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  • Writer's pictureThe LGBTQ+ Law Clinic

Should Family Law of England & Wales Replace Terms ‘Mother’ and ‘Father’ with a Broader Definition?

Updated: May 17, 2022


Close up view of the sign outside Central Family Court, Holborn, London (iStock)


The familial structure in the UK has diversified significantly since the 1960s, but even more so with the presence of assisted reproduction therapies such as IVF, surrogacy arrangements, and the advancement of LGBTQ+ rights. Yet the family law has been slower to react to these diverse family structures, which is still fixated on the nuclear family model. However, recent debate surrounding reforms to the Gender Recognition Act (2004) have highlighted the strong association between gender identity and women’s rights. Consequently, it shall be argued that the current definitions for ‘mother’ and ‘father’ no longer adequately represent the realities of the modern family and these terms should be reformed, alongside the creation of a third gender-neutral ‘parent’ term.


What is a ‘mother’, ‘father’ and ‘parent’?


Firstly, it is necessary to outline the current legal definitions of ‘mother’, ‘father’ and ‘parent’. Under common law (Ampthill Peerage Case, 1977) and statute (Human Fertilisation and Embryology Act (HFEA), 2008), a ‘mother’ is a woman who carries and gives birth to the child and remains firmly based on gestation. However, D’Alton-Harrison argues this definition ‘can be regarded as an irrebuttable presumption’ as it excludes women who have donated their ovum but not carried the child, or women who are not biologically connected to the child.


The legal definition of a ‘father’, Brown argues, is convoluted and uncertain as it traditionally operates on multiple presumptions, rather than biology. These are namely marriage (or civil partnership) to the mother, whether the father’s name is on the child’s birth certificate, or if there is a genetic connection to the child.

Finally, the term ‘parent’ lacks a clear legal definition and varies depending on the context it is used. For a lesbian couple, the non-gestational mother may be listed on the child’s birth certificate as a ‘parent’. On the other hand, Baroness Hale described a ‘natural parent’ status as being acquired in three ways, including ‘genetic parenthood’, ‘gestational parenthood’ and ‘social and psychological parenthood’. Moreover, according to The Children Act (1989), a person may acquire ‘parental responsibility’ regardless of their genetic connection to the child.


The LGBTQ+ Community and Surrogacy


From the definitions above, three main observations arise. Firstly, the rigidity in the legal definition of a ‘mother’; secondly, the flexibility afforded to the legal definition of a ‘father’; and thirdly, the ambiguity of the ‘parent’ term. These observations are often problematic for the LGBTQ+ community and during surrogacy.


Brown argues the first observation causes burdensome legal barriers for surrogacy arrangements, whilst Bremner also highlights the inaccurate birth certificate registration for lesbian or gay parents. Under the legal definition of ‘mother’ the surrogate will always be regarded as the legal ‘mother’, regardless of whether there is a genetic connection. Whilst this has historically protected the rights of women who give birth, it disregards the intention of most surrogates who give the child to the commissioning mother after birth. Subsequently, the commissioning mother must either seek a parental order after birth, or pursue adoption. For lesbian parents, the non-gestational mother cannot be named as a second ‘mother’ on a child’s birth certificate under the HFEA in 2008. This fails to represent the social and practical reality of the two-mother family structure and arguably treats the second mother as inferior.

Margaria proposes the second observation is most apparent in the LGBTQ+ community, in particular transmen who give birth. This exact scenario was encountered in McConnell, where the appellant wished to be named as ‘father’, ‘parent’ or ‘gestational parent’, rather than ‘mother’, on his child’s birth certificate. Despite the flexibility in the definition of ‘father’ and meeting the ‘social and psychological parenthood’ criteria from Baroness Hale’s definition of ‘natural parent’, it remains impossible for a transman with a Gender Recognition Certificate to be named the ‘father’ or ‘parent’ on the birth certificate of a child he has birthed, or born prior to transition. Not only does this place transmen in uncomfortable situations, which Brown and Fenton-Glynn argue infringes Article 8 rights, but fails to reflect that most children will refer to them as a ‘father’.


Finally, Ekelaar suggests the third observation highlights the gendered family model that permeates the family law. Despite the presence of a ‘parent’ term which is gender-neutral, Brown states the entrenched binary choice often means in reality, the ‘parent’ is also the ‘mother’ or ‘father’. This excludes or at least creates unease for non-binary individuals, and forces a binary choice of ‘mother’ and ‘father’ which does not represent the individual’s identity or recognise gender as ‘socially constructed roles’.


Reform founded in the rule of law


Two principles of the rule of law recognised by Lord Bingham were the accessibility of the law and equality before the law. The issues above make clear that there is inequality in the current legal definitions of ‘mother’, ‘father’ and ‘parent’ and they remain inaccessible for members of the LGBTQ+ community and families who use surrogacy arrangements. Therefore, reform is needed to facilitate the rule of law in these areas.

Updating the ‘mother’ and ‘father’ legal definitions and creating a third gender-neutral ‘parent’ term could be used as a ‘soft approach’ to reform which is widely accepted. This will improve inclusivity of the LGBTQ+ community, begin to ‘de-gender legal parenthood’, whilst also acknowledging and maintaining the protections for gestational mothers. This would replicate developments seen in other countries and states, such as Malta and Ontario, where a third ‘parent’ category is largely uncontroversial according to Ekelaar.


Conclusion


In conclusion, the rigidity of the legal definition of ‘mother’ and the flexible, yet sometimes inaccurate, legal definition of ‘father’ remain fixated on the gendered ‘Golden age’ family model that peaked in the 1960s. This creates cumbersome and unnecessary legal barriers for LGBTQ+ families and individuals who use surrogacy arrangements. Furthermore, the lack of a clear legal definition of ‘parent’ means that it cannot be utilised by individuals who identify as non-binary. Therefore, the reformation of the ‘mother’ and ‘father’ terms, and the creation of a third gender-neutral ‘parent’ term, are necessary to facilitate the rule of law and to improve inclusivity and accessibility in the family law which represents modern familial structures.


Written by Jack Orton, a volunteer at the Cardiff LGBTQ+ Law Clinic. This is an adapted version of Jack's essay that won the 1KBW Essay Competition 2021

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