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Trans (legal) parenthood and the gender of legal parenthood
Published online by Cambridge University Press: 07 September 2023
Abstract
Trans identities are increasingly subjected to contentious public and political debate in the UK, and this has resulted in resource to the law across various contexts. Against that background, this paper considers trans legal parenthood after the decision in R (McConnell and YY) v Registrar General for England and Wales. This judgment held that a trans man who gave birth was the legal ‘mother’ of his child. The wider consequence is that trans legal parenthood will not reflect trans identities, but birth-assigned sex/gender, regardless of whether the parent holds a gender recognition certificate. Separate from this underlying social and political context concerning trans identities, the paper argues that legal parenthood is a flexible and pragmatic concept, which lacks inherent normative content, and which has previously proved capable of accommodating a variety of different familial and reproductive circumstances. The paper argues that the gendered descriptors of ‘mother’ and ‘father’, while remaining the law's default, are not inherent to legal parenthood. Thus, the paper concludes that, despite the ongoing political and cultural debates concerning trans identities, the existing concept of legal parenthood is capable of properly recognising trans parenthood, without requiring any fundamental changes to the concept itself.
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- Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of The Society of Legal Scholars
Footnotes
†
An earlier version of this paper was presented in the Family Law stream at the Society of Legal Scholars Annual Conference at King's College London in September 2022. I am grateful to the attendees for their comments. I would also like to thank Professor Jonathan Herring, Dr Lynsey Mitchell and the anonymous reviewers for their helpful comments on earlier drafts. Any errors that remain are my own.
References
1 The term trans is used throughout this paper, encompassing circumstances where an individual's identity does not reflect the traditional, binary understanding of either sex or gender. However, in older case law and literature, the terms ‘transsexual’ and ‘transgender’ are used, reflecting then common language. This paper will use those terms when quoting from such sources.
2 See eg the ‘Future of Legal Gender’ Project at https://futureoflegalgender.kcl.ac.uk/, Cooper, D ‘Beyond the current gender wars’ (2019) 25(4) IPPR Progressive Review 393CrossRefGoogle Scholar and D Cooper ‘A very binary drama: the conceptual struggle for gender's future’ (2019) 9(1) feminists@law.
3 Changing the requirements for the granting of a Gender Recognition Certificate (GRC) in the Gender Recognition Act 2004, s 2 and s 3, and allowing for a GRC to be granted based upon a declaration to the Registrar General.
4 The Gender Recognition Reform (Scotland) Bill, cl 4 sought to insert a new s 8C into the 2004 Act.
5 Under the Scotland Act 1998, s 35(1)(b); see Secretary of State for Scotland ‘Policy statement of reasons on the decision to use section 35 powers with respect to the Gender Recognition Reform (Scotland) Bill’, 17 January 2023 at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1129495/policy-statement-section-35-powers-Gender-Recognition-Reform-_Scotland_-Bill.pdf.
6 Equality Act 2010, s 4.
7 Ibid, s 11.
8 Ibid, s 7(1).
9 Full consideration of the issues that arise under the Equality Act 2010 is outside the scope of this paper.
10 See eg Fair Play for Women Ltd v Registrar General for Scotland [2022] CSIH 7, 2022 SC 199; For Women Scotland Ltd v The Lord Advocate [2022] CSIH 4, 2022 SC 150 and For Women Scotland Ltd v Scottish Ministers [2022] CSOH 90, 2023 SLT 50. There has also been cases in various other contexts, such as Bell v Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin), [2022] 1 FLR 30 and Forstater v CGD Europe [2021] 6 WLUK 104, [2022] ICR 1.
11 I would like to thank one of the anonymous reviewers for raising this point.
12 Reflecting shifts in public attitudes, see eg E Harrison ‘Family life: attitudes to non-traditional family behaviours’ (2020) British Social Attitudes Survey 37, https://www.bsa.natcen.ac.uk/media/39410/bsa37_family-life.pdf and M Albakr et al ‘Relationships and gender identity: public attitudes within the context of legal reform’ (2019) British Social Attitudes Survey 36, https://www.bsa.natcen.ac.uk/media/39358/5_bsa36_relationships_and_gender_identity.pdf.
