Judge calls for review of transgender fertility law
Family Division president voices concern over man using sperm donor to give birth
TRANSGENDER men’s ability to access fertility treatment should be reviewed by the Government, Britain’s most senior family court judge has said.
Sir Andrew Mcfarlane, the president of the Family Division of the High Court, invited Matt Hancock, the Health Secretary, to review fertility laws after hearing the case of a transgender man who was able to access a sperm donor 10 days after legally completing his transition.
The man, who was born a woman and is identified only as TT, became pregnant and has taken his case to the High Court to be registered as the “father” on the child’s birth certificate.
The Government and the Registrar General, responsible for recording births, deaths and marriages, oppose his claim, which, if successful, would make the child the first in the UK legally not to have a mother.
Sir Andrew voiced his concern that TT was able to access fertility treatment legally reserved for women and suggested the Government should review the 2008 Human Fertilisation and Embryo Authority (HFEA) Act.
Speaking to lawyers representing the Department of Health, Sir Andrew said: “It is a matter of concern that, as you are submitting in what seems to be outside the scheme of the Act, the clinic treated TT while openly regarding him as a man.
“The documents from the clinic say ‘man’. I am inviting the Government to consider whether the operation of the HFEA Act needs to be looked at.
“It is impossible to sit here and observe the factual evidence of this case and not invite the Secretary of State for Health and Social Care to consider the consequences of the Act on individuals like this. I am simply putting a marker down to invite the Government to look into this.”
The hearing included submissions on behalf of the AIRE Centre, a human rights charity that independently intervened in the case after it became concerned for the rights of the child, known only as YY.
Samantha Broadfoot QC, on behalf of the charity, told the court that government documents showed that civil servants suggested the parent could simply be known as a “male mother”.
Ms Broadfoot challenged the suggestion, saying: “That may well work in the hallowed corridors of the Civil Service, but try explaining that to a border force officer at Heathrow Airport. It is utterly incongruous.” She also told the court that YY had a right to have TT registered as their father, adding: “The child sees itself, and is presented to the world, as if TT is its dad.
“But its birth certificate officially presents its dad as its mum. This undermines the child’s individual identity and their moral and social security.”
The HFEA Act, which was passed in 1990 and updated in 2008, is the legislation that regulates fertility treatment and clinics through the Human Fertilisation and Embryo Authority.
Treatments regulated by the authority include an IUI, otherwise known as artificial insemination, which can technically only be received by women.
The HFEA, which chose not to get involved in the case of TT, was not present in court when Sir Andrew made his comments. Sir Andrew, who was expected to make his judgment this week, said it would be at least a week before he announced his decision considering the legal arguments involved.
The days when parenting was something with clearly accepted “mother” and “father” roles are, thankfully, long gone. “Maternal males” and “stay-at-home dads” can do almost everything that was once seen as the exclusive preserve of mums. And vice versa.
One biological divide remains, however. Mothers carry their children for nine months in their bodies, and then give birth to them; fathers don’t.
Or do they? The most senior judge in the Family Division of the High Court is this week hearing a case brought by a transgender man, identified only as TT, who has given birth to a child, referred to as YY. TT wants to be referred to on YY’S birth certificate as the father, not the mother.
The logic is, on first reading, hard to follow – and, as a compromise, TT is also suggesting to the court that, to make matters simpler, he might be registered simply as the parent, or “gestational parent”.
The Registrar General, though, has refused all such options, insisting that TT is YY’S mother. That, according to TT’S legal team, amounts to “discrimination”.
If the ruling goes in TT’S favour, at least one new frontier will have been crossed. YY will become the first person born in England and Wales who will not legally have a mother.
Leaving a blank under “father” has a long and ignoble record – and while science talks up its ability to make men redundant in the reproductive process, the High Court is now being asked to make mothers legally dispensable, too.
To add to the moral complexities and complications that we must get our heads around, a leading British surgeon, Christopher Inglefield of the London Transgender Clinic, talked publicly last month of how advances in womb transplants – developed to help infertile women have children, with the first baby being born in this way in Sweden in 2014 – should now be available to transgender women (those born biologically male) so they can become mothers. There is no medical reason why the new procedures couldn’t work for them, Inglefield has argued, adding that in his opinion it would be “illegal” to deny them access to the chance of carrying a child to gestation in a transplanted womb.
Such talk inevitably only raises the stakes in the ongoing and already heated debate about the rights of transgender people (“tentatively” estimated by the Government’s Equalities Office to number between 200,000 and 500,000 in the UK), and how to balance them with the rights of the general population.
At least in court this week, the questions have been spelt out in black and white. Two legal teams are arguing as to whether the Registrar General is justified in his refusal to allow TT to define himself as YY’S father, or if discretion should be exercised in such unusual circumstances. That would, perhaps, be the easiest option. But if it is not available, TT’S lawyers are asking for something more far-reaching and potentially incendiary – a ruling on whether the current rules around birth certificates breaches the Human Rights Act of 1998 by denying respect for private and family life.
