Registering births: What’s care got to do with it?

ABSTRACT

This article sheds light on the normative dimension of birth registration and explores how birth registration practices intertwine with traditional notions of child care. It shows that, while birth registration may appear a straightforward and factual procedure, it actually rests upon and perpetuates the notion that care ‘naturally’ stems from gestation and birth, and is by definition maternal. This normative dimension of birth registration becomes especially apparent when trans families and families created through surrogacy are denied registration in line with their lived experience. By delving into two case studies, namely the Swiss Federal Supreme Court’s latest case-law on surrogacy and recent cases involving trans birthing men, this article shows that birth registration practices fail to recognise caring relationships in non-traditional families on their own terms. In the context of surrogacy, the understanding of care as ‘naturally’ arising from gestation and birth downgrades the relationship between the child and the intended mother by requiring her to pursue step-child adoption, despite having cared for the child since birth and sometimes being genetically connected. In a similar vein, birth registration practices tend to (mis)classify a caring relationship between a trans birthing man and his child as ‘mother-child’, thus rendering trans male care invisible.

KEYWORDS:

• Birth registration
• surrogacy
• trans families
• seahorse fathers
• mater semper certa est
• gestation
• care

Introduction

The question of who and what is to be recorded on a birth certificate has become increasingly contentious in times of family diversity. This is hardly surprising considering the complexities introduced by assisted reproduction, surrogacy and trans reproduction in defining legal parenthood and, more importantly, the ability of these developments to challenge some of the traditional rules underpinning western birth registration systems. Two examples are the impossibility of registering more than two legal parents in most jurisdictions and the widespread immutability of the mater semper certa est rule, which grounds legal motherhood in gestation and birth. The application of these rules to non-traditional families has rendered the procedure of registering births ‘unstraightforward’ (McCandless 2016) for many people, including judges.

In 2019, Sir Andrew McFarlane (President of the Family Division, UK High Court) asked the critical question of what needed to be registered in the case of Freddy McConnell, a trans man who carried and gave birth to his child(ren) (Re TT and YY 2019). After emphasising the importance of ensuring effective protection for the child’s right to know the details of their identity, Sir McFarlane wondered what these details were in a case involving a trans parent: ‘[m]ust they … reflect the biological relationship and identify the parent who carried the child as “mother” or must they … respect the social and familial reality with respect to that parent’s sex and gender by requiring they be registered as the child’s father?’ (Re TT and YY 2019, para 201).

Views are different and often polarised, reflecting not only a different weight attached to genetics but also different understandings of what the purpose of birth registration is (McCandless 2017, p. 53). In the UK context, Bainham (2008) raised the question ‘what’s the point of birth registration?’ at the time when proposals were being discussed in Parliament to enable two female parents to be named on the child’s birth certificate and to introduce compulsory joint registration of births outside marriage. In particular, he wondered whether birth registration aimed at ‘record[ing] the biological parentage of the child’ or rather at ‘record[ing] as parents those who have voluntarily and formally assumed the responsibility of a parent’, regardless of their biological connection with the child (Bainham 2008, p. 449). In his view, the birth registration system had to be reformed in such a way that primacy was given to the rights of the child (Bainham 2008, p. 472), with the central objective ‘to uphold the right of the child to an accurate record of the event of birth and to identification of the two birth parents’ (Bainham 2008, p. 449, see also Callus 2008).

However, McCandless (2017, p. 56) argues that there is little historical evidence to suggest that birth registration was ever meant to confer certainty about genetic parentage. Rooted in the early Victorian era, the primary function of birth registration in England and Wales was, until relatively recently, to record property and inheritance rights (Higgs 2004). Legal presumptions operate(d) to allocate legal parenthood to specific individuals who might be genetically linked to the child, but these presumptions have never guaranteed a genetic connection, particularly in relation to fatherhood (McCandless 2017, p. 56). It was only in the late 1990s and early 2000s that birth registration in England and Wales began to shift from being primarily concerned with property and inheritance rights to facilitating (certain types of) parent-child relationships with the stated aim of promoting the child’s welfare (McCandless 2011). According to Davis (2024), the documentation of a person’s biogenetic origins is thus a recent policy objective pursued by birth registration, influenced by the domination of the traditional nuclear family form as the societal and legal ideal (Brown 2019). In his view, if birth registration aims to facilitate parent-child relationships, it is the actual doing of parenting which should be reflected on the birth certificate (Davis 2024, p. 334).

While birth registration has received considerable attention in UK legal scholarship,¹ family diversity has raised questions about how to record parenthood across various European jurisdictions. Transnational surrogacy and ‘seahorse fatherhood’,² in particular, have exposed the untenability of the mater semper certa est rule, with much of the burden falling on the shoulders of courts in many European countries. Bearing this in mind, this article expands upon UK-specific debates and delves deeper into the normative dimension of birth registration, adopting a broader European perspective. Rather than directly tackling the broader question of what birth registration ought to do and reflect, the following analysis focuses on a more specific inquiry: what birth registration – as currently practiced – tells us about notions of care and does to caring relationships in non-traditional families. This article considers (gendered) understandings of care and birth registration practices as closely intertwined, and seeks to foreground how they co-constitute one another, particularly examining their implications within non-traditional families.

Following this introduction (Section 1), the analysis is organised into three sections. Section 2 will provide the theoretical foundation of this article, foregrounding birth registration and, more broadly, the assignment of legal parenthood at birth, as normative processes. In doing so, this section will also elucidate the interplay between birth registration practices and notions and arrangements of care. In Sections 3 and 4, the attention will shift to two case studies: the determination of legal parenthood following transnational surrogacy, with a detailed analysis of the recent case-law of the Swiss Federal Supreme Court (2022a, 2022b) (Section 3); and the registration of trans birthing men on their children’s birth certificates, with a focus on the case of Freddy McConnell, decided by English courts in 2019–2020 (Re TT and YY 2019, R (McConnell and YY) v Registrar General for England and Wales 2020), and the case of O.H. and G.H. v Germany (2023), decided by the European Court of Human Rights (ECtHR) in April 2023 (Section 4). In both sets of cases, the people involved considered the information recorded on their child’s birth certificate to be inaccurate and sought to have it amended to reflect the reality of their caring relationships or, from the surrogate’s perspective, their non-existent ties with the child.