13 2008 Act, ss 33–58.
14 Marriage (Same Sex Couples) Act 2013.
15 Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019.
16 Diduck, A ‘If only we can find the appropriate terms to use the issue will be solved: law, identity and parenthood’ (2007) 19(4) Child and Family Law Quarterly 458 at 478Google Scholar.
17 As noted above, terminology is contested. This paper uses trans affirming language whenever possible.
18 2004 Act, s 9(1).
19 There are no reported cases involving non-binary or gender non-conforming parenthood, but such identities lack legal recognition within the UK: see R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56, [2022] 2 WLR 133.
20 McCandless, J and Sheldon, S ‘The Human Fertilisation and Embryology Act (2008) and the tenacity of the sexual family form’ (2010) 73(2) Modern Law Review 175 at 202CrossRefGoogle Scholar.
21 The term ‘parental status’ is also used, but in this paper ‘legal parenthood’ is preferred.
22 R (McConnell and YY) v Registrar General for England and Wales [2020] EWCA Civ 559, [2020] 3 WLR 683 and the first instance judgment R (on the application of TT) v Registrar General for England and Wales [2019] EWHC 2384 (Fam), [2019] 3 WLR 1195. The Supreme Court refused Mr McConnell's application for permission to appeal on 9 November 2020.
23 R (on the application of JK) v Registrar General for England and Wales [2015] EWHC 990 (Admin), [2016] 1 All ER 354.
24 Diduck, above n 16, at 462.
25 Financial obligations (Child Support Act 1991), acquisition of ‘parental responsibility’ (Children Act 1989), and succession (Inheritance (Provision for Family and Dependents) Act 1975).
26 Lowe, N et al Bromley's Family Law (Oxford: Oxford University Press, 12th edn, 2021) p 388 and p 398CrossRefGoogle Scholar.
27 Eekelaar, J ‘The law, gender and truth’ (2020) 20(4) Human Rights Law Review 797 at 798CrossRefGoogle Scholar.
28 Bainham, A ‘Arguments about parentage’ (2008) 67(2) Cambridge Law Journal 322 at 349CrossRefGoogle Scholar.
29 JK, above n 23, at [113]; Hickinbottom J noted the potential issue around a child not being informed of the parents’ trans identity if the birth certificate used language congruent with the parents’ identity, which shows that these ideas are exerting some influence on judicial reasoning. I would like to thank one of the anonymous reviewers for directing me to this paragraph of JK.
30 Everett, K and Yeatman, L ‘Are some parents more natural than others?’ (2010) 22(3) Child and Family Law Quarterly 290 at 306Google Scholar.
31 See eg Spade, D Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (Durham: Duke University Press, 2015)Google Scholar and Currah, P and Moore, LJ ‘“We won't know who you are”: contesting sex designations in New York City birth certificates’ (2009) 24(3) Hypathia: A Journal of Feminist Philosophy 113Google Scholar.
32 I would like to thank one of the anonymous reviewers for raising this literature and its potential significance.
33 Meadow, T ‘“A rose is a rose”: on producing legal gender classifications’ (2010) 24(6) Gender and Society 814 at 817CrossRefGoogle Scholar.
34 The common law presumptions for married couples and the provision for unmarried fathers, inserted in Births and Deaths Registration Act 1953, s 10 by Family Law Reform Act 1987, s 24.
35 2008 Act, ss 33–48.
36 Adoption and Children Act 2002, s 46.
37 2008 Act, s 54 and s 54A.
38 Subject to post-birth applications for ‘declarations of parentage’ under Family Law Act 1986, s 55A.
39 Births and Deaths Registration Act 1953, ss 1–14A.
40 The Law Commission of England and Wales and the Scottish Law Commission have proposed a ‘new pathway’ to parenthood, which (if enacted) will allow for intended parents to become legal parents from birth. See ‘Building families through surrogacy: a new law: volume II: final report’ (Law Com No 411, Scot Law Com No 262, March 2023) chs 2 and 4, at https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2023/03/2.-Surrogacy-full-report.pdf.
