Sometimes I feel like a motherless child
A long ways from home
—Old American spiritual
In the 1951 musical Royal Wedding, a woman challenges her boyfriend, “Didn’t your mother never teach you no manners?” He responds, “I never had no mother. We was too poor.”
The joke, of course, is that every living human person has had a mother. Everyone began his or her life nourished from a mother’s ovum and then nourished and sheltered within her womb. Anyone too poor to have a mother was too poor to be alive.
But in our time, innovations in both technology and law will produce, or perhaps have already produced, a new person—the truly motherless child.
Let us consider this novelty and discuss one of its many interesting and troubling implications. The motherless person, under our Constitution, will also be stateless, an alien among us—bereft of both mother and country.
Fatherlessness is old. Motherlessness is not.
Let me begin with some serviceable definitions of the relevant terms. Any person who, from conception and throughout his life, is bereft of the care of his male or female parent, is “fatherless” or “motherless,” respectively. Consequently, a person whose father or mother had initially provided such care but then ceased to do so, whether by death, abandonment, or otherwise, is not “motherless” or “fatherless.” For instance, a person whose mother predeceased him is not thereby motherless.
Fatherlessness is old. Across thousands of generations of human beings, many, many persons have never received from the male parent any care at all, whether direct or indirect. Soon after copulation, often before even conception, some of these fathers died, and many others left the mother or were separated from her.
Such fatherlessness was not always fatal. Sometimes the child, though bereft of her father’s care, survived against the odds—not only through pregnancy, but also through infancy and even all the way until fertile adulthood. Consequently, the ranks of our ancestors included many fatherless persons.
The male, it seems, may be the true “second sex.” His role is secondary and seems even disposable. To be sure, before conception, the male has a necessary and primary role; he and his gamete are active while the female and her gamete are receptive. But afterwards, during pregnancy, his role is secondary and only indirect: he cares for the child by caring for the child’s mother. Even after birth, for many years, his role in childcare usually remains somewhat peripheral and optional.
In sharp contrast, from the outset, the mother’s care is both direct and absolutely necessary. She feeds the child from her own body, first via the ovum, then via the womb. Without such nutrition, the child would die instantly. The child would die before implantation, and thus, of course, never be born, let alone reach fertile adulthood.
Hence, across thousands of generations, each of our ancestors had a mother’s care, but many lacked a father’s. Fatherlessness is ancient and common. But motherlessness is not.
The evidence of this novelty appears on my screen as I type this essay. According to my word-processing dictionary “fatherlessness” is a word, but “motherlessness” is not. Fatherlessness has always needed a word, but true motherlessness has not.
Further linguistic evidence can be found in the traditional English translation of the Biblical “orphanous” as “fatherless.” Thus, in the King James Version, one reads in James 1:27 that pure and undefiled religion is this: “To visit the fatherless and widows in their affliction.” The translators omitted any mention of the “motherless.” The reason is simple reality, and not, as some have supposed, the translators’ sexism.
The Thoroughly Modern Motherless Child
But in our times, a revolution in technology, bolstered by a revolution in custom and other law, will make the truly motherless child a reality, both de facto and de jure.
The technological revolution began, in the twentieth century, with the invention of two artificial modes of mammalian reproduction. First came the successful subfreezing and thawing of mammalian sperm. This invention greatly enhanced the centuries-old method of artificial insemination (“AI”). We could now, on a massive scale, disintegrate mammalian conception from copulation. Today, in some sectors of the cattle industry, AI is now more common than “natural service.” Next came in-vitro conception of mammals, and their successful transfer to a uterus (abbreviated as “IVF”). Now maternity itself could be disintegrated—with one female providing the egg, another the womb.
Soon the first motherless child, in law and in fact, will be born! Or more precisely, the first motherless child will be made.
But a legal revolution was also necessary. We, the people, needed to accept the application of this technology—old and new—to the human person. Americans had long been very reluctant to use these methods of animal husbandry in the procreation of human beings. As late as the 1950s, for instance, only a quarter of Americans approved of artificial, copulation-free insemination—even where the husband was the presumptive sperm-provider.[1]
But opposition collapsed over the next few decades—with Americans approving the practice, even when the donor was unmarried, unrelated, or even unknown, to the mother. Consequently, various old and new forms of copulation-free reproduction are now customary and thus normative. Moreover, we may, in the coming years, find, as in animal husbandry, that “AI” is more common than “natural service.”
To be sure, such artificial reproduction does not produce a motherless child, strictly speaking. Even under IVF, the child has an ovular mother—and sometimes that same woman also carries the pregnancy.
Nonetheless, the American people’s adoption of these practices has now predisposed public opinion to accept any other artificial and disintegrative modes of human reproduction, no matter how indifferent to the welfare of the child. By treating the child as an object of acquisition the practice has obscured, from the minds of our fellow citizens, the true nature of the human child: a gift to be received.
Complementing this revolution in human reproduction is the ongoing legal redefinition of motherhood. Motherhood was once considered an inalienable trust. But now, the female person, like the male sperm donor, is increasingly free to treat her fertility as a bundle of discrete alienable powers. She may freely and lawfully not only engage in prostitution, but also sell her ova, make contracts to rent her womb, and otherwise dispose of her maternity. She may even, well before birth, contract to relinquish her offspring afterwards—as the enforceable Rumpelstiltskin contract now has increased acceptance.
