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Egg Donation, Commodification, and Coercive Payments

Kimberly D. Krawiec, Gametes: Commodification and The Fertility Industry, The Routledge Handbook of Commodification, Vida Panitch and Elodie Bertrand eds., (forthcoming 2024), available at SSRN (Apr. 22 2023).

A growing number of couples and individuals use some combination of in vitro fertilization (IVF) clinics, egg donors,1 sperm donors, and gestational surrogates to have children. But these ways of helping the infertile have children have raised moral qualms. Kimberly D. Krawiec’s paper, Gametes: Commodification and The Fertility Industry, offers a concise and persuasive overview of one small part of the debate: moral objections that have been raised to egg donation and payments for egg donation.

As Krawiec notes elsewhere, “[t]he United States is unusual among most jurisdictions in that it permits a legal market in human eggs.”2 And as this paper elaborates, much of the regulation of compensation for egg donors has occurred in an indirect way. The vast majority (as of 2018, 86%) of IVF clinics were members of the Society for Assisted Reproductive Technology (SART) (P. 5). SART, in turn, required its clinic members to follow certain “best practices,” including the guidelines for egg donor compensation set by a different group, the American Society for Reproductive Medicine (ASRM) (P. 5).

For many years, the ASRM guidelines, adopted and applied by SART, created a cap, a maximum amount, that egg donors could be paid. While it is not entirely clear how widely the price cap was followed (P. 5), the cap was eventually challenged by a class action antitrust lawsuit brought by donors, and was ultimately withdrawn as part of the settlement of that lawsuit (Pp. 5-6).

In Gametes: Commodification and The Fertility Industry, Krawiec offers an overview of the history of ARSM’s guidelines, and the moral and policy arguments that have surrounded it. As the paper points out, two questions are salient: (1) Why did ARSM (and other commentators) treat payments for egg donation as raising commodification issues but did not raise comparable questions about sperm donation?3; and (2) Why should high payments be considered morally problematic, and treated as such, regardless of the circumstances of the egg donor?

Regarding the first question, there are salient differences between sperm donors and egg donors: in particular, sperm donors are paid far less than egg donors, and (a related point) egg donors face medical risks from the drugs and minor surgery involved in egg donation that sperm donors do not face (P. 3). While these differences are clearly morally significant for some purposes (e.g., they might justify different views regarding how each form of gamete donation should be regulated), it is not clear how either factor alters the presence or absence of commodification concerns. Sperm and egg donation seem to be comparable for commodification purposes: each involves the sale of body products for use by another person. Additionally, ASRM never explained why payments to donors are “inappropriately commodifying” only above, but not below, the guidelines’ threshold (P. 7).

Regarding the second question, the idea that a large payment is, or at least can be, “coercive” has been controversial for a long time. This is not the place to explore that issue at the depth it warrants,4 but it is sufficient for present purposes to note that many theorists argue that there is coercion only when the person making the threat or offering the opportunity would make the other person (the victim) less well off, relative to that other person’s baseline circumstances if the offer was not taken (“your money or your life” or “accept this job or your family gets thrown out into the streets,” etc.). In the case of potential egg donors considering high compensation, there is no such threat if they simply say “no.” And as Krawiec reminds us, how strong the lure of high payments might be would, of course, depend on the individual circumstances of the potential donor; however, the cap did not distinguish between the more financially desperate among the potential donors and those who might be financially comfortable (P. 8).

The article observes that there are indications that the caps on compensation for egg donation may have been more about business concerns rather than commodification worries. Clinics expressed fears that the costs of high egg donation compensation would have to be passed on to potential clients (P. 4). The clinics did not express similar worries about high fees for doctors paid to conduct the IVF process being passed on to potential clients; this may be a simple matter of class bias. As Krawiec states: “If access to reproductive technologies were really a meaningful concern for fertility centers, then they adopted a particularly poor mechanism for addressing them” (P. 9).

Returning to the moral objection relating to high compensation, doctors (and lawyers and engineers and scientists), as well as potential egg donors, may be “persuaded” to do morally doubtful tasks by the lure of high payment, but no one is suggesting a “cap” on those in the professional class. Of course, egg donation raises physical dangers as well as (arguable) moral issues. But the obvious responses to the problem of medical risks are medical screening of potential egg donors, medical supervision during the process, and the provision of insurance for problems that may arise later. And if a high enough level of danger were present, egg donation should be prohibited entirely or highly restricted; simply being paid less seems an ineffective, paternalistic, and perhaps even cruel response to the medical risks.

None of this is to deny that commodification is a real issue relating to egg donation or other aspects of how we respond to infertility. But it is too often used as a conclusory argument that requires no further analysis.  In Gametes: Commodification and The Fertility Industry, as in her other articles,5 Krawiec shows us the errors in quick and sloppy thinking about the moral evaluation of payment practices we currently regulate or prohibit.

  1. Like Krawiec (P. 1 n.1), I follow the convention of speaking of gamete providers as “donors” even when they are being paid (beyond their expenses).
  2. Kimberly D. Krawiec, Markets, Morals, and Limits in the Exchange of Human Eggs, 13 Geo. J. of L. and Public Policy 349, 354 (2015).
  3. As the article reports (Pp. 7-8), ASRM’s most recent set of ethical guidelines also notes this unjustified difference in treatment.
  4. See, e.g., Alan Wertheimer, Coercion (1988); see also Matt Zwolinski, Benjamin Ferguson & Alan Wertheimer, Exploitation, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta & Uri Nodelman eds., 2022).
  5. See, e.g., Kimberly D. Krawiec, No Money Allowed, 2022 U. Chi. Legal Forum 221 (2023).
Cite as: Brian Bix, Egg Donation, Commodification, and Coercive Payments, JOTWELL (February 23, 2024) (reviewing Kimberly D. Krawiec, Gametes: Commodification and The Fertility Industry, The Routledge Handbook of Commodification, Vida Panitch and Elodie Bertrand eds., (forthcoming 2024), available at SSRN (Apr. 22 2023)), https://family.jotwell.com/egg-donation-commodification-and-coercive-payments/.

