mr J
-
-
-
might say the case was wrongly decided based on law OR that it should be decided as an
exception based on the facts of the case due to the immoral behavior of Mr/Mrs P
OR could argue that this case has changed the legal principles in rel to legal surrogacy
Emily Jackson; suggests this case is an exception to the rule – suggests that this case
came from court romanticizing motherhood in a particular way = drawing a distinction
b/w good/deserving mothers or bad/underserving mothers like Mrs P = essentially
punishing Mrs P’s behavior by taking away her child but w/o really considering the
impact of this on the child esp cause court has a duty to make the interests/welfare of
the child the most imp consideration
Samantha Ashenden: wrote an alternative/shadow feminist judgment (fictional
judgement)
> Re Z (A Child) (Surrogacy Agreements: Child Arrangements Orders) [2016] EWFC 34, [2017]
EWCA Civ 228
= exemplifying a case where surrogate mother not treated v well by commissioning parents
- commissioning couple = 2 gay men
= one of whom was the biological father
- Z = born in 2015 and was intended to be a younger sibling for the men’s twins who were
born in 2013 as a result of a surrogacy agreement w a diff surrogate
- mens rel w the surrogate broke down which is why they used a diff one
- but used same egg donor so children would be full siblings
- when child born, surrogate refused to hand him over
- Judge ordered that child should remain w surrogate and have limited overnight contact
w the commissioning parents
- Surrogate’s partner granted parental resp but genetic fathers partner (other intended
partner) was not
- judge found that even though the surrogate was less econom secure than
commissioning parents = she was caring well for the child and more able to meet his
emotional need
- judge v critical of com parent’s treatment of surrogate and said these difficulties
mirrored those they had w their first surrogate and they had lied to court about this
- judge balanced all rel factors and concluded that child’s welfare = critical factor and this
was best supported by the surrogate
Parenthood – Fathers and Second Female Parents
1.
2.
3.
4.
5.
4 ways to become a legal father:
Genetically related to a child
= not avail in cases of sperm donation through a licensed clinic – HFEA 2008, s41
= may be avail in informal donation cases (outside of a licensed clinic = at home?)
A legal presumption of paternity applies and has not been rebutted
= presumption of paternity* applies to heterosexual marriages only
*presumption = that the husband of the person who gave birth is the legal father
By virtue of HFEA 2008 governing assisted reproduction
Adoption order or parental order.
3 and 4 also apply to second female parents.
a second female parent cannot be legally recog simply through genetic rel to the child
(Eg if supplied the egg = if she doesn’t also meet #3)
Legal presumption of paternity
1. Husband is presumed to be the father
pater est quem nuptiae demonstrant (pater est)
> The Ampthill Peerage Case [1977] AC 547
- involved q the paternity of the 1st son after wife had been suspected of adultery w 3
men
- He remarried and had his 2nd son by his second wife = inherited the peerage
- 1st son challenged this = said he should’ve inherited as the oldest son
- Lord Simon: fatherhood is a presumption – presumption is that the husband of the
woman who gives birth to the child is the genetic father
- 1st son was held to be entitled to the benefit of the presumption even if his mother had
confessed to adultery (she didn’t ever admit to it tho)
Presumption = historically very imp as before DNA testing
Still relevant?
> Re H and A (Children) [2002] 2 FCR 469
- Justice Thorpe sug presumption might not be v relevant now as we have DNA testing
and as more children are born out of marriage, the paternity of any child should be
determined by science rather than by legal presumption
BUT presumption STILL stands if no DNA test carried out
= Court cannot order DNA test w/o parties’ consent unless deemed to be in the best
interests of the child
= position in rel to men married to the mother is clear = they will be presumed to be the
father unless and until presumption rebutted
2. Birth certificate presumption
- All married couples have to jointly reg the birth so husbands name will always be on
birth certif
- but if woman unmarried = can reg’ the birth alone
- if she reg’s birth w an unmarried partner, he will be presumed to be child’s father
