Benjamin Delve, of Berry Smith Lawyers, considers how a landmark case saw the redefining of the word ‘mother’
Largely drowned out by recent Supreme Court rulings and the noise around Brexit, the Rt Hon Sir Andrew McFarlane (the President of the Family Division) made a landmark ruling in the High Court on 25 September 2019. He defined the term ‘mother’.
Fred McConnell, who was registered female at birth, had transitioned to a male in his early 20s, beginning the medical transition in 2013. In 2016, Mr McConnell commenced fertility treatment, eventually conceiving and giving birth to his son in January 2018.
Prior to giving birth to his son, Mr McConnell applied for, and was granted a Gender Recognition Certificate, confirming his gender as male, on 11 April 2017. Mr McConnell had anticipated that, upon registering the child’s birth, that he would be registered as the child’s ‘father’ relying on the wording of the Gender Recognition Act 2004, which states: “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender.”
However, on registering the birth, Mr McConnell was required to be registered as the child’s ‘mother’. Mr McConnell issued an application challenging the decision.
The term ‘mother’ has been defined in law previously, such as in the Human Fertilisation and Embryology Act 1990 as ‘the woman who is carrying, or has carried, a child…’; and in the Births and Deaths Registration 1953 as ‘…the child’s natural mother.’ However, these definitions were set in place before the enactment of the Gender Recognition Act 2004 and do not provide clear assistance in circumstances such as Mr McConnell found himself.
The solution? The court’s ruling was that: “The status of being a mother arises from the role that a person has undertaken in the biological process of conception, pregnancy and birth;…It is now possible…for a ‘mother’ to have an acquired gender of male”.
In short, the role of ‘mother’ is not gender specific, but refers to the woman, or man, who gave birth.
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