The Harm of “Nothing Burgers”

Kelley Fong, Investigating Families: Motherhood in the Shadow of Child Protective Services(2023).

Child protective services (CPS) agencies subject a wide scope of families to investigation, and the vast majority do not lead to family separations or family court cases. A 2017 study, for instance, showing that 37% of all children and 53% of Black children are the subject of CPS investigations in their childhoods, has now been cited hundreds of times. Kelley Fong’s new book, Investigating Families, is based on the months she spent embedded with CPS investigators responding to allegations that parents abused or (more often) neglected their children, and the interviews she conducted with both investigators and the parents who were investigated over the course of multiple years (Methodological Appendix, Pp. 213-40). Fong, a sociologist, found staff with largely good intentions thrust into an adversarial posture with families by a system that is astonishingly broad, harms the families it nominally seeks to help, and intertwines social services with social control of poor families.

Fong observes that a large number of CPS investigations involve situations where nobody thinks there is any real risk to child safety, especially not the CPS investigators at the center of the system. One investigator sees a new case as “a nothing burger” (P. 77). Another reflects on the need for schools to communicate better with families and not call CPS (P. 83). Another complains “some of the stuff we get is just ridiculous” (P. 86). Another “wasn’t particularly concerned” about new allegations (P. 133). A CPS administrator complains about the mass of unnecessary reports (Pp. 84-85). Indeed, nationally, CPS agencies “substantiate” (the term for when a CPS agency concludes after investigation that a parent neglected or abused a child) only 17.8% of allegations they respond to.

Facing a CPS investigation and the accompanying concern that the investigation will lead to the agency removing one’s child can scare parents. And many parents reported liking the individual investigators assigned to their cases (Pp. 2, 4, 135). Indeed, some defenders of the status quo cite research showing that “many parents regard their child welfare workers positively.”

Yet Fong demonstrates how those positive views of individual CPS workers do not undo the harms imposed by this unnecessary state intervention. CPS agencies conduct wide-ranging and invasive investigations, even when allegations are quite narrow or resolvable more easily (P. 89), and CPS to “CYA” behavior regardless of the impact on families (P. 95). This “Surveillance to Avoid Liability” (P. 94) imposes real stress, leaving parents “terrified” (P. 1). Parents develop lasting distrust of schools, mental health counselors, and other service providers, because they might report them to CPS (P. 153). Parents, faced with the reality of “parenting in the shadow of the state,” routinely avoid actions which would trigger CPS reports, including avoiding professional services like home visiting programs that might otherwise help them. (Pp. 25, 37.)

Even when CPS agencies help families obtain beneficial services, they create a social-services-delivery structure centered on coercing poor parents. CPS agencies are a “glorified referral service” (P. 198) – they provide few services directly, and instead refer families to service that parents could obtain elsewhere. The only thing CPS agencies add is the threat (stated or unstated) of what might happen if parents refuse to comply. And this power dynamic infuses the system. One reason many professionals report families to CPS is to “discipline parents” (P. 54), especially if the parent did not do what the school or other professional advised (P. 69). Once CPS is involved, the agency demands “acquiescence” from parents who, fearing what CPS might do, acquiesce (Pp. 98-102).

Even when CPS agencies quickly recognize that a parent has not neglected her child, they identify “risk factors” – single-parent status, relative youth, past trauma, and various indicators of poverty – and use them to justify ongoing surveillance of families (Pp. 108-10). That surveillance includes demands CPS make of parents to engage in services “laser-focused on fixing their attitudes and choices,” not providing “direct aid” to parents (P. 139). That is, even nothing-burger reports lead to ongoing state intervention.

Sometimes CPS involvement does lead to a family separation, often from arbitrary state actions. For example, the police arrested one parent for disorderly conduct following a verbal back and forth with a store clerk who insulted her. That arrest led CPS to remove her child and a one-year ordeal to reunify with the child whom she had never hurt in the first instance (P. 165). Such family separations trigger troubling family court intervention: the parents interviewed by Fong were provided counsel who did not challenge removals, pressured parents to comply with agency mandates, did not return parents’ phone calls, and allowed clients to be silenced in court (Pp. 169-79). The legal process “stifled advocacy” that parents might otherwise take for themselves (P. 183). There is no indication that the court process imposed meaningful checks and balances on CPS agencies or meaningful protection to family integrity.

Fong is not a lawyer, but her study makes clear how the law contributes to the problems she describes and how legal change could mitigate the harm. Mandatory reporting statutes funnel many cases to CPS agencies unnecessarily. Fong is careful to note, however, that many reporters claim they would continue to make reports even without a legal mandate (Pp. 53, 54, 63). The reporters’ reactions suggest that narrowing or repealing mandatory reporting laws are necessary but not sufficient to the goal of shrinking the family regulation system’s scope. CPS agencies investigate families as if “there’s no concept of due process” during investigations (P. 109), even if that is legally wrong, as previous Jots have described. Fong’s descriptions of the family court process emphasize the need for well-funded, vigorous, family defense offices to actually empower parents (such offices were not present in the Rhode Island and Connecticut counties where she studied CPS agencies and impacted families).

