The decision by President of the Family Division Sir Andrew McFarlane is a blow to trans rights activists. Picture: Flickr.com

London - A woman who changes sex cannot be officially recognised as a father to her baby, Britain's most senior family judge declared on Wednesday, in a ruling that set a worldwide precedent.

Someone who conceives, carries and bears a child is a mother, even if she has switched gender and has become a man in the eyes of the law, he said. 

The decision by President of the Family Division Sir Andrew McFarlane is a blow to trans rights activists and a personal setback for Fred McConnell, who has campaigned for the right to register as the father of his 20-month-old boy.

The judge said that 32-year-old Mr McConnell, a journalist on the Guardian, had fought "properly and bravely" in a cause that was of public interest. But he declared: "There is a material difference between a person’s gender and their status as a parent.

"Being a mother, whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth.

"It is now medically and legally possible for an individual, whose gender is recognised in law as male, to become pregnant and give birth to their child. Whilst that person’s gender is male, their parental status, which derives from their biological role in giving birth, is that of mother."

Sir Andrew said that Mr McConnell’s official position as a mother was a result of the law developed by the courts over centuries, and had not been changed by recent law. 

He added: "Down the centuries no court has previously been required to determine the definition of mother under English common law and it seems that there have been few comparable decisions made in other courts elsewhere in the western world."

Mr McConnell transitioned to a man when he was 22 and in 2017 a Gender Recognition Act panel gave him full legal status as a man. Ten days after winning legal recognition as a man, he became pregnant through insemination. His son was born in January last year.

Daily Mail