These case studies serve as paradigmatic illustrations rather than as a basis for drawing comparative experiences. They highlight the precarious situations faced by non-birthing mothers, surrogates, birthing fathers and children born into non-traditional families, due to the prevailing continuum between birth and legal motherhood (Mahmoud and Romanis 2023). As such, they act as a window into broader discussions regarding how traditional notions of care and birth registration practices reinforce one another, often leading to the non-recognition, downgrading, or invisibility of caring relationships in non-traditional families.

As regards transnational surrogacy, the recent case-law of the Swiss Federal Supreme Court displays both common aspects of the current regulation of surrogacy in Europe and unique traits of the Swiss experience. While shedding light on the common practice of assigning legal motherhood to the surrogate upon birth, it also exemplifies Switzerland’s restrictive approach to reproductive medicine, particularly when compared to international standards (Büchler and Maranta 2015). Indeed, this case law expresses a strong judicial commitment to uphold the national constitutional prohibition of surrogacy (Federal Constitution of the Swiss Confederation 1999, Article 119(2)(d)), driven by an ideological stance that surrogacy is inherently exploitative and unethical. Exploring the Swiss Federal Supreme Court’s case law is therefore particularly helpful in foregrounding the tangible and far-reaching consequences of applying the mater semper certa est rule in cases of surrogacy, to the detriment of all parties involved. In the Swiss context, these consequences include the assignment of the surrogate’s surname to the child(ren), the surrogate’s position as the holder of sole parental responsibility until proceedings are initiated by the intended father, and the need for the intended mother to apply for step-child adoption to obtain legal parenthood.

As concerns trans parenthood, cases where trans parents and their children challenge the form in which their parent-child relationships are recorded have become increasingly visible over the last few years.³ According to the predominant legal approach in European countries, termed ‘gender misalignment’ (Margaria 2024), trans parents are registered in their birth-assigned gender, and sometimes even under their deadname.⁴ This results in trans birthing men being designated as ‘mother’ on their children’s birth certificate, even if they have previously changed their legal gender and are legally men at the time of childbirth. Section 4 will focus on some of the most recent cases which, by spelling out the rationales for designating a trans birthing man as ‘mother’, provide fertile ground for reflecting on the normative assumptions and implications of current birth registration practices.

Examining how courts have addressed these requests to amend birth registration, the paper will foreground the mater semper certa est rule as the primary obstacle to effectively recognising and, consequently, protecting caring relationships in families created through surrogacy and in seahorse-father families (i.e. families where a child is born from a trans birthing man). This recognition gap presents itself in similar, yet distinct ways in the two case studies. In the context of transnational surrogacy before the Swiss Federal Supreme Court, the allocation of legal motherhood to the surrogate leaves the caring relationship between the intended mother – who has been raising the child since birth – and the child unrecognised and unprotected until the step-child adoption procedure is completed. In the context of seahorse-father families, the application of the mater semper certa est rule results in the misclassification of a trans birthing man as ‘mother’, thereby failing to recognise the caring relationship at stake in its own form (i.e. father-child).

The normative dimension of birth registration

The definitions of maternity and paternity, along with the concepts of motherhood and fatherhood, have historically been shaped in opposition to each other.⁵ Maternity has been firmly rooted in notions of absolute biological certainty, epitomised by the maxim mater semper certa est, suggesting that the fact of maternity could be clearly and unambiguously attributed at the moment of a child’s birth (Milanich 2017). Conversely, paternity has traditionally been constructed as intrinsically uncertain due to the inherent challenge of pinpointing its natural source and recording it as a fact (Milanich 2017, p. 18 and 25). To manage this uncertainty, the marital presumption was created, making marriage a means to render paternity ‘knowable’ at least for children born to a married woman (Milanich 2017, p. 20).

DNA paternity testing and assisted reproductive technologies have, each in their own way, openly challenged the tenability of this narrative, potentially reversing the dynamics by weakening the certainty of maternity and bolstering that of paternity. However, even prior to these technological shifts, the dichotomy of maternal (biological) certainty and paternal uncertainty has never accurately reflected the complexity of parenthood as a social practice. As posited by Milanich (2017, p. 15), maternity is historically more ambiguous than commonly assumed, while conversely, ‘paternity is more certain and knowable than the trope of paternity permits’. The idea of maternal certainty fixed by and at birth is at odds with many child-rearing and familial practices throughout the history in Euro-American societies. These include widespread child abandonment until the nineteenth century, wet nursing and fosterage arrangements, all of which departed from the notion of a fixed, stable and singular maternal identity (Milanich 2017, p. 22). In the face of these institutionalised or widespread social practices, mater semper certa est is therefore ‘more [a] normative dogma than a descriptor of a social, much less natural, reality’ (Milanich 2017, p. 24).

Regarding paternity, Milanich (2017, p. 25) observes that societies have always had clear, authoritative, and enduring rules for determining paternity, with the marital presumption being one such rule. Even in the absence of marriage, paternity could be and was established by recourse to social facts, ranging from local hearsay (e.g. the testimony of the priest or the servant) to acts of recognition by the father, such as payment to the midwife or gifts to the baby (Milanich 2017, p. 25). Thus, similar to maternal certainty, the trope of paternal uncertainty was ‘less the reflection of a biological truth than a normative standpoint regarding the law’s posture toward transgressive sexual relationships’ (Milanich 2017, p. 26).

