England's most senior family judge has invited the Health Secretary to review fertility laws after hearing the case of a trans man unable to be recognised as the father on his child's birth certificate.
The man, known only as TT, was inseminated with donor sperm to conceive the child, named only as YY in court documents. He wishes to be known as YY's 'father' or 'parent' on the birth certificate, but because he carried the pregnancy he is defined as the mother, according to the Human Fertilisation and Embryology Act 2008. If successful, this case would be the first in England and Wales where a baby has been born without a legal mother.
'I am inviting the government to consider whether the operation of the HFE Act needs to be looked at,' said Sir Andrew McFarlane, President of the Family Division of the High Court of England and Wales. '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.'
Hannah Markham QC, representing TT told the Telegraph that parents 'should not have to explain once or even twice in a lifetime to their children why they are mum on their birth certificate but dad to them in real life. A transgender person should never be put in that position. It is not necessary, and it is not proportionate.'
TT claims that the Registrar General's refusal to grant being named as 'father' on the birth certificate is unjust, and argues that interference with his right to family life is not proportionate or necessary in the context of modern society. If Sir Andrew says the refusal is legitimate, then birth certificates may be in breach of human rights law.
Samantha Broadfoot QC, who intervened in the proceedings on behalf of human rights charity AIRE said the term 'male mother', as recommended in government documents, 'is utterly incongruous'.
'That may well work in the hallowed corridors of the civil service, but try explaining that to a border force officer at Heathrow Airport,' she said.
The case also highlights other areas where fertility law is out of step with newer family forms. The procedure intrauterine insemination (IUI) which TT used to become pregnant, is supposed only to be used on women, but TT had completed his gender transition prior to receiving the treatment, and was therefore legally a man. The UK fertility regulator, the HFEA have not been involved in this case and have not commented on a possible breach of rules at the clinic where TT was treated.
Sir Andrew estimated it would take a week to consider all implications before passing judgment.