3. Presumption due to parental responsibility agreement (?)
Unsure about this but there has been a consultation paper which suggests this would be the
case
> R v. SoS for Social Security ex parte West [1999] 1 FLR 1233
= case in which a parental resp agreement was regarded as sufficient evidence of paternity
for child support prupsoes
4. Infer presumption from the facts of the case
- if a man had sex w a woman around the proposed time of conception = could be enough
to infer paternity
Rebutting the presumption
2 ways to rebut the presumption:
1. DNA testing
• Family Law Reform Act 1969, s20
= court can direct that scientific tests be used to estb paternity but cannot order
them w/o parties’ consent – EXCEPT in the case of a MINOR child if deemed to be in
their best interest
= but court can make any appropriate inferences from a refusal to take a DNA test
• Family Law Reform Act 1969, 23(1)
> Re H (a minor) (blood tests: parental rights) [1996]
- mother’s husband had a vasectomy = became preg w another man = Mr B
- mother ended the affair and reconciled w the hband
- Mr B requested a paternity test but mother refused to consent on both herself and child
- Lord justice Ward = “common sense seems to me to dictate that if the truth can be estb
w certainty a refusal to produce the certainty justifies some inference that the refusal is
made to hide the truth”
= referred to child’s right to know its parentage – underlined by Art 7 of the UN
Convention on Rights of the Child
- Court made 2 conclusions:
#1: Failure to consent to scientific tests will result in an inference against you
#2: Court v strongly determined that a child’s best interests are usually to know the
truth
*Judgment = indicative of a change in law’s attitude to parenthood = in past, presumption
that hband was the father was very strong and the stability of the nucellar family took
precedence over the truth of genetic paternity
*Adoption and Children Act 1976 = allows adopted ppl to access their birth records
*Removal of anonymity of sperm and egg donors once child is 18
= suggest that the law is less interested in maintaining a legal fiction biological kinship and
more in providing child w truth of their genetic parentage where appropriate
2. Other evidence
= eg evidence attesting to the fact that the presumptive father was out of rhe country at the
time of conception etc
Fatherhood/Female Parenthood through the HFEA - Spouses/CP
Assisted conception through a licensed clinic if married/CP
- HFEA 2008, s35 (husband) and s42 (wife/CP)
Spouse is the father/female parent UNLESS s/he can demonstrate they did not consent to
the treatment and is not the genetic father
= usually demonstrated by signing forms at the clinic
= causes difficulties where clinic is negligent and loses forms or didn’t have ppl filling out
forms properly
Section 41 – sperm donor is not to be treated as the father where his sperm was used ‘for a
purpose for which such consent was required’
> Leeds Teaching Hospital NHS Trust v. A [2003] 1 FCR 599
- married couple = underwent IVF treatment but the wife’s eggs were mistakenly mixed w
the sperm of another man, Mr B
- because Mr A had consented to his wife’s treatment w his sperm – but not w Mr.B’s
sperm, the consent was not sufficient to make him the legal father of the wife’s child
- likewise, because Mr B’s sperm was used w/o his consent – s.41 does not apply
= now the legal father of Mr A’s child (as he is the genetic father)
Fatherhood/Female Parenthood through the HFEA - unmarried couples
Assisted Conception Through A Licensed Clinic if not married/CP
Default position = genetic father is legal father UNLESS exception
s36/s43 – unmarried partner will be the father/female parent of the child if:
- Child conceived via artificial insemination in a licensed clinic
- They meet the agreed fatherhood/parenthood conditions
- If s/he remains alive at the time of insemination
Agreed Fatherhood/ Parenthood conditions:
Section. 37 (father) + Section 44 (female parent)
- Both parties must have consented in writing
- Neither party has since withdrawn that consent
- The parties are not within the prohibited degrees of relationship*
*do not technically need to show sexual rel or that you’re living together but the prohibition
on parenting by those who are within the prohibited degrees of relationship implies an
expectation that it will be a couple
Consent:
> AB v. CD and the Z Fertility Clinic [2013] EWHC 1418 (fam)
- no paperwork existed
- not spouses or CP = Lesbian couple who had conceived 2 children through fertility
treatments at a licensed clinic , then separated
- Second female parent (non birth mother) brought proceedings to determine who the
children should live with and an issue arose as to whether she was acc a legal parent
= due to missing paperwork
- Mr Justice Kaab = because the reqs under the HFEA had not been complied w with the
clinic, this meant that CD was not a legal parent
= in particular, there had been no counselling and no informed consent by the partner,
which are reqs to have treatment under the HFEA
