63 […]“As the parties themselves submitted during the hearing, there are many, inter-linked pieces of legislation which may be affected if the word “mother” is no longer to be used to describe the person who gives birth to a child.”
64. We were told at the hearing by counsel for Mr McConnell that the word “mother” is used 45 times in the Children Act 1989 alone. Importantly, in our view, that is the word that is used in section 2(2)(a) of that Act. It provides that a mother has automatic parental responsibility for a child from the moment of birth. No-one else has that automatic parental responsibility, including the father. There is no need for any registration document for that purpose. The fact of giving birth to a child has that effect as a matter of operation of law. It can readily be understood why this could be important in practice. From the moment of birth someone must have parental responsibility for a newly born child, for example, to authorise medical treatment and more generally to become responsible for its care.
65. Furthermore, as Mr Jaffey submitted, it cannot simply be a question of this Court substituting a word such as “parent” for the word “mother”. This is because the word “parent” has a distinct meaning which has been given to it by Parliament in other legislation. This has been the product of considered legislative change over several decades, in various statutes, including the HFEA 1990 and the HFEA 2008.”
“... under the 2008 Act, at birth a child always has one mother, who is the woman who bore her; may also have a female or male co-parent; may never have more than one male parent; and may not have more than two parents by birth.”
I knew some of this, but it’s great to see it in a legal judgement. Allowing Freddy to be named as his child’s father on his birth certificate wouldn’t just affect trans parents. It would have legal ramifications for everyone. I’m not opposing this change because I’m a hateful bigot. I’m saying it shouldn’t happen unilaterally at the request of one special interest group, without a wider discussion of the issues.
The judgement goes on to explain why any change to the law should be a matter for Parliament.
The political process allows legislators to acquire information to inform policy decisions from the widest possible range of opinions. We have no idea, for example, whether all trans men object to the use of the word “mother” to refer to them when they have given birth to a child. It may be that some at least wish to have the automatic responsibility for the child to whom they have given birth which section 2 of the Children Act 1989 currently gives them. Moreover, we do not have evidence before this Court as to how other members of society would feel if they were no longer to be referred to on their child’s birth certificate as a mother or a father but simply as “parent 1” and “parent 2”. Those were among the possible ways forward which were suggested on behalf of the Appellants. In our view this illustrates how inapt the subject-matter is for determination by the courts as compared with Parliament. “If there is to be reform of the complicated, inter-linked legislation in this context, it must be for Parliament and not for this Court.