Mother of all legal rows for trans man and his baby by Lucy Bannerman in The Times 27.04.19

The original article is here.

There once was a woman who wanted to be a man. Let’s call her TT. So she took all the necessary steps, legally, to become a man. Her female biology was retained but in the eyes of the law, TT went from a she to a he. Then TT did something rather unusual for a man. Ten days after receiving his gender recognition certificate, making his legal transition complete, he went to a fertility clinic and became pregnant through a sperm donor. In January last year, he gave birth to a son.

But it’s what happened next that created the conundrum facing the family courts: TT was recorded on the child’s birth certificate as the boy’s mother. As the state had already agreed that he was a man and issued a certificate to prove it, TT believes he should be recorded as the father.

He has taken his case before Sir Andrew McFarlane, the most senior family judge in the country, to change his status from “mother” to “father”. If the court finds in TT’s favour, the boy will become the first child under British law without a legal mother.

It may have been 12 years since Thomas Beatie made international headlines as the first “pregnant man” but TT is the first person to challenge the official registration of parental status in this way.

The judge’s decision, which is expected later this month, will have enormous consequences. Sir Andrew is not only being asked to weigh the rights of the child against the rights of his transgender parent. He must also find a solution that balances long-standing laws governing the birth and death of British citizens, with all the other laws that have evolved to ensure fairness in surrogacy, adoption, egg and sperm donation, same-sex parenting and the myriad ways in which modern “rainbow” families can be created thanks to advances in assisted reproduction.

“Nobody had thought of these situations when the legislature was talking about whose name should go on birth certificates back in 1953,” said Nuala Mole, senior lawyer at the Aire Centre, a specialist charity.

“This is a classic case of social mores and technology moving faster than the law. How the law gets there and where it gets to will have poor Sir Andrew tearing his hair out.”

Ms Mole said that the child’s interests must be paramount. “It’s important for the child’s identity to be recorded correctly,” she added. “The parent has said that he intends to inform the child when he has reached an appropriate age. But say that doesn’t happen, the child has a right to find out the truth.

“There must be protections put in place for a child to be able to ascertain its true identity and to know the full circumstances of its birth.”

TT wants to be recorded as “father”, “parent” or “gestational parent” — anything but “mother”, which he claims would unfairly “impose the abandoned gender status” upon him. He claims that the state is breaching the terms of his gender recognition, which says he should be treated as male “for all purposes”.

The government, which opposes TT’s case, argues that the registrar- general had no power to record TT as anything other than the mother because he does not fit the criteria for any definition of father.

TT’s lawyers argue, however, that making transgender parents register in their previous gender is discriminatory because it denies them “access to parenthood in their acquired gender and undermining their trans identity”. They say it’s unfair and “illogical” to make him explain to his child why he is a father in real life but mother on the birth certificate.

Martin Kingerley, a barrister specialising in family law, said: “There is a certain absurdity in registering as a child’s mother but to all intents and purposes being known as the male person in the child’s life.

“Every so often a case throws up the tension between how we define individuals within the family and how we, as a society, keep abreast of medical advances which allow for such things to happen.”

At a hearing in February, the judge questioned how fertility regulations allowed TT to receive artificial insemination, which can technically be received only by women, after he had been legally recognised as a man.

Nina Barnsley, of the Donor Conception Network, which supports parents in sharing with children how their families were formed, said that whatever the right way forward, secrecy was rarely the solution. “If we do know anything, it is that people discovering something really important about their identity and their family situation by accident is not a good thing,” she said.

Ms Barnsley agreed that the system needed updating. She said: “There’s already confusion in the law. We need a whole rethink about what is a birth certificate — what is it for and what is it doing? What’s its purpose? Historically, it was a record of your genetic parentage and within that, there was a recognition of the rights and responsibilities those parents had.

“Now [thanks to advances in assisted reproduction], genetic parentage and the intention to parent are two different things. Who is recorded on the certificate, and how, requires a balancing act. You have to make sure you don’t throw the baby out with the bathwater.”