Ultimately, Milanich (2017, p. 24) concludes that defining maternity and paternity in dichotomous terms through recourse to the ‘natural facts’ of procreation obscures the ways in which maternity and paternity are deliberately made knowable or unknowable. In essence, this approach masks or at least minimises the fact that the doctrines of maternal certainty and paternal uncertainty are legal and social constructs (Milanich 2017, p. 24) and that, accordingly, definitions of maternity and paternity, as well as of motherhood and fatherhood, are fundamentally normative rather than descriptive.

These reflections extend to the realm of legal parenthood too. As explained by Jackson (2006, p. 73), even if the identification of legal parents has been conventionally presented as a ‘neutral, objective and purely factual enquiry’, it actually involves judgement. It presupposes making decisions about who deserves recognition as legal parent, even in the paradigm case of a child conceived through sexual intercourse within marriage and raised by both genetic parents (Jackson 2006, p. 73). Admittedly, the law does not undertake a case-by-case examination to determine who is best suited to meet a child’s needs and, therefore, should be registered as legal mother or father (Jackson 2006, p. 68). Yet, by grounding the attribution of legal motherhood or fatherhood in a specific factor – be that gestation, genetics, marriage or intention – the law is nonetheless making a decision rather than merely ascertaining a fact (Jackson 2006, p. 68). Reflecting on surrogacy, Jackson explains that giving surrogates the right to change their mind about handing over the child to the intended parents is ‘a choice which is obscured by the law’s insistence that gestation – as opposed to genetic relatedness or the intention to raise the child – is the defining feature of motherhood’ (Jackson 2006, p. 68).

In a similar vein, McCandless (2017, p. 56) argues that ‘a normative narrative of family and kinship relations has always underpinned the birth registration system’. What gets recorded on a birth certificate – she explains – is driven by ‘the normative politics of family life’ (McCandless 2017, p. 56). This politics, in turn, continue to be tenaciously informed by the primacy of the ‘sexual family’ (Fineman 1995). Despite European legal systems showing greater openness to family diversity, the traditional two-parent family with a cis-heterosexual union at its core remains the starting point and the frame of reference against which other types of relationships are given or denied legal recognition.

The primacy of the ‘sexual family’ is fed, kept alive and strengthened by the ‘unalterable two-parent paradigm’ (Scherpe 2018, p. 345), according to which a child can only have two legal parents, one mother and one father, whose legal statuses are indivisible and exclusive (Bartlett 1984, p. 879 cited in Jackson 2006, p. 59). Moreover, this two-parent model encompasses an assumption of ‘parental dimorphism’ (McCandless and Sheldon 2010). As explained by McCandless and Sheldon (2010, p. 193), the ‘sexual family’ is embedded in the notion of complementarity: motherhood and fatherhood are perceived ‘as occupying complementary yet different legal roles’, and are acquired through fundamentally (gendered) different ways. As mentioned above, whilst motherhood is firmly grounded in gestation, genetic links tend to be more relevant in establishing legal fatherhood.

This leads us to consider the interplay between birth registration and care more closely. The ‘sexual family’ is built on a gendered understanding and organisation of (child)care. In a liberal state, unpaid care work is not only confined to the private sphere, but within the ‘sexual family’ is predominantly undertaken by women. (Child)care is therefore perceived and mandated as maternal and, in a broader sense, feminine. More specifically, the maternal body and the biological experiences of gestation and childbirth are regarded as the ‘natural’ source of care and caring responsibilities with respect to a child. In other words, the person who carries a pregnancy – conventionally assumed to be a woman – is considered the most suitable and responsible for raising the child they give birth to. This aligns with the conventional understanding of ‘mother’ as the person who both bears and cares for a child, emphasising the infallible connection between childbirth, maternal identity and caregiving. The presumption is that ‘continued gestation signifies an intention to take up mothering’ (O´Donovan and Marshall 2006, p. 109); and the moment of birth establishes a distinct, indelible, and exclusive link between the birthgiver and their child, irrespective of potential physical or social separation.

This understanding of care as ‘naturally’ flowing from gestation and birth both informs and is reinforced by current birth registration practices. Whilst there long have been multiple paths to establish legal motherhood, most notably adoption, they remain predicated on the mater semper certa est rule. ‘It is only when this rule fails’ that other legal avenues to attribute motherhood become possible (Willekens 2019, p. 31). Adoption as well as, for instance, parental orders following surrogacy arrangements in the UK (Human Fertilisation and Embryology Act 2008, s. 54 and s. 54A) are therefore ‘methods of correcting unwelcome results of the primary rule of maternal status allocation’ (Willekens 2019, p. 31). As such, they presuppose – rather than contradict – a conflation of gestation, motherhood and mothering, necessitating not only the birthgiver’s priority and consent to waive her ‘natural’ rights but also the registration of the birthgiver as ‘mother’ on the child’s birth certificate (Willekens 2019, p. 31).

Birth registration is thus a vehicle for sustaining the primacy of the ‘sexual family’ (Davis 2024, p. 341) and, more specifically, a channel through which conventional notions of care are perpetuated, often to the detriment of actual caring relationships within non-traditional families. The subsequent two Sections offer a detailed illustration of how the law continues to frame care as inherently maternal and as the ‘natural’ extension of gestation and childbirth, presenting significant challenges for families created through surrogacy and seahorse-father families.

Birth registration and non-birthing mothers

The establishment of legal parenthood following transnational surrogacy has been a contested issue in many European jurisdictions, largely due to the tenacious hold of the mater semper certa est rule, often accompanied by a ban of surrogacy under domestic law. Switzerland stands among the European countries where surrogacy is prohibited, with the peculiarity of having this prohibition enshrined in its Constitution (Federal Constitution of the Swiss Confederation 1999, Article 119(2)(d); Federal Act on Medically Assisted Reproduction (1998, Articles 4 and 31). This legislative choice is grounded in two primary justifications: the need to protect women – specifically, surrogates – from exploitation and the commodification of their bodies, and the need to safeguard the child’s wellbeing (Swiss Federal Council 1996; restated in Swiss Federal Supreme Court 2015a, 2015b). As it often happens, some Swiss residents have nonetheless fulfilled their desire to have children by pursuing surrogacy arrangements abroad (Siegl et al. 2021), prompting Swiss authorities to grapple with the complexities of determining legal parenthood in such cases.