- The lack of proper paperwork was taken as meaning that these things had not happened
Later cases – courts have taken a more flexible approach = focusing on whether there is
evidence of consent, rather than on whether paper work is in order:
Human Fertilisation and Embryology Authority = responsible for making sure clinics comply
w the HFEA – audited fertility clinics and several more problems w missing paper work were
discovered
> X v. Y v. St Bartholomew’s Hospital CRM [2015] EWFC 13
- Man and a woman = unmarried long term relship
- X sough a declaration that he was the father of a child who had been born as a result of
anonymous sperm donation through St.B Hosp
- HFEA audit made evident that the proper paperwork had either not been filed prior to
treatment or been mislaid
- by this time, child 6m old and clinic accepted resp and agreed to fund costs of any app
that needed to be made to court to fix situation
- court concl that on the evidence, it was more likely that X had filled in the paperwork
and it had just been lost by clinic
= this didn’t amount to such a serious breach of the clinic’s licence so as to invalidate it
- Treatment was provided under a licence as req under s.37 HFEA
- This meant = X is the child’s father
> Re HFEA 2008 (Cases A, B, C, D, E, F, G and H) [2015] EWHC 2602 (fam)
*Sir James Mumby described “medical brilliance unhappily allied w the administrative
incompetence of various fertility clinics”
*at the time of this cases, around 75 known cases where parenthood was in doubt due to
administrative error in clinics
- 5 of the cases about heterosexual couples + 2 = lesbian couples
= 8th case was adjourned (not dealt w)
- family court held that non-compliance w the paperwork reqs could not by itself
invalidate what would otherwise be perfectly valid consent
- Mumby held = if there was other written indication of consent that had been properly
completed and signed prior to treatment, this would meet the statutory reqs = even if it
wasn’t the official HFEA form
= pragmatic view on consent
DIY Assisted Conception
= in some cases donor insemination doesn’t take place in lincensed clinic (friend/internet
sperm)
= who is the father? the husband/wife/Cp or known donor?
If married/CP:
McCandless and Sheldon: ‘Despite a common assumption to the contrary, the framing of
this provision [s35 2008 Act, relating to married women] in terms of ‘artificial insemination’
served also to catch self-arranged donor insemination, provided that the conception was
not through sexual intercourse.’ (2010, p.184)
= suggesting that these cases re to be treated in the same way as those through a licensed
clinic
= husband is the father unless he didn’t consent to the insemination using donor sperm
2008 HFEA = extended this to female partners [wife/cp partner of the mother = s.42 = just
as for those who seek treatment through licensed clinics]
> M v. F and Another (declaration of parentage: circumstances of conception) [2014] 1 FCR
456
- Couple had a vasectomy and husband decided they wanted a child
- decided to use a sperm donor
- wife made contact w a donor over internet = against her hbands wishes, she became
preg by having sex w him
- case falls out of the HFEA for 2 reasons:#1: child conceived thru sexual intercourse not assisted reprod
#2: husband had not consented [so wouldn’t have been father even if it was within
HFEA]
- in obiter comments: Mr Justice Jackson sug that HFEA could apply to informal assisted
reprod outside of a licensed clinic if there was no sexual intercourse [agreeing w
McCandless and Sheldon]
If not married/CP:
= USUAL RULES APPLY
- Sperm donor outside of a licensed clinic will be the legal father
= Genetic father = legal father even if no sex / supposed to just be sperm donor
Parental Responsibility:
Cases where the person who had hoped to be the legal parent turns out not to be
= still poss to get ‘parental resp’
- unlimited number of ppl can have parental resp for the same child
- don’t need to be genetic parents
- those w parental resp can withhold consent about adoption, be party to legal
proceedings etc
- but parents [even those w/o parental resp] have a right to seek contact w child even if
child is in the care of local auth
- parents = liable for child support regardless of contact/parental resp
- gives recognition and has symbolic value = Helen Reese describes it as a form of therapy
Children Act 1989, s3:
‘In this Act ‘parental responsibility’ means all the rights, duties, powers, responsibilities and
authority which by law a parent of a child has in relation to the child and his property’.
- replaced old idea that parents had rights over children
John Eekelaar:
‘Parental responsibility can best be understood as legal recognition of the exercise of social
parenthood. It thus comprises a factual (recognition of a state of affairs) and a normative
(giving the state of affairs the “stamp of approval”) element’. Herring, p.454.
- over 75% who did not have parental resp for their child were unaware they didn’t
Who has parental responsibility?
It is given automatically to: [all legal..]
