The High Court of England and Wales has rejected the plea of a transgender man who wanted to be registered as a father of the child he had given birth to last year. In its ruling, the court also went on to give the first legal definition of a mother in English Common Law.
In the present case, a transgender man who had undergone multiple gender reaffirmation surgeries, retained his female reproductive system to give birth to a child in 2018. When he approached the Registrar General for getting himself registered as the father of the child, his claim was rejected, despite him having the gender recognition certificate.
Hence, he moved a judicial review against the order of the Registrar General. Both the Claimant and those acting in the interests of the child had argued that, as a matter of English law, the Registrar's decision was wrong and that the Claimant, being a male parent, must be his child's 'father'. The claim was resisted by both the Registrar and the Government.
It was also submitted by the Claimant that recognising him as a mother breaches his and his child's right to respect for their private and family life under Article 8 of the European Convention on Human Rights (ECHR). He also argued that section 4 of the UK's Human Rights Act of 1998 is incompatible with the ECHR.
The legal question before the court was :
where a person, who was born female, but who has subsequently undergone gender transition and acquired full legal recognition as male, becomes pregnant and gives birth to a child, is that person to be registered as their child's 'mother' or 'father'?
The President of the Family Division of the High Court, Sir Andrew McFarlane, rejected the plea of the Claimant, and in doing so, went on to give the legal definition of a mother. He opined 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'
The President also rejected the argument that the English law is incompatible with the safeguard provided in the ECHR.
He did, however, recognise the legal issue in the present case as a core matter of public policy rather than law. He noted that as per the existing legislations, no remedy can be granted to the Claimant but these laws do not squarely apply to the facts of the present case. Therefore, he opined that there's a pressing need for the 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.
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