The Swiss Federal Supreme Court (or ‘the Court’), in particular, has thus far issued four key judgements: the first two arising from cases involving children born in California (Swiss Federal Supreme Court 2015a, 2015b), and the most recent two involving children born in Georgia (Swiss Federal Supreme Court 2022a, 2022b). These sets of cases have attracted distinct lines of reasoning, with the differentiating factor being the type of (foreign) proof of legal parenthood presented by the intended parents, alongside the Court’s interpretation of the Federal Act on Private International Law (PILA 1987). Whilst in California (as well as in other USA states), the legal relationship between the intended parents and the child born from surrogacy is established by a court decision, in Georgia (as well as in Ukraine and Russia), it is established ex lege. The intended parents are therefore directly entered as legal parents on the child’s birth certificate, with no possibility of obtaining a court decision.

In the earlier two cases, the Swiss Federal Supreme Court (2015a, 2015b) held that a (Californian) court decision is directly recognised in Switzerland (PILA 1987, Article 70) with regards to the relationship between the child and the intended genetic father. However, it refused to recognise the intended non-genetic parent as this would be contrary to Swiss public policy, emphasising the fraudulent conduct put in place by the intended parents – a gay couple in a registered partnership and a different-sex married couple, respectively – to circumvent the domestic prohibition of surrogacy. In contrast, in the latest two cases (Swiss Federal Supreme Court 2022a, 2022b), the non-recognition of the intended mother – who in one case is genetically related to the children – followed from the identification of Swiss law as the applicable law to determine legal parenthood. In these cases, the Swiss Federal Supreme Court held that a (Georgian) birth certificate does not qualify as a ‘foreign decision’ under Article 70 PILA (1987). Hence, legal parenthood must be established in accordance with the law of the state of the child’s habitual residence (PILA 1987, Articles 68 and 69), which – according to the Court – resonated with Swiss law in these cases. The following analysis zooms in on these specific cases involving children born in Georgia because they vividly illustrate the profound impact of the mater semper certa est rule on the surrogate’s position and the caring relationships between the intended parents, especially the mother, and the children.

In the first case (Swiss Federal Supreme Court 2022a), twins (C. and D.) were conceived using the gametes of the intended parents, B.A. and A.A., and born from a surrogate in Georgia, E. In accordance with Georgian law, the intended parents were entered as parents in the Georgian civil status register, and a birth certificate was issued indicating them as legal parents. Ten days after birth, the intended parents travelled to Turkey, their country of origins, and registered the twins as Turkish nationals and their own children. After spending three months there, the family returned to Switzerland. The Swiss Embassy in Tbilissi (Georgia) sent the birth certificates to the Civil Status Office (Gemeindeamt) of the Canton of Zurich. These documents indicated the date and place of birth of the twins, their surname A., B.A. as the legal father and A.A. as the legal mother and mentioned the children’s Turkish nationality. While the Civil Status Office was prepared to consider the Georgian surrogacy contract as an acknowledgement of paternity on the part of the genetic intended father (PILA 1987, Article 73) and therefore to register B.A. as the legal father, it ordered the registration of E., the surrogate, as the legal mother, and assigned her surname to the children (Swiss Civil Code 1907, Article 270a). Additionally, the Civil Status Office requested the circumstances of birth – i.e. surrogacy – as well as B.A.’s role as the sperm donor and A.A.’s contribution as the egg donor to be mentioned.

All parties involved, namely the intended parents, the surrogate and the children, appealed against this decision to the Directorate of Justice and Home Affairs (Direktion der Justiz und des Innern) of the Canton of Zurich. The latter ordered the Civil Status Office to amend the children’s registration and indicate A.A. and B.A. as the legal parents of the children, A. as the children’s surname and their Swiss nationality. Following an appeal by the Federal Office of Justice, the Administrative Court (Verwaltungsgericht) of the Canton of Zurich overturned the decision of the Directorate of Justice and Home Affairs and ordered that the children be registered in the way initially instructed. The applicants initiated civil proceedings before the Swiss Federal Supreme Court, seeking the extinguishment of the surrogate’s legal parenthood, the recognition of the intended parents as legal parents, and requesting that the children are given their family name.

As mentioned above, the Swiss Federal Supreme Court denied recognition of the Georgian birth certificates on the grounds that they did not constitute a ‘foreign decision’ under Article 70 PILA (1987), and applied Swiss law to determine legal parenthood. Consequently, A.A. was recognised as the children’s legal father based on the notarised Georgian surrogacy contract (Swiss Federal Supreme Court 2022a, para 7.3). However, this contract could not serve as a valid basis for recognising the intended genetic mother as the legal mother. Instead, pursuant to the mater semper certa est rule (Swiss Civil Code 1907, Article 252(1)), legal motherhood was assigned to the surrogate E. (Swiss Federal Supreme Court 2022a, para 6.4) and, accordingly, the children were to take her surname (Swiss Federal Supreme Court 2022a, para 7.5).

The intended mother retained the option of applying for step-child adoption (Swiss Federal Supreme Court 2022a, para 8.5) which, given the specific circumstances of the case, was likely to meet the criteria of a ‘prompt and effective’ mechanism established by the ECtHR in its Advisory Opinion (2019). The Court indeed observed that the couple had already lived together for more than three years (Swiss Civil Code 1907, Article 264c (2)), the surrogate had given her consent (Swiss Civil Code 1907, Article 265a) and the intended mother had raised the child for more than a year (Swiss Civil Code 1907, Article 264 (1)), thereby fulfilling the primary requirements for step-child adoption under Swiss law (Swiss Federal Supreme Court 2022a, para 8.5). The Swiss Federal Supreme Court (2022a, para 8.6) additionally highlighted that the twins held Turkish nationality, were registered in the Swiss civil status register, and were under the father’s parental responsibility, with the intended mother providing ‘assistance’. In light of these considerations, the children’s best interests were deemed ‘sufficiently’ protected (Swiss Federal Supreme Court 2022a, para 8.6).

