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Man who gave birth still legally a mother

4 May 2020
Appeared in BioNews 1045

A trans man who gave birth, has been unsuccessful in his latest attempt to be registered as his child's 'father' on the birth certificate. 

The Court of Appeal has upheld the 2019 High Court decision that McConnell is a 'male mother' – a person of the male gender who has given birth (see BioNews 1017). Freddy McConnell was legally recognised as a man in 2017 but because he gave birth he had to be registered as his child's 'mother'. Had his appeal been successful, his child would have been the first to be born in the UK without a legal mother. 

'From the moment of birth someone must have parental responsibility for a newly-born child, for example, to authorise medical treatment and more generally to become responsible for its care,' said Lord Burnett, the Lord Chief Justice in his judgment. Under the Children Act 1989, he explained, that person is the mother: 'No-one else has that automatic parental responsibility, including the father.'

McConnell was issued a Gender Recognition Certificate under the Gender Recognition Act 2004 (GRA) in 2017, giving legal recognition to his male gender. Later that year, he underwent fertility treatment, became pregnant, and gave birth to a son in January 2018. His journey to parenthood was documented in the film 'Seahorse' (see BioNews 1016).

However, section 12 of the GRA states that acquiring a legally recognised gender under the act 'does not affect the status of the person as the father or mother of a child.' The Court of Appeal found that this exception applies even if a child is born after the issue of a certificate.

In reaching their decision, the judges emphasised the difference between Parliament and the judiciary, and how any court should be 'slow to occupy the margin of judgment more appropriately within the preserve of Parliament.' In essence, the Court of Appeal found that the changes McConnell seeks are only possible through Parliament – it is not something in which the courts can intervene. 

'This isn't about a man having a baby. This is about all trans people retaining their autonomy and their right to start a family in whatever way they wish, and having their identity recognised in that, or at least respected,' McConnell told Buzzfeed

It is understood that he will seek permission to apply to the Supreme Court. 

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