(Bio)logical Phallacies in Legal Cases of Trans Families

Abstract

This paper delves into the political and philosophical underpinnings and legal implications of transgender pregnancy and parenthood within the European context. The European Court of Human Rights has played a pivotal role in shaping the discourse surrounding (trans) families, and in this paper, we argue that it is imperative to reverse that direction of influence, so that trans families are empowered to shape the legal discourse to become more inclusive. We refer to recent landmark judgements that have brought to the forefront the need to adapt existing conceptual and legal frameworks to the evolving landscape of family planning and parenthood for transgender individuals. We also compare the social and legal situation of trans pregnancy with surrogacy and anonymous birthing as analogies which also call for conceptual space between pregnancy and motherhood. This paper analyses case law, particularly under Article 8 of the European Convention on Human Rights, demonstrating the impact of European jurisprudence on European gender politics. We highlight the importance of reconceptualising pregnancy and parenthood away from what we describe as '(bio)logic' in the pursuit of reproductive justice for all.