“Mater Est”: When a 2,000-Year-Old Legal Rule Clashes with Modern Surrogacy
The Illusion of Certainty: How Roman Law Influences Surrogacy Law Today
Mater What?
The Latin maxim “mater semper certa est” (“the mother is always certain”) sounds like common sense—until you remember we live in an era where IVF mix-ups (like the recent Monash IVF case in Australia, where a woman accidentally carried another couple’s embryo) prove even maternity isn’t foolproof.
This Roman legal principle, rooted in irrefutable presumptions (praesumptio iuris et de iure), treated birth motherhood as an unchallengeable fact. But history shows we’ve always played fast and loose with the definition of “mother.”
Ancient Precedents
Long before Rome, the biblical story of Ishmael’s birth to a woman named Hagar (circa 2000–1500 BCE) revealed how motherhood was secondary to paternal recognition of Abraham. Abraham’s wife Sarah couldn’t conceive due to her age, so in accordance with local custom, Sarah’s maidservant served as “surrogate”- but not as we know it today. Hagar conceived and bore Abraham’s child, Ishmael—but her role as “mother” was not recognized. Biology didn’t dictate legitimacy; patriarchy did.
Rome’s mater est doctrine (1st c. BCE–6th c. CE) flipped the script by cementing birth motherhood in law. Yet today, with gestational surrogacy and egg donation, we’re left asking: Why does a 2,000-year-old rule still shape who gets to be a “legal mother”?
Global Surrogacy: A Legal Quagmire
The rigidity of mater est creates real-world crises. Take this example from China, where a Canadian father and his Hong Konger husband had to sue their surrogate to override her automatic legal motherhood, despite no genetic link. I shared this story a while ago on LinkedIn, The gay men found it “impossible” to have a baby and ultimately resorted to black-market services in mainland China. They worked with an agency to find an egg donor AND black-market surrogate. Not only that, but a third woman to pose as the mother on the birth certificate. The emotional and financial toll was staggering: their first child cost them $110,000, and they had to go to court to ensure parental rights after all that. For their second child, they returned to Canada, where the husband’s sister acted as a surrogate, costing them $14,000—a stark contrast, but not without its challenges.
In Canada, provincial disparities turn parentage into a postcode lottery. Two of the most populous provinces, BC and Ontario, provide legislation recognizing the intended parent’s rights and are considered more “parent-friendly” than other jurisdictions. Others, like two Atlantic provinces, Newfoundland and PEI, need court orders to solidify birth (hello, bureaucracy). While in Quebec, up until only a few years ago, surrogacy contracts were void—yes, really. Before June 2023, surrogacy was not recognized in Quebec, which was one way of banning it, but it also caused headaches and heartaches for Quebec parents needing surrogacy.
Why This Outdated Rule Still Haunts Us
The core problem? Laws prioritize childbirth over intent. A gestational carrier who shares no DNA with the baby can be the “default” mother until courts intervene—a costly, emotional hurdle for families. Meanwhile, genetic parents using surrogates face legal limbo in jurisdiction’s clinging to mater est.
The Way Forward
Modern parenthood is about intent, not just biology or birth. Canada’s piecemeal system needs federal clarity, while other nations must stop forcing families into court battles to prove they are their child’s parent.
