AccessMyLibrary provides FREE access to millions of articles from top publications available through your library.
Over the past two decades feminist writers have increasingly turned their attention towards the interaction of feminism, politics and the law in order to Investigate the treatment that women receive at the hands of the legal system. This attention has Involved exploration of the way in which women are discriminated against both in the public sphere, for example in paid employment, and the private sphere, in areas such as violence in the home and sexual abuse.(1)
In the public sphere the political implications of the way in which women are treated are highly visible. The role of the state in regulating the relationship between employer and employee, for example, has overt political overtones in terms of reflecting particular alms such as market deregulation and increased competition. These aims have had knock-on effects for women in the way in which they have increased the availability of part-time and fixed-term contracts, a high proportion of which are occupied by women. Equally, in the area of welfare and social security, state manipulation of the benefits system reflects a particular view of which women and men are considered to be in need of public financial support.
In the private sphere, however, the role of the state is less immediately visible because traditionally state intervention in conflicts which are played out in the domestic arena has been more restrained. Nevertheless the slogan adopted by some feminists that the personal is political, has brought the realm of the domestic sphere to public attention and has brought about state action and legal intervention in that area too. One clear example of this is the decision of the House of Lords in the case of R v. R  4 All E.R. 481. This decision, for the first time, brought `marital rape' within the legal definition of rape, demonstrating the state's willingness to Intervene in the privacy of the home environment. This now means that abusive husbands can be convicted of rape and are no longer permitted unlimited sexual access to their partners regardless of consent.
As the state has come to play a greater role in the regulation of women's lives, both in public and private sphere activities, it has become important to understand the way in which women are viewed by one of the primary adjuncts of the state, the legal system. This has meant consideration being given to the question of how women are seen through the eyes of those who participate in the law-making process, in particular Members of Parliament involved in shaping legislation and members of the judiciary involved in applying that legislation and in making common law decisions. In examining the relationship between the state, the law and feminism, it is possible to chart the way in which the process of law-making tells the story of women and their lives and constructs a certain typology of the women to whom legislation will be applied.(2) This has led to questions being asked about the extent to which law-makers are (in)accurate in their perceptions of women when creating legislation and jurisprudence and the extent to which their perceptions are (in)consistent when, for example, different laws are made which regulate women in different spheres of activity.
Here we examine the way in which women are characterised during the law-making process in one particular, but extremely important, aspect of their lives -- motherhood. This will be done by considering three examples of legislation adopted in the 1990s which touch upon the status of women as mothers in both their public and private lives: the Human Fertilisation and Embryology Act 1990, the Child Support Act 1991, and the Trade Union Reform and Employment Rights Act 1993. The first deals with reproductive matters, in particular with fertility treatment services, and abortion. The second sets up a welfare system of maintenance for children where one parent is absent. The third deals, amongst other things, with maternity rights in employment.
First, the formulation of each statute will be discussed and a brief overview of its provisions outlined. It is worth pointing out at this stage that each of the three Acts was based upon a previously existing text. The Human Fertilisation and Embryology Act 1990 was based largely upon the Warnock Report produced by the Committee of Inquiry into Human Fertilisation and Embryology;(3) the Child Support Act 1991 was based upon the government's 1990 White Paper Children Come First; and the sections on maternity rights contained in the Trade Union Reform and Employment Rights Act 1993 were designed to implement provisions of the 1992 European Union directive on the safety and health of pregnant workers. The passage of each piece of legislation into its current form has, therefore, passed from these initial texts, through the filter of Parliament into the final legislative form.
Second, various aspects of the law's treatment of mothers taken from the three Acts are synthesised. Consideration is given to the underlying moral principle of the legislation, notably the idea of responsible parenting. Also under consideration is the definition of the legal status of parents and the nature of the relationship between the protagonists targeted by the legislation. Within the general context of the legal regulation of parenthood, this synthesis will permit an overview of the law-maker's perception of motherhood to be established. Also it allows the motivation behind the adoption of particular strategies vis a vis the role of women as mothers to be monitored.
Three ways of regulating motherhood
REPRODUCTIVE RIGHTS: THE HUMAN FERTILISATION AND EMBRYOLOGY ACT 1990. The Committee of Inquiry Into Human Fertilisation and Embryology, chaired by Dame Mary Warnock, was established in 1982, its remit being to consider the effects of developments in the field of human assisted reproduction. The relevance of the Warnock Report as far as it affects women as mothers lies principally in Its discussion of fertility treatment services. It draws attention to the perceived undesirability of certain women being allowed access to fertility treatments and therefore to the institution of motherhood. `To judge from the evidence many believe that the interests of the child dictate that it should be born into a home where there is a loving, stable, heterosexual relationship and that, therefore the deliberate creation of a child for a woman who is not a partner in such a relationship is morally wrong. . . . We believe that as a general rule it is better for children to be born into a two-parent family, with both father and mother, although we recognise that It is impossible to predict with any certainty …