41 See Bainham, A ‘What is the point of birth registration?’ (2008) 20(4) Child and Family Law Quarterly 449Google Scholar for consideration of the policy objectives of birth registration.
42 See the mater est quam gestatio demonstrat presumption and 2008 Act, s 33(1).
43 See Family Law Act 1986, s 55A.
44 Both adoption orders (Adoption and Children Act 2002, s 46) and parental orders (2008 Act, s 54 and s 54A) align legal parenthood with social parenthood.
45 Adoption and Children Act 2002, s 67(1).
46 2008 Act, s 54(1).
47 This language is arguably more significant and ‘treated in law’ could suggest that such orders only treat people as parents, they do not declare them to be parents. I would like to thank Jonathan Herring for raising this point. However, full consideration of this statutory language is outside the scope of this paper.
48 2008 Act, ss 42–44.
49 However, see the Law Commission's Final Report on Surrogacy, above n 40, which proposes gender-neutral legal parenthood from birth for both intended parents under the ‘new pathway’, para 4.252, p 107.
50 Adoption of Children Act 1926, s 5(1).
51 See Bremner, P ‘Collaborative co-parenting and heteronormativity: recognising the interests of gay fathers’ (2017) 29(4) Child and Family Law Quarterly 293Google Scholar.
52 Brown, A What is the Family of Law? The Influence of the Nuclear Family (Oxford: Hart Publishing, 2019) p 107CrossRefGoogle Scholar.
53 See Smith, L ‘Clashing symbols? Reconciling support for fathers and fatherless families after the Human Fertilisation and Embryology Act 2008’ (2010) 22(1) Child and Family Law Quarterly 46Google Scholar.
54 See eg Sheldon, S ‘Fragmenting fatherhood: the regulation of reproductive technologies’ (2005) 68(4) Modern Law Review 523CrossRefGoogle Scholar, Wallbank, J ‘Channelling the messiness of diverse family lives: resisting the calls to order and de-centring the hetero-normative family’ (2010) 32(4) Journal of Social Welfare and Family Law 353CrossRefGoogle Scholar and Zanghellini, A ‘A v B and C [2012] EWCA Civ 285 – heteronormativity, poly-parenting, and the homo-nuclear family’ (2012) 24(4) Child and Family Law Quarterly 475Google Scholar.
55 Law Commission's Final Report on Surrogacy, above n 40.
56 This will be considered at subsection 4(b): ‘The degendered “parent” in the Human Fertilisation and Embryology Act 2008’.
57 I would like to thank one of the anonymous reviewers for raising this point.
58 See Brown, above n 52, pp 107–131 for my previous consideration of the role of the binary, two parent-model of the nuclear family within the attribution and determination of legal parenthood.
59 I accept that such recognition of trans legal parenthood is likely to require statutory reform, and I return to this at subsection 4(c): ‘The implications for trans legal parenthood’.
60 See Sharpe, A ‘Endless sex: the Gender Recognition Act 2004 and the persistence of a legal category’ (2007) 15(1) Feminist Legal Studies 57CrossRefGoogle Scholar.
61 Goodwin v UK (2002) 35 EHRR 18, Application No 28957/95.
62 Ibid, at [90]. Previously, the UK relied upon its ‘margin of appreciation’ to defend the lack of recognition: see X, Y and Z v United Kingdom (1997) 24 EHRR 143, Application No 21830/93 and Cossey v United Kingdom (1991) 13 EHRR 622, Application No 10843/84.
63 The Act's use of ‘acquired gender’ has been criticised for not reflecting trans identities: Cowan, S ‘Looking back (to)wards the body: medicalization and the GRA’ (2009) 18(2) Social & Legal Studies 247CrossRefGoogle Scholar.
64 Barnes, L ‘Gender identity and Scottish law: the legal response to transsexuality’ (2007) 11(2) Edinburgh Law Review 162 at 179CrossRefGoogle Scholar.
