Motherhood as the Norm; Non-Motherhood, Conditions Apply

‘Gravity of Tenderness’ by The Fabler.

Parenthood can be a source of meaning, care and fulfillment for many. It is not, and need not be, for all. Across time and legal structures, patriarchal and pro-natalist social orders have romanticized motherhood as the ultimatum of womanhood. Pregnancy, child-rearing and care are continually naturalized, gendered and attached to women’s bodies. Consequently, women who refuse matrescence through abortion, voluntary non-parenthood or resistance to care obligations are stigmatized as non-conforming. Contemporary articulations  of child-free lives refuse ‘mater-normativity’, as termed in Amrita Nandy’s work and assert non-motherhood as a legitimate social position in its own right. The familiar claim that no woman can call herself free until she can choose consciously whether she will or will not be a mother remains legally unsettled.

International Human Rights Law (IHRL) framework protects women from being harmed by reproduction, manifesting as violence, coercion and severe threat to life or health. However, has it been/ can it be interpreted affirmatively to recognise non-motherhood as a legitimate, self-determined reproductive choice grounded in equality, at least in principle? This piece is a structural critique that exposes how IHRL constructs reproductive autonomy asymmetrically. It contends that IHRL acknowledges reproductive autonomy only insofar as it culminates in motherhood or where refusal can be justified, explained and contained. Using feminist and critical lenses, it assesses how reproductive autonomy is constructed defensively and not affirmatively.

Is There a Right Not to Mother?

Curiously enough, IHRL treaties neither define ‘motherhood’ nor do they expressly articulate a right to non-motherhood. Motherhood, as inferred from the human right treaties, is not confined to a biological sense, not exclusive of gender-diverse parents [Article 16 of the Convention on the Elimination of Discrimination Against Women (CEDAW) and Article 10 of the International Convenant on Economic Social and Cultural Rights (ICESCR)] and includes those with disabilities [Article 23 of the Convention on Rights of Persons with Disabilities (CRPD ). Whereas recent scholarship has conceptualised motherhood and non-motherhood (both voluntary and non-voluntary) as existing on a continuum, IHRL is predominantly framed to oscillate between desired motherhood and forced motherhood within an either/or space. Those between these extremities remain legally unintelligible. Feminist critiques point out that women appear in international law, largely as victims or potential mothers or mothers in need of protection, thereby objectifying their reproductive identities without recognition as legal subjects.

Consider Article 16 (e) of CEDAW. It affirms women’s right to “decide freely and responsibly on the number and spacing of their children” but embeds a presumption. It imagines a subject which is already maternal or presumed to become so and is deciding how many and when. Even the possibility of having ‘none–ever’ is left conceptually untheorized. ‘Non-motherhood’ as a right is neither protected nor prohibited; it is unarticulated. Without an explicit recognition of non-motherhood as a reproductive outcome, mater-normativity remains largely unhindered. This piece is confined to the refusal of biological gestation and childbirth as an assertion of reproductive choice to non-motherhood. Questions of parental responsibilities after the child is born fall outside its scope.

Abortion without a Right to Refusal

No core IHRL treaties explicitly confer a ‘right to abortion’. Access to abortion is derived from its articles 12, 14 and 16 of the CEDAW and through the CEDAW Committee’s interpretation in the context of preventing illegal and unsafe abortions, surging maternal mortality rates (CEDAW General Recommendation No.24) and gender-based violence where it causes suffering (CEDAW General Recommendation No.35). The Committee acknowledges the gendered costs of motherhood and affirms women’s decisional authority over reproduction. However, it grounds reproductive choice in health, family welfare and population regulation (CEDAW Committee’s General Recommendation No. 21).

An increasing inclination to read women’s autonomy into gender equality is evident from CEDAW Committee’s inquiry into Poland’s abortion laws. Abortion, however, emerges as an exceptional relief more than an existential refusal as such. Reproductive autonomy, thus, is uniquely conditional in ways other intimate life choices are not. While sexual autonomy is consent-based, refusal of marriage is recognised without justification, refusal of motherhood is required to meet the thresholds of suffering to be valid.

Abortion as Harm Reduction, Not Reproductive Refusal

Agreeably, criminalized, inaccessible or coercive abortion regimes are fundamentally at odds with women’s equality, dignity and autonomy. General Comment No. 22 of Committee on Economic and Social Rights frames access to safe abortion and post-abortion care as a public-health measure so as to prevent unintended pregnancies and unsafe abortions. The UN Working Group on discrimination (2017) against women locates reproductive autonomy where pregnancy endangers health/life risk but not as a sustained right to remain non-maternal across one’s course of life. Similarly, General Comment No. 36 of the Human Rights Committee asserts that States are required to ensure access to abortion where continuation of pregnancy would cause substantial pain or suffering, most notably in cases of rape, incest or foetal non-viability. Though autonomy appears as language, abortion access is primarily justified as an instrument to prevent greater harm and not as an end in itself; only because forced motherhood is harmful, not necessarily because non-motherhood is an equally legitimate reproductive outcome.

