The judges’ dilemma

Two unique cases that have come up before British courts recently illustrate the ethical questions confronting judicial decision-making

Updated - December 04, 2021 10:59 pm IST

Published - August 18, 2016 01:33 am IST

Illustration: Satwik Gade

Illustration: Satwik Gade

Amelia Edith Barr, the British novelist, said, “Human relations are built on feeling, not on reason or knowledge. And feeling is not an exact science; like all spiritual feelings, it has the vagueness of greatness about it.” Unfortunately, law and justice are built on reason and knowledge, not feeling. Therefore, the process of judicial decision-making is riddled with complications. Two cases that came up before British courts recently stand testimony to the dilemma that judges face.

The transsexual parent’s choice In R (JK) vs. Registrar General , decided by the Queen’s Bench Division, Administrative Court, U.K., the person who came to court was born a male. He married a woman in 2007, and in 2012, they had a biological child. In the birth certificate issued by the Registrar General for England and Wales, the names of the biological parents were entered as father and mother respectively.

After the birth of the first child, the claimant before the court (the biological father) developed a desire to live as a woman. A course of feminising hormone treatment was undertaken, which required two years of living as a female before a referral was made for gender reassignment surgery. In the meantime, the wife became pregnant a second time, conceiving naturally by the claimant.

On September 15, 2012, the claimant wrote to the Registrar of Births as to whether the birth of the first child could be re-registered and the birth of the next baby registered, with the claimant’s female name and her identity being shown as parent rather than as father. The Registrar sent a response stating that the law, as it stood, required the claimant to be registered only as the child’s father.

The decision of the Registrar was challenged before court, on the ground that it was in breach of Articles 8 and 14 of the European Convention on Human Rights (ECHR). Article 6 of the Human Rights Act, 1988 made it unlawful for a public authority in the U.K. to act in a way that is incompatible with a Convention right. Article 8 of the ECHR guaranteed respect for private and family life. It also guaranteed non-interference by a public authority with the exercise of this right, except as is in accordance with the law and is necessary in a democratic society. The dilemma that the court faced was as to which element of the right under Article 8 was stronger.

As a matter of fact, the Births and Deaths Registration Act, 1953 in the U.K. had undergone a radical change, providing for suitable entry to be made with regard to parentage acquired through assisted reproduction, surrogacy and adoption. Therefore, the second argument was that the treatment meted out to a transsexual parent was discriminatory and in breach of Article 14 of the ECHR.

The Queen’s Bench had no difficulty in holding that in requiring a transsexual to disclose her previous gender and by not allowing a change in the official document to show the individual’s chosen gender, her right to private life guaranteed under Article 8 of the ECHR was violated. But at the same time, the court held that state interference, in cases of this nature, was on the basis that the failure to reflect on a birth certificate the true position at birth with regard to parentage may interfere with the child’s right. The court opined that if the birth certificates of children were altered, the same would interfere with the child’s rights to have its fundamental identity recognised. The court also felt that such alteration of birth certificates would provoke disputes that will be contrary to public interest.

A dying daughter’s last wish Another case related to a couple residing in the U.S. They had a daughter aged 21, attending university in London, who died of cancer on June 12, 2011. Before her death, she wanted to have a child. She wanted her ovaries to be transplanted in her mother and when she was well enough to undertake treatment, she had her eggs removed and stored. From the deathbed she wrote to her mother: “They are never going to let me leave this hospital, Mum; the only way I will get out of here will be in a body bag. I want you to carry my babies. I didn’t go through the IVF to save my eggs for nothing. I want you and Dad to bring them up… I couldn’t have wanted for better parents.”

After her death, the parents applied to the Statutory Appeals Committee of the Human Fertilisation and Embryology Authority, U.K., constituted under the >Human Fertilisation and Embryology Act, 1990 , for the export to the U.S. of all the eggs of their daughter that were in storage at a hospital in London. The objective was to use the daughter’s eggs to create an embryo with an anonymous donor’s sperm and to implant the embryo in the mother, so that any child that may be born may be brought up as their grandchild.

The authority rejected the application on the ground that there was insufficient evidence to show that the daughter had given consent to the proposed use of her gametes after her death. Her parents challenged the decision. In her evidence before court the mother made a passionate appeal: “I have absolutely no doubt in my mind that her eggs held a life force and were living entities in limbo waiting to be born. She was clear that she wanted her genes to be carried forward after her death.”

But her plea was rejected by the Queen’s Bench on the ground that the consent of the daughter to appoint her own mother for surrogacy was not made out clearly. However, the Court of Appeal reversed the decision, saying: “As to the legal implications, we are talking about a posthumous child and so it may not be a matter of such significance as outweighs the evidence of consent that is available whether in law the child was hers or her mother’s… Furthermore, A’s mother has proposed a way in which a child could be recognised in everyday life to be A’s baby because A’s parents propose to bring up the child as their grandchild.”

Now the matter has gone back to the statutory authority for a reconsideration and we do not know whether eventually, the grandmother will mother the child of her own daughter and if and when done, whether the relationships of parties would stand realigned.

V. Ramasubramanian is a judge at the High Court of Judicature in Hyderabad for the States of Telangana and Andhra Pradesh.

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