An extensive feminist literature explores how law interacts with the social institution of motherhood and with the ideological frameworks that contribute to women’s oppression in western, liberal states. This chapter’s main concern is with feminist theories about law’s role in relation to motherhood, which reflects both coercive and ideological aspects. Women can be coerced into normative ideals of motherhood and penalized for failure to conform, but they can also 'consent' or choose to conform to ideological norms, raising far more complex questions for feminists and for feminist legal strategy. The chapter also explores the degree to which law and feminist legal strategies reinforce and/or challenge dominant ideologies of motherhood, which are rooted in the histories of race, class, gender and sexuality.
Another theme is the differential impact of legal regulation, depending on whether a mother is working class or middle class, racialized or non-racialized, lesbian or straight, disabled or able-bodied, and so on. All women can be detrimentally affected by dominant legal norms, but women who depart from normative white, middle-class, heterosexual motherhood are likely to be scrutinized more heavily and treated more coercively than those who are able to conform. The question of law’s differential impact on women whose social location differs from this standard also poses important questions about feminist legal strategies, including whether they lapse into essentialist or 'maternalist' modes of analysis.
The chapter proceeds on the premise that motherhood is socially constructed through the interaction of complex structures and ideologies. The first part explains this process and is then followed by two illustrative case studies on criminal law and family law. The risk of essentialism is taken up in the next part on legal strategy. The last part uses examples of 'transgressive motherhood', including single mothers, to suggest future directions for feminist legal theory. I conclude with questions that continue to challenge feminist legal engagement with motherhood.
Susan Boyd, "Motherhood" in Margaret Davies & Vanessa Munro, eds, A Research Companion to Feminist Legal Theory [forthcoming in 2013].