Parenthood M/F: And Beyond?

by Marjolein van den Brink

Originally published by UCERF as part of UCERF – Thoughts on Reviewing Parentage Law # …

Current Dutch parentage law is – still – based on a biological principle: the legislator assumes that all children have a mother (the mater semper certa est rule determines that the woman who gave birth to the child is that child’s mother) and, in most cases, also a second parent who (most frequently, but at present no longer always) is the child’s father. This biological perception is thus translated into the law. Yet, the commonly accepted biological view on reproduction – namely the idea that reproduction requires a male and a female, and that it is always clear who is whom – is not necessarily always correct. It appears that, for example, flowering plants are often both male and female simultaneously, and there is a species of fern, the young shoots of which choose their sex ‘after consultation.’ Some animals are able to reproduce asexually, and there exist a variety of hermaphroditic species, such as nematodes. That humans too do not always neatly fit – or do not want to fit – into M/F categories has been known for some time. In recent years, it has even become a regular subject for popular television programs (such as the Dutch television programmes ‘Love Me Gender,’ and ‘Hij is een zij,’ which literally translates as ‘He is a She’).

The translation of this biological assumption into the law – a system that functions with the help of fictions and assumptions – can therefore turn out to be problematic. Because of the expanding possibilities of medically assisted reproduction, such as egg cell donations and IVF, and the fact that the concept of ‘sex’ as such has become the subject of contemporary debates, Dutch parentage law has become increasingly under discussion. Already as early as 1970, the legislator made an arrangement for individuals whose sex could not be determined at birth, and sometimes not even later in life (the current art. 1:19d of the Dutch Civil Code, the Burgerlijk Wetboek [BW]). Importantly, the legislator omitted to create space for this (potential) group in other pieces of legislation. This means, for example, that in parentage law too, there are no options for parents with an undetermined sex other than father- or motherhood. If an intersex person of undetermined sex gives birth to the child themselves, they automatically – because of the mater semper rule and in analogy with article 1:28c BW – become the mother of their child. It is not clear what their status would be if they were to acquire parenthood in any other way, including if they themselves ‘father’ the child. [I am familiar with the fact that many intersex conditions cause infertility, yet this does not take away from the fact that at least in theory, the possibility exists.] In 1986 it became possible to change one’s legal sex from man to woman, and vice versa (art. 1:28 BW). Because this law (until July 2014 – to which I shall return later) demanded as a precondition for the change of legal sex that the person concerned would never be able to conceive children again, and also because change of legal sex has no retroactive effects, a specific arrangement with regard to parentage law was – I presume – deemed unnecessary at the time: a mother who changes her sex to ‘male,’ continues to be the mother of his child. Similarly: once a father, always a father. Nevertheless, even before 2014 it was possible to be both a father and a mother. A trans man who became the mother of a child prior to his legal sex change can, for example, become a father to the child borne by his wife through marriage and donor sperm. This man would then be the mother of one child, whilst simultaneously the father of another. Since sterilisation as a condition for legal sex change has been dropped, it is now also possible for this same trans man to become the mother of one child and the father of another simultaneously. He and his formal partner (meaning spouse or registered partner) can both bear a child, and will automatically, by right acquire parentage, provided he makes use of an anonymous donor. The trans man will then become mother to the child he has borne (art 1:28c(3) BW), whilst becoming a father to the child borne by his wife (art. 1: 199a BW). His wife will become mother to both children: according to the mater semper rule she is the mother of the child she has borne herself (1:198(1)(a) BW), and according to rule 1:198(1)(b) BW she will by right become mother to the child borne by her partner, on the precondition that this child has been conceived with the sperm of an anonymous donor. In light of this regulation trans women who provide sperm for the subsequent conception of children are on the back foot: because she is not an anonymous donor, she cannot by operation of law become a parent to her child, but instead has to officially recognize or adopt the child. Her position is equal to that of other co-mothers, but different to that of (cis and trans) men who are married to the birth parent, even if they themselves were not the source of the sperm through which the child was conceived. Concluding, the attempt of the legislator to make parentage law more inclusive, whilst simultaneously maintaining the differentiation between mothers and fathers, is not waterproof yet and sometimes makes parentage law difficult to comprehend.