Choosing Which Child and Choosing None

The outer limits of reproductive agency within IHRL are most visible in the context of  abortions on foetal disability ground, where refusal is more readily permitted. Such abortion laws are not women-centric articulations of autonomy but mechanisms that allow elimination of undesirable foetus and reflect ableist, medicalized and quasi-eugenic imaginaries of lives. The divergent approaches of the CEDAW Committee and the CRPD Committee is evident of this tension. While the former emphasized States to provide legal access to abortion, at least in cases involving foetus with disabilities, the latter recommended them to abolish foetal abnormality ground for abortion for perpetuating stigma. Their 2018 Joint Statement attempted for reconciliation and the Nairobi Principles assert that there is no incompatibility between guaranteeing access to safe abortion and protecting disability rights. In this vein, when IHRL does not recognise foetal personhood (Copelon et al., Reproductive Health Matters (2005), Artavia Murillo v. Costa Rica (IACtHR, 2012), Convention on Rights of Child drafting history), grounds-based abortion regimes cannot coherently be justified as balancing competing right claims. They do function as rationing mechanisms in order to manage the social consequences of reproduction. Research shows that enabling abortion access on request would be more rights-enhancing than grounds-based abortion regulations.

Suffering as the Threshold

The Human Rights Committee recognised mental trauma of a woman being forced to carry a non-viable pregnancy to term (K.L. v. Peru) and emphasized the anguish caused by delayed access to abortion for a rape survivor with intellectual disability (L.M.R v. Argentina). Similar reasoning followed in Mellet v. Ireland and Whelan v. Ireland. In the Niñas no madres” cases of extreme vulnerability, the Human Rights Committee held that forcing girls into motherhood constitutes a gross restriction, infringing a range of rights. It is victimhood-based and age-related exceptionalism. Women need to suffer/likely to suffer in order to refuse motherhood.

A hierarchy of abortion claims becomes the clearest in A.B and C v. Ireland. The European Court of Human Rights (ECtHR) did not defer that access to abortion falls within the ambit of right to private life but it deferred to the State’s substantive moral choice where applicants sought relief for socio-economic reasons and for refusal of parenthood itself. It afforded protection only procedurally where State itself had drawn a life-saving exception. In M.L v. Poland and A.R v. Poland, the Court again did not assess the substantive compatibility of Poland’s near-total ban on abortion. It intervened only on the procedural and rule-of-law ground. In contrast, when reproduction is desired, the Inter-American Court of Human Rights (IACtHR) readily acknowledged access to in-vitro fertilization as an expression of reproductive autonomy and private life (Artavia Murillo v. Costa Rica). Thus, autonomy is recognised when it culminates in parenthood and tolerated only conditionally when in refusal.

Motherhood as a Gender Stereotype and Social Norm

Article 5 of the CEDAW obliges States to eliminate practices based on stereotyped roles for men and women. It challenges biological determinism, treating maternity as a social function and emphasizing on shared parental responsibility. However, does CEDAW de-stereotype merely how motherhood is to be performed or whether it unsettles if motherhood should be performed at all?  CEDAW is a dynamic instrument. As Rebecca Cook and Simone Cusack point out, state obligations keep evolving as our understanding of harmful gender stereotypes grow. The Concept Note to CEDAW General Recommendation No. 41 identifies as harmful the belief that women are pre-destined to be ‘wives and mothers’ and rejects the view that reproduction is a duty; that women are incapable of independent reproductive decision making. It links these stereotypes to discrimination across health, employment and life. This intervention is directed at compulsory and naturalized maternal roles. It does not interrogate motherhood itself as a structuring social norm.

CEDAW does condemn stereotyped motherhood without explicitly contemplating a right to non-motherhood. Article 5 has a less-tapped transformative potential beyond formal equality.  If gender stereotypes cause discrimination and structural exclusion, then mater-normativity itself must be questioned. However, an uncritical celebration of ‘choice to non-motherhood’ separated from structural inequality is no less incomplete. As Dorothy Roberts cautions, the liberal language of ‘choice’ privileges those with socio-economic capacity to exercise it. It treats reproductive decisions as private acts, without taking into consideration the power structures that shape them. Therefore, reproductive freedom must encompass both the right not to mother and right to mother in dignity. Without it, the legal and state ordering and governance of reproductive lives would remain unexamined.

Of all, the CEDAW Committee’s inquiry into Poland marks its strongest intervention, identifying  abortion criminalization as a system of coercive state control that reduces women to reproductive instruments. Though tangential, recent developments gesture towards de-stabilising essentialised ideas of women’s reproductive capacity. Advisory Opinion OC-31/25 of the IACtHR recognises right to care, inclusive of right to self-care as an autonomous human right. Further, in H.W v. France (2025), the ECtHR categorically rejected the idea of enforceable ‘marital duties’ where divorce can be granted solely on the basis of a woman refusing sexual relations. If IHRL recognises that law cannot compel sexual availability within marriage without violating autonomy, it becomes increasingly difficult to justify legal regimes that restrict abortions as much as to understand non-recognition of non-motherhood as an autonomous human right.

IHRL, thus far, offers a thin negative conception of reproductive autonomy. It condemns forced motherhood when it becomes indistinguishable from violence and does not yet recognise non-motherhood as freedom to author one’s reproductive life. So long as IHRL framework continues to recognise autonomy only where motherhood is either desired or unbearable, non-motherhood will remain a conditional tolerance. This piece exposes this structural deficit and insists that an account of reproductive justice in IHRL must move further by contemplating the right not to mother.