Mater semper (in)certus est: A South African perspective on McConnell v Registrar General for England and Wales

• Author: Mills, L.
• Published date: 19 May 2021
• Date: 19 May 2021
• Pages: 397-422
• DOI: https://doi.org/10.47348/SALJ/v138/i2a6

397

MATER SEMPER (IN)CERTUS EST: A SOUTH

AFRICAN PERSPECTIVE ON McCONNELL v

REGISTRAR GENERAL FOR

ENGLAND AND WALES

LIZE MILL S†

Senior Lectu rer, Department of Pr ivate Law, Stellenbosch Unive rsity

Two recent decisions by E nglish courts h ave established tha t the man who gave birth

to his child should be reg istered as the ‘mot her’ of that child. T he courts foun d that,

despite the fact th at the Gender R ecognition Act prov ides that a person wh o had

changed sex and rec eived ‘a full gender rec ognition certi cate’ is consid ered ‘for all

purposes’ to be a per son of ‘the acquire d gender’, this person still ha s to be registered

on his child’s birth cer ticate as bel onging to the opposit e sex. This arti cle describes

and evaluates th e reasons for these de cisions, and compa res the English positi on to

those of a number of jur isdictions, incl uding that of South Af rica. It argues t hat the

legal context in thi s country provid es for a more pragmatic an d equitable approa ch to

the rights of both tra ns parents and the ir children.

Alterat ion of sex – birth certica te regist ration – tra ns right s – children’s

rights

I IN TRO DUCTION

One of the rst Latin phrases that a South African rst-year law student

confronts is one that explai ns that ‘the mother is always certain’: mater

semper certus est. Whereas in terms of Roman law the identity of the

father of a child was determined by the mar riage — embodied in the

rebuttable presu mption pater est quem nuptiae demons trant — the identity

of a mother was always easily deter mined, since she was the person who

gave birth to the child.1 In South Af rican law, this is no longer necessarily

the case. In ter ms of the Children’s Act,2 ‘[t]he biological mother of a

child, whether m arried or unmar ried, has full parental responsibilities

and right s in respect of the ch ild’,3 but this does not apply in the case

† BA LLB LLM L LD (Stellenbosch). I am gr ateful to the anony mous reviewers

for their valu able comments and sugg estions. All er rors that remai n are due to my

ignorance a nd stubborn persistence.

1 Jacqueline Heaton The S outh African Law of Person s 3 ed (2008) 55–7.

2 Act 38 of 2005.

3 The Children’s Act does not dene t he term ‘biolog ical mother’ but , since

s 40(3) of the Act expl ains that ‘no right, res ponsibility, duty or oblig ation ari ses

between a chi ld born of a woman as a result of a rticial fertilisat ion and any

person whose g amete has or gamet es have been used for such art icial fert ilisation

or the blood relat ions of that per son, except when … that person is the wom an

who gave birth to that child’, it can be deduced that ‘biologica l mother’ refers to

the woman who gave bi rth to the child.

https://doi.org/10.47348/SALJ/v138/i2a6

(2021) 138 SALJ 397

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398 (2021) 138 THE S OUTH AFRICAN L AW JOURNA L

https://doi.org/10.47348/SALJ/v138/i2a6

of a valid sur rogate agreement.4 In such an instance, in terms of s 297(1)

of the Children’s Act, the child wil l be considered ‘for all purposes the

child of the commissioning parent or parents from the moment of the

birth of the child concerned’, and ‘the surrogate mother or her husband,

partner or relatives has no r ights of parenthood or care of the chi ld’.

An adoption order w ill al so termi nate all parental responsibilities and

rights a ny parent had ‘i n respect of the chi ld immediately before the

ad op t io n’, 5 while an ‘adopte d child must for all pur poses be regarded as the

child of the adoptive parent and an adopt ive parent must for al l purposes

be regarded as the parent of the adopted ch ild’.6 In these two instances,

the person who gave bir th to the child will not be regarded as the mother

of the child. Similarly, the Oxford English Diction ary denes a mother a s

‘[t]he female parent …; a woman in rela tion to a child or children t o whom

she has given bir th; (also, in ex tended use) a woman who undertakes the

responsibil ities of a parent towards a child, esp. a stepmother’.7

Through advancements in medical technology, there now is another

possible instance where the person who gave birth to a chi ld will not be

regarded as a female parent, nor a s a woman who undertakes the parental

responsibil ities towards the child. Reports indicate that an increa sing

number of transgender men give birth to children every year.8 In some

4 Section 19(1) read with s 19(3) of the Children’s Act.

5 Section 242(1) of the Childr en’s Act.

6 In terms of s 242(3) of the Ch ildren’s Act.

7 Oxford English D ictionary (online edit ion) s v ‘mother (n)’.

8 Med ia reports (citing a Medic are report) indicate that during 2018–2019,

22 tran sgender men gave bir th in Aust ralia a lone, while 228 have given bir th

during the past decade. S Phelamei ‘Data shows 22 Austra lian men g ave birth

last year: How can a man get pregnant?’ Timesnews.com avai lable at h t t p s: //

www.timesnownews.com/health/article/data-shows-22-australian-men-gave-birth-

last-year-how-can-a- man-get-pregnant/465021, accessed on 12 May 2020. The

Medi care report for July 2013 to June 2018, avai lable at http://medicarestatistics.

humanservices.gov.au/statistics/do.jsp?_PROGRAM=/statistics/mbs_item_

age_g ender_repor t&VAR=services&STAT=count&PTYP E=finyear&START_

DT= 20 13 07 &E ND_ DT= 20 1806 &RP T_ FMT= by+ tim e+p er iod+ and +st ate

&GROUP=16519, accessed on 19 June 2020, indicat es that dur ing thi s time

205 males gave birth to ch ildren i n Austral ia. See al so J Obedin- Maliver &

H J Makadon ‘Tra nsgender men and pregna ncy’ (2016) 9 Obstetric M edicine 4 at 4

who state tha t ‘[w]hile no studies cur rently document the number of transg ender

men who have had a preg nancy, news repor ts, documentaries, social med ia list-

serves and v ideo-sh aring sit es, guidebo oks, fact sheet s, and the recent e stablish ment

of lists of health serv ice provider [sic] wit h experience supporting transgender

individu als in preg nancy a nd birth, su ggest numbers of tran sgender ind ividual s

who are seeki ng family pla nning, fert ility, and pregna ncy services cou ld certainl y

be quite lar ge’ (footnotes om itted). See further McConn ell v Registrar Gen eral for

England and Wales [202 0] EWCA Civ 559 para 46 (‘McConnell (CoA)’) where the

court stated that ‘[t]he mater ial before the Court shows that there are other t rans

men who have been able to bear children in both this countr y and abroad’.

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