Who and What Is a Mother? Maternity, Responsibility and Liberty
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Michael Freeman
Motherhood is no longer a clear-cut concept. Is it a mere biological fact, or does it require a volitional component? This question is answered differently throughout Europe. The French regime of accouchement sous X is more oriented towards the second option. Conversely, the English system identifies parturition as the exclusive determinant for defining legal motherhood. This debate has an impact on the resolution of another issue, namely whether an individual, preeminently a child, has a right to know about his/her origins. The recognition of an absolute right of a woman to give birth anonymously evidently contravenes France’s obligation to protect the right to know one’s origins, as enshrined in the UNCRC as well as in the ECHR. Furthermore, despite its laudable purpose, the French regime has proved unable to prevent tragic events, such as infanticide, abandonment and abortion. But does English law offer a solution that is more respectful of children’s rights? To all appearances, it does, but not substantially. The denial of accouchement sous X should not be viewed as enhancing the overall protection of children’s rights in England. By providing abortion on demand, a woman’s right to renounce maternity is fully protected and, therefore, the legalization of anonymous birth would be superfluous. In light of the complexity of the issue whether a child has the right to know his/her origins, categorical positions are not appropriate, since they implicitly postulate hierarchies of rights. To the contrary, the acknowledgement of the competing rights as equally fundamental makes it possible to achieve a fair equilibrium between the interests of all parties involved. In this balancing exercise, the reconceptualization of identity as child-centered has the potential to overcome the culturally-constructed dichotomy of biological connections/social bonds and, therefore, to realize the best interests of every child.
©2012 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
Artikel in diesem Heft
- Article
- Introduction
- From Rights and Obligations to Contested Rights and Obligations: Individualization, Globalization, and Family Law
- The Liberal Transformation of Spousal Law: Past, Present and Future
- Self-Restraint: Social Norms, Individualism and the Family
- The Family and the Market -- Redux
- The Legal Relationship Between Cohabitants and Their Partners' Children
- Who and What Is a Mother? Maternity, Responsibility and Liberty
- The Costs of Raising Children: Toward a Theory of Financial Obligations
- Lay Intuitions About Family Obligations: The Case of Alimony
- Family Law Reform in Australia, or Frozen Chooks Revisited Again?
- Something Old, Something New? Re-theorizing Patriarchal Relations and Privatization from the Outskirts of Family Law
- Rethinking the Right to Procreate: An African Imperative
- Economic Consequences of Marriage and Its Dissolution: Applying a Universal Equality Norm in a Fragmented Universe
- Introducing the Political Family: A New Road Map for Critical Family Law
Artikel in diesem Heft
- Article
- Introduction
- From Rights and Obligations to Contested Rights and Obligations: Individualization, Globalization, and Family Law
- The Liberal Transformation of Spousal Law: Past, Present and Future
- Self-Restraint: Social Norms, Individualism and the Family
- The Family and the Market -- Redux
- The Legal Relationship Between Cohabitants and Their Partners' Children
- Who and What Is a Mother? Maternity, Responsibility and Liberty
- The Costs of Raising Children: Toward a Theory of Financial Obligations
- Lay Intuitions About Family Obligations: The Case of Alimony
- Family Law Reform in Australia, or Frozen Chooks Revisited Again?
- Something Old, Something New? Re-theorizing Patriarchal Relations and Privatization from the Outskirts of Family Law
- Rethinking the Right to Procreate: An African Imperative
- Economic Consequences of Marriage and Its Dissolution: Applying a Universal Equality Norm in a Fragmented Universe
- Introducing the Political Family: A New Road Map for Critical Family Law