Fong recognizes that even more dramatic change is indicated. She calls for  “Shrink[ing] CPS’s Net” by helping families (especially those with less serious cases) through less intrusive means, and letting CPS agencies focus on more severe cases where intrusive means are needed (P. 201). She argues that legal institutions that funnel families to CPS agencies must reevaluate those actions, financial to families should expand, and more (Pp. 206-11). Fong shows a system that is fundamentally broken and calling out for significant change.

Cite as: Josh Gupta-Kagan, The Harm of “Nothing Burgers”, JOTWELL (January 26, 2024) (reviewing Kelley Fong, Investigating Families: Motherhood in the Shadow of Child Protective Services(2023)), https://family.jotwell.com/the-harm-of-nothing-burgers/.

Why Relational Feminists were Right

On the surface, Jennifer Hendricks’s Essentially a Mother is a book about the law of pregnancy and parenthood. On a deeper level, however, it is an especially timely tour de force, which reestablishes the importance of relational feminism as a critical theory that offers valuable insights and lessons for today’s scholars and activists.

Hendricks takes readers on a comprehensive yet concise academic journey across the legal debate over sex equality and accommodations of pregnancy in the workplace; changes in the status of unwed genetic fathers as legal parents under various circumstances; the Constitutional rights of parents over their children; the laws that govern and regulate surrogacy; and finally, abortion. Along the way, Hendricks provides a theoretical overview of the schools of thought that shaped feminist jurisprudence.

Hendricks’s overview is rich and valuable for everyone. Students who are taking their first steps in academia can glean from it the necessary background for the relevant legal cases, as well as other developments in the law and feminist theories. Hendricks excels at explaining the law and complex theories in a clear and easy-to-understand way. The more knowledgeable and sophisticated readers will benefit greatly from the range of topics Hendricks weaves together to make her case, the historical perspective she provides, and the sharp insights she offers.

The focal point of the overview and analysis is Hendricks’s reading of the so-called “Unwed Father” Supreme Court cases.1 In these cases, the Court considered pregnancy and childbirth, involving both biology and caretaking, to be the model for the kind of parenthood that the law should protect. Because biologically born men cannot get pregnant, the Court crafted for them a different biology-plus-relationship test for parentage in terms they can fulfill. The test provides a pathway to parental rights for biological fathers who “established a substantial relationship” with the child.

Hendricks argues that the Unwed Father cases are unique in two naturally interrelated ways. First, as sex-equality cases, they accommodate “natural” biological differences regarding pregnancy in the laws of parentage, unlike sex-equality in workplace cases. (In labor law, the Supreme Court has held that the law does not require the rules of the workplace to contain the burdens resulting from pregnancy because it should address only artificial barriers to sex equality.) Second, the values that underlie these cases are relational (“feminine”) values, because they privilege relationships over status and genetics. Nevertheless, in applying and interpreting these cases, the law gradually downgraded the role of pregnancy and care and instead moved to center genetics in defining parenthood. This approach led to results such as rapists being recognized as legal parents of their victims’ children. At the same time, the law required biological fathers to comply with procedures like putting their names on putative fathers’ registries and providing financially for the children to be recognized as legal fathers. As a result, four decades after the last of these cases was decided, marginalized biological fathers (poor, immigrant, and the like) who look after their children find themselves being denied parental status because of failure to meet paperwork requirements or to pay child support, while their caretaking is effectively ignored.

Hendricks turns to relational feminist insights to explain this approach of the law. Unlike its ancestor, cultural feminism, relational feminism avoids classifications and essentialism about innate characteristics of either women or men, and focuses instead on criticizing the values the law protects and offering alternative ones as worthy of protection. Relational feminists have argued that American law is based on the assumption that people are separated from one another and the most important purpose of the law is to protect and sustain individuals’ autonomy. The value of relationships under this vision is derived from their being consciously pursued and chosen, to fulfill the need for connection and safeguard an individual from loneliness. The law should guarantee that individuals can create and form relationships rather than being concerned with fostering existing ones.

The alternative account that relational feminists offer starts from the premise that individuals are connected to other individuals through relationships (not always chosen, which does not necessarily make them unwanted). For example, we all start out on the baby’s side of a relationship, needing and experiencing being cared for. The law should therefore value and protect relationships as the basic human condition, acknowledging that they might lead to one individual being dominated by the other and protecting individuals against such subordination. These interests and needs are not necessarily feminine but those of the systematically subordinated and oppressed.

Applying these insights to the Unwed Father cases, Hendricks explains that “[w]hen the Unwed Father Cases protected existing caretaking relationships, they were in a sense speaking in a language that’s foreign to the American legal system – they were in a different voice” (P. 88). It was destined, therefore, that judges, lawyers, and legislators would apply these precedents in a language they are used to speaking, which undervalues relationships and advances individual autonomy, including the right to pursue and establish new connections.

