Vardags Family Law Essay competition 2024/25 | Madeleine Hales

Madeleine Hales - University of Kent

An ideal reform to the concept of legal parenthood

The idea of legal parenthood is continuously upheld by courts as an integral part of modern family law, conferring legal status onto parents alongside rights and duties. It is a central theme of discourse on topics such as trans-parenthood, adoption and surrogacy, therefore, the fact that it reflects and prioritises ‘the two-parent normative model’,(1) is problematic. Consequently, reform to the area is a necessary step, however, it is continuously pushed aside by the courts and legislators. For example, we can see how the law refuses to clarify in the case of McConnell, and the discontinuity between the current law and the emergence of trans-parenthood.(2) It is for this reason why if I could make one reform to Family Law it would concern the concept of legal parenthood. More specifically, a removal of the hierarchy seen between the legal mother and the other legal parent. In order to best establish why I would make this reform, this essay will discuss the current legal position in England and Wales, and why it is problematic, before explaining the ideal reform in the area and how it would solve the issues put forward.

The current legal position on legal parenthood in England and Wales is somewhat convoluted as it stems from proponents contained in legislation and the common law. Under the law, a child can only have two legal parents,(3) but they must always have a defined legal mother,(4) unless they are later adopted, or legal parenthood is obtained through a parental order. The second parent does not have to be identified on the birth certificate in the same way, at the discretion of the legal mother if unmarried. The definition of legal mother is also somewhat convoluted, sourced from both legislation,(5) and the common law. The Ampthill Peerage Case in 1977 was one of the first cases to confer a modern definition of motherhood;(6) stating that the legal mother of a child is the woman who gives birth to the child.(7) This has been amended with the emergence of trans motherhood in 2020, to be the person who gives birth to the child.(8) The title of legal mother, therefore, can only be held by the person who gives birth to the child. The term legal father is then conferred upon the other parent if they are male, or ‘other parent’ if they are not.(9) This causes some issues, the most obvious being in same-sex relationships, but this will be discussed further later. As mentioned previously, a child must always have a legal mother, and this status is conferred upon birth.(10) Whereas the conferral of the title of other parent is not always immediate, unless married or in a civil partnership with the legal mother,(11) and can be conferred later or be rejected through lack of consent in cases of assisted reproduction.(12) Returning to the current law on who is defined as the legal mother, another thing to note is the fact that only one person can hold the title of legal mother. If the legal mother’s partner is a woman, they can only be considered the ‘other parent’.(13) Legal motherhood is thus privileged, and this forms part of the problem we will now discuss.

The concept of the legal mother is highly privileged in family law, it aSords a person certain rights and privileges which are not present in the title of other parent or legal father. For example, in the case of P v Q and F, the legal mother had the right to remove the other parent from the birth certificate in place of the known sperm donor following their separation.(14) There are also a small proportion of surrogacy cases where the legal mother, the surrogate, refuses to hand over legal parenthood status, and therefore remains the legal mother despite the child living with the intended parents through other legal means.(15) The ability to exclude is not present for the other legal parent, thus the law prioritises the legal mother and creating a hierarchy within parenthood. There are also issues with the burden placed on legal motherhood. As there must be a legal mother, Matthew Jackson states that the burden of guardianship falls on the mother alone due to the necessity of them being named over the other parent.(16) This is furthered by the fact that if the other legal parent is a woman, they cannot be named the second legal mother, rather they are the other legal parent, limiting the status to the birth giver alone.(17) Thus, legal motherhood is a status that can only be held by a single parent, and the rights that come with it privilege a parent eSectively based on gender, due to the intrinsically gendered nature of the word ‘mother’.(18) Consequently, the burden of parenthood is placed on the woman, reinforcing the gendered stereotypes of parenthood.