The Swiss Federal Supreme Court (2022b) employed the same reasoning in a subsequent case, decided in July 2022. In this instance, the child was conceived using the gametes of the intended father and a known egg donor. After establishing the applicability of Swiss law in determining the allocation of legal parenthood, the Court ruled that, in this case, only the surrogate (D.D.) could be registered as the legal parent of the child (Swiss Federal Supreme Court 2022b, para 6.5) and, accordingly, the children were to take her surname (Swiss Federal Supreme Court 2022b, para 7.4.4). Despite the intended father’s genetic connection to the child, he could not be registered as the legal father because the surrogacy contract had been signed by a legal representative and, therefore, did not constitute a valid form of paternity recognition under Swiss law (Swiss Federal Supreme Court 2022b, para 6.3.2).⁶ However, this could be easily remedied, as the intended father could have acknowledged his paternity by going in person to a Swiss civil status office (Swiss Federal Supreme Court 2022b, para 7.4.1). The Court held that, upon paternity recognition, the intended father could exercise parental responsibility, with the ‘assistance’ of the intended mother (Swiss Federal Supreme Court 2022b, para 7.4.4), and the child – initially of Georgian nationality – would also acquire Swiss nationality (Swiss Federal Supreme Court 2022b, para 7.4.3). Considering all these factors, the Swiss Federal Supreme Court concluded that the child’s well-being was ‘sufficiently’ protected in this case as well.

These cases show that applying the mater semper certa est rule to families created through surrogacy is likely to run counter the needs of all parties involved. First, it imposes legal motherhood upon the surrogate, encroaching upon her autonomy (Hotz and Saint-Phor 2022, Mahmoud and Romanis 2023). Despite her deliberate decision to bear children intended to be raised by the intended parents, with full awareness that they would assume legal parenthood in accordance with Georgian law, the surrogate is nonetheless forced into the role of a legal mother. In the cases at hand, the perspectives of the surrogates E. and D.D. were entirely disregarded also in the Court’s reasoning, despite their status as parties in the proceedings and the explicit articulation of their position and interests in the submissions made to the Court.⁷ Paradoxically, surrogates are rendered invisible under Swiss law, despite being considered among the most ‘vulnerable’ and deserving of protection (Hotz and Saint-Phor 2022, p. 10).

In discussions surrounding surrogacy, there are also voices expressing concerns about the potential abandonment of the mater semper certa est rule. Van Beers and Bosch (2020, p. 365), for instance, view this rule as a mechanism ‘to protect the surrogate mother’s right to family life between herself and the child to whom she gives birth and vice versa’. This perspective is proven mistaken not only by the cases analysed above, but also by a growing body of empirical research that brings to the fore the experiences of surrogates. For instance, Mahmoud’s study with UK and US surrogates (2022 cited by Mahmoud and Romanis 2023) revealed that these women do not perceive their engagement in gestational labour as a form of mothering, nor they identify themselves as mothers, nor – notably – do they wish to mother. Similarly, research by Horsey et al. (2022) at London’s Women Clinic showed that most surrogates neither consider themselves the mother, nor believe they should be registered as the legal mother at birth. Various reasons contribute to this view, including the lack of a genetic connection to the child, the understanding that the child was never intended to be theirs, or a desire to avoid parental responsibility (Horsey et al. 2022, p. 11–12).

Empirical studies also exist focusing on the experiences of surrogates in countries, like India. Golombok (2020, p. 119 – referring mostly to the work of Lamba and Javda) explains that the Indian surrogates who took part in their study did not form an emotional bond with the unborn child and did not find relinquishing them difficult, similar to the accounts reported by UK surrogates. However, a key distinction between the experiences of these two groups lied in the post-birth interactions. Unlike UK surrogates who often maintain some level of contact with the child after birth, none of the Indian surrogates in the study was allowed to see the baby after birth, and most had no contact with the child afterwards. Interestingly, Golombok (2020, p. 115) highlights the experience of one Indian surrogate who expressed unhappiness about not being allowed to see the child, who was immediately taken from her after birth and handed to the Australian intended parents. Her desire, however, was not to keep the child, but simply to have the opportunity to see the child’s face and hold them once (Golombok 2020, p. 115).

These findings suggest that, even in contexts like India where significant inequalities in wealth and social status exist between surrogates and intended parents and unethical practices are more prevalent, surrogates generally do not identify as mothers, nor consider the child as their own or wish to raise them. Applying the mater semper certa est rule, therefore, ignores the experiences of most surrogates and critically fails to safeguard their interests. As argued by Horsey (2024), if the aim is to protect the interests of surrogates, the primary and crucial step is to regulate, rather than banning, surrogacy. Through a regulated model, safeguards can be established to mitigate the risk of exploitation, benefiting not only surrogates in poorly regulated or unregulated surrogacy destinations, but also intended parents and children.

Assigning legal motherhood to the surrogate has also tangible implications for parental responsibility, extending beyond the Swiss Federal Supreme Court’s assertions. Several commentators (Bucher 2022, p. 5, Hotz and Saint-Phor 2022, p. 9, Hochl 2022) contend that, following the application of the mater semper certa est rule, the surrogate is (automatically) vested with sole parental responsibility by virtue of her status as (unmarried) legal mother. This implies that the intended genetic father must initiate legal proceedings before the child and adult protection authorities (KESB) in order to acquire parental responsibility, and this is possible only after the child has been entered in the Swiss civil register and the intended father has acknowledged paternity. Consequently, until these proceedings are finalised,⁸ the surrogate maintains sole parental responsibility for children residing in Switzerland with their intended parents. Moreover, if the objective is to secure joint parental responsibility for both intended parents (which is often the case), this further requires the approval of the intended mother’s application for step-child adoption. Hence, it may take a few years before enduring legal relationships between the child and those raising them (and the wider family) are established.