By thus presupposing that a woman may prospectively contract to alienate even the offspring or her body (whether ovum, womb, or both), to that extent the law treats the mother, even if present de facto, as absent de jure. And to that extent, a child is deemed motherless even as he receives actual care from his actual mother in the womb: this mother has agreed to be a mere surrogate, and the laws may ratify her choice. Indeed, if our laws fully embrace à la carte motherhood, a new presumption will govern: every pregnant woman will be presumed to have chosen only the pregnancy, so at birth, each woman will have to show that she has chosen not only to carry the child in utero, but also to retain the child postpartum.
Note here that it is not technology alone that brought about these novelties. The Rumpelstiltskin contract required no new technology. What was needed was a legal revolution—and more specifically, a revolution in mores. The revolution concerned not mere “know-how” but “will-how.”
Now, the truly motherless child seems imminent. Our techne
and our norms are ready. Synthetic ova and artificial wombs may already be functional and will be approved and even applauded.
Soon the first motherless child, in law and in fact, will be born! Or more precisely, the first motherless child will be made.
Citizenship and Our Old Constitution
This novelty carries with it many troubling implications. One of them is that such persons will not be citizens under the Constitution.
The Fourteenth Amendment’s Citizenship Clause reads as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
The clause indicates two modes whereby a person might acquire citizenship: nativity or naturalization. The first—native or “birthright” citizenship—in turn, has two prerequisites: (1) birth in the United States, and (2) subjection to the jurisdiction thereof. Note that this constitutional definition is only partial: it does not cover those persons, long recognized in our laws as citizens, who are born to American parents but outside the United States.
The first element—birth on American soil—seems straightforward, but the latter requires some exegesis. According to the original understanding, the time of birth is the relevant time for identifying such subjection: the clause might read, “All persons born…in the United States and at that time subject to the jurisdiction of the United States.” More important for our purposes, this subjection of the newborn to the United States is mediated through his or her subjection to parental authority; newborns are subject to the jurisdiction of the United States only insofar as they are born subject to parents who are themselves subject to that jurisdiction. As Senator Jacob Howard, who first introduced the Citizenship Clause said, the measure would encompass children “born of parents who at the time of birth were subject to the authority of the United States….” And within two decades, the Supreme Court would agree that this subjection “relate[s] to the time of birth,” and that such subjection to the United States depends entirely on whether the parents are subject to the same jurisdiction at birth. Persons, native to our soil, are not subject to the jurisdiction if, at the time of birth, their parents are immune from such authority, whether by diplomatic immunity, Indian-tribal immunity, or otherwise.
This constitutional, birthplace definition presupposes that any child born in the United States, is at the time of such birth, truly subject to his or her mother. But the Amendment does not require any known paternity, let alone paternal care. Indeed, the perennial difficulty of identifying paternity might be the principal reason for our traditional Anglo-American rule of citizenship: by ius soli (right of soil) rather than ius sanguinis (hereditary). This challenge is particularly acute in a large and highly-mobile commercial nation like England and America—and even more so when, as in 1868, one-eighth of the people was emerging from chattel slavery. Because place of birth and maternal identity are far easier to adjudicate, the ius soli rule makes sense.
The modern motherless child, however, might not satisfy either of these constitutional prerequisites for citizenship. She might not ever
be born on American soil or subject to American jurisdiction.
First, the de facto motherless child, gestated in a machine, will never be born in the United States—because he will never be born anywhere. Without pregnancy, there is no birth. That is to say, if never borne, then never born.
Second, the motherless child, whether de facto or merely de jure, may lack a “parent” through whom the child could be subject to the jurisdiction of the United States. When the de facto
motherless child is detached from the artificial womb, or the de jure
motherless child is separated from the surrogate (even if she is the child’s natural mother), it will be unclear who is the “parent” or other entity with actual dominion over the child at that time. Moreover, that “parent” or other entity might not be “subject to” the jurisdiction of the United States. The entity with custodial rights, whether by right of manufacture or contract, may very well be a foreign national or even a transnational corporation or other association. In many cases, such an entity cannot be constitutionally subject to American jurisdiction. Consequently, the child will lack the derivative subjection necessary for automatic American citizenship.
To be sure, one can imagine any number of legal fictions that might be devised to impute birthright citizenship to these motherless children. As to birth, the legislatures or courts might impute “birth” to a child whenever and wherever the child is detached from the artificial womb. As to jurisdictional subjection, authorities may declare that notwithstanding any foreign entity’s actual or legal dominion over the child, any child born or “born,” in the United States is still “subject to the jurisdiction” at the time of such birth or quasi-birth.
The trouble with these declarations is that they would be false. A child detached from a machine is not born. And a child subject a foreign entity that resides or is incorporated elsewhere, is thereby not subject to American jurisdiction. Such falsehood would make these legislative acts mere unconstitutional decrees.
The motherless child cannot, therefore, be a native citizen. He or she would have to be naturalized like any other foreigner.
But by our current law, to be naturalized, the child would have first to be “admitted” as an immigrant to lawful permanent residence. Yet as a stateless inhabitant, who had always been among us, he or she would not be an immigrant, and would be therefore ineligible for any such admission.
We recall the ancient injunction of Scripture, “take up the cause of the fatherless.” But in our time, for the first time, we must supplement that injunction with a new rule: take up the cause of the motherless.
* This essay was based on a paper first presented at the 2023 Conference on Parental Rights and Family Relations in a Postmodern Age, hosted by the Pontifical John Paul II Institute for Studies on Marriage and Family at The Catholic University of America. I am grateful to the participants for their comments.
[1] Kara W. Swanson, The Birth of the Sperm Bank, 71 Annals of Iowa
241, 245 (2012)
