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Motherhood and The Who is a child’s legal mother? Must a child have exactly one mother, can it have two or three, or can it have two fathers, but no mother? Or has the concept of motherhood become obsolete and should we just talk of parenthood in a gender neutral way? Questions such as these would have appeared esoteric only a few decades ago, but as a result of new social developments (such as Göttinger Juristische Schriften frequent family reconstitutions, gay and lesbian emancipation or surrogacy) and of technological innovations (such as egg and embryo donations) they have become issues in a vehement debate. The interdisciplinary contributions to this book focus on the legal defi nition of motherhood, on the way in which legal conceptions structure the social discourse on motherhood (and vice versa), and Harry Willekens, Kirsten Scheiwe, Theresa Richarz, on the infl uence of legal rules on power relations between mothers, fathers, children and the state. Among the issues addressed are Eva Schumann (eds.) – the challenges to our understanding of the legal regulation of motherhood by developments in reproductive medicine; – the challenges to our understanding of the legal regulation of motherhood Motherhood and the Law by parental constellations deviating from the mother-father-model (single motherhood by choice, same-gender parenthood, multiple parenthood); – the exercise of parental rights in case of parental separation and the impact of legal rules on the bargaining positions of mothers and fathers. Band 24 der Reihe „Göttinger Juristische Schriften“ Die Reihe wird von der Juristischen Fakultät der Georg-August-Universität Göttingen herausgegeben und macht Veranstaltungen an der Fakultät einer interessierten Öffentlichkeit zugänglich. Göttinger Juristische Schriften, Band 24 Willekens / Scheiwe / Richarz / Schumann (eds.) Motherhood and the Law / Richarz / Scheiwe / Willekens Göttinger Juristische Schriften, Band 24 ISBN: 978-3-86395-425-3 eISSN: 2512-6849 Universitätsverlag Göttingen Universitätsverlag Göttingen Harry Willekens, Kirsten Scheiwe, Theresa Richarz, Eva Schumann (eds.) Motherhood and the Law erschienen als Band 24 in der Reihe „Göttinger Juristische Schriften“ im Universitätsverlag Göttingen 2019 Harry Willekens, Kirsten Scheiwe, Theresa Richarz, Eva Schumann (eds.) Motherhood and the Law Göttinger Juristische Schriften, Band 24 Universitätsverlag Göttingen 2019 Bibliographic information published by the Deutsche Nationalbibliothek The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data are available on the Internet at http://dnb.dnb.de. Contact Project “Power and Powerlessness of Motherhood” University of Göttingen: Prof. Dr. Eva Schumann Lehrstuhl für Deutsche Rechtsgeschichte und Bürgerliches Recht Weender Landstr. 2 37073 Göttingen [email protected] University of Hildesheim: Prof. Dr. Kirsten Scheiwe/Theresa Richarz Projektkoordination “Macht- und Ohnmacht der Mutterschaft” Institut für Sozial- und Organisationspädagogik Universitätsplatz 1 31141 Hildesheim [email protected]/[email protected] This work is protected by German Intellectual Property Right Law. It is also available as an Open Access version through the publisher’s homepage and the Göttingen University Catalogue (GUK) at the Göttingen State and University Library (https://www.sub.uni-goettingen.de). The license terms of the online version apply. Typesetting and layout: Lisa Hollemann © 2019 Universitätsverlag Göttingen https://univerlag.uni-goettingen.de ISBN: 978-3-86395-425-3 DOI: https://doi.org/10.17875/gup2019-1201 e-ISSN: 2512-6849 Table of Contents List of Abbreviations 6 Harry Willekens and Kirsten Scheiwe Motherhood and the Law: Introduction 7 Harry Willekens Motherhood as a Legal Institution: A Historical-Sociological Introduction 21 Jonathan Herring Maternalism and Making Decisions for Children 53 Susan B. Boyd Choice and Constraint: Exploring ‘Autonomous Motherhood’ 73 Frederik Swennen Motherhoods and the Law 101 Anne Sanders Multiple Parenthood: Towards a New Concept of Parenthood in German Family Law 119 Kirsten Scheiwe Parental conflicts over the exercise of joint parental responsibility from a comparative perspective: From daily matters to relocation 153 Authors 179 List of Abbreviations BGB Bürgerliches Gesetzbuch (German Civil Code) BGH Bundesgerichtshof (Federal Court of Justice Germany) BGHZ Entscheidungssammlung des Bundesgerichtshofs in Zivilsachen BMJV Bundesministerium der Justiz und für Verbraucherschutz (Federal Ministry of Justice and Consumer Protection, Germany) C.C. Civil Code CRC (UN) Convention of the Rights of the Child ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention of Human Rights) ECtHR European Court of Human Rights