A recent request by a same-sex couple for both of them to be identified as “mother” on a certificate of baptism proved problematic to the church of St Mary in Warsash, Hampshire, and the resulting dispute and underlying confusion over the legislation involved aroused considerable media interest, here, here, and elsewhere. Since the situation now appears to be resolved, pastorally it would be insensitive to institute further changes, particularly since ensuring “letter of the law correctness” would have little legal impact on the child, the mother or her partner. However, before such an issue arises again, as surely it will given the publicity generated, the Church of England should address the legal issues raised and ensure that its clergy and officials adopt a consistent approach.
The underlying statutory legislation is the Human Fertilisation and Embryology Act 2008,
“[a]n Act to amend the Human Fertilisation and Embryology Act 1990 and the Surrogacy Arrangements Act 1985; to make provision about the persons who in certain circumstances are to be treated in law as the parents of a child; and for connected purposes.”
Part 2, comprising sections 33 to 58, addresses “[p]arenthood in cases involving assisted reproduction”, and section 33 defines “[t]he meaning of “mother”. Under subsection 33(1):
“[t]he woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child”, [emphasis added].
It is clear therefore that under UK law, a child may have only one “mother” – this definition is equally applicable to the so-called three-person IVF discussed in an earlier post. Schedule 6 amends a number of other legal provisions relating to parenthood where assisted reproduction is involved, including the Births and Deaths Registration Act 1953 and the Registration of Births, Deaths and Marriages (Special Provisions) Act 1957.
Government guidance on the registration of births is available here, and provides advice to those permitted to register a birth, i.e. married parents; same-sex couples; female civil partners; female non-civil partners; and others. A statutory declaration of parentage is required under sections 10 and 10A of the Births and Deaths Registration Act 1953, and includes a declaration by the mother/father/parent. In this context
“ ’[p]arent’ means the mother’s female partner who under the Human Fertilisation and Embryology Act 2008 is to be treated as a parent of the child”.
Therefore, a child may be registered as having a mother and a female parent, but not two mothers. The first occasion in which a birth certificate was issued under these provisions is reported here, for which the article helpfully reproduced a copy of the certificate, showing entries for: (1) Child; (4) Parent; and (7) Mother.
Within the Church of England, the registration of baptisms, confirmations, marriages, and burials is governed by Canon B 39§1 which requires that
“[i]n all matters pertaining to the registration of baptisms, marriages, and burials every minister shall observe the law from time to time in force relating thereto.”
The relevant legislation is Section 2 of the Parochial Registers and Records Measure 1978, No. 2, but this is primarily concerned with parish records, and states
2 Registration of baptisms.
(1) Where the ceremony of baptism according to the rites of the Church of England is performed
(a) in the parish church of a parish or, in the case of a parish having more than one such church, any parish church thereof, or
(b) in any other place in a parish by a minister of the parish,
the person by whom the ceremony was performed shall as soon as possible thereafter enter in the appropriate register book of baptisms the particulars required in Form No. 1 in Schedule 1 to this Measure and shall sign the register in the place provided.
Form No. 1 is entitled “Register of Baptisms Administered in the Parish of ***** in the Diocese of ***** in the [Local Government Area] of *****, and requires the following information to be included:
Entry No./Date of birth/Date of baptism/Christian name and surname*/Father’s Christian name and surname*/Mother’s Christian name and surname*/Address Father’s occupation/ Mother’s occupation/ Godparents.
The only references to “certificates” in the Measure relate to the “internal” communication of information within the church to the incumbent or PIC of the parish church in cases where the baptism was performed at: “any place in a parish other than a parish church by a person who is not a minister of the parish, s2(2)”; or “an extra-parochial place or an institution”, s2(3).
However, reference to the issue of a certificate of baptism is included on the relevant Church of England web page on these issues, which notes “A Baptism service is free, though there may be a small charge for a certificate. Ask your parish priest.” The current fees are determined by the Parochial Fees and Scheduled Matters Amending Order 2012 SI 993 and include: a Certificate issued at time of baptism; and Short certificate of baptism given under Section 2 Baptismal Registers Measure 1961.
It is important to note that the implications to the mother/father/parent named on a birth certificate are quite different from those named on a certificate of baptism. With regard to the former, government guidance states:
“All mothers and most fathers have legal rights and responsibilities as a parent – known as ‘parental responsibility’. If you have parental responsibility, your most important roles are to: provide a home for the child; protect and maintain the child”.
The importance of the promises made at a baptism by parents and godparents on behalf of the child is highlighted in the Pastoral Introduction to the service, which in Common Worship takes the form
“ . . . . For all involved, particularly the candidates but also parents, godparents and sponsors, it is a joyful moment when we rejoice in what God has done for us in Christ, making serious promises and declaring the faith. . . . ”
However, when details of the baptism are required in relation to confirmation (and as a criterion to be a godparent, Canon B25 §4 ), it is the baptism event that is important, not the parents &c named in the register or the certificate. Canon B27 Of Confirmation, states:
§4. The minister shall satisfy himself that those whom he is to present have been validly baptized, ascertaining the date and place of such baptism, and, before or at the time assigned for the confirmation, shall give to the bishop their names, together with their age and the date of their baptism, [emphasis added].
The provisions of the Human Fertilisation and Embryology Act 2008 relating to the permissible names which could be included on birth certificates, (Sch. 6 paras. 2, 3, 4) were wholly in force at 1 September 2009. It seems inconceivable, therefore, that the situation regarding baptism certificates has not been encountered before.
In moving the Baptismal Registers Measure 1961 referred to above, the Lord Bishop of St Edmudsbury and Ipswich, said, HL Deb 01 August 1961 vol 234 cc59-60, :
“I am sure that your Lordships would not wish me to enter into a long explanation of the purpose of this Measure, which is highly technical in character. Briefly, its object is to bring the statutory requirements with regard to the registration of baptisms into line with those relating to the entry of the birth of certain classes of persons in the civil registers of births”.
A similar updating of the Parochial Registers and Records Measure 1978 to take account of the Human Fertilisation and Embryology Act 2008 and the resulting changes to the civil BMD Registers would appear to be overdue.
 There are other examples in which the Church of England Canons requires a person to be baptized, such as those becoming priests and deacons, but in these cases the requirement is for them to be baptised and confirmed.