Towards the end of 2014 Jet Tigchelaar and myself published a report on the subject of sex registration, which was commissioned by Deputy Minister of Security and Justice. In this report, we also paid attention to parentage law, which was taken up by the Deputy Minister when he asked the State Commission on the Recallibration of Parenting (Staatscommissie Herijking Ouderschap) to look into the question of ‘to which extent it is possible and desirable to refrain from sex references to sex in parentage law’ in the course of their research. I was obviously very curious how the Commission would answer that question. As always, there are pros and cons.

In its report (Kind en ouders in de 21ste eeuw (2016), which you can find here) the State Commission notes that terminology is rarely neutral – specifically with regard to family law – and is often charged with symbolic meaning (pp. 60-61). In that context the Commission states that it has ‘chosen to use sex-neutral terms where possible.’ This statement is open to question. The text is sex-specific more often than would strictly be necessary. Luckily, the Commission does choose sex-neutral references in their legislative proposal where the parenthood of those other than the birth parent is concerned. This is good, as it demonstrates sex neutral language in parentage law can easily be done. However, in light of the remarks on symbolic and emotional value, it is a pity that the Commission does not give much consideration to the concept ‘mother’ when the birth parent is concerned. Why would it not be possible to amend the mater semper rule to parente semper certa est, or to at least rewrite the rule as ‘mother of the child is the woman or man who gives birth to the child’? Admittedly, the latter suggestion does not solve the problem of potential confusion surrounding the identity of the parent (for example at school). It also does no justice to the position of the birth parent of undetermined sex. Yet, it is an explicit recognition of the sex change of the trans man. Rumour has it that time restrictions are at least part to blame for. This was also confirmed in an e-mail correspondence with one of the Commission members. Let us hope that the issue will get the time it deserves during the parliamentary debate.

The lack of an explicit discussion on sex-neutral parentage law also means that no attention is paid to the advantages (nor to the potential disadvantages) of the existing provisions for granting either mother- or fatherhood to trans parents. From the perspective of children’s best interest – the Commission’s guiding principle – this certainly would have made sense.

The report brings good news for trans women who ‘father’ a child. The Commission’s proposition to remove the precondition of anonymous donorship for parentage by right in a relationship between two women, elegantly does away with this problem. In addition, it nicely concurs with the interests of children when parentage law is concerned, and which is of such central importance to the work of the Commission.

The fact that the only paragraph in the report that explicitly mentions trans parenthood (pp. 115-116) has a negative connotation, is regrettable. The Commission endorses the recommendations of the Netherlands Association for Obstetrics and Gynaecology (Nederlandse Vereniging voor Obstetrie en Gyneacologie, NVOG) to exercise extreme caution in helping prospective trans parents to reproduce with the help of donor materials (click here for more information). The NVOG’s concern is based on a lack of experience with medically assisted reproduction for this group, as well as the fact that – at least at the moment – gender dysphoria has a negative impact on one’s quality of life (see pp. 60-62 of the NVOG’s position). However, due to the Commission’s generalized formulation and the lack of attention for the subject elsewhere in the report, the Commission’s remarks suggest a broader meaning than merely medically assisted reproduction with donor materials. This, to me, seems unnecessarily offensive (Cf. the reaction of Transgender Netwerk Nederland). A second point of concern with regard to this paragraph is the Commission’s remark that the ‘egg cells of the later prospective father and the sperm cells of the later prospective mother raise questions with regard to the father or mother role and therefore required treatments’ (pp. 115-116 of the Commission’s report). It is unclear to what the Commission refers here. Is it concerned about the position or the role of the person with whom, for example, an embryo would have to be placed, such as a partner or a surrogate mother (-parent)? Or is the question whether the person who delivers the sperm will consider themselves to be the mother or the father of the child? I would say: what does sex matter, as long as both parents and children are happy with each other?

The sex registration and sex-specific labelling of, amongst others, parents, is not only of importance to trans and intersex individuals. It also has an impact on getting closer to gender equality and challenging gender stereotypes (Cf. Dean Spade’s famous essay ‘Documenting Gender’). Therefore, I propose we stop labelling parents – F, M, and further – as fathers and mothers with immediate effect (or at least as soon as parliament will be able to make it happen). Long live sex-neutral parentage law. And the Commission’s report shows us that it could easily be done.