In the case of McConnell, the courts discussed whether the term mother was gendered in the law.(19) The judgment concluded that it was not, and that a man could therefore hold the title mother if he gave birth to the child. The term mother was deemed to be linked to the biological process of pregnancy and giving birth rather than the gender of the parent.(20) The terms mother and father therefore, could not be interchanged, referring back to a 2003 case where Lord Bingham stated that the terms mother and father were like dog and cat and could not be used as a replacement for one another.(21) Academics like Alan Brown have criticised this approach, stating that the term mother is intrinsically gendered, especially in a social context, and therefore, in stating that it is ungendered the law is in opposition to the social reality. Consequently, in McConnell’s case he was socially the father and legally the mother.(22) This social-legal divide is present due to the gendered nature of the term mother and the incompatibility of the Gender Recognition Act and the laws on parenthood.(23) It is not possible to remove the gendered aspect to the term mother, therefore the court’s judgment does not make sense. Thus, one of the issues with the law on legal parenthood is the gendered nature of the terminology. Consequently, this does not fit with our modern society and fractures the legal reality. This gendered aspect is also problematic in regard to the privileging and burden that falls upon legal mothers, reaffirming ‘the two-parent normative model’ and gender stereotypes within parenthood,(24) as we discussed earlier with the burden of guardianship.

An ideal reform in the law on legal parenthood would be readjusting it to be more reflective of our social reality and remove the gendered hierarchy within legal parenthood. One of the ways this can be achieved is through the inclusion of more gender-neutral terminology. We have already seen the inclusion of the term other parent in recent years for the parent who does not give birth, but the possibility of this being extended to the legal mother has been shot down on many an occasion, for example in McConnell.(25) This is partially due to the debate being considered by courts to be ‘a matter of public policy rather than law.’(26) Despite this, I would suggest that it is the best way forward in order to best reflect societal need and provide for increased instances where parents may not fit the gendered norms of parenthood. Either this, or the law could provide legal mothers with the ability to apply to be considered a legal father or other parent rather than a legal mother, if they so wish due to their gender identity. This would solve the policy issue as it would have to be something that is applied for and thus does not remove the necessity of the legal mother on the birth certificate at first instance.

In terms of the hierarchy within legal parenthood, the removal of the necessity of the status of legal mother through the ability to change the title would aid in its deconstruction. Otherwise, another possible reform could be the redefining of who constitutes a legal mother in order to reflect our social reality. In same sex-couples the second parent cannot be named a legal mother currently. Thus, if the law redefined who constitutes a legal mother, probably to a definition more in line with the dictionary definition and thus the social reality,(27) it would enable the second parent to also be named a legal mother. This definition may be that the legal mother is the female parent(s) of a child, rather than the person who gives birth, who can then be denoted some other way on the birth certificate to best meet the current concerns of children needing to know where they come from.(28) Consequently, the issues of the hierarchy created by the necessity of legal motherhood is mitigated. It also removes the burden of guardianship from the legal mother alone and prevents the assumption that a child can only have one mother.(29) Redefining the terms could also solve issues within surrogacy at a later date, with the Law Commission suggesting a reform that would have the intended parents obtain legal parenthood at birth instead of the surrogate.(30) Removing the definition of legal motherhood, and its necessity would aid this going ahead as it would allow the government to input this seamlessly as the birth giver would not necessarily need to be recorded as the legal mother. Naturally, it would have to include further reform on its own, but it would prevent the policy issues that require a legal mother from stopping its implementation.

The current law on legal parenthood in England and Wales is problematic, reinforcing a binary notion of legal parenthood, which prioritises legal motherhood. In turn this then reinforces the normative gendered model of parenting, with the mother being the primary caretaker of the child. Thus, an ideal reform would deconstruct this hierarchy, enabling the person who gives birth to choose their title, if any, and reconstructing the definition of legal motherhood to be in line with the social reality. This in turn would aid in issues caused such as the opposition between the law and trans-parenthood, and thus would create a more streamlined concept of legal parenthood which would reflect our needs as a society.

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Bibliography

(1) Julie McCandless, ‘Chapter 2. The Role of Sexual Partnership in UK Family Law: The Case of Legal Parenthood’ in Daniela Cutas and Sarah Chan (eds) Families – Beyond the Nuclear Ideal (Bloomsbury Academic, 2012) 13, 16

(2) In the matter of R (on the application of Alfred McConnell and YY) v The Registrar General for England and Wales [2020] EWCA Civ 559

(3) Human Fertilisation and Embryology Act 1990

(4) R (TT) v Registrar General for England and Wales (AIRE Centre intervening) [2019] EWHC 2384 (Fam), [2020] Fam 45

(5) Human Fertilisation and Embryology Act 2008

(6) Ampthill Peerage Case [1977] AC 547

(7) Ibid

(8) N2, para 86

(9) Registration of Births and Deaths (Amendment) (England and Wales) Regulations 2009, sch 1

