Reports

On April 4th, 2023, the European Court of Human Rights (hereinafter ‘the Court’) rendered its decision
in the case of A.H. and others v. Germany.1

The case brought up the question whether states should
allow a transgender woman who has changed her legal gender identity to be recognised as ‘mother’ of
a child on the child’s birth certificate. The request was filed by three applicants, two mothers and their
biological son. The two women conceived the child together, one provided the ovary and carried the
pregnancy to term and the other, her transgender partner, provided the sperm. The child is therefore
undeniably the biological son of the two applicants, equally. This is not denied by the Court. However,
upon the birth of the child, the transgender mother was informed that she was only allowed to see her
filiation with her son recognised if she accepted to be registered as his ‘father’ and under her previous
‘masculine’ names. The other option was to not mention the second biological parent on the child’s
birth certificate, erasing the biological link between parent and child.

The applicants brought the case to the Court arguing that the refusal to qualify the second mother
as the child’s ‘mother’ as well as the mention of her old ‘masculine’ names and the absence of other
options for the filiation to be recognised constituted a violation of their right to respect for private
life and family life under Article 8 of the European Convention of Human Rights (hereinafter ‘the
Convention’) and their right to non-discrimination under Article 14 of the Convention. The Court
examined the case and concluded that there was no existing violation of the Convention.

This article will provide a summary and analysis of the judgment, diving into the arguments of the
German government subsequently supported by the Court, as well as exposing the weaknesses of the
decision and its argumentation.