Care without Status
Intended Mothers in the ECtHR’s Surrogacy Jurisprudence
Abstract
This article examines the surrogacy jurisprudence of the European Court of Human Rights regarding intended motherhood through a feminist anti-stereotyping lens. It argues that gestation and birth remain the normative basis of legal motherhood, while non-gestational maternal claims lack equivalent constitutive force. It further considers the limited force of reproductive intention and intended mothers’ subjection to both regulatory and normative scrutiny. The article’s main contribution lies in showing how apparently neutral legal reasoning concerning recognition may reproduce gendered hierarchies. Finally, it introduces “care without status” and develops “derivative motherhood” to explain, respectively, the gap between maternal practice and legal status and the mediated structure through which intended motherhood becomes legally recognized.
Keywords: surrogacy; intended mother; ECtHR; stereotypes; derivative motherhood.
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