(10) N5

(11) Ibid, s.35

(12) Ibid, s.35-38

(13) Registration of Births and Deaths (Amendment) (England and Wales) Regulations 2009, sch 1

(14) P v Q and F (child: legal parentage) [2024] EWCA civ 878

(15) Julie Wallbank, ’Too Many Mothers - Surrogacy, Kinship and the Welfare of the Child’ (2002) 10 Med L Rev 271, 279

(16) Matthew Jackson, ‘The Male “Mother” at English Law’ [2020] 26 Auckland U L Rev 120

(17) N5

(18) Alan Brown, ‘Trans Parenthood and the Meaning of ‘Mother’, ‘Father’ and ‘Parent’ – R (McConnell and YY) v Registrar General for England and Wales [2020] EWCA Civ 559’ [2021] 29(1) Med L Rev 157

(19) N2

(20) Ibid

(21) R (Quintavalle) v Secretary of State for Health [2003] UKHL 13

(22) N17

(23) Gender Recognition Act 2004

(24) N1

(25) N2

(26) N4

(27) The Oxford English Dictionary (online ed, 2020) Accessed 11 December 2024

(28) N2

(29) N15

(30) Law Commission, Building Families Through Surrogacy: A New Law (Law Com No 411, 2023)

Journals

• Brown A, ‘Trans (Legal) Parenthood and the Gender of Legal Parenthood’ [2024] 44 LS 168
• Brown A, ‘Trans Parenthood and the Meaning of ‘Mother’, ‘Father’ and ‘Parent’ – R (McConnell and YY) v Registrar General for England and Wales [2020] EWCA Civ 559’ [2021] 29(1) Med L Rev 157
• Callus T, ’A New Parenthood Paradigm for Twenty-First Century Family Law in England and Wales’ [2012] 32(3) Legal Studies 347
• Diduck A, ‘’If only we can find the appropriate terms to use the issue will be solved’: Law, identity and parenthood’ [2007] 19 CFLQ 458
• Duncan WC, ‘The Legal Fiction of De Facto Parenthood’ [2010] 36 J.Legis 263
• Jackson E, ‘Sex and the Erasure of Legal Parenthood: P v Q and F (child: legal parentage) [2024] EWCA civ 878’ [2024] J Soc Wel & Fam L 1
• Jackson M, ‘The Male “Mother” at English Law’ [2020] 26 Auckland U L Rev 120
• Mahmoud Z and Romanis EC, ‘On Gestation and Motherhood’ [2022] 31(1) Med L Rev 109
• Wallbank J, ’Too Many Mothers - Surrogacy, Kinship and the Welfare of the Child’ (2002) 10 Med L Rev 27

Books

• Diduck A and Kaganas F, Family Law, Gender and the State (3rd ed, Hart Publishing, 2012)
• McCandless J, ‘Chapter 2. The Role of Sexual Partnership in UK Family Law: The Case of Legal Parenthood’ in Daniela Cutas and Sarah Chan (eds) Families – Beyond the Nuclear Ideal (Bloomsbury Academic, 2012) 13
• The Oxford English Dictionary (online ed, 2020) Accessed 11 December 2024

Legislation

• Children Act 1989
• Gender Recognition Act 2004
• Human Fertilisation and Embryology Act 1990
• Human Fertilisation and Embryology Act 2008
• Registration of Births and Deaths (Amendment) (England and Wales) Regulations 2009

case law

• Ampthill Peerage Case [1977] AC 547
• In the matter of HFEA 2008 (Cases A, B, C, D, E, F, G and H Declaration of Parentage) [2015] EWHC 2602
• In the matter of R (on the application of Alfred McConnell and YY) v The Registrar General for England and Wales [2020] EWCA Civ 559
• P v Q and F (child: legal parentage) [2024] EWCA civ 878
• R (JK) v The Registrar General (The Secretary of State for the Home Department and others intervening) [2015] EWHC 990 (Admin)
• R (Quintavalle) v Secretary of State for Health [2003] UKHL 13
• R (TT) v Registrar General for England and Wales (AIRE Centre intervening) [2019] EWHC 2384 (Fam), [2020] Fam 45

Law Commission Reports

• Law Commission, Building Families Through Surrogacy: A New Law (Law Com No 411, 2023)