'The Evolution of Birth Registration in England and Wales and its Place in Contemporary Law and Society' by Liam Davis in Modern Law Review comments
Birth registration is currently enjoying a resurgence in legal, academic and social interest as diverse family forms present challenges as to how to record parenthood. This is evident through a rise in recent case law – and accompanying media coverage – surrounding birth registration, ranging from the ability for lesbian families to be accurately reflected on a birth certificate, to surrogacy breakdowns and the genetic father's (in)ability to be registered, to trans parents and their (in)ability to register in their chosen parental term. This article focuses on the latter, particularly contemporary cases such as R (on the application of JK) v Registrar General for England and Wales (JK) and R (on the application of McConnell) v The Registrar General for England and Wales (McConnell). Both cases concerned trans parents who wished to register their children's births in their social and factual parental role, but this was denied by the courts. The fact that these types of cases have grown in number within the last decade, alongside the rise in academic and policy interest, thus positions birth registration as a highly contentious topic – especially concerning how to register parenthood. Despite this contention, it will be shown how, historically, birth registration was concerned with recording property and inheritance rights. The recording of parenthood and presumed (bio)genetic relationships was, arguably, simply a by-product of other policy aims rather than a concrete aim in itself. While birth registration policy has supposedly changed in recent years, or at least had additional policy aims imposed through now being concerned with facilitating parent-child relationships, this is arguably contrary to the historical aim(s) of birth registration. There has also been no public or political debate about the purpose of birth registration in contemporary law and society. It is therefore crucial that this is debated – and clarified – sooner rather than later, lest birth registration continue to be used for purposes for which it was not originally intended.
This article begins, first, by outlining the resurgence concerning birth registration, synthesising recent case law and highlighting some of the claims made in recent years that the sole – or primary – purpose of the system of birth registration has been to act as a (bio)genetic register, synonymous with recording parenthood. The following section considers more critically the recent case law – particularly (but not exclusively) McConnell – and scrutinises the law surrounding trans parents and birth registration. After documenting and critically engaging with birth registration's contemporary resurgence and the current landscape, especially as it relates to trans parents, the article takes a step back to consider the history of birth registration and its historical function(s). It does this to clearly highlight the misguided assumptions as to the presumed purpose of birth registration regarding recording (bio)genetic parenthood. While a person's (biogenetic) ‘origins’ may be registered more often than not, it is submitted that this is a by-product of the historical aims of registration. In the final section, through analysing legislative changes over the past 30 years or so, this will be shown to be because of hegemonic ideas surrounding family and kinship that have been evident throughout the centuries. In other words, a person's biogenetic ‘origins’ will inevitably have been understood to be documented on the birth certificate because law, policy and society mostly understood a family as consisting of a cisgender (cis), heterosexual man and woman with biogenetic children – otherwise called the traditional/nuclear family. Consequently, this couple were invariably viewed as the (‘natural’) parents who should be registered on the birth certificate.
The article adopts this structure in order to emphasise the salience of the historical analysis. While it could just as easily take a broadly chronological structure, beginning with the contemporary analysis sets up the importance of the issue to be explored and, in this way, highlights the importance of the history of birth registration to this discussion (which, as will be explored, many seem to neglect). In this light, as this article will show that documenting one's origins has never been an explicit feature of birth registration, it follows there must be a discussion about whether we want the policy underpinning birth registration to change to reflect this common assumption. Indeed, this article – in being one of, if not the first to offer a comprehensive, socio-legal history of birth registration – aims to open up the discussion as to what the purpose of birth registration should be. If birth registration, specifically the birth certificate, is to operate as a site to see one's (biogenetic) origins, this needs to be explicitly stated and policy amended accordingly. Until such time, at the very least birth registration policy should reflect the fact that families now (and have always) come in various formations – not just a traditional nuclear structure. As a result, birth registration can no longer reflect a particular (cis, heterosexual, dyadic) ideal of family life at the expense of others, which it does currently by insisting binary trans parents register in the parental role allied to the sex they were assigned at birth (in other words, those assigned female at birth must register as mothers, those assigned male as fathers, and there being no recognition of non-binary people generally in law). Birth registration therefore needs to expand to accept all those who call themselves a ‘family’ regardless of their make-up and register them in a way appropriate to that family. This is especially salient if one of birth registration's current policy aims is the facilitation of parent-child relationships
