When is a Mother Not a Mother?

Summary

1. INTRODUCTION

One of the hallmarks of John Eekelaar’s extraordinary body of family law scholarship is its clarity. As a student of family law, many decades ago, I was a grateful beneficiary of John’s ability to explain extraordinarily clearly how the law worked, or why it did not work well enough. Also several years ago now, as a teacher of family law, John’s articles would always be at the top of any reading list. If I ever find an aspect of family law hard to understand, or baffling, John Eekelaar’s analysis can be relied upon to be illuminating and wise.

If ever there was a baffling question in family law, it is the relatively new one of what we mean by the word ‘mother’. According to the Oxford English Dictionary (OED), ‘mother’ is defined as:

The female parent of a human being; a woman in relation to a child or children to whom she has given birth; (also, in extended use) a woman who undertakes the responsibilities of a parent towards a child, esp. a stepmother.

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In its ordinary language meaning, a mother is, therefore, a female parent, a woman who has given birth, and/or a woman who undertakes the responsibilities of a parent. The legal definition of motherhood is different. In obiter comments in The Ampthill Peerage, Lord Simon said that ‘[m]otherhood, although a legal relationship, is based on a fact, being proved demonstrably by parturition’. When a child is born as a result of fertility treatment, according to the Human Fertilisation and Embryology Act 2008, ‘[t]he woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and eggs, and no other woman, is to be treated as the mother of the child’. Following the High Court and Court of Appeal judgments in R (on the application of McConnell) v. Registrar General for England and Wales (McConnell ), it is clear that a child’s mother is the person who gave birth to her, even if that person is a man.