FamRZ Zeitschrift für das gesamte Familienrecht FCC Federal Constitutional Court (Germany) FCJ Federal Court of Justice (Germany) FLA Family Law Act (British Columbia, Canada) IVF In Vitro Fertilisation NJW Neue Juristische Wochenschrift NRT New Reproductive Technologies NVwZ Neue Zeitschrift für Verwaltungsrecht (Germany) NZFam Neue Zeitschrift für Familienrecht (Germany) SMC(s) Single Mother(s) by Choice Motherhood and the Law: Introduction Harry Willekens and Kirsten Scheiwe This volume is the product of an international research conference on “Mother- hood and the law” held at the University of Hildesheim, Germany, from 13 till 15 September 2018.1 The aim of the conference was to bring together lawyers with an interdisciplinary approach with scholars from other relevant disciplines so as to engage in an intensive debate on social and philosophical questions regarding the found-ations of motherhood as a legal construction, as well as to discuss policy- oriented questions about the regulation of motherhood in a comparative context. We thank all the participants for their inspiring contributions and vivid, enriching and partly controversial discussions. The conference was organised in the context of an overarching socio-legal research project “Macht und Ohnmacht der Mutter- schaft” (“Power and powerlessness of motherhood”) (2017-2020). The project is pursued by the universities of Hildesheim and Göttingen2 (directed by Ilona Ost- ner, Kirsten Scheiwe, Eva Schumann, Friederike Wapler and Harry Willekens) and financed by the Gender Research Programme of the Ministry for Science and Cul- ture of the German state of Lower Saxony. This project is interdisciplinary in its approach, but focuses on the law of motherhood, on issues of the legal definition of motherhood, on the way in which legal conceptions affect the discourse on motherhood (and vice versa), and on the influence of legal rules on power relations between mothers, fathers, children and the state. 1 We wish to thank the Gender Research Programme of the Ministry for Science and Culture of the German state of Lower Saxony for the financial support of this volume, Göttingen University Press for publishing as well as Jonathan Harrow and Lisa Hollemann for the thorough editing. 2 See https://www.uni-hildesheim.de/mom-projekt/ for further information. 8 Harry Willekens and Kirsten Scheiwe In what follows, we will first point out the legal and social developments and the ensuing political and scholarly controversies against the background of which this volume was written (section 1). Next, we give a short description of the research project and how the “Macht und Ohnmacht” project and the conference have tried to intervene in these developments and debates (section 2). At the end of this introduction the chapters of this book are summarised and positioned within the broader debate (section 3). 1 Motherhood in the law and in feminist debate – changes and challenges Woman’s role as mother and the impact of motherhood upon the opportunities and life chances of women were central subjects of the first women’s movement at the turn towards the twentieth century. Positions towards motherhood and reform claims were contested and controversial. The second women’s movement criticised the ‘myth of motherhood’ and the biologisation and idealisation of stereotyped ‘female’ roles as part of the grand conflict about women’s autonomy (de Beauvoir, 1951; Kortendiek, 2010). Reproductive rights were (and are) a highly contentious issue and a central claim of feminists regarding abortion. Suggestions to free wom- en from the burden of motherhood included the idea that reproductive technolo- gies (in the form of the artificial womb) could be a solution (Firestone, 1971). In the 1970s and 1980s controversies over the question whether motherhood should be a prominent feminist subject continued. Critical feminist contributions aiming to deconstruct motherhood ideologies, motherhood myths and finally legal con- structions of motherhood followed (Fineman, 1992 and 1995; Fineman and Kar- pin, 1995; Hering, 1998; Lucke, 1997; Luker, 1984; Scheiwe, 1999; Schütze, 1991). Since motherhood for a long time was seen as “natural” and self-evident (“ma- ter semper certa est”), no theoretical debate about the foundations and justifica- tions of the legal assignment of motherhood emerged – as opposed to the exten- sive debate on fatherhood (see e.g. Collier and Sheldon, 2006 and 2008; Helms, 2011; Murphy, 2005; Röthel and Heiderhoff, 2014; Scheiwe, 2006; Schwab and Vaskovicz, 2014; Willekens, 2006). When motherhood was treated in legal publica- tions, this happened mainly with regard to labour law (the protection of pregnant women and
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