- Gestational mothers – Children Act 1989, s2(2)(a)
= if unmarried, she is the only person who auto has parental resp whether or not she acc
has a partner
- The spouse or civil partner of the gestational mother s2(1)
= parents who were married at any time b/w conception and birth of child
*once you have parental resp you have it for life: few exceptions but not usually poss to
remove it
> Re H (Minors) (Local Authority: Parental Rights) (No 3) [1991] Fam 151 (CA),
- Balcombe LJ = pointed out that the reason for not granting all fathers auto parental resp
was that the position of the natural father can be infinitely variable ranging from the
married father to the case where there was only the single act of intercourse or possibly
even rape to connect the father to the child
= considerable social evils might have resulted if the father at the bottom end of the
spectrum had been auto granted full parental rights and duties
Acquiring Parental Responsibility
It can be acquired by:
- s4, s4ZA Children Act 1989 = Unmarried father/second female parent
- Jointly registers the birth = parents on birth certify would acquire parental resp
- Any parent who enters a parental responsibility agreement with the mother
- Obtains a PR order from a court (section 4 application)
- s4A, Children Act 1989: Step-parent can acquire parental resp
= but would need to enter into a PR w agreement from everyone who already has PR =
would not be poss for a stepparent to acquire PR w only their partners agreement unless
their partner is only parent w PR
- Enters a parental responsibility agreement with the mother and other parent if they
have PR
- Obtains PR order from a court (section 4 application)
= useful where the mother does not consent to an unmarried father acquiring PR or
where another parent w PR won’t enter into an agreement w a step-parent for example
-
under s.4, genetic fathers can apply for a PR [DNA evidence req in doubt]
*PR agreement must be in writing, in a prescribed form, signed by both parties and taken to
a court to be witness, signed and recorded
Parental Responsibility Order
Paramount Consideration: Welfare of the child
- s1(1) Children Act 1989
In granting a PR order, court will also take into account these factors (in addition to the
paramount consideration of welfare of the child)
> Re H (Minors) (Local Authority: Parental Responsibility) (No.3) [1991] 1 FLR 214.
Factors to be taken into account:
- The degree of commitment shown towards the child
- The degree of attachment with the child
- The reasons for applying for the order
> Re G (A child) (Domestic Violence Direct Contact) [2001]
- case involved domestic violence
- PR order not granted
- 3 y/o child wanted no contact w the father and was afraid of him
Rarely refused:
> Re S (A Minor) (Parental Responsibility) [1995] 2 FLR 648
- father given PR for daughter even after being convicted of possessing obscene
photographs of young girls
- mother was horrified and objected to both PR and unsupervised contact – even though
they had prev been on good terms and he had been paying child support and seeing
their daughter w no apparent problems
- in such cases, judges see PR as confirming the status of the parent – even where they
would not nec allow parent to have unsupervised contact w the child
But see:
> Re D (Withdrawal of Parental Responsibility) [2014] EWCA Civ 315
- Court emphasised that parent hood and parental resp were separate things and there
was no guarantee that someone who was a parent should get PR = depends on whether
that would advance the child’s welfare
> Re M (Parental Responsibility Order) [2013] EWCA Civ 969
- father of an 11 y/o boy had taken the child from his school w/o telling mother and
disappeared w him overnight
-
he didn’t go back to his home and avoided phone calls from the police and refused a
welfare visit
- he did return child to school next day
- but court ordered child should live w mother and father only have supervised contact
- the child declined to use the supervised contact and as a result father did not see child
for 2 yrs
- then made an application for a PR order and unsupervised contact w child every
weekend
- both mother and child (now 13 y/o) = opposed contact and PR
- child had moved both house and school and didn’t want father to know where he was
now
- psychiatrist’s evidence about father was that he was an indv who “can be defiant,
uncooperative and difficult to get along w when he perceives others as disagreeing w his
views or if they fail to meet his needs in some way. he believes that others are
persecuting him, being unable to reflect on his own actions or responsibilities. the father
continues to display narcissistic paranoid tendancies and remains unable to see issues
from any perspective other than his own. He continues to see himself as blameless,
portraying himself as a victim of parental alienation in a corrupt system in which profs
