Law report: Transsexual cannot be registered as father of child

LAW REPORT: 24 April 1997

X,Y and Z v United Kingdom; European Court of Human Rights; 22 April 1997

The refusal to allow a female-to-male transsexual to be registered as the father on the birth certificate of a child born to his partner by artificial insemination by donor was not a violation of the right to respect family life provided by article 8 of the European Convention on Human Rights.

The European Court of Human Rights ruled by a majority that there had been no violation of article 8 of the Convention, and that it was not necessary to consider the complaint in relation to article 14 of the Convention taken together with article 8.

Article 8 provides:

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a

public authority with the exercise of

this right except such as is in accordance with the law and is necessary in a democratice society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 14 provides:

The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The applicant X was a female-to-male transsexual who had been living in a permanent and stable relationship with a woman, Y, since 1979. In October 1992 Y gave birth to Z, who had been conceived though artificial insemination by donated sperm (AID).

X was told before Z's birth that the Registrar General was of the opinion that, for the purposes of registration, only a biological man could be regarded as a father. Z could, however, lawfully bear X's surname.

The European Court of Human Rights found that article 8 was applicable because de facto family ties linked the three applicants.

Although it had not been suggested that the amendment to the law sought by the applicants would be harmful to Z's interests or those of children conceived by AID in general, it was not clear that it would necessarily be advantageous to them.

The court considered that the state might justifiably be cautious about changing the law, since amendment might have undesirable or unforeseen ramifications for children such as Z, and implications in other areas of family law.

The law might be open to criticism on the ground of inconsistency if a transsexual could legally be a "father" while still being treated as female for other legal purposes, such as marriage to a man.

The disadvantages suffered by the applicants because of the refusal to recognise X as Z's legal "father" had to be balanced against those general interests.

Given the complex scientific, legal, moral and social issues raised by transsexuality, in respect of which there was no generally shared approach among the contracting states, article 8 could not, in the present context, be taken to imply an obligation on the United Kingdom formally to recognise as the father of a child a person who was not the biological father.

The fact that the law of the United Kingdom did not allow special legal recognition of the relationship between X and Z did not, therefore, amount to a failure to respect family life within the meaning of article 8.

Since the complaint under article 14 was tantamount to a restatement of that under article 8, and raised no separate issue, it was not necessary to examine it separately.

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