Hendricks seeks to reestablish the work of caretaking as the essence of parenthood. While gestation is one way of performing that work (P. 4), Hendricks recognizes that there are other ways of performing caretaking, like day-to-day care for children. It is what some of the biological fathers (those whose claims were recognized) did in the Unwed Father cases. Hendricks even acknowledges that some genetic fathers and other expecting parents can acquire parental rights at birth if they were involved in the pregnancy by encouraging the pregnant woman (P.191). Hendricks does not claim that gestation is inherently more valuable than other forms of caretaking but argues that it satisfies the biology-plus-relationship test, therefore “[a] woman who gives birth is essentially a mother;” her status as the legal parent is the starting point. By contrast, while genetics should count as a factor, it is not enough to establish parentage, not even when it is accompanied by intent, and even when such intent takes the form of a formal agreement.

Although Hendricks’ argument is controversial, it is also compelling. As I was reading through the book, I felt the need to revisit and rethink my own arguments about defining parentage, even if we are not widely divergent in our approach. Yet, I wish Hendricks would elaborate more on how expecting parents can satisfy the requirement for creating a caretaking relationship before birth. This issue is relevant to many individuals who are systematically disadvantaged or powerless, for example, a female partner of a pregnant woman. Such elaboration also seems desirable given the broader argument of the book about the failure of the law to protect existing relationships and the potential of relational feminism to serve as a general theory of oppression.

Revisiting relational feminists, Hendricks situates her analysis of the laws of parentage and pregnancy within a broader claim regarding the distorted values that American law protects. From the distance of time, we can truly appreciate the new layers that relational feminism has acquired, its significance and value. Hendricks indeed cites Angela Harris reminding us that relational feminism is not merely about women or gender; rather, it is a theory criticizing the values of the American legal systems, which protect the interests and needs of the powerful and the privileged. As such, relational feminism can be understood as a general theory of oppression, providing the conceptual tools to fight against not only patriarchy but oppression of all sorts. Hendricks reminds us of the price we pay when we play by the flawed rules of the system trying to achieve just goals. The most recent example she discusses concerns, naturally, the right to abortion. Arguing for the right to abortion as a right to autonomy created a weak and contingent right, in her analysis. It was meaningless for women who could not afford to pay for abortion: it did not support a claim for Medicaid coverage even when abortion was medically needed. The gradual erosion of this right over the years, culminating in Dobbs v. Jackson Women’s Health, seems predictable. An emphasis on relationships and the inherent risk of being a mere vehicle for the needs of another in this relationship could have made the case for the right to abortion stronger. But Hendricks argues that reshaping the values of the legal system cannot be achieved by tinkering with legal doctrines in the courts, since “[t]he courts, and especially the Supreme Court, have almost always been a reactionary force against women’s rights” (P. 193). Instead, she argues that the way forward is “through political action outside the courts” (ibid).

This lesson about grounding rights-based claims on a faulty foundation is especially timely for present-day activists who consider new strategies to defend and safeguard valuable interests and rights. For example, Hendricks’s discussion of Constitutional parental rights, in addition to that of abortion, sounds as a cautionary note for using this framework to protect children’s interests. Essentially a Mother arrives just when we need a reminder that it is time to update the values at the basis of American law and that relational feminism shows us how to do it.

  1. Stanley v. Illinois, 405 U.S. 645 (1972); Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380, 394 (1979); Lehr v. Robertson, 463 U.S. 248, 262 (1983).
Cite as: Ayelet Blecher-Prigat, Why Relational Feminists were Right, JOTWELL (December 7, 2023) (reviewing Jennifer Hendricks, Essentially a Mother: A Feminist Approach to the Law of Pregnancy and Motherhood (2023)), https://family.jotwell.com/why-relational-feminists-were-right/.

Law’s Power in Naming & Silencing

Lisa Washington, Survived & Coerced: Epistemic Injustice in the Family Regulation System, 124 Colum. L. Rev. 1097 (2022).

Words are, perhaps, the most powerful of human creations. Through words, we see and unsee. We celebrate and condemn. We build and destroy. And through words, we create and exert the power of the law. Lisa Washington’s Survived & Coerced: Epistemic Injustice in the Family Regulation System reminds us of this potent symbiotic relationship between words and the law.

Drawing from her experience as a public defender in New York City, Washington expounds in her article how the family regulation system (a.k.a. child welfare system) procures, fosters, and engages in epistemic injustice to reproduce and legitimize its purported goal of child safety whilst it serves as an arm of the carceral state to further marginalize women, the poor, and people of color. Epistemic injustice, coined in political philosophy by Miranda Fricker, attempts to depict the connection between power, oppression, and prejudice in the realms of knowledge production and reproduction. Fricker defines the concept as the unfair treatment of a person or a group in their capacity to know or describe their experiences. Such unfair treatment harms people in their capacity as knowers as they are subjugated by societal power structures expressed in stereotypical assumptions. The concept of epistemic injustice, thus, captures the long-discussed disparity by jurists, activists, and feminists such as Sojourner Truth that some voices, forms of knowledge, stories, and experiences are more audible, more important, easily believed, and heavily weighed than others.

This form of injustice has recently received increased attention in legal scholarship, mainly in criminal law and evidence (i.e., women’s credibility in domestic violence, sexual violence and sexual harassment cases, punishment, and impeachment rules). However, epistemic injustice has also started to be introduced in other areas such as disaster law, movement law, procedural law, and family law. Washington’s piece is one of the first to bring epistemic injustice into the last.

Using Fricker’s theory as a framework, Washington analyzes the interactions of mothers whom the law identifies as domestic violence survivors/victims with Child Protective Services (CPS). Her analysis is particularly interesting because she does not restrict it to the usual testimonial injustice analysis. Most of the legal scholarship in the area of epistemic injustice focuses on this type of injustice that refers to the discounting of survivors’ experiences and testimony because of stereotypes. For example, scholars have shown how victims of sexual violence suffer from a testimonial deficit because they are not believed due to stereotypes associated with gender. Washington shows us how parents (mostly mothers) in the family regulation system are discounted, for instance, by social workers on their own needs because of stereotypes associated with class, gender, and race.

