Parenthood

Abstract Gestation and birthing are at the heart of how legal parents are identified in English law. Most of the critique of gestation as a criterion in the attribution of motherhood focuses on whether the attribution of motherhood in a given context is right. Chapter 6 does something much narrower: it explores why we use gestation to attribute legal motherhood (and parenthood) and whether the reasons to use gestation change if the nature of gestation changes. First, the chapter problematizes the conception of the legal rule ‘mater semper certa est’ as historically rooted. Second, it illustrates that the justification for treating gestation as determinative of legal motherhood has changed over time and that the potential justifications for centring gestation in the attribution of parental status are neither clear nor wholly persuasive. Most notably, the chapter suggests that the uncritical adoption of gestation as the criterion attributing legal motherhood propagates biological essentialism that conscripts pregnant people. Finally, this chapter argues that technologies enabling gestation introduce a number of novel conceptual challenges to the operation of the rule ‘mater semper certa est’—divisible gestation, unsexed gestation, and disembodied gestation.