In
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (), to the (AD 529) ordered by Eastern Roman emperor Justinian I.
Roman law also den ...
, (from
Latin
Latin ( or ) is a classical language belonging to the Italic languages, Italic branch of the Indo-European languages. Latin was originally spoken by the Latins (Italic tribe), Latins in Latium (now known as Lazio), the lower Tiber area aroun ...
: "the mother is always certain") is a legal principle which has the power of ("presumption of law and by law"), meaning that no
counter-evidence can be made against this principle. It provides that the mother of the child is
conclusively established, from the moment of birth, by the mother's role in the birth.
Since
egg donation
Egg donation (also referred to as "oocyte donation") is the process by which a woman donates eggs to enable another woman to conceive as part of an assisted reproduction treatment or for biomedical research. For assisted reproduction purposes, e ...
, or
embryo donation with
surrogacy
Surrogacy is an arrangement whereby a woman gets pregnant and gives birth on behalf of another person or couple who will become the child's legal parents after birth. People pursue surrogacy for a variety of reasons such as infertility, danger ...
, started using the technique of
''in-vitro'' fertilization, the principle of has been shaken, since a child may have a ''genetic'' and a ''gestational'' ("
birth
Birth is the act or process of bearing or bringing forth offspring, also referred to in technical contexts as parturition. In mammals, the process is initiated by hormones which cause the muscular walls of the uterus to contract, expelling the f ...
"), let alone a "social", mother who are different individuals. Since then some countries have converted the old natural law to an equivalent
codified law; in 1997 Germany introduced paragraph 1591 ("motherhood") of the
BGB (
civil code
A civil code is a codification of private law relating to property law, property, family law, family, and law of obligations, obligations.
A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdiction ...
) reading ("the mother of a child is the woman who gave birth to it"). This has also been tested in the British case of
Freddy McConnell.
The Roman law principle, however, does not stop at the mother, in fact it continues with ("The father is always uncertain"). This was regulated by the law of ("the father is he to whom marriage points"; see
presumption of legitimacy). Essentially
paternity fraud had originally been a marriage fraud in the civil code
[In Germany, the historic ("action in dispute of legitimacy") was simply renamed as ("action in dispute of fatherhood") when legal paternity was redefined.] due to this principle. Today some married fathers use the modern tools of
DNA testing to ensure a certainty on their fatherhood.
See also
*
Lydia Fairchild, a woman whose DNA tests seemed to imply she was not the mother of the child she just gave birth to.
* ''
Partus sequitur ventrem''
*
Matrilineality
Notes
References
Legal doctrines and principles
Legal rules with Latin names
Paternity
Roman law
{{AncientRome-law-stub