But Washington’s more significant contribution to the literature comes by delving into a hermeneutical injustice analysis as well. Fricker defines this category as the process of obscuring someone’s experiences and knowledge of their situation from our collective understanding owed to structural identity prejudices. The clearest example is sexual harassment. Before its creation as a legal action and as a concept in the language, its inexistence in our jargon because of patriarchal prejudices prevented victims from conceptualizing their experience and us from understanding the violence. The same happened with marital rape. In this piece, Washington shows us how by ignoring the knowledge of domestic violence survivors we obscure the harms the system causes/forces on them and how we deprive them of contributing with their experiences to the formulation of public policy and legislation.

In sum, by using both categories of epistemic injustice (i.e., testimonial and hermeneutical), Washington describes the full extent of the harm that both survivors and their families experience due to the law. Her most crucial contributions in this respect are: identifying the concept of lack of insight as the vehicle that legal players such as judges, attorneys, and social workers utilize to operationalize epistemic injustice; and acknowledging, as few others have begun to do, that injustice occurs in testimonial deficit but also in testimonial excess (i.e., when a person is believed more because of positive stereotypes or status).

Through the idea of lack of insight, the legal system is able to insert itself into the lives of survivors and their families and unsee, condemn, and destroy them. As Washington relates from their clients’ experiences, CPS can surveil, separate, and even destroy the lives of domestic violence survivors even when there is no indication of abuse or neglect. CPS does so by positing that because of survivors’ lack of insight into their “abusive situations,” they do not recognize that the conduct of their romantic counterparts as intimate partner violence constitutes child abuse or neglect. Articulating this “lack of insight” is the first step in the family regulation system’s epistemic injustice.

Legal operators unsee survivors by discounting their testimony that they are not victims of domestic violence or that even if they are (in situations in which they have sought the help of the state) their children are not at risk of abuse. Because they resist thinking of themselves and their children as victims, survivors are then seen (construed) as bad mothers who choose their intimate partners over their own children. This stereotypical based on notions of unchastity is used to discount the experiences of survivors, disbelieve them, and condemn them to the many harms that the literature on the family regulation system has highlighted for the last decade such as family separation, the perpetuation of poverty, and incarceration.

This testimonial injustice ends up destroying many families, especially poor families of color, keeping them subjugated within a system that denies their experiences. The focus of the family regulation system is on pathologizing survivors by discounting them instead of focusing on the structural issues associated with poverty such as housing, employment, and medical access. This becomes more evident in Washington’s hermeneutical injustice analysis.

Washington points out that, if parents’ knowledge about child safety was credited, the response of the system would center around families’ actual needs. Instead, the system reifies its idea of child safety and its role as part of the carceral state by not only disbelieving survivors but also by forcing them to articulate the discourse of victimhood that has been socially construed. For instance, to recover their children, survivors are forced to lie in court about what they think about their own situation. They are coerced into swearing that they have been victims of abuse, that their children were at risk, and that they were not previously able to recognize it. In doing so, the state forces survivors to see a reality that does not exist, reproduce and celebrate stereotypical ideas about women/motherhood, and participate in the building of prejudices that subjugate them.

Forcing them to adhere to these legal truths silences their experiences and understandings of the world while it conjures a reality that fosters inequality. Here lies the greatest contribution of Washington’s piece. It reminds us of the law’s power in naming and silencing and the need to continue theorizing about the pervasive harms of epistemic injustice in all areas of our legal system if we wish to live in a more egalitarian society.

Cite as: Aníbal Rosario-Lebrón, Law’s Power in Naming & Silencing, JOTWELL (November 8, 2023) (reviewing Lisa Washington, Survived & Coerced: Epistemic Injustice in the Family Regulation System, 124 Colum. L. Rev. 1097 (2022)), https://family.jotwell.com/laws-power-in-naming-silencing/.

Fetal Personhood as Violence

Meghan M. Boone & Benjamin J. McMichael, Reproductive Objectification, __ Minn. L. Rev. __ (forthcoming 2023) available at SSRN (August 25, 2023).

Meghan Boone and Benjamin McMichael’s forthcoming article, Reproductive Objectification, blends theoretical and empirical methods to argue that fetal personhood laws, in objectifying pregnant people, correlate with increased rates of intimate partner violence and violence against women. The authors examine three types of laws – feticide laws, advanced directive laws that override the wishes of pregnant patients, and civil commitment of pregnant people. By pulling three types of law together under the ambit of fetal personhood, the authors begin their piece with the insight that personhood laws are far reaching and longstanding. Boone and McMichael summarize their main points in this way:

First, if fetuses are full, legal people, and the law cannot comprehend “two physical bodies” that “occupy the same place at the same time,” then the potentially pregnant person must not truly be a person – but something else. Next, if potentially pregnant people are not fully human – not legal subjects – then they are instead objects or reproductive vessels. Finally, if potentially pregnant people are objectified as reproductive vessels, then they are vulnerable to the same types of violence that all dehumanized and objectified people have been subject to across time and history. (Pp. 15-16.)