The details revealed in the court exchanges will be hard for some with more conventional family lives to grasp, not least because, when it comes to trans people, the language used can itself be a minefield. Even personal pronouns have to be navigated carefully. Some trans people, for example, like to be referred to in public in the plural, as “they”, to avoid what is seen as the “binary” connotations of “he” or “she”.
TT, who was born as a biological woman, has been granted a Gender Recognition Certificate (GRC) as a trans man, under the provisions of the Gender Recognition Act of 2004. Some 4,910 of these certificates have been issued, and require a diagnosis of gender dysphoria, the consent of a spouse if married, living in what the law describes as the “acquired gender” for at least two years, and an intention to do so until death.
Within days of receiving this certificate that accepted him as a trans man, however, TT also underwent intrauterine insemination, where one of his eggs was fertilised with donor sperm, resulting in the birth of YY. What a GRC does not require is any sort of gender reassignment surgery or hormonal treatment to have taken place, so TT could, in theory (the court papers do not make it clear), still have been able to give birth naturally.
But that would make him a her, as far as science and human practice going back millennia is concerned. As, indeed, it also does under the terms of such recent legislation as the Human Fertilisation and Embryology Act of 2008. It was introduced to cover surrogacy arrangements, but states clearly that the one who carries the child “is to be treated as the mother of the child”.
If TT’S case succeeds, then, new legislation will be required, with the law – as often happens in this area – struggling to keep up with rapid
developments in what is possible scientifically and what is considered acceptable in society. Other countries, TT’S lawyers have argued, are doing rather better in this regard.
They have pointed in court to legislative changes in Belgium and the Netherlands, for example, where trans women, born biologically male and able to provide the sperm in successful IVF procedures, can be registered as the “co-mother” with the birth mother of any child born as a result. And they have also quoted the United Nations Declaration of the Rights of the Child, which makes the paramount test the best interests of the child. Those are represented, they say, by a birth certificate that conforms with the “social reality” of YY’S life, rather than the birth circumstances, and hence with TT as the father, not the mother.
While the high-profile case is, in one sense, narrowly focused on the boxes to be filled in on a birth certificate, such talk of “social reality” reveals the wider questions it raises.
How many parents, for example, ever show their children their birth certificate as they are growing up? Or even know where they have filed it away? In which case, isn’t the whole court case better seen as an attempt to use the law to advance what some critics have referred to as a “trans agenda”?
The broadcaster Baroness Joan Bakewell disagrees. Among the many radio and TV programmes she has presented examining moral and ethical dilemmas was her long-running BBC series, Heart of
the Matter. In it, in the Nineties, she looked at the treatment of transgender people both in the prison system and over gender identity as described in their passport (where, two decades on, the Home Office continues to contest a court challenge by the equality campaigner Christie Elancane for the introduction of genderneutral passports).
“I am, in general, a great believer in embracing truth and light in such situations,” explains Bakewell. “Official documents, whether they be passports or birth certificates, should always acknowledge the truth. What they shouldn’t do is spread confusion.”
But isn’t the problem in the case of baby YY that there are two competing truths – that TT used a womb that is part of a woman’s biology to give birth, but will look after his child as a father, not a mother?
Bakewell argues that the onus is on TT as a parent, in bringing up his child, to choose the appropriate moment to explain the complications. The birth certificate must then tally with the account that the child has heard from the father. In other words, that TT should be listed as YY’S father.
And that same wish for clarity, not confusion, in official documentation, she adds pragmatically, rules out suggestions that the problem could be solved by the current spaces for mother and father on the birth certificate being replaced by ones that simply are labelled “parent”: “That just invites more questions and potentially more hurt.”
An alternative proposed by some would be to extend the current system of courts granting “parental orders” in surrogacy cases. These are designed to make the “intended parents” also the legal parents, and to remove any ongoing claim by the surrogate. The original birth certificate (with the surrogate listed as mother) is then sealed and – as in adoption cases – can only be accessed by the child in question when they are 18. But it is a compromise that seems unlikely to take the heat out of this debate.
It won’t satisfy traditionalists, who feel our whole legal system, time-honoured (or God-given, as they might put it) definitions of gender, not to mention rules of grammar and language, are being tampered with to satisfy the demands of what is a tiny but vocal minority.
And for trans people, having a separate arrangement to everybody else to assert their parental status could be taken as proof that their rights are secondary to those they refer to as “cisgender”, or simply “cis” – ie, those who carry on with the gender they were assigned at birth.
Caught in the middle is the usually low-profile and uncontentious office of Registrar General, based in the seaside town of Southport in Lancashire.
While the court is expected to provide a ruling to settle this particular legal dispute and finally provide YY with a birth certificate, the wider challenge to society of acceptance and integration of trans people will no doubt continue to provoke a lively debate – and not one always conducted in gender-neutral language.
This highprofile case focuses on boxes on a birth certificate, but raises wider questions about the new ‘social reality’