65 When the Gender Recognition Bill was first introduced, cl 5(1), which became s 9(1), did not include ‘sex’. This was added in response to House of Commons and House of Lords Joint Committee on Human Rights, ‘Nineteenth Report’ (Cm 5875, July 2003), at https://publications.parliament.uk/pa/jt200203/jtselect/jtrights/188/188.pdf, which commented, para 34, p 15, that the original drafting could lead to the Act ‘failing to achieve some of its purposes’.
66 2004 Act, s 15 and s 16.
67 Ibid, s 13 and s 14.
68 Note 43.
69 McConnell, above n 22, at [40], the Court of Appeal dismissed an attempt to rely upon the explanatory notes when interpreting s 12.
70 The 2004 Act does not contain surgical requirements, but given the requirement (s 2(1)(c)) that ‘the applicant … intends to continue to live in the acquired gender until death’ and the medical requirements (s 3), it is plausible that the idea that a trans man would want to give birth and be physiologically capable of giving birth, or that a trans woman would want to ‘father’ children was outside the contemplation of Parliament.
71 Section 3: ‘The trans parenthood cases’.
72 ‘Self-ID’ models have been adopted in other jurisdictions, including Argentina, Denmark, Norway, the Republic of Ireland and Sweden: see Dietz, C ‘Governing legal embodiment: on the limits of self-declaration’ (2018) 26(2) Feminist Legal Studies 185CrossRefGoogle Scholar.
73 2004 Act, s 1(3).
74 See Liz Truss MP, Written Ministerial Statement: Response to Gender Recognition Act (2004) Consultation, 22 September 2020, at https://www.gov.uk/government/speeches/response-to-gender-recognition-act-2004-consultation.
75 See above n 3 and n 4.
76 UK Government ‘Reform of the Gender Recognition Act – Government consultation’ (July 2018) para 5, p 10, 4910 GRCs had been granted since the 2004 Act, while estimating, in para 2, p 10, the UK's trans population to be between 200,000 and 500,000, at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/721725/GRA-Consultation-document.pdf.
77 Ibid, para 18, p 20.
78 Previous cases concerning trans lives focused upon validity of marriages prior to equal marriage: see eg Corbett v Corbett (otherwise Ashley) (No 1) [1971] P 83, J v ST (formerly J) (Transsexual: Ancillary Relief) [1998] Fam 103, and Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467.
79 JK, above n 23.
80 McConnell, above n 22.
81 JK, above n 23, at [2].
82 Ibid, at [14] and [59]. Before the 2004 Act was amended by the Marriage (Same-Sex Couples) Act 2013, trans people were required to dissolve their marriages before a GRC could be granted. JK delayed her application until the date when the amendments came into force.
83 His anonymity was waived in R (on the application of TT) v Registrar General for England and Wales [2019] EWHC 1823 (Fam), [2020] 1 FCR 114.
84 McConnell, above n 22, at [7].
85 2004 Act, s 9(1).
86 JK, above n 23, at [60]–[65], briefly considers the 2004 Act.
87 Ibid, at [77].
88 Ibid, at [89].
89 Ibid, at [123].
90 Ibid.
91 See Dunne, P ‘Recognising transgender parenthood on birth certificates: R (JK) v Secretary of State for the Home Department’ (2015) 3 International Family Law 230Google Scholar.
92 See McCandless, J ‘Reforming birth registration law in England and Wales’ (2017) 4 Reproductive Bio-Medicine and Society Online 52Google Scholar.
93 JK, above n 23, at [65].
94 Ibid.
95 Ibid, at [109].
96 McConnell, above n 22, at [27].
97 Ibid, at [28]–[39].
98 Ibid, at [52]–[82].
99 See A Brown ‘Trans parenthood and the meaning of “mother”, “father” and “parent”—R (McConnell and YY) v Registrar General for England and Wales [2020] EWCA Civ 559’ (2021) 29(1) Medical Law Review 157, where I have explored the human rights arguments in more detail.
100 See Davis, L ‘Deconstructing tradition: trans reproduction and the need to reform birth registration in England and Wales’ (2020) 22(1–2) International Journal of Transgender Health 179Google Scholar.
