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On Gestation and Motherhood

Mahmoud, Zaina; Romanis, Elizabeth Chloe

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Zaina Mahmoud


In English law, legal motherhood is allocated to the person who gestated. However, we argue that gestation—legally denoted as the “natural” source of parenting obligations—is often constructed as mothering, rather than the precursor to it. This means that women and pregnant people are treated as mothers prior to birth in legal and medical contexts. Since legal motherhood is an important status, defining the role an individual plays in a child’s life, the conflation of gestation and motherhood does not reflect that, legally, a fetus does not have personhood. This blurring between gestation and motherhood is metaphysically incoherent, as a fetus is not an entity that can be parented. This conflation poses a real harm to pregnant people’s autonomy, specifically those who do not intend to parent or who do not identify as women. More broadly, the medico-legal conflation of gestation and mothering is autonomy-limiting for all pregnant people as, resultantly, they may be coerced into obstetric intervention through legal processes. We argue for a better recognition of the differences between gestation and mothering, to promote autonomy and reflect the very different ways families may be formed.


Mahmoud, Z., & Romanis, E. C. (2023). On Gestation and Motherhood. Medical Law Review, 31(1), 109-140.

Journal Article Type Article
Acceptance Date Aug 1, 2022
Online Publication Date Aug 18, 2022
Publication Date 2023
Deposit Date Sep 26, 2022
Publicly Available Date Mar 21, 2023
Journal Medical Law Review
Print ISSN 0967-0742
Electronic ISSN 1464-3790
Publisher Oxford University Press
Peer Reviewed Peer Reviewed
Volume 31
Issue 1
Pages 109-140


Published Journal Article (476 Kb)

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Copyright Statement
This is an Open Access article distributed under the terms of the Creative Commons Attribution License (, which permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited.

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