To support their arguments, the authors assert, as other scholars have, that the concept of fetal personhood depends on establishing legal fetal rights that are the responsibility of the pregnant person to protect, even to her detriment. Such a responsibility, at the risk of physical, mental, and social harm, turns women into reproductive vessels. In one example, Boone and McMichael highlight that “a pregnant person’s loved ones cannot discontinue life support consistent with the patient’s written wishes but are obliged to let the state utilize her body in an effort to continue the pregnancy.” (P. 12.)

While fetal personhood laws certainly are not the only means of treating people as reproductive vessels, the authors reason that imbuing the fetus with rights that can trump the pregnant person’s is a crucial step toward dehumanization and objectification. The authors marshal powerful and contemporary images of how the anti-abortion movement removes any connection between women’s bodies and fetal bodies; the posters depicted in the article make plain that pregnant people live in service to another life, which has separate, and superior, interests. Conscripting people’s bodies in the service of others lies at the core of dehumanization. Boone and McMichael offer examples of how dehumanization runs throughout the atrocities of war, genocide, or slavery: “as a result of this objectification, the moral stigma associated with violence towards another human [is] reduced or eliminated entirely.” (P. 30.) The authors highlight how marginalizing some groups, like people seeking abortion, leads to stigma, exclusion, discrimination, and, core to their thesis, violence.

Their examples ground the article’s empirical analysis. The authors argue that “fetal personhood laws are in fact associated with statistically significant increases in violence towards potentially pregnant people. While there is certainly more than one potential theory for why this association exists, we rely on the theoretical arguments that precede this evidence to conclude that the underlying mechanism that animates this association is the necessary relationship between fetal personhood and the objectification of women as reproductive vessels.” (P. 16.)

And here is the article’s novel contribution. The authors’ data show a correlation between the number of fetal personhood laws in a state and an increase in the rates of violence against women and intimate partner violence, though it does not reveal an onset of violent attacks after the passage of personhood laws. The authors reveal disturbing potential correlations: “the rate of IPV in states with all three laws increased more rapidly than states with fewer of these laws.” (P. 36, 38.)

The authors acknowledge that their data cannot prove causality, and their analysis prompts complicated questions about the directional nature of the relationship between violence and fetal personhood laws. It might be true that pregnant people will be “subject to potential increases in private violence as captured by this empirical analysis,” but it could also be the case that the correlation runs in the reverse. People who already hold objectifying views of women (or have a propensity toward gender-based violence for any number of political, regional, religious or other reasons) support politicians and policies enacting those views. In other words, law may not be promoting more objectification, but those who already objectify may be promoting personhood laws.

Even without showing causality, this important article covers a lot of ground, and demonstrates how fetal personhood laws arose in multiple corners of law, even well before Dobbs v. Jackson Women’s Health Organization. The question the authors might ask is what comes next. Students for Life and organizations like them believe fetal personhood is the defining social justice and civil rights cause of our generation. They claim such protections are not about subjugating people or stereotyping women as inevitable mothers. They would refute the claims in the article that personhood protections have anything to do with dehumanization: they would balk at the article’s assertion that the Holocaust and American slavery are apt analogs for reproductive commandeering.

What can this article say in response in this post-Dobbs moment? How can the data it offers change hearts and minds? Those are central questions, for both theoretical and empirical inquiries, for what might lie ahead in the campaign for fetal rights.

Cite as: Rachel Rebouché, Fetal Personhood as Violence, JOTWELL (October 12, 2023) (reviewing Meghan M. Boone & Benjamin J. McMichael, Reproductive Objectification, __ Minn. L. Rev. __ (forthcoming 2023) available at SSRN (August 25, 2023)), https://family.jotwell.com/fetal-personhood-as-violence/.

Care Work, Gender Equality, and Abortion: Lessons from Comparative Feminist Constitutionalism

Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment also includes a sense that transformative political and constitutional change are necessary but difficult because (as Suk and Kate Shaw recently noted) Americans have “lost the habit and muscle memory of seeking formal constitutional change” —and because of problems like polarization, gerrymandering, and restrictions on voting. Drawing on her expertise in comparative constitutional law and gender equality, Suk offers “comparative lessons” from feminist lawmaking and constitutionalism elsewhere to help move the U.S. to a democratic constitutionalism that is post-patriarchy and post-misogyny. (Pp. 212-14.) In this review, I explore some of those lessons concerning governmental commitments to supporting care and gender equality and to fostering reproductive justice.

First, some explanation about Professor Suk’s title. “Misogyny” describes what “endures” after “patriarchy loses its force as law.” (P. 2.) “Patriarchy,” Suk explains, “was a set of legal rules that lost their validity when constitutional democracies committed to gender equality throughout the twentieth century.” (P. 3.) In the U.S., such rules included coverture marriage.  Patriarchy’s demise, spurred by feminist advocacy, included the end of coverture as well as ratification of the Nineteenth Amendment, and other gains in formal equality. Misogyny, by contrast, is a “range of expectations and entitlements” that “maintain patriarchal gender relations.” (P. 2.) Moving beyond misogyny requires “the transformation of a society’s foundational norms and baseline entitlements,” including how law “enforces expectations of female forbearance, sacrifice, and pain—especially in matters of reproduction and care—for the benefit of men and the society they control.”

