At various times in the past there’s been discussion here about the legal significance of being pregnant/giving birth. (You can use that one posting to find links to others, or just browse under the tag “pregnancy.”) It’s in light of that discussion that I found this post from yesterday’s Motherlode blog quite interesting.
In general, I’m inclined to believe that having been pregnant with and given birth to a child ought to count for something when it comes to determining parentage. I won’t go so far as to say that a woman who gives birth has already been a mother for nine months–at least in large part because I don’t want to assert that there is a child before birth. But the woman has done something that, it seems to me, gives her a unique relationship to the resulting child. If a child is to have a parent or parents at the time the child is born, how can the woman who gives birth not fall into that category?
It seems to me that the research discussed in the Motherlode post (and the book that is the subject of the post and the Time Magazine article) all suggests that while a woman is pregnant she is engaged in a dynamic process that is very much akin to the nurturing/caretaking process that follows the birth of a child. She’s not simply a container or a vessel.
I have consistently (I hope) advocated for some sort of de facto or functional parent test. I’m inclined to respect the relationships formed between an adult acting as a parent and a child and also to recognize the labor and commitment shown by the adults. (This is over-simplified, but you can find many discussions under the “de facto” or “functional” tags.) I’m therefore inclined to want to give some recognition to the labor and commitment demonstrated before the child is born. Perhaps there is some justification for ignoring this contribution, but I don’t quite see what it is.
I recognize there are all sorts of perils and dangers here and that makes me proceed with caution. I also stand ready to revise my opinion upon further thought. But at least for now, thinking about this most recent set of stories, I think the fact of being pregnant/giving birth ought to have legal meaning–which is to say, I think when a woman gives birth to a child, she ought to be recognized as the legal parent of the child.