DISSENTING OPINION OF MR. N. BRATZA

      I have with considerable reservations voted against a finding of

a violation of Article 8 in the present case, substantially for the

reasons given in the dissenting opinion of Mrs. Liddy.

      As the Commission has noted the issue in the present case is

whether the effective respect for the applicants' family life imposes

a positive obligation on the United Kingdom to modify its existing

legal system as it applies to transsexuals, so as to afford legal

recognition to the first applicant's role as father to the third

applicant.

      In the Rees and Cossey cases the Court concluded that Article 8

imposed no such positive obligation on the United Kingdom to alter the

birth register to record the new sexual identity of a transsexual who

had undergone a gender re-assignment operation.  In so concluding the

Court placed particular emphasis on the fact that the requirement of

striking a fair balance in Article 8 could not give rise to any direct

obligation on a respondent State to alter the very basis of its system

for the registration of births, which was designed as a record of

historical fact, by substituting therefore a system of documentation

for recording current civil status.

      As the applicants correctly point out, this factor is of

considerably less significance in the context of the present case.  To

allow the first applicant's name to be entered in the birth register

as father of the third applicant would not involve an alteration in the

very basis of the registration of births.  Nor could it be said to

involve a substantial falsification of the system of birth registration

in the case of a child conceived as a result of artificial insemination

by a donor.  In such a case, the person registered as "father" of the

child is never in fact the biological father but is only deemed to be

so by virtue of the 1990 Act.

      It is doubtless true that the birth register has traditionally

only recorded as "father" of a child a person who is biologically male.

It is also true that to enable a post-operative transsexual to be

registered as "father" would in all probability require an amendment

to the 1990 Act, which in section 28(3) refers to a "man", a word which

is likely to be interpreted by the courts as meaning a person who is

biologically a male.  However, the modification required would not

appear to be as fundamental as that with which the Court was concerned

in the cases of Rees and Cossey; nor would it involve a comparable

falsification of an historical fact.

      The question, nevertheless, remains whether the obligation of

respect for the private or family life of the applicants in Article 8

of the Convention requires such a change.

      I have concluded, with hesitation, that it does not.  On the one

hand, I accept that, while there would appear to be no direct or

visible disadvantages suffered by the applicants in consequence of the

refusal to register the first applicant as the father of the third

applicant, the lack of legal recognition may in itself constitute a

serious disadvantage for the applicants, even to the extent of possibly

affecting the personal development and sense of identity of the third

applicant.  On the other hand, as the Court observed in its Rees and

Cossey judgments, the issue of transsexuality, including the legal

recognition if any afforded within the domestic legal system to gender

reassignment operations, remains an area in which the Contracting

States enjoy a wide margin of appreciation.  This is, in my view, the

more true when the issue arises in the context of parenthood if

children conceived by means of artificial insemination by a donor,

itself a sensitive and controversial area.

      The Court concluded in both cases that, despite the disadvantages

which the applicant had suffered and continued to suffer, the United

Kingdom has not exceeded its margin of appreciation in refusing to

grant legal recognition to the applicant's change of sex in the birth

register.  In both cases the Court further concluded that the State was

entitled, consistently with its obligations under Article 12, to lay

down biological criteria for the purpose of marriage.  So long as these

judgments stand, I am unable to find that the margin of appreciation

was exceeded, or a fair balance upset, in consequence of the refusal

in the present case to grant legal recognition to the fatherhood of the

first applicant.