are biased and take sides and his rights as a father are violated’
- Court took the view that there was a risk that PR would be abused by father here
= although he had demonstrated commitment to his son and they had an attachment,
the problem was the father’s reasons for making the application and the likely impact on
child’s welfare if it was misused. father had spoken of wanting to exercise his rights over
the child and judge was concerned that fathers main goal was to seek to exercise control
of the child and thereby indirectly over the mother
- Held = ‘I am in doubt that the father would be unable to exercise the order appropriately
and responsibly but rather, would misuse it in ways which would impact undesirably on
the child, causing him worry and distress and imposing stress upon the mother to such
an extent that her ability to provide proper care for him would be undermined. Indeed I
found that given all I have seen of and read of from the father, I find it difficult to see
what aspect of PR he could safely be allowed to exercise’
= concern that father was abusive and manipulative and obsessed w his rights rather
than child’s welfare/feelings
*but generally courts are keen to encourage fathers to take part in child’s life and v unusual
to deny PR
> Re B (A Child) (No. 2) (Welfare: Child Arrangement Order) [2017] EWHC 488 (fam)
= applicant given PR but no access to child’s medical/educational records
- 2 women had a child together. After rel ended, birth mother [Pakistani] took the child to
live in Islamabad and non-birth mother [Indian] had initially wanted child returned to UK
on the basis that she wouldn’t be able to live in Paki
-
-
but she later accepted that this was best for the child and instead requested contact –
visits and school holidays – alongside parental responsibility
PR order granted and non-birth mother was to be kept upto date w child progress at
school, health, photos and general wellbeing but the reason she couldn’t have access to
medical/educ records is as it would out birth-mother as a lesbian and potentially make
her and the child the subjects of unwarranted intrusion/enquiry in paki
Poss for court to give PR for symbolic reasons to make a parent such as non-birth parent
in this case, feel like they are acc a parent despite child living in other country but then
limit the way in which PR can actually be exercised in practice
Acquiring PR …
- Granted a residence order (child arrangements order)
- Appointed guardian
- Adoption (as part of the adoption order)
- If Local auth is granted an emergency protection order or care order
Losing Parental Responsibility
- PR finishes once a child reaches 18 (CA 1989, s91) or Gillick capacity
> Gillick
- case about whether a teenage girl could get contraception from her doctor w/o her
parents’ consent
- court came up w test to determine whether child has capacity to understand and make
such decisions
- Gillick capacity / competence
> Re D (Parental Responsibility: Consent to 16y/o child’s deprivation of liberty) [2017] EWCA
Civ 1695
- CoA held that exercise of parental resp comes to an end when the child obtains Gillick
capacity but before that, can come to an end in certain circumstances
- anyone who has automatic parental resp: birth mother and spouse only lose it if an
adoption order is made or a parental order under s.30 HFEA (surrogacy) [now s.54 HFEA
2008 but this didn’t exist at the time of this case]
Those with automatic PR:
- Adoption order
- Parental order under s30 HFEA 1990 (surrogacy)
Those with acquired PR:
- Court order under CA 1989, s4(2A)
= If someone has acquired PR through agreement, court order or birth reg = can be
brought to an end by a court order under s.4.2A CA 1989
= Anyone w PR can apply for this order = including father himself and child
- welfare of child = paramount consideration
> Re P (Terminating Parental Responsibility) [1995] 1 FLR 1048
- Parents had made a PR agreement but became clear that father had abused baby,
causing permanent disability and injuries
- PR removed
> Re D (Withdrawal of Parental Responsibility) [2014] EWCA Civ 315
= Residence order comes to an end
- Father convicted of sexual offences against mother’s other 2 daughters when their child
was 5 years old
- he was sentenced to 4 yrs in prison and mother successfully applied to have his PR
terminated
*but in above cases if father had been married to mother at the time of child’s birth = would
have had auto-parental resp = would not have been poss to remove it - court could prohibit
father from exercising any aspect of his PR but not remove it
If PR has been granted as part of a residence order = it ends when residence order comes to
an end
What is the status of known sperm donors?
When a lesbian couple decides to have a baby, they may not use a licensed clinic
Protections of HFEA 2008 would not apply if mother unmarried
What is status of non-birth mother and sperm donor then?
> Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] 1
FCR 556
- Mothers had advertised for man to father a child = man responded
- child born in 2000
- man expected to be involved in child’s life in a way similar to that of a divorced father
- mothers intended that they would be the primary carers and man would have
infrequent visits and a loving interests
- mothers granted joint residence order = man granted contact and he applied for PR
= offered to undertake not to exercise his PR in rel to certain things, if granted:
schooling, medical care = which were the subjects of contention b/w the parents
-
-
given PR on the basis that the reality was that the sperm donor = child’s father
judge said the child’s home was w the mothers and he had no role in child’s day to day
care but should be kept informed in all major decision and recog a parent but “ a parent
of a v different type”
the order should reflect the paramount position of the mothers and he couldn’t visit the
child’s school or have contact w any health professional about the child w/o the prior
written consent of the mothers = court keen to avoid any potential threat to stability of
the child’s immediate family w the mothers – as a result of interference by donor
> R v. E and F (Female Parents: Known Father) [2010] EWHC 417 (fam)
- Child had been conceived in a licensed clinic PRIOR to HFEA 2008
- female parenthood conditions had not been created yet/didn’t apply
- birth-mother had a parental resp order w her civil partner (non-birth mother)
- sperm donor lived in the US w his partner but had been regularly involved in child’s life
and consulted on all major decisions until he fell out w the child over disagreements on
how they were raising the child
- sperm donor wanted PR and shared residence orders = mothers wanted a joint
residence order in their favour
- Held = court gave mothers joint residence order and refused sperm donor’s application
on the basis that this was in the child’s best interest
= child regarded mothers as his parents – although sperm donor played an active role in
child’s life, there was no evidence to estb co-parenting or that the child reg him as a
parent
= had also been agreed prior to conception that the mothers were to be the parents
- in this context, the donor’s application for shared residence was misconceived and an
unjustified escalation of the dispute + to grant him PR would create the potential for
future conflict and not be in child’s best interest
*No discernible pattern in post HFEA 2008 cases either
> JB v. KS and E (A Child Acting by his Children’s Guardian) [2015] EWHC 180 (fam)
- Mother = single lesbian + father => met on a coparenting website
= had shared intention of parenting a child together
- after child born, there was contact w the father but this broke down and stopped for 2
years
- in court – they agreed to an extensive regime of supervised contact but contact did not
happen
- father applied for a PR order over mother’s objections = granted
- held = the correct approach was to weigh in the balance the plan for future contact w
the child, the commitment of the father to the child and the child’s welfare
-
-
-
the rel b/w the parents was not analogous to a loving heterosexual rel but there was a
rel there and it had been respectful, intimate and enduring
= wasn’t just a brief commercial encounter
Factors that pointed towards making a PR:
◦ mother and father had a rel/ship spanning many years in which they had shown a
real capacity to work cooperatively towards a shared objective
◦ both had agreed at beginning that father would know the child and play a part in his
life
◦ they had common aspirations for the child’s future = both agreeing that mother
would be primary caretaker and likely to take the key decisions
◦ court felt = highly unlikely that father would use PR order in any way to undermine
mother and father was providing financial support for the child
in these circs, court held that PR merely reflected the proper legal status of the father in
the child’s life and properly equipped him to exercise it = mother and father both took
their resps towards their child seriously and the legal framework should respect that
> A v B and C (lesbian co-parents: role of father) [2012] EWCA Civ 285
- B + C = lesbian couple
A = their gay male friend – agreed to be a sperm donor
- B’s family were very religious so married A = but intention was that child would be raised
by lesbian couple and A would pay a secondary role
- Who are the parents? If man is biological father and married to mother = child’s legal
father w PR
- Q = how much contact should child have w father, given the circs of the case?
- Joint residence order made in favour of B+C (mothers)
- in some earlier cases, courts had described the lesbian mothers as primary parents and
the sperm donor as secondary but in this case = CoA rejected this framing
= LJ Thorpe described this as demeaning to the known donor – esp as in some cases, he
might have an imp role – court needs to promote the welfare of the child, not simply
give effect to the intentions of the parties
“the women may have had the desire to create a 2-parents lesbian nuclear family,
completely intact and free from the fracture resulting from contact w the 3 rd parent, but
such desires may be essentially selfish and may later insufficiently weigh the welfare and
developing rights of the child that they created”
- LJ Black = emphasised that the court should not develop rules and should allow each
case to determined by the welfare principle = adults intentions before child was
conceived were relevant factors but they could not and should not be determinative =
has to be about the welfare of the child
- this case was sent back to the family division w a direction to the judge to focus on the
welfare of the child and find a way to enable the relship b/w sperm donor and child to
develop in a flexible away, taking account of accumulating evidence as the child grew up
> Re G; Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders) [2013] EWHC
134 (fam)
-
-
-
S + T = 2 men in a rel together
S agrees to provide his sperm to their friends = D+E (lesbian couple)
= agreed that S would have no PR, Parental title or financial commitment towards
child
E = gave birth to daughter F
S visited them in hosp -> regular contact b/w them
T (S’ partner) agreed to provide sperm to X+Y (lesbian couple in a civil partnership)
= X+Y friends of D+E
X = gave birth to a son = Z
= Y named on birth cert as second female parent (following HFEA 2008)
T = no PR, parental title, financial resp or commitment but would be a role model for
their son
S + T entered into a civil partnership the following year
S + T and D+E discussed a sibling for F
= S agreed to provide sperm again
= G born
D on G’s birth certificate as second female parent [HFEA 2008]
S + T continued to see the children F + G freq = until everyone fell out
S is F’s legal/genetic father [pre HFEA 08]
S is not G’s legal parent
T not Z’s legal parent
S + T had to seek leave of court to apply for contact w G and Z
Q = did S+T have standing as genetic not legal parents to apply to court for contact w
the children?
