Columbia Journal of Gender and Law

Birth in Prison: Systemic Discrimination Barriers to Acknowledging the Legal Personhood of the Child

2025-07-09T16:12:46+00:00

This Article uses systems theory to outline the problem of automatic rights denial of children born to incarcerated persons. Despite the demonstrated health importance of bonding in early infancy, children are routinely separated from their mothers at birth without due process or consideration of their interests. While this separation is enacted by corrections administrators, it is in fact conduct sent into motion by the earlier decision to incarcerate a pregnant person, even in the knowledge that this will mean automatic separation of the child and mother at birth. This Article argues that such incarceration decisions are communicating a devalued understanding of the pregnant person, labeling her as a worthless mother to her child. By identifying and rejecting discriminatory norms in legal system communications, the rights of children can be better projected.

To Prison, With Mom: International Due Process Issues for Children and Mothers Posed by Prison Nurseries

2025-07-10T20:48:58+00:00

Some jurisdictions automatically permit infants born in custody to stay with their mothers, while others enforce immediate separation. Both practices contradict the United Nations Convention on the Rights of the Child’s best interests standard and violate general notions of due process. By comparing automatic actions in Mexico, India, and Canada with the United Kingdom’s multi-agency admissions boards and Australia’s Living with Mum Program, this Article demonstrates how transparent, case-by-case decision-making upholds the human rights of both mother and child. We recommend that each case be thoroughly assessed by an interdisciplinary team to ensure the child’s voice is heard and their best interests are prioritized. Decision-makers must weigh the risks and benefits of placing a child in prison with a parent, considering factors such as the child’s age, maturity, and the conditions of both the prison and alternative placements. The decision-making process should be transparent, with written findings and an opportunity for judicial review. Meanwhile, governments must systematically collect data and support longitudinal research to ensure policies truly prioritize the human rights of both mother and child.

Mitigating Motherhood: Centering the Rights of Children and Mothers in Criminal Sentencing in England and Wales

2025-07-10T20:57:39+00:00

This Article examines the evolving legal and policy frameworks surrounding the sentencing of mothers and pregnant women in England and Wales, focusing on the balance between punitive justice and the rights of children. Tracing two decades of legal precedent, it highlights key milestones, including the landmark case R v. Petherick, and subsequent developments in case law and sentencing guidelines. Despite incremental progress, inconsistencies in lower courts persist, with sentencers often failing to adequately weigh the disproportionate impact of imprisonment on dependent children and pregnant women. Notable cases reveal the judiciary’s gradual recognition of the unique harms associated with maternal incarceration, underscored by catastrophic events such as infant deaths in prison that have spurred public and professional discourse. This Article underscores the necessity for legislative reforms to prioritize non-custodial sentences for mothers and pregnant women, ensuring a comprehensive assessment of family impacts in sentencing decisions. Recent appeals in 2024 illustrate a growing judicial awareness, though gaps remain in first-instance courts’ application of these principles. To safeguard children’s welfare and uphold family rights, this Article advocates for statutory presumptions against custodial sentences in these contexts, aligning justice with broader social and developmental outcomes.

The Early Punishment of Accused Women: Experiences of Pretrial Detention of Mothers and Children in a Maternal-Child Unit in Chile

2025-07-10T21:10:21+00:00

the population deprived of liberty in Latin America and the Caribbean. This situation has significantly affected women accused of drug crimes, with those accused representing a higher proportion than those convicted of this type of crime in prison. In the face of structural gender inequalities that overburden women’s care, this heightened deprivation of liberty implies significant challenges hindering motherhood. As a result, in Chile, as in other countries, infants up to the age of two are allowed to be placed in maternal and child units in prison, both for convicted and accused persons, under the pretense of safeguarding the best interests of the child and strengthening the attachment bond. Based on interviews with accused women living in a mother-child unit with their children in Chile, this Article explores the experiences of mothers and children in the context of pretrial detention. The findings reveal precarious living conditions, difficulties in meeting children’s basic needs, and an institutional bureaucracy that contributes little to the well-being of mothers and children. In contrast to convicted women, this situation is exacerbated in the context of pretrial detention. Imprisoned children are deprived of their rights and suffer deficiencies in food, health, education, and recreation. As a result, women experience unique pains of imprisonment associated with the exercise of motherhood and care, such as uncertainty about their child’s future. This Article chronicles how pretrial detention is an early sentence that punishes, above all, based on gender and class.

Accidental Carceral Subjects: Reassessing the Prison Nursery Model in India

2025-07-10T21:19:14+00:00

This Article critically examines the Indian prison nursery model from a sociolegal perspective. Although framed as a reform to uphold child rights, the policy of allowing children to live with their incarcerated mothers until the age of six obscures the inherently punitive and harmful nature of carceral institutions to these children.

The Article argues that the purported “choice” mothers have to keep their children with them in prison is profoundly shaped by structural inequality—while women with access to resources may arrange external care, those without are left with no meaningful alternative. This coerced caregiving compromises children’s constitutional rights and situates maternal labor within carceral control. The Article also critiques the state’s heavy reliance on nonprofit organizations to operate prison nurseries, exposing the uneven, unsustainable, and often ad hoc nature of these arrangements. Rather than mitigating harm, such reforms often entrench carceral logics under the guise of care.

Ultimately, the Article calls for a shift away from reformatory models toward abolitionist frameworks that center the dignity, rights, and autonomy of both mothers and children. It urges a radical reimagining of the state’s response to maternal incarceration, one that dismantles carceral systems and enables mothers and children to live together and thrive beyond prison walls.