101 Therefore, it is for this reason that the paper is focused upon what these cases illustrate about legal parenthood.
102 McConnell, above n 22, at [28].
103 Ibid, at [29].
104 See eg S McGuinness and A Alghrani ‘Gender and parenthood: the case for realignment’ (2008) 16(2) Medical Law Review 261 at 279 and McCandless and Sheldon, above n 20, at 200.
105 S Gilmore ‘The legal status of transsexual and transgender persons in England and Wales’ in JM Scherpe (ed) The Legal Status of Transsexual and Transgender Persons (Cambridge: Intersentia, 2015) p 200.
106 It is not my argument that the interpretation of s 12 is wrong according to the application of the rules of statutory interpretation, though the contrary interpretation is arguable. Instead, my argument is that the wider implications of this interpretation have troubling consequences for the recognition of trans legal parenthood.
107 McConnell, above n 22, at [28].
108 Brown, above n 99, at 169.
109 TT, above n 22.
110 Ibid, at [1].
111 Ibid, at [139].
112 Ibid, at [279].
113 Ibid, at [280].
114 2004 Act, s 9(3).
115 McConnell, above n 22, at [58].
116 See TT, above n 22, at [66]–[69], for a summary of the arguments advanced on this point by Mr McConnell at first instance.
117 See Davis, above n 100, at 183.
118 At birth the surrogate is the legal mother (2008 Act, s 33(1)) and her husband can be the legal father (s 35(1)). The intended parents become legal parents through a ‘parental order’ post-birth, requiring the agreement of all legal parents (s 54(6)).
119 The ‘agreed female parenthood conditions’ in the 2008 Act, s 43 and s 44 apply, ‘in the course of treatment services provided in the United Kingdom by a person to whom a licence applies’ (s 43(a)).
120 2008 Act, ss 42–44.
121 See Brown, above n 52, pp 116–118 and pp 158–167, for my previous detailed consideration of that role.
122 This role will be considered below at subsection 4(b): ‘The degendered “parent” in the Human Fertilisation and Embryology Act 2008’.
123 See Brown, above n 52, pp 105–168.
124 Ibid, p 132.
125 Re G (Children) (Residence: Same-Sex Partner) [2006] UKHL 43, [2006] 2 FLR 629.
126 Ibid, at [3].
127 See eg Re B (An Infant) [1962] 1 All ER 872; Re H (A Minor: Custody) [1990] 1 FLR 51; Brixey v Lynas 1997 SC (HL) 1; and Re T (A Child) [2005] EWCA Civ 1397.
128 I am not arguing that there are no differences between the biological contribution to parenthood of gestation and the provision of sperm. Nor that there should not be distinct rules for the attribution of gestational and non-gestational legal parenthood. I understand that pregnancy and gestation represent significant ‘care work’. Instead, my argument is that gestation can be recognised within the determination of legal parenthood without the gendered language of ‘mother’. I would like to thank Jonathan Herring for this point and his wider thoughts on this issue. See further Herring, J ‘Sexless family law’ (2010) 11 Lex Familiae, Revista Portugesa de Direito da Familia 33Google Scholar.
129 See Sheldon, S and Collier, R Fragmenting Fatherhood: A Socio-Legal Study (Oxford: Hart Publishing, 2008)Google Scholar.
130 See Sheldon, above n 54.
131 2008 Act, s 33(1).
132 Ampthill Peerage Case [1977] AC 547.
133 Ibid, at 577.
134 Brown, above n 52, p 144.
135 TT, above n 22, at [280].
136 In the Canadian province of Ontario, the All Families are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016 introduced such gender-neutral descriptive language for legal parenthood – ‘birth parent’ (s 6(1)) and ‘other biological parent’ ( s 7(1)). This Act allows legal parenthood for more than two people in a range of reproductive circumstances, including pre-conception ‘parentage agreements (s 9) and surrogacy arrangements (s 10). See Leckey, R ‘One parent, three parents: judges and Ontario's All Families Are Equal Act, 2016’ (2019) 33(3) International Journal of Law, Policy and the Family 298CrossRefGoogle Scholar. I would like to thank one of the anonymous reviewers for reminding me of this international context.
