TT, R (on the application of) v The Registrar General for England and Wales

A person’s gender and parental status are distinct legal concepts. At common law, the person who carries a pregnancy and gives birth is the child’s mother, irrespective of that person’s legal gender. Gender Recognition Act 2004, s 12 preserves that status prospectively as well as retrospectively. A male person may therefore be a legal mother.

Requiring the birth registrar to record the person who gave birth as the mother interferes with the parent’s and child’s Article 8 rights, but serves the legitimate aims of certainty, coherence and recording the identity of the person who gave birth. The interference is proportionate and does not breach Articles 8 or 14.

TT, a transgender man with a Gender Recognition Certificate, conceived through intrauterine insemination, carried the pregnancy and gave birth to YY. The Registrar General required TT to be registered as YY’s mother. TT sought judicial review and argued that he should be registered as father or parent. YY separately sought a declaration of parentage under Family Law Act 1986, s 55A.

The issues were whether domestic law required registration as mother, whether the Human Fertilisation and Embryology Act 2008 supplied a different answer, and whether the registration scheme was incompatible with the Convention rights of TT or YY.

1. Domestic law. At common law, the person whose egg is inseminated in their womb, who becomes pregnant and gives birth, is the child’s mother. Motherhood derives from the person’s role in conception, pregnancy and birth, rather than exclusively from sex or legal gender. The law therefore recognises the possibility of a male mother and a female father.
2. Gender recognition. Section 9 of the Gender Recognition Act 2004 makes the acquired gender applicable for all purposes, subject to statutory exceptions. Section 12 is such a qualification. Its open wording and position within the statutory scheme show that it operates both retrospectively and prospectively. A change of gender does not affect a person’s status as the father or mother of a child, even where the child is born after the Gender Recognition Certificate.
3. Assisted reproduction. Sections 33 to 47 of the Human Fertilisation and Embryology Act 2008 do not provide a statutory answer for TT’s conception by intrauterine insemination of his own egg. Section 33 is nevertheless consistent with the common-law position because it treats the person carrying the pregnancy as the mother. Nothing in the HFEA legislation displaces the common-law result.
4. Convention rights. Recording TT as mother interferes with the Article 8 rights of TT and YY. The interference is lawful and pursues legitimate aims: an administratively coherent and certain birth-registration system and the child’s interest in knowing the identity of the person who carried and gave birth. The child’s best interests are a primary consideration, but the assessment must address the registration scheme generally rather than depend on case-specific discretion. The interference is proportionate and strikes a fair balance.
5. The universal requirement to record the person who gives birth as mother does not discriminate against transgender people or their children. Any difference in treatment would in any event be justified by the same considerations. The judicial review claim and application for a declaration of incompatibility were dismissed. A declaration of parentage issued confirming that TT is YY’s mother. TT consequently had parental responsibility under Children Act 1989, s 2(2)(a).