CML214 | Motherhood and Law – Critical Questions in Select Themes

How mothers are treated by the law, and in turn how they challenge the law’s normativity allows us a glimpse into the many uncomfortable crevices in law and the assumptions it has about people. While most topics in the area of gender and law invite intense debate, in conversations about motherhood, these debates exacerbate. Motherhood and the work of mothers evoke strong emotions for many reasons – the responsibility for the creation and nurturing of the next generation being merely one of them. Feminists too have a complicated relationship with motherhood – Shulamith Firestone has been vehement that unless women are freed from the burden of childbirth, they will never attain equality. However, Adrienne Rich has noted it is not childbirth itself, rather the patriarchal notion of motherhood which is oppressive. Forcibly sterilised women have seen motherhood as a form of freedom, but others might think of motherhood as forced down on them by criminalising abortion. But what is the law’s relationship with motherhood? And in what ways is this relationship challenged by mothers, and others themselves? This course attempts to answer these complex questions using an interdisciplinary lens.

As public consciousness and harmful stereotypes often shape the law, our laws assume some deeply discriminatory expectations from women as mothers. There are many contradictions within the legal regulation of motherhood, across region and time. In some cases, the law has been weaponised to prevent certain women from becoming mothers (forced sterilisations), in others, the law has been used to criminalise women’s choices to not become mothers (abortions). In some contexts, women have been compelled to become mothers for solely economic reasons (Black slaves in the USA before abolition) and in others this expectation stems out of nation- building. Some women are deemed “unfit” mothers irrespective of their capabilities (e.g., differently abled women). Finally, while in the neoliberal context women are expected to do paid work outside the home, they are simultaneously stigmatised for working outside the home (transnational mothers). But these assumptions have not gone unchallenged as mothers constantly negotiate and push back against laws which embody such expectations.

As we reflect on expectations and regulations governing motherhood, it appears that in constructions of good/bad motherhood, all notions of reasonableness cease to exist. This interdisciplinary course examines the legal and social constructions of motherhood, specifically exploring how laws and legal institutions shape and are shaped by this idea. We will cover themes including abortion law, family law, transitional justice, and surrogacy, as also different populations – mothers across class, caste, racial and regional backgrounds, queer mothers, and mothers in transitional justice situations. Students will critically engage with seminal legal texts, case law, international law materials such as select sections of some international instruments and general comments, and theoretical frameworks to understand the intersections of law, gender, and motherhood. Students will also be guided to explore foundational queries such as whose experience of mothering is being talked about, and whose is being excluded? Whose interests does a specific idea of mothering serve? What is the relationship between motherhood and the state?

The purpose behind this introspective and critically engaging course is to ensure that key issues around motherhood are open to educated and intellectual dialogue within the learning space.