The Question of Family Law After Legal Motherhood

What does it mean to be a ‘mother’ in law? This is a question that arose in English and Welsh law only relatively recently, in a case brought by Freddy McConnell, a trans man who had given birth and sought to be registered on the baby’s birth certificate as the ‘father’ or alternatively as the ‘gestational parent’ or ‘parent’. The conceptualisation of legal motherhood that emerged from this case was one in which being a ‘mother’ was defined as being about the biological role of carrying a pregnancy and delivering a baby – a role that was considered not to be gender-specific. This contribution reflects on the debate that has followed in the family law literature and highlights the way in which it is underpinned by a sense that doing away with the current conceptualisation of legal motherhood would open up the capacity and potential of family law when it comes to the legal recognition and protection of family life. The question becomes, in this way, one of family law after legal motherhood – of what family law might look like after the current conceptualisation of legal motherhood.