-
-
-
-
Mothers argued they did not have standing as Parl’s intention in HFEA was to protect
same sex families who would conceive via sperm donors and that their status as
parents should be exclusive and absolutes
BUT = court granted their applications to apply for contact
= said each case turns on its facts = here, S+T were not strangers to the children, as a
result of choices made by all the adults, both men had regular and freq contact w the
children
= significant that X+Y had specifically wanted T to be a role model for their son (Z)
Mothers had all facilitated a rel b/w the children and sperm donors and in this case,
this established relationship was the most imp factor
both men had good arguable cases for contact orders and were granted leave to
apply
*although it does not nec follow that any such application would be successful
because that decision would be based on the welfare checklist
= given permission to apply for contact via a child arrangements order but this does
not mean it will nec be granted
*case criticised: argued court does not see lesbian parents as ‘real parents’ = sperm
donors were described as “fathers who have been deprived of the status of legal
parent by the HFEA ‘08” – but these men were not fathers they were sperm donors
= if a lesbian couple use a known sperm donor, court will not necessarily give their initial
intentions that much weight and the more they allow him to become involved in the child’s
life, the more of a claim for legal parenthood he may have, should a dispute arise
= focus of court will always be on welfare of child not the intention of parents
Lucy Yeatman ‘Lesbian Co-Parents: Still Not Real Mothers’ Family Law [2013]2
- very critical of this case and another = saying that it seems that some of the judiciary
in this country remain firmly attached to the importance of the genetic family and
are still struggling to recognise the completeness of the lesbian headed family
despite the legislative changes – the message seems clear: that a lesbian coparent is
an expendable extra and that a progenitor or known donor is still a father w a
parental role to play in a child’s life regardless of legal standing
2
(Dec) 1581-1587.
What is the gender of a ‘mother’ and a ‘father’?
What happens when child’s mother is not a woman / father not a man?
Gender Recognition Act 2004:
Gender Recognition Certificate means a person should be legally recognised in their
acquired gender ‘for all purposes’
◦ need to convince Gender Recog Panel that you have a medical diagnosis of gender
dysphoria, lived in acquired gender for at least 2yrs and intend to continue living in
acquired gender until death
= then can obtain GRC
◦ doesn’t req sterilisation/surgery = former is problematic: effectively asking trans ppl
to choose b/w the recog of their gender and having children = thus this Act was
ground-breaking at the time
> R (JK) v. Registrar General for England and Wales [2015] EWHC 990 (Admin)
- Trans woman registered as ‘father’ on child’s birth certificate.
- On obtaining GRC wanted to amend the certificate to be named ‘mother’
- Held – not permitted to change child’s birth certificate
= Parent acquired a diff legal gender after birth of child = wasn’t allowed to change
child’s birth certificate to reflect this
- S.9.2 GRA + s.12
= JK already had the child as a man, was reg’d as father on child’s birth certificate = this
could not be changed as it occurred pre transition
- BUT if future child conceived using JK’s sperm and above HFEA parental
conditions/criteria met = she could be listed as the 2nd female parent on future child’s
birth certificate
- so same parent can be ‘father’ on one certif and ‘mother’ on another = inconsistency?
