Transgender challenge causes senior judge to ask for clarity on fertility law

20 February 2019

Fertility law faces a major overhaul after the legal requirement for a mother to be present on a birth certificate was challenged.

The man (TT), who was born a woman but now lives as a man after undergoing surgery, became pregnant via artificial insemination using donor sperm just 10 days after completing his legal transition.  TT wanted to register himself as the father on his child's (YY) birth certificate which would mean that YY could be the first person born in England and Wales who will not legally have a mother.  TT was told by the registrar that the law requires people who give birth to be registered as mothers, not fathers and because of this, TT has taken legal action against the General Register Office on the basis that he was discriminated against and the refusal amounts to a breach of his human rights.

Concerns have been raised by Sir Andrew Macfarlane, President of the Family Division, as to how TT was able to undergo treatment reserved for women and also that he was able to access the treatment so soon after his legal transition.  Sir Andrew Macfarlane invited the government to consider whether the operation of the Human Fertilisation and Embryology Act (1990 and amended in 2008), the main piece of legislation on fertility law, needs to be looked at.  The huge developments in medical and fertility innovation and the fast-paced nature of these innovations risk leaving the law behind.  These developments not only raise moral and ethical questions, but also challenge the laws currently in existence and place a real pressure in the government to reconsider the law and ensure it is constantly adapting to keep pace with reality.

A judgment on this matter is expected to be delivered next week.

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