Trans(forming) Fatherhood: Potential Avenues in Strasbourg

The gradual abolition of sterilisation requirements for legal recognition of gender identity has enabled trans men, who wish to do so, to become pregnant and give birth to their own children. Whilst being able to de facto enter their fatherhood, many ‘birthing fathers’ face challenges in order to be recognised as their children’s legal fathers. With few exceptions, national legal systems automatically connect childbirth with the attribution of legal motherhood (mater semper certa est). Taking a cue from a pending application (O.H. and G.H. v Germany), this paper will discuss potential avenues for the ECtHR to address the complaint of a trans father, who was designated as his child’s mother in the birth register, under Article 8 alone and in conjunction with Article 14. Drawing on previous case-law, this paper will shed light on the interaction between doctrinal and moral forces which ultimately defines the contours of fatherhood as understood by the Court.