Children are therefore placed in a situation of prolonged legal uncertainty, partially attributable to the requirements for step-child adoption prescribed by Swiss law. As noted earlier, the prospective parent must have among others cared for the child for at least one year (Swiss Civil Code 1907, Article 264 (1)), implying that adoption procedures can only be initiated after the child’s first birthday. This situation gives rise to a paradoxical scenario (Brodeala and Peter-Spiess 2022, p. 416) wherein Swiss adoption law, whilst setting forth stringent criteria aimed at safeguarding the best interests of adoptive children, effectively results in at least one year of legal uncertainty for the child with respect to one of the intended/social parents (see also Büchler and Bertschi 2013, p. 50; Anthonioz 2022, p. 12, Bucher 2022, p. 8). Until then, the child has different sets of legal parents depending on the country and may encounter inconveniences because of that, such as entitlement to alimony only from the father or the inability to inherit from the intended mother in the event of her passing. Furthermore, in situations where communication with the surrogate is discontinued and her consent becomes unattainable, or in the event of the separation or death of one of the intended parents, the adoption procedure may be thwarted, thus perpetuating the surrogate’s legal parenthood. Consequently, akin to the challenges faced by surrogates, the interests of children are jeopardised rather than safeguarded, despite ostensibly being among the primary beneficiaries of the protection pursued by the national prohibition of surrogacy (Hotz and Saint-Phor 2022, p. 14).

Overall, therefore, the approach taken by the Swiss Federal Supreme Court ends up denying, or at the very least, delaying legal recognition and effective protection for caring relationships between the intended parents and the child. This has a particularly pronounced impact on the relationship between the child and the intended mother, especially given the requirement to apply for step-child adoption. The reality of their ties, rooted in care (and sometimes even genetics) since birth, is deemed insufficient in itself to attract legal recognition, while – conversely – the entirely fictional relationship between the surrogate and the child is given automatic legal recognition solely by virtue of birth.

This stark contrast underscores the enduring alignment between birth and legal motherhood, and – more centrally – the normative dimension of birth registration. In particular, it sheds light on how birth registration practices, particularly the attribution of motherhood to the birthgiver – i.e. the surrogate in this context – intertwine with gendered notions of care and parenting. More explicitly, it highlights how the mater semper certa est rule is rooted in the assumptions that ‘maternal’ care and responsibilities are inherent and ‘naturally’ follow from gestation and birth, and that, accordingly, it is ideal for the child to be cared for by the person who gave birth to them (Romanis 2021, p. 33). Only when this fails, are other avenues contemplated. This leads to the initial imposition of legal motherhood on the surrogate and the simultaneous downgrading of the caring relationship between the intended mother and the child. The intended mother, be she genetically related to the child or not, is required to undergo additional scrutiny of her established ties with the child and seek validation via adoption, in order to overcome and compensate for the non-gestational ground of her caregiving role. The mater semper certa est rule therefore reflects gendered assumptions regarding care, responsibility and parenting, which in turn are perpetuated and reinforced by the tenacity of this rule in contemporary birth registration practices.

Birth registration and trans birthing fathers

In contrast to surrogacy cases, where the intended (and actual) mother is likely to be denied legal recognition at birth, cases involving the registration of trans birthing men typically do not centre on a lack of legal recognition of their parent-child relationship in the formal sense, but rather on the challenge of being recognised in accordance with one’s legal gender and identity. In most European countries, trans birthing men are indeed registered as ‘mother’ on their children’s birth certificate, even when they have changed their legal gender and are legally men at the time of birth. The rationales underpinning ‘gender misalignment’ (Margaria 2024) tend to be twofold: the need to preserve a clear and coherent birth registration system, with its cornerstone rooted in the mater semper certa est rule; and the need to protect the child’s best interests, particularly reflected in the right to know one’s origins.

This practice has been recently validated by the ECtHR in the case of O.H. and G.H. v Germany (2023). The first applicant (O.H.) – who was assigned female-gender at birth – gave birth to his child (G.H.), conceived with the help of a sperm donor, after changing his name and being legally recognised as man. The civil registration authorities nevertheless registered O.H. as ‘mother’ and under his deadname on G.H.’s birth certificate on the ground that the person who gives birth must be recorded as ‘mother’. Upon the applicants’ appeal, the German Federal Court of Justice (or ‘Federal Court of Justice’) confirmed the registration as correct under German law. In particular, it explained that, in the German legal system, legal parenthood is attributed on the basis of the biological contribution of the parent to the child’s conception: the mother is the person who gives birth to the child, while the father is the person who, based on their relationship with the child’s mother or on a court decision, can be presumed to be the genetic father of the child (O.H. and G.H. v Germany 2023, para 17). The Federal Court of Justice explained that this approach aims to ensure as far as possible a concordance between biological parentage and legal parenthood, thereby avoiding a situation where a child has two legal mothers or fathers contrary to their biological conception (O.H. and G.H. v Germany 2023, para 17).

According to the Federal Court of Justice, registering the first applicant as father would have far-reaching consequences for the coherence of the legal system because the legal statuses of motherhood and fatherhood are not interchangeable: they are acquired differently and give rise to different legal consequences (O.H. and G.H. v Germany 2023, para 17). Following this approach, a trans birthing man cannot be regarded as father because ‘his genetic link with the child is established not by the contribution of the sperm but by the contribution of the egg’ (O.H. and G.H. v Germany 2023, para 17). Moreover, if birth registration did not clarify the exact biological reproductive function in which the establishment of the parent – child relationship is grounded, the child would be deprived of vital information about their descent and therefore their right to know their biological origins would be compromised (O.H. and G.H. v Germany 2023, para 19).