> R (on the application of TT) v. Registrar General and others [2019] EWHC 2384 (fam)
Freddy McConnell’s Case:
- TT = trans man who received his GRC + wanted to become a parent
= gay man and became a single parent using donor sperm
- Legal difficulty for him is that the language of HFEA assumes that a person giving birth
would always be a woman = even tho GRA passed 4years before this does not req
sterilization/surgery
= so always theoretical poss that man can give birth
- HFEA 2008, s33: ‘The woman who is carrying the child… is to be treated as the mother
of the child’
-
-
-
-
-
This case puts GRA and HFEA in competition w each other
= GRA regards him as a man “for all purposes”
= HFEA has no provision for man carrying child to be treated as anything but the mother
Fatherhood in assisted reprod cases is defined by a man’s rel to the woman who gave
birth
= baby’s father will be woman’s husband if she’s married – as long as he consents
or if unmarried, her partner – if he fits the outlined agreed fatherhood conditions
TT doesn’t fit this criterion = he isn’t in a rel w the person who gave birth he IS the
person who gave birth
= no 2nd person – only legal parent
some irony that a child born to a man is legally considered to be fatherless under HFEA
this issue leads to invasion of privacy: TT will ‘out’ himself every time he produces the
birth certificate / cause child distress in future
TT wanted to be registered either as father or parent
Child also acting as a litigant in this case => adult acting on behalf as his litigation
= argument was that it was overwhelmingly in child’s best interest for TT to be reg as his
father rather than mother
TT argued that the GRA reqs registrar to register him as child’s father = “all purposes”
must include birth registration
= otherwise court should issue a declaration of incompatibility due to the violation of his
Art 8 right to privacy
Held
- ‘There is a strong case to be made for the role of ‘mother’ being ascribed to the person,
irrespective of gender, who undertakes the carrying of a pregnancy and who gives birth
to a child. In that regard, being a ‘mother’ is to describe a person’s role in the biological
process of conception, pregnancy and birth; no matter what else a mother may do, this
role is surely at the essence of what a ‘mother’ undertakes with respect to a child to
whom they give birth. It is a matter of the role taken in the biological process, rather
than the person’s particular sex or gender.’ (at para 139)
- judge notes that in cases where trans man has transitioned after birth of children, they
remain on certificate as mother
= same where trans women transition afterwards (JK case)
= argued that being a mother/father no longer gender specific
- Declaration of incompatibility? Judge rejected the argument that the words
mother/father go to the very nature of gender dysphoria because they are gendered
terms, instead conc that as a matter of law, the term mother is free standing and
separate from consideration of legal gender
= term mother is genderless = so doesn’t contravene s.9 CRA
= can be male mothers and female fathers
Noted that when birth certificate is produced – this is likely to “be a case of both
exquisite embarrassment and confusion for both parent and child, to the extent that the
child’s right to private and family life is also interfered w
- Q then is whether the interference is in accordance w the law, pursues a legitimate aim
and is proportionate under Art 8
ECHR Articles 8.2 and 14
- Held: it IS in acc w the law, namely the Births and Deaths Reg’n Act 1953 which sets out
the ways in which births need to be reg’d etc
= and it pursues a legitimate social aim of estb a coherent reg’n system
- Because of the significance of the right to gender identity to both TT and his child, a
strong weight must be attached to these and clear and substantial grounds are req for
any interference
- in rel to child specifically, there are other Art.8 rights that might conflict w his and his
father’s right to privacy = namely the right to estb the substance of his idnentiy, a core
element of that normally includes a right to know who gave birth to him and a trace his
maternal relatives. this right of a child to know its origins is, according to the judge,
growing in imp in the Strasbourg case law – even when set against the rights of the
mother who may want to remain anonymous
- if he were to decide in child’s favour, child would be diff from all children in UK casue as
a matter of law he would never have had a father only a mother = seen as a detriment
and contrary to the child’s best interest
- *this is the opposite of what was argued by child’s litigant + expert witness = argued it
would be in child’s best interest for his father to be reg’d as his father not his mother
- Judge concludes that the imp to society of having a coherent and certain scheme of birth
reg’n is high
‘[the negative impact on TT and YY] is very substantially outweighed by the interests of
third parties and society at large in the operation of a coherent registration scheme
which reliably and consistently records the person who gives birth on every occasion as
“mother”’ (para 272).
- Art 14
Judge finds that a reg’n scheme that reqs each and every person who gives birth to be
reg’d as the child’s mother, does not discriminate b/w or against any one group or
another = so no violation of the convention
- COA upheld the High Court judgement
-