137 Similarly, trans women with GRCs who ‘father’ children are not men.
138 McGuinness and Alghrani, above n 104, at 279.
139 Legitimacy was crucial to determining legal status; ‘fathers rights’ applied to ‘legitimate’ children, those born within marriage, and ‘illegitimate’ children possessed lesser status. This was gradually abolished over the twentieth century, culminating in Family Law Reform Act 1987, s 1(1).
140 Sir William Blackstone Commentaries on the Laws of England Volume 1 at 453.
141 (1883) 24 Ch 317.
142 Ibid, at 326.
143 See eg the Guardianship of Infants Act 1925.
144 Then termed ‘adoptive parenthood’.
145 Children Act 1989, s 3 (1): ‘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’.
146 While the vast majority of legal parents possess parental responsibility, some legal parents do not, and parental responsibility can be held be people who are not legal parents.
147 Children Act 1989, s 2(1).
148 Ibid, s 2(1).
149 Ibid, s 4(1).
150 Family Law Reform Act 1987, s 27, granted legal parenthood from birth to a man who was not the genetic father of the child, with Human Fertilisation and Embryology Act 1990, s 28, extending that to include unmarried men, the common law presumptions being rebuttable by evidence of genetic paternity.
151 2008 Act, ss 42–44.
152 Ibid, s 33(1).
153 Ibid, s 42 and s 44.
154 I would like to thank one of the anonymous reviewers for raising this point.
155 The titles of Births, Marriages and Deaths Act 1953, s 10 and s 10ZA refer to the ‘second female parent’, although the text of the provisions refer to ‘parent’ without the qualification.
156 JK, above n 23, at [93]: ‘“Parent” is restricted to a second female who is to be treated as a parent of the child by virtue of the HFEA 2008’.
157 See eg Jones, C ‘Parents in law: subjective impacts and status implications around the use of licensed donor insemination’ in Diduck, A and O'Donovan, K (eds) Feminist Perspectives on Family Law (Abingdon: Routledge-Cavendish, 2006) p 70Google Scholar.
158 Fenton, R et al ‘Finally fit for purpose? The Human Fertilization and Embryology Act 2008’ (2010) 32(3) Journal of Social Welfare and Family Law 275 at 279CrossRefGoogle Scholar.
159 2008 Act, ss 35–37 and ss 42–44.
160 Diduck, above n 16, at 465.
161 See eg J Gabb ‘Lesbian m/otherhood: strategies of familial-linguistic management in lesbian parent families’ (2005) 39(4) Sociology 585 and Golombok, S ‘Lesbian mother families’ in Bainham, A et al (eds) What is a Parent?: A Socio-Legal Analysis (Oxford: Hart Publishing, 1999)Google Scholar.
162 G Dunne ‘Opting into motherhood: lesbians blurring the boundaries and transforming the meaning of parenthood and kinship’ (2000) 14(1) Gender and Society 11 at 25.
163 See A Ziv ‘Querying lesbian fatherhood’ in H Wahlström Henriksson and K Goedecke (eds) Close Relations: Family, Kinship and Beyond (Singapore: Springer, 2021). I would like to thank one of the anonymous reviewers for drawing this literature to my attention.
164 Other than the above-mentioned point regarding the ‘parental responsibility’, Children Act 1989, s 2(1A) and s 2(2A).
165 These involve ‘home-based’ assisted reproduction using the sperm of a man whom the couple knew in some way. Subsequently, only the woman who gave birth could be a legal parent and the donor would be the legal father. After the reforms, the 2008 Act's provisions apply to couples who use ‘home-based’ insemination if they are married or in a civil partnership, but not otherwise (s 43 and s 36).
166 See eg A v B and C (Role of Father) [2012] EWCA Civ 285, [2012] 2 FLR 607, T v T (Shared Residence) [2010] EWCA Civ 1366, [2011] 1 FCR 267 and R v E and F (Female Parents: Known Father) [2010] EWHC 417 (Fam), [2010] 2 FLR 383.