After the Federal Constitutional Court rejected an application for constitutional review, O.H., also on behalf of G.H., lodged a complaint before the ECtHR. They argued that the refusal of German authorities to indicate O.H.’s current gender and name on G.H.’s birth certificate violated their right to respect for private and family life (Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Article 8 - hereafter ECHR) and amounted to discrimination in breach of Article 14 ECHR, in conjunction with Article 8 ECHR (1950). In its review, the ECtHR ultimately supported all the arguments made by the German Federal Court of Justice. In particular, it acknowledged that O.H.’s right to self-determination needed to be weighed against public interests, in particular the reliability and consistency of civil registration and legal certainty, and the rights and interests of the child (O.H. and G.H. v Germany 2023, para 121).

As to the latter, the ECtHR endorsed the domestic court’s perspective that the child’s right to know their origins, which under Article 8 ECHR notably encompasses the right to establish the details of one’s parents, was to be interpreted as conflicting with and thus limiting the father’s right to be registered in accordance with his legal gender (O.H. and G.H. v Germany 2023, para 125–126). Additionally, it noted that the attribution of legal parenthood based on the parent’s procreative role also served to uphold the prohibition of surrogacy under German law, which the ECtHR recognises as corresponding to a legitimate public interest (O.H. and G.H. v Germany 2023, para 127). National authorities were also found to enjoy a wide margin of appreciation, especially considering the lack of European consensus on this matter, the competing private and public interests involved, and the morally and ethically delicate issues raised by the case (O.H. and G.H. v Germany 2023, paras 113–116). Taking into account the supposedly ‘limited’ scenarios in which presenting G.H.’s birth certificate could lead to the involuntary disclosure of O.H.’s trans identity and that the legal parent-child relationship had not in itself been called into question, the ECtHR concluded that registering O.H. as ‘mother’ of G.H. and under his deadname was compatible with Article 8 ECHR (O.H. and G.H. v Germany 2023, para 134). The complaint under Article 14 ECHR, in conjunction with Article 8 ECHR, was declared manifestly unfounded.

Similar arguments have been put forward by English courts in the case of Freddy McConnell. Like O.H., McConnell was registered as mother on his child’s birth certificate, even if he had previously received a Gender Recognition Certificate (Gender Recognition Act 2024) and was legally man at the time of childbirth. Seeking judicial review to quash the decision of the Registrar General, McConnell requested to be registered as father or, alternatively, as parent.⁹ The High Court (Re TT and YY 2019) deemed McConnell’s designation as mother correct under domestic law, and this view was subsequently upheld by the Court of Appeal (R (McConnell and YY) v Registrar General for England and Wales 2020).

In this case, the High Court adopted a more extensive approach compared to other courts in similar cases, and ventured into (re)defining motherhood. According to Sir Andrew McFarlane, what makes someone a legal mother is ‘undergo[ing] the physical and biological process of carrying a pregnancy and giving birth’ (Re TT and YY 2019, para 279). Consequently, as noted by Bower-Brown 2022, p. 224), ‘it is legally impossible for a child to be born without a mother’ in England and Wales. This legal stance aims to preserve an administratively coherent and certain scheme of birth registration in which the person who gives birth is consistently registered as mother (Re TT and YY 2019, para 266; R (McConnell and YY) v Registrar General for England and Wales 2020, paras 64–71), as well as to safeguard the child’s best interests. The prospect of registering McConnell as father would entail that his child ‘will not have, and will never have had, a “mother” as a matter of law, he will only have a father’ (Re TT and YY 2019, para 258). This outcome, which ‘would mark YY [the child] out from all other children under UK law’, was considered by Sir McFarlane to be ‘detriment[al] and contrary to the child’s best interests’ (Re TT and YY 2019, para 258). Therefore, even if the discrepancy between McConnell’s legal gender and parental status was found to interfere with his sense of identity and his child’s right to respect for family life, this interference was justified by a more profound need to protect a ‘right to a mother’ which every child supposedly has (Re TT and YY 2019, para 259; R (McConnell and YY) v Registrar General for England and Wales 2020, para 86; Baars 2019, p. 43, Margaria 2020).

Many legal scholars (Davis 2019, Fenton-Glynn 2020, Brown 2021) have highlighted how these judgements are informed by the primacy of the ‘sexual family’ and contribute to sustaining its (legal) privilege. As pointed out by Davis (2019), ‘a child can only have a mother and father (correctly identified) by being born to a cisgendered, heterosexual woman, and her male partner’. In their failure to challenge the status quo, these judgements and, more broadly, legal systems embracing ‘gender misalignment’ further entrench the gendered assumptions underlying the functioning of the ‘sexual family’, including that of ‘parental dimorphism’ (McCandless and Sheldon 2010). Fundamentally, they sustain a conventional understanding of care which naturally derives from the experiences of pregnancy and birth and is – by definition – maternal. Accordingly, they assume that men, particularly trans men, are not able to care for their children, and if they do (care), they are ‘mothers’ (Margaria 2020). In other words, paternal (trans) care needs to be recharacterised and labelled as (cis) ‘maternal’ to become legally relevant.

By positioning gestation and birth as essential to legal motherhood and mothering, current birth registration practices constitute a form of cisgenderism (Riggs et al. 2021): they delegitimise trans birthing men’s perception of their parenting and render their experiences as caring (single) fathers invisible. By using the term ‘motherhood’ to legally describe the person who gives birth, the law depicts a trans birthing man as ‘not a real man’, even if his legal gender indicates him to be, and therefore not a man deserving and capable to become a father (Sørlie 2018, p. 182, Margaria 2020). The emerging understanding of legal fatherhood remains therefore tied to hetero and cisnormative notions of reproduction and parenting: being a father presupposes contributing sperm to conception and being – even fictionally – connected or at least legally connectable to an inevitably existing maternal figure (Margaria 2020, p. 237).

