Essentially a Mother

Abstract:     
This article connects the constitutional jurisprudence of the family to debates over reproductive technology and surrogacy. Despite the outpouring of literature on reproductive technologies, courts and scholars have paid little attention to the constitutional foundation of parental rights. Focusing on the structural/political function of parental rights, I argue that a gestational mother has a constitutional claim to be recognized as a legal parent.

I begin with the "unwed father cases" from the 1970s. Despite believing that natural sex differences justified distinctions in parental rights, the Court crafted a test giving men parental rights if they established relationships with their biological children. I argue that this test was modeled on what the Court saw as the essential attributes of motherhood. I offer this reading as an alternative to the standard feminist critique that the unwed father cases are notable only for their zeal to enforce the traditional family. I also show how the theoretical approach of these cases supports feminist claims for equal treatment despite biological difference (such as accommodation of pregnancy).

Turning to current debates, my focus is on divided motherhood: usually surrogacy contracts, but also embryo mix-ups at fertility clinics. Rather than following existing precedent on parental rights, the law of high-tech parenthood is tending sharply in the direction of denigrating gestation, defining parenthood exclusively in terms of genes or contracts. I show that conferring parental rights on gestational mothers would produce better outcomes and be more consistent with the best aspects of existing constitutional precedents.

Keywords: equal protection, real differences, unwed fathers, surrogacy, surrogate mothers

Accepted Paper Series