Same-sex parent should not have been forced to adopt child

Sarah Osbourne and Helen Arnold are a same-sex female couple who had a child, C, in August 2014 via IVF in a registered UK fertility clinic. All relevant procedures were followed. Arnold was recognised immediately as C's mother due to having given birth to the child. As a result of the Human Fertilisation and Embryology Act (HFEA) 2008, Osbourne was entitled to be registered as C's second legal parent on the birth certificate (importantly, not another legal 'mother' – see below).

Unfortunately, this fact is not what was conveyed to them when they went to register the birth of their child with Cambridgeshire City Council where the child was born. Instead Osbourne and Arnold were wrongly told that Osbourne could not be entered on the birth certificate unless she was the child's father because there could only be one mother on the birth certificate. An adoption order was granted in November 2015 for Osbourne to become the parent of C. It was not until the birth of their second child in October 2018, which resulted in both being registered as legal parents on the birth certificate, that they were told there should have been nothing preventing the same result at C's birth. This prompted the legal proceedings.

These concluded in July 2022 in the case of Osbourne and Arnold v Cambridgeshire City Council which saw Mr Justice MacDonald confronted with the case. Ultimately, Mr Justice MacDonald found that the adoption order was a 'legal aberration'. He said Osbourne is, and always was, C's second female legal parent, and therefore there was no need for the adoption order in the first place. The adoption order was quashed, a declaration of parentage was granted in favour of Osbourne, and the claim for judicial review was allowed which disregarded the initial registration of C's birth. This enabled a fresh birth registration for C which reflects the lived reality of their family structure.

Many aspects of this judgment warrant commentary. Below, I highlight just two.

Meaning of birth registration/certificate

Throughout both the judgment itself and written statements provided by Osbourne and Arnold, the birth certificate is intrinsically linked with 'family' and identity. Much can be said in this regard, but this is arguably a recent interpretation of the birth certificate. When civil birth registration first commenced in 1837, it was widely acknowledged that the main reason was to protect private property transmission and inheritance. Many early birth certificates did not include information about both parents, and some registered as parents may not be the genetic progenitors due to lack of available testing (DNA testing to establish parentage did not start until the 1980s). Any notion of using the birth certificate as a way to see 'who you are' is, in my view, largely a result of trends toward openness and transparency beginning around the mid-late 20th century in adoption and assisted reproductive settings (not to say this is a negative thing!), alongside a fascination with uncovering our genetic ancestry, exemplified by the increase in use of sites such as Ancestry, 23andMe, etc, alongside TV shows like Who Do You Think You Are?

While many may see the birth certificate as reproducing and cementing 'family', we must be mindful of expecting the birth registration system to do things for which it was not initially (explicitly) intended, even if it has taken on this role in recent years.

Birth registration for other queer families

While two cisgender women are able to be registered automatically on the birth certificate if they meet the conditions within sections 42 or 43 of the HFEA 2008, there can only ever be one mother (the person who gives birth: see BioNews 1018). This highlights the heteronormativity employed by law surrounding queer parenthood and birth registration, as well as the disconnect between lived reality and legal acknowledgement. While Osbourne and Arnold are no doubt both 'mothers' to their children (whatever language they use), the fact remains that only the person who gives birth is able to call themselves a 'mother', legally.

There is, however, no automatic recognition of same-sex cisgender men or single men who become parents through surrogacy. They have to engage in a lengthy, post-birth 'parental order' process which overlays the child's original birth certificate (though, the law may be changing – we will have to wait and see what the Law Commissions of England and Wales and Scotland recommend: see BioNews 1011 and 1097). They are also registered as 'parent' on their child's parental order, not 'father'.

Birth registration is also unsuitable for families with more than two parents – as in, for example, some polyamorous families or co-parenting arrangements. There can only ever be two legal parents, meaning at least one parent will lack legal recognition. Further, trans parents are forced to register their child's birth in the binary gendered parental designation that aligns with the sex they were assigned at birth (male = father; female = mother), even if they have obtained a Gender Recognition Certificate which legally recognises them as their 'acquired' gender/sex. While the same applies to non-binary parents, 'non-binary' is (i) not a legally valid gender identity (yet); and (ii) automatic registration as a 'parent' on the birth certificate is restricted to second female parents under the HFEA 2008.

The future

Birth registration differentially impacts queer families – and not in a good way. The distinct (sometimes subtle) rules in place for queer families can hence be interpreted as a manifestation of law's desire to preserve the sanctity of the traditional family. Various avenues are open as to where to go next. To take two opposing views: (i) do we reform the birth registration system to include those families not fitting within law's ideal?, or (ii) do we pursue a perspective which recognises the perpetual contingencies placed upon queer acknowledgment in law and instead live 'outside'/away from law (or perhaps without a legal system as we know it)?

Regardless, it is clear that birth registration is ripe for reform. I am currently recruiting participants to take part in research around birth registration reform. If you are a parent aged 18 or over in England and Wales, were involved in the registration process for your child's birth, and are: (i) trans and/or non-binary; (ii) a gay father through surrogacy; or (iii) a LGBTQ+ polyamorous parent, I would love to speak with you. Please feel free to email me on liam.davis@bristol.ac.uk or DM me on Twitter: @LiamJamesDavis for more information.