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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 I. INTRODUCTION 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.- DREN OF THE DREAM 44 (1969); M. MIELZINER, THE JEWISH LAW OF MARRIAGE AND DIVORCE 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. F. TANNENBAUM, SLAVE AND CITIZEN: THE NEGRO IN THE AMERICAS 49 (1946). 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, PREVIEWS AND PRACTICAL CASES ON MARRIAGE 193 (1960). 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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