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96 Yale L.J. 187 (1986-1987)
Redefining Mother: A Legal Matrix for New Reproductive Technologies

handle is hein.journals/ylr96 and id is 205 raw text is: Redefining Mother: A Legal Matrix for
New Reproductive Technologies
Andrea E. Stumpf
The legal definition of mother has traditionally carried an unshake-
able presumption: She was the one from whose womb the child came.1
While the mother's incumbent rights and obligations were not always as
easy to define, at least her identity was2_until recently. New reproduc-
tive technologies, such as artificial insemination, in vitro fertilization, em-
bryo transfers, and surrogate motherhood, have shaken the unshakeable.3
Unguided by new legislation and inclined to preserve their timeworn test
of mother, courts are creating a convoluted branch of law.4
This Note proposes a comprehensive legal matrix to accommodate shift-
1. This presumption is not articulated as such in the legal field, for the presumption has been so
absolute as to have generated no controversy. In this Note, presumption of biology describes the
unacknowledged but pervasive rule for determining the placement of maternal rights and obligations.
A recent surrogate mother case has newly raised the issue. Said the judge: We really have no defini-
tion of 'mother' in our lawbooks . . . . 'Mother' was believed to have been so basic that no definition
was deemed necessary. Surrogate Has Baby Conceived in Laboratory, N.Y. Times, Apr. 17, 1986,
at A26, col. 4.
2. The mother's identity was clear as long as the birth itself was observed. The English tradition
of hereditary succession placed importance on the witnessing of births, as was made clear in the
politicized case of James Francis Edward, Prince of Wales, in 1688. Accusations that a child had been
smuggled in with a warming pan led to French exile for the Old Pretender and were used to justify
the invasion of England by William of Orange. See Kenyon, The Birth of the Old Pretender, 1963
HIsT. TODAY 418. Similarly, current Jewish tenets reflect the certainty of maternity by preserving
the tradition that a child born of a Jewish mother retains Jewish status regardless of the father's
ethnicity, whereas a child born of the reverse combination does not. See B. BETTELHEIM, THE CHU.-
IN ANCIENT AND MODERN TIMES 97 (1901). During colonial rule, the regulation of slaves created a
society of matrilineal descent. The absolutist nature of North American colonial racism and the bio-
logical basis of color led directly to a system where children of slave mothers were designated slaves.
3. These new technologies open significant new possibilities for infertile parents. In the past,
inability to procreate had to be accepted as regrettable but unalterable. For example historically,
impotence-inability to copulate-deserved a marriage annulment under Canon Law, 1983 CODE
c.1068, § 1, but sterility-inability to procreate-did not, 1983 CODE c.1068, § 3. See 1 0. CLORAN,
4. For discussions of the gap between law and reproductive technologies, see, for example, Black,
Legal Problems of Surrogate Motherhood, 16 NEW ENG. L. REV. 373 (1981); Mawdsley, Surrogate
Parenthood: A Need for Legislative Direction, 71 ILL. B.J. 412 (1983); Note, Surrogate Mothers:
The Legal Issues, 7 AM. J.L. & MED. 323 (1981); Comment, Contracts To Bear a Child, 66 CALIF.
L. REV. 611 (1978); Comment, Parenthood by Proxy: Legal Implications of Surrogate Birth, 67
IOWA L. REV. 385 (1982); Comment, Surrogate Motherhood in California: Legislative Proposals, 18
SAN DIEGO L. REV. 341 (1981); Comment, Surrogate Mother Agreements: Contemporary Legal
Aspects of a Biblical Notion, 16 U. RICH. L. REV. 467 (1982).

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