How can a polity move beyond misogyny? Family law and gender law scholars will likely find of interest After Misogyny’s inventory of 20th and 21st century feminist efforts in the U.S. and in other legal systems. (This review focuses on the comparative examples.) Feminist constitutional actors in other countries helped to develop constitutional clauses enshrining gender equality and the foundational role of the family—and marriage—and declaring the entitlement of mothers (as in Germany’s Basic Law) to “the protection and care of the community.” (P. 187.) These clauses and their continued evolution (e.g., in light of critiques of gender essentialism) show, Suk argues, how feminist efforts can dislodge norms of overentitlement and overempowerment of men by recognizing the work of “social reproduction”—the task of “raising” the “next generation of citizen-participants in the economy and polity”—as a proper “subject” of constitutional making. (P. 182.)

Gender Equality and Building a Care Infrastructure

The COVID-19 pandemic made more visible that the work of social reproduction is “largely women’s work.” (P. 180.) Mothers disproportionately engage in caring for children, as compared with fathers (both as single parents and in different-sex households), and women are disproportionately among “essential workers.” “As a society”, Suk observes, “we have been unjustly enriched by the hardships undertaken by low-paid essential workers and working parents—mostly women.” (P. 180.) Further, as Catherine Powell has observed, essential workers are also disproportionately women and men of color. Many feminist scholars and organizations have argued that the pandemic showed the urgent need for a care infrastructure that is attentive to gender and racial equality. Naomi Cahn and I argued that this should be a vital part of a feminist (or gender-equitable) recovery plan.

Building a care infrastructure, Suk argues, is part of the task of “building feminist infrastructures.” (P. 180.) Why does the U.S. lag so far behind on such building? Suk suggests that one reason is the Equal Protection Clause in the U.S. Constitution. While the constitutions of other countries, including Germany, Italy, France, and Ireland, provide “special protection” of motherhood and the family, such clauses raise concerns in the U.S. because they seem directly in conflict with the formal equality and anti-stereotyping jurisprudence associated with the Equal Protection Clause. (P. 191.) On this point, I would observe that calls for a politics that embraces care and equality have sounded in the U.S. for decades. Many U.S. feminists (and here I include myself) have argued both that care is a public value that government has a responsibility to support and that gender equality is a constitutional commitment and public value that government has a responsibility to foster.

In Suk’s account of feminist constitutional efforts in, e.g., Germany and Ireland, advocates insisted on governmental support of both care and equality. Suk also describes the evolution of constitutional motherhood clauses to embrace care and equality. Article 41.2 of the Irish Constitution (adopted in 1937) recognized that “by her life within the home, woman gives to the state a support without which the common good cannot be achieved;” accordingly, “the state shall, therefore, endeavor to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.” (Pp. 192-93.) Some women’s groups criticized these provisions at the time because they seemed in tension with the constitutional guarantee of the privileges of citizenship to “every person, without distinction of sex;” one of the “women constitution makers” (Helena Concannon) countered that Article 41.2 recognized the sacrifices that women made in the home and obligated the state to support their “contribution;” this would not close doors to them in other spheres. (P. 192.)

By the early 21st century, Article 41.2’s “woman in the home” language seemed “sexist on its face,” reflecting “linguistic gender stereotyping and an appeal to a false universal notion of womanhood.” (P. 199.) The Article entrenched “1937 assumptions” about the gendered roles of mothers and fathers in and outside of the home. (P. 199.) Nonetheless, while constitutional jurisprudence interpreting Article 41.2 in light of contemporary family roles suggested that it could apply—in a future case—to a “stay-at-home father,” the courts have not yet “invoked Article 41.2 to protect a caregiving man.” (P. 200.) A 2013 Constitutional Convention initiated debate about women’s disproportionate responsibility for childcare and showed strong support for changing the language of Article 41.2 to be “gender neutral.” (P. 201.) Article 41.2 was among the provisions taken up by the Citizens’ Assembly on Gender Equality, which first convened at the beginning of the COVID-19 pandemic. The pandemic (as the Assembly recognized in its report) “shone a strong spotlight on care, its importance in our society, and the gendered nature of its provision.” (P. 203.) A supermajority of the Assembly supported its proposal to replace 41.2 with “language that is not gender specific and obliges the State to take reasonable measures to support care within the home and wider community.” (P. 203.) Other recommendations also integrated gender equality and care: the Assembly recommended policies to improve the terms and conditions of work for “paid carers” and to fund high quality and accessible childcare. (P. 204.) At this writing, there is to be a 2023 referendum on the Assembly’s recommendations.

Suk praises the Citizens’ Assembly revisiting Article 41.2 (as well as abortion law and policy) as a constructive model for possible translating and transplanting in the U.S., even as she recognizes the “American resistance to constitutional change.” (P. 230.)

Turning to legislative developments, as After Misogyny observes, the most robust public policies that would instantiate a care infrastructure and advance gender equality have often failed in Congress (particularly, in the Senate, due to the filibuster and other factors). An important victory, nonetheless, is the Pregnant Workers Fairness Act, signed by President Biden on December 29, 2022 and which (like many comparable state laws) requires “reasonable accommodation” and adopts the inclusive language of pregnant “workers.” Models like the Citizens’ Assembly may have more purchase within the U.S. at the state level, where state constitutions have more robust rights and protections (typically) that the U.S. Constitution and where a number of states, during the pandemic, adopted legislation better to support family caregivers and paid care workers.

Abortion Bans

I will briefly mention here Professor Suk’s analysis of abortion bans in the U.S. as a form of “overentitlement.” (Pp. 87-88.) Dobbs makes possible a landscape—in the many states that have either banned or severely restrict access to abortion—of compelled but uncompensated pregnancy and motherhood. (P. 88.) By comparison, Suk points to different legal regimes (e.g., Germany) in which there are restrictions on abortion to protect potential life (particularly after the first trimester), but also public funding of abortion and public policies that support pregnancy, childbirth, and parenthood.

