“The Court should be there for the people”
Mater semper certa est (the mother is always certain), so the legal principle goes. With these words, the Romans made it clear who was legally the mother of a child – namely the woman who gave birth to it.
It is only in the last few decades that the validity of this ancient Latin legal principle has come into question. The British documentary Seahorse shows one example of this. The film follows Freddy, who was assigned female at birth and began to live as a trans man at the age of 23. Years later, when Freddy feels the urge to have children, he stops taking testosterone, gets his period back and undergoes artificial insemination with donor sperm. The title of the film refers to the fact that seahorses are the only animal species in which males give birth.
Is Freddy the mother or the father? Or simply a parent?
UZH Professor Alice Margaria tackles questions like these. More specifically, she examines how the courts deal with such questions. Her main focus is the European Court of Human Rights (ECtHR), and she has found that “parents who do not conform to the norm are often let down.” She is mainly referring to same-sex couples as well as trans families, like Freddy’s.
Alice Margaria, 39, has been assistant professor of legal issues in reproduction and human genetics at the University of Zurich since 2023. Margaria, who is originally from Italy, has been looking into family law, gender and human rights since she was a student. She began by exploring the topic of mothers who give birth anonymously. “Like seahorse fathers, they also call into question whether the mother is really always the one who gives birth,” she says.
The courts have changed our image of fatherhood
Later, Margaria shifted her perspective and began to focus her research on fathers instead. The Construction of Fatherhood is the title of her first book. “I wanted to do something that would benefit children and mothers in particular,” says Alice Margaria, laughing. She knows this sounds contradictory. “In fact, there has been a lot of legal research on motherhood and women’s rights, but very little on the topic of fatherhood. Men are also needed for true equality.” In her book, Margaria shows how the ECtHR has helped shape a new image of fatherhood that is closer to today’s reality.
The European Court of Human Rights has become a victim of its own success.
For a long time, fathers’ relationships with their children were only indirectly regulated by the mother. This too may be a legacy of the Romans. The legal principle mater semper certa est (the mother is always certain) was followed by another: pater est quem nuptiae demonstrant (the father is he to whom marriage points). Without this clarification, legal paternity would remain uncertain for obvious reasons. Today, with fewer marriages and more separations, the possibility of artificial insemination and genetic testing, courts assess paternity in a more complex way. For example, genetics, the intention to become a father and active involvement in the child’s life also play a role.
When a father has to register as a mother
Alice Margaria’s current research project is called “Who is the Court for?” It examines what kind of justice the courts dispense in these matters, and for whom. As part of her ongoing study, she has spoken with judges, lawyers, non-governmental organizations and minority groups.
As it turns out, the Court does not always live up to its claim to protect the human rights of those who seek its help. Margaria outlines two examples. In 2023, a trans man from Germany who had a similar story to Freddy from Seahorse was brushed off by the ECtHR. He was officially a man when he gave birth to his child. However, the authorities refused to register him as the father. Instead, he had to register as the mother, using his female deadname.
Separate examination of alleged discrimination
In another case, a same-sex Swiss couple traveled to the USA to have a child via surrogacy. The father, who was not genetically related to the child, had to wait more than seven years before he was legally recognized as a parent. It was a change in the law that finally allowed him to adopt. In this case, the ECtHR determined that the length of time the child had to wait for legal certainty was a violation of their right to respect for private and family life. “In my view, such cases are also discriminatory,” says Margaria.
However, the ECtHR often does not even address the allegation of discrimination and usually examines such complaints on the basis of other articles of the European Convention on Human Rights. Judges often argue that no separate examination under Article 14 (protection from discrimination) is necessary. Margaria disagrees. “This would not only be beneficial for the petitioners, but also for the development of human rights standards and the protection of minorities.”
Victim of its own success
So who is the Court for? While the question might sound simple, the answer is anything but straightforward. When making their decisions, ECtHR judges not only consider the life stories of the applicants, but also other interest groups such as the member states of the Council of Europe, national courts and academics, says Margaria. “But the Court should be there for the people above all.”
Margaria also has sympathy for the judges. “It is often said that the Court has become a victim of its own success,” she says. Various reforms have been introduced in an attempt to make the procedure more efficient so that the flood of applications can be handled: the application process has been formalized and the deadline for filing an appeal has been shortened.
In addition, most applications are now dealt with by a single judge or a maximum of three judges. Nowadays, it is extremely rare for a committee of seven or even 14 judges to make a decision. “The fewer members of staff working on a case, the less attention it receives,” says Margaria. “This could of course have an impact on the quality of the verdict.”
Inclusion benefits from legal recognition
Margaria is convinced that court rulings have the power to lead to more inclusion. In Sweden, for instance, court cases led politicians to reform the Children and Parent Code. This now makes it possible for trans fathers to also be fathers in the eyes of the law.
Another repeatedly discussed option is replacing the terms “mother” and “father” in the law with “parents”. Margaria can see some advantages to this proposal. “It would certainly help to overcome the gender binary and take non-traditional family constellations into account,” she says. “But it will take more than that to truly achieve inclusion and recognize pluralistic family structures. It requires a profound rethinking of parenting and guardianship.”
Whether society is ready for this remains to be seen. It may be some time before the Roman legal principle that determines who is the mother and who is the father is finally rendered obsolete.