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R (on the application of TT) v Registrar General for England & Wales

Posted on 17 January 2020

R (on the application of TT) v Registrar General for England & Wales

R (on the application of TT) v Registrar General for England & Wales [2019] EWHC 2384 (Fam)

The claimant, a female to male transgender man, had had intra-uterine insemination with donor sperm. He became pregnant and gave birth to a child. He wished to register as the child's father, or, alternatively, as its "parent". The registrar general took the view that he had to be registered as the child's mother.

The matter was considered by the President of the Family Division, Sir Andrew McFarlane, who examined the definition of parent, both in the legislation and at common law. Although the basic definitions of "mother" and "father" contained in the Human Fertilisation and Embryology Act 2008 were tied to gender, s.33 defined "mother" to deal with circumstances where an embryo or sperm and eggs were placed into the womb of the person who carried the pregnancy. The President did not accept that Parliament could have intended an alternative outcome where the only distinction was the specific process of assisted reproduction used. At common law, "mother" was defined as the person who became pregnant and gave birth.

The President considered that the requirement for the claimant to be registered as the mother was likely to cause confusion and embarrassment and was a violation of his, and the child's Article 8 rights. However, a balance had to be struck between the parent's individual right to privacy and the child's right to know about their biological identity, particularly for medical reasons. Parliament had afforded priority to the need for clarity as to parental status. Establishing a coherent birth registration system was a legitimate aim and the requirement that the person who gave birth was registered as the child's mother was justified, proportionate and fair.

Melissa Lesson notes: "Sir Andrew McFarlane had great sympathy for the applicant's position and carefully examined the history of the terms "mother" and "father", both in the legislation and at common law. Ultimately, he considered that the interests of society in the operation of a coherent registration scheme outweighed the adverse impact on the claimant (and his child). Whilst a blow for parents in the position of the applicant, his decision that Parliament's decision to prioritise certainty was justified is understandable".

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