Mater Semper Incertus Est : Who's Your Mummy?

Abstract

In English law, the legal term for father has been given a broad definition but the definition of mother remains rooted in biology with the Roman law principle mater semper certa est (the mother is always certain) remaining the norm. However, motherhood may be acquired through giving birth to a child, by donation of gametes or by caring and nurturing a child so that the identity of the mother is no longer certain particularly in the case of surrogacy arrangements. While the law in the UK may automatically recognise the parental status of a commissioning father in a traditional surrogacy arrangement, the parental status of the commissioning mother is not automatically recognised in either a traditional or a gestational surrogacy arrangement. Thus the maxim mater est quam gestation demonstrat (meaning the mother is demonstrated by gestation) is also not approached consistently in the legal interpretation of parentage or motherhood in surrogacy as against other assisted reproduction methods. This raises questions about the extent to which motherhood should be affected by the method of reproduction and whether the sociological and philosophical concept of motherhood should, in the case of surrogacy, give rise to a new principle of ‘mater semper incertus est’ (the mother is uncertain). This article will argue that the time has come to move away from a legal definition of ‘mother’ that is based on biology to one that recognises the different forms of motherhood