Maternal rights and responsibilities before the law in Scotland, c.1650-c.1750

This paper examines a series of legal disputes relating to child maintenance, child custody and child welfare that were brought before the Edinburgh Consistory court between c.1650 and c.1750. It will explore the ways in which maternal claims to exercise rights of access to, custody of, and decision-making on behalf of their children were constructed, defended and attacked in legal discourse as well as by litigants in court. The paper focuses on the intersection of family and state, and the ways in which women’s reproductive labour was treated and often overlooked in court. The paper will situate details of legal disputes in the context of wider discourses on motherhood as well as observe the extent to which ‘caring about’ was manifested in, and entailed associated rights to, ‘caring for’ dependent children. The paper will conclude that in its handling of legal disputes relating to parental authority over children the state was complicit in taking for granted women’s reproductive labour (caring for children) while denying women equal rights with men (caring about children), and thereby contributed to the institutional entrenchment of the gender inequalities associated with care provision.