Suk argues: “After the demise of Roe, the battle against misogyny should not resurrect privacy rights but rather pursue laws that fully recognize the public value of the sacrifices pregnant women endure for the benefit of others.” As she notes, the Casey joint opinion aptly discussed the constitutional wrongness of compelled maternity in the language of the “sacrifices” that pregnancy entails; in his partial dissent, Justice Blackmun explicitly spoke about abortion bans as conscripting women’s bodies into the state’s “service,” but with no “compensation.” (P. 93.)

Post-Dobbs, states seem prepared to ask for quite a bit of sacrifice but with no obligation to provide any “compensation.” It is hard to imagine a status quo more at odds with a vision of reproductive justice. States with the most restrictive abortion laws have some of the weakest laws and worst outcomes with respect to supporting pregnant persons, parents, and children.

In such circumstances, Suk’s readers may wonder whether a legal regime that combines a “robust conception of the state’s positive duties, not only to the unborn fetus, but to women facing unwanted pregnancies” (P. 95) is more attractive than in a pre-Dobbs world. Even so, I have concerns about employing rhetoric about pregnancy and childbirth as being a sacrifice that is for the “common good.”

Consider Suk’s example of Germany. She traces how constitutional commitments both to a right to life and to the right to “free development” of one’s “personality” eventually led to a regulatory scheme that, in effect, considers how much a pregnant women may be expected to sacrifice and what the state required to do to relieve the costs and burdens of pregnancy and parenthood. Mary Ann Glendon’s Abortion and Divorce in Western Law, published in 1987, also praised the German approach, contrasting the supposed “abortion on demand” model that Roe v. Wade initiated in the U.S.. (P. 22.) In discussing the decision of the Federal Constitutional Court of West Germany that the 1974 West German (permissive) abortion law was unconstitutional, Glendon quotes a striking passage:

“For all the State’s duty to furnish protection [of life], one may not lose sight of the fact that the developing life has, first of all, been entrusted by nature to the protection of the mother. It should be the most eminent purpose of government efforts on behalf of the protection of life to reawaken and, if necessary, strengthen the maternal protective will [in cases] where it has been lost.” (P. 27, emphasis added.)

This reference to the lost “maternal protective will” resembles arguments used to justify restrictive abortion laws: that pregnant women inevitably should become mothers and that no woman who understood what abortion was would have one because it goes against their nature. To be fair, Suk’s account ends with the more recent iteration of German abortion law, post reunification, that protects life “by supporting mothers and gender equality.” In a 1993 decision, the Constitutional Court expanded its discussion of the state’s duty to protect life to link it both to the constitutional entitlement of “mothers to the special protection and care of the community” and to the guarantee of “equal rights between men and women.” (P. 99.) The Court also stressed the futility of “criminal sanctions,” compared to “preventative means” to help a pregnant woman “overcome her conflict and meet her responsibility to the unborn.” (P. 101.) The Court offered a more robust idea (than previously) of the “care” the community owed to mothers (and parents), by addressing “problems and difficulties” that a pregnant person would encounter during pregnancy and creating a “child-friendly society” that reduces material hardships and disadvantages from becoming a parent. (P. 101.) However, the underlying premise is still of a woman’s “responsibility” to continue the pregnancy.

It is not entirely clear how Suk thinks the German example could inform the U.S. post-Dobbs landscape. In response to an earlier critique that I offered of After Misogyny’s about the risks of the rhetoric of sacrifice, Suk clarified that “a world without misogyny is one in which society is no longer entitled to women’s sacrifices, pain, and forbearance for the common good.” She added: “If law ensures that those sacrifices are properly valued, whether through takings doctrine or through fully public policies fully absorbing the costs of reproduction that women disproportionately bear (free contraception and childcare, paid parental leave, maternal healthcare to significantly reduce maternal mortality, for instance), the expectation that women become mothers would be far less oppressive than it is presently”—and would no longer be a “collective overentitlement to women’s sacrifice.”

In critiquing “privacy” as a foundation for abortion rights, Suk stresses the public dimension of human reproduction (as well as public duties to support such reproduction). Unlike Suk, I believe that privacy, better understood as autonomy with respect to significant personal decisions, is a critical constitutional value. Post-Dobbs, state constitutional jurisprudence may be the better forum in which to vindicate such autonomy in the context of other rights, including a pregnant person’s right to life. Amending state constitutions is both more frequent and less onerous than the federal amendment process, and some recent developments show that such change is possible.

However, I agree that it is critical to argue about the public dimension of human reproduction and the wrong of unjustly conscripting the bodies of, and demanding sacrifices from, pregnant persons. This hinders rather than furthers the “common good.” Whether or not comparative constitutional models make those arguments more persuasive or reinforce notions about women’s natural responsibilities remains to be seen. In the meantime, After Misogyny offers a set of innovative arguments and concepts aimed at ending misogyny and advancing care and equality.

Note: This review draws on Professor McClain’s contribution to the book symposium on After Misogyny on Balkinization, Care and Equality (and Abortion), Redux: Constructing a Feminist Common Good Constitutionalism.

Cite as: Linda C. McClain, Care Work, Gender Equality, and Abortion: Lessons from Comparative Feminist Constitutionalism, JOTWELL (September 18, 2023) (reviewing Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It (2023)), https://family.jotwell.com/care-work-gender-equality-and-abortion-lessons-from-comparative-feminist-constitutionalism/.