167 Re D (Contact and Parental Responsibility: Lesbian Mothers and Known Father) [2006] EWHC 2 (Fam), [2006] 1 FCR 556.
168 Ibid, at 582.
169 The majority of reported ‘known donor’ cases involve children born prior to the 2008 Act.
170 This case had unusual facts. The conception occurred through sexual intercourse and the ‘ordinary’ rules of natural reproduction both applied and ‘fit’ the circumstances.
171 Re G, Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders) [2013] EWHC 134 (Fam), [2013] 1 FLR 1334. This case involved complex factual circumstances: a male couple who both acted as ‘known donors’ for two separate female couples, and the eldest child was born before the 2008 Act, meaning that the donor was the legal father of that child.
172 Ibid, at [1], [115], [118] and [132].
173 Ibid, at [116].
174 See A Brown ‘Re G; Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders): essential “biological fathers” and invisible “legal parents”’ (2014) 26(2) Child and Family Law Quarterly 237.
175 L Smith ‘Tangling the web of legal parenthood: legal responses to the use of known donors in lesbian parenting arrangements’ (2013) 33(3) Legal Studies 355 at 359.
176 Or with a trans man who gives birth.
177 2008 Act, ss 35–37.
178 Ibid, ss 42–44.
179 The ‘agreed fatherhood conditions’ (s 37), applying to unmarried men, are expressed in identical terms to the ‘agreed female parenthood’ conditions (s 44) applying to unmarried women, other than the different gendered language used. The Act's distinction between those in registered and unregistered relationships is the same for mixed-sex and same-sex couples.
180 For women, a genetic link is irrelevant to becoming a ‘parent’ (s 47). See Re G (Children) (Shared Residence Order: Biological Non-Birth Mother) [2014] EWCA Civ 336, [2014] 2 FLR 897, for a case involving a ‘genetic mother’ who was not a legal parent.
181 Presumed for those in marriages and civil partnerships (s 35 and s 42), and which must be given in terms of the statutory scheme for those not in registered relationships (ss 36–37 and ss 43–44).
182 The Gender Recognition Bill, presented in July 2003, included cl 8(2), which would have addressed this issue, both prospectively and retrospectively, but it was removed from s 12 of the 2004 Act.
183 TT, above n 22, at [280].
184 The legal construction of ‘motherhood’ has been critiqued: see eg G Douglas ‘The intention to be a parent and the making of mothers’ (1994) 57(4) Modern Law Review 636 and O'Donovan, K ‘Constructions of maternity and motherhood in stories of lost children’ in Bridgeman, J and Monk, D (eds) Feminist Perspectives on Child Law (Abingdon: Routledge-Cavendish, 2000)Google Scholar.
185 An approach where trans men are ‘fathers’ under ss 35–37, but ‘mothers’ through giving birth does not strike me as satisfactory.
186 TT, above n 22, at [280].
187 McConnell, above n 22, at [65].
188 Full consideration of these public law issues is outside the scope of this paper.
189 See Brown, above n 99, at 168–170.
190 McConnell, above n 22, at [1].
191 Further shown through parental orders for male same-sex couples: 2008 Act, s 54.
192 McConnell, above n 22.
193 See JM Scherpe and P Dunne ‘The legal status of transsexual and transgender persons – comparative analysis and recommendations’ in Scherpe, above n 105.
194 See the recent recommendations in the Law Commissions Final Report on Surrogacy, above n 40.
195 See eg O'Donovan, K Family Law Matters (London: Pluto Press, 1993)Google Scholar and Diduck, A Law's Families (London: Markham, 2003)Google Scholar.
196 McConnell, above n 22, at [81].
197 Ibid, at [82].
198 Human Rights Act 1998, s 4.
199 Brown, above n 99, at 170.
200 Davis, above n 100, at 188.
201 See ‘Future of Legal Gender’ Project, above n 2 and the Ontarian legislation, above n 136.