The Court of Appeal is today handing down its judgments in this case. In the High Court, Mr. Justice Hedley made a declaration that Mr. J is not a parent of a child born to Mrs. C in 1992 as a result of artificial insemination by donor (AID). The Court of Appeal has dismissed Mr. J’s appeal against that decision.
The case has previously attracted a great deal of publicity. This is because Mr. J and Mrs. C went through a ceremony of marriage in 1977 at a time when Mr. J (who is a female to male trans-sexual) was, as a matter of law, still a woman, although he had been living as a man since he was 17. Mr. J and Mrs. C then lived together for many years before Mrs. C found out the truth about Mr. J’s gender. During that time, two children were born to Mrs. C through AID. The question for the courts in the present case was whether or not Mr. J is, as a matter of law, a parent of the second child born in 1992.
The Court of Appeal has decided that Mr. J is not a parent of the child concerned. This is because, in order to be a parent of a child born through AID, the Act of Parliament which governs this particular case (the Family Law Reform Act 1987) requires Mr. J to be “the other party” to a marriage with Mrs. C. Marriage, in English law, is the union of a man and a woman. So, where one party conceives and gives birth through AID “the other party to that marriage” must be a man in order to qualify as a parent. Mr. J was a women when the child concerned was conceived through AID in 1991. Since there was no marriage between them, Mr. J could not be “the other party” to it, and so could not be the child’s parent.
Mr. J is now in law a man. This is because he has obtained a Gender Recognition Certificate under the Gender Recognition Act 2004 (GRA 2004), and a fresh birth certificate recording his birth as a male. He thus can now lawfully marry a woman if he wishes.
The facts of this case are highly unusual, and unlikely to recur. This is partly because cases in which AID occurred after 1 August 1991 are governed by the Human Fertilisation and Embryology Act 1990; and partly because GRA 2004 now permits transsexuals who have obtained Gender Recognition Certificates to marry in the gender stated in the Certificate.
However, the sensitive issue which remains is precisely when, how and from whom the two children in this case are to learn the truth about their origins. In its written judgments the Court of Appeal takes the view that this is a matter for their mother, who has wisely agreed to take the advice of a consultant psychiatrist before explaining their background to the children. So, even though the Court heard the appeal in public, it has imposed reporting restrictions in this case. It did so, not to protect the adults, but because it is highly desirable that the two children (one of whom is now 18) should learn the truth from their mother in a carefully planned and structured way, and not through the media. The court’s judgments do not identify either the children or any of the parties to the proceedings, and the anonymity of all involved must be respected.
Ends
