On Gestation and Motherhood

Mahmoud, Zaina; Romanis, Elizabeth Chloe

Abstract

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.

• 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
• DOI: https://doi.org/10.1093/medlaw/fwac030
• Public URL: https://durham-repository.worktribe.com/output/1193207