Whilst it is true that, at least in the cases analysed above, caring relationships between trans birthing men and their children are not formally deprived of legal recognition (unlike in the surrogacy case-law analysed in Section 3), they are nonetheless not recognised on their own terms. Due to their distinct bond with the child they gave birth to, trans birthing men are assimilated into the rules on legal motherhood, and their relationship is misclassified as mother-child. This assimilation carries practical implications that diminish the degree of legal protection de facto afforded to their caring relationships. A prominent challenge which is frequently reported is the impediment to travelling abroad due to the mismatch between the parent’s legal gender on personal documents and their recorded parental status on the child’s birth certificate (Karsay 2021). The need to show a valid identification, coupled with the inability of trans families to convincingly prove the validity of their parent-child relationships, not only exposes them to the risk of separation, but also subjects them to intrusive questioning at border-control, de facto restricting their freedom of movement (Karsay 2021). Several parents have shared their decision to avoid travelling to protect their children from negative experiences, and for some this has meant not seeing family members or forgoing job opportunities in another country for work-related reasons (Karsay 2021).

Similar challenges extend beyond cross border situations and permeate various aspects of everyday life. O.H., for instance, recalled the many scenarios where he was asked to submit G.H.’s birth certificate – e.g. to health insurance offices, child welfare authorities, kindergarten or school, when changing employers, opening a bank account, or applying for a passport or identity card for the child – and he had to share the court decision recognising his change of legal gender in order to prove his parental status (O.H. and G.H. v Germany 2023, para 86). These practical hurdles add to the negative impact on the trans father’s psychological ease of having to declare himself as ‘mother’, which McConnell described as ‘a deeply distressing, subjectively traumatic and procedurally taxing requirement’ (Re TT and YY 2019, para 211). The compilation of these experiences unequivocally demonstrates that, if legal systems genuinely prioritise safeguarding the child’s best interests, the best way is clearly not to require a trans birthing man to be registered as mother (Horsey and Jackson 2023).

Conclusion

By exploring how the law (mis)recognises and/or sanctions the experiences of surrogates, trans birthing men, intended parents and their children, the analysis has revealed the close intertwining of birth registration practices with notions of care. Specifically, it has highlighted how birth registration practices are deeply influenced by and, simultaneously, reinforce a conventional understanding of care as maternal and ‘naturally’ stemming from gestation and birth. This understanding of care has detrimental consequences for the recognition and the protection of caring relationships in non-traditional families, particularly those formed through surrogacy and seahorse-father families. Their requests to be registered in line with their lived experience indeed often encounter an insurmountable limit in the mater semper certa est rule, which mandates the designation of trans birthing men as mothers, allocates legal motherhood to the surrogate at birth and may require the intended mother to pursue step-child adoption. As a result, caring relationships between children and non-birthing mothers, as well as between children and birthing fathers, are denied recognition on their own terms. Birth registration thus emerges as a mechanism through which non-traditional experiences of family life are rendered invisible.

Acknowledgments

The author wishes to thank Elena Levi and Veronika Simetzberger for their research assistance, as well as the anonymous reviewers and her co-editor, Dafni Lima, for their insightful comments on an earlier draft. Additionally, the author expresses gratitude to Marie-Hélène Peter-Spiess and Karin Hochl for their precious feedback on Section 3, with special appreciation to Karin for sharing valuable insights from her professional experience as legal representative of numerous non-traditional families before Swiss authorities. This research has received support from the Research Program “Human Reproduction Reloaded” at the University of Zurich and the Volkswagen Foundation as part of the project “Who is the Court? Bringing the Human (back) into Human Rights Research”.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. This considerable attention has followed a series of proposed reforms in recent decades. Notable changes that have been enacted include allowing the registration of two female parents on a child’s birth certificate (Human Fertilisation and Embryology Act 2008, sections 42–45) and simplifying the birth registration process for unmarried fathers by eliminating the requirement for legal documentation in cases of voluntary joint birth registration (Adoption and Children Act 2002, section 111).

2. ‘Seahorse fatherhood’ is a term that encapsulates the experiences of trans men who carry and give birth to their children. It draws inspiration from the documentary ‘Seahorse – The Dad Who Gave Birth’, which recounts the story of Freddy McConnell and how he started his own family. For the purposes of this article, the focus is on cases involving seahorse fathers who have changed their legal gender before giving birth to their children.

3. In England and Wales, see R (JK) v Secretary of State for the Home Department [2015] EWHC 990 (Admin), 20 April 2015, in addition to the case of Freddy McConnell analysed in Section 4. In Germany, BGH, XII ZB 660/14, 6 September 2017; XII ZB 127/19, 26 January 2022. In Sweden, see e.g. Stockholm Administrative District Court, Case No 24685–13, 14 April 2014 and, in France, Court of Appeal of Toulose (6th ch.), No 20/03128, 9 February 2022

4. The deadname is the name that a trans person was given at birth and no longer uses. Registration under the deadname is practiced in Germany, for instance.

5. The terms ‘maternity’ and ‘paternity’ denote the existence of a biological link between a person and the child (Bainham 1999, Scherpe 2018). ‘Fatherhood’ is understood as ‘the cultural coding of men as fathers’ (Hobson and Morgan 2002, pp. 10–11), whilst ‘motherhood’ as the cultural coding of women as mothers. These cultural perceptions often permeate and are reflected in the legal regulation of parenthood. When preceded by ‘legal’, the emphasis is on how ‘motherhood’ and ‘fatherhood’ are specifically regulated and constructed by legal frameworks.

6. Swiss law (Swiss Civil Code 1907, Articles 260–260c) considers paternity recognition as a strictly personal procedure and therefore requires direct acknowledgement from the father at a civil status office.

7. Written exchange with Karin Hochl, legal representative of the applicants in both cases, dated 29 March 2024.

8. In the cases discussed here (Swiss Federal Supreme Court 2022a, 2022b), it took around three years. Based on a written exchange with Karin Hochl, dated 29 March 2024. Please note that the intended father’s acknowledgement of paternity would be hindered if the surrogate was married, as legal fatherhood would be assigned to the surrogate’s husband.

9. If his designation as ‘mother’ was deemed correct under domestic law, McConnell asked for a declaration of incompatibility to be issued (Human Rights Act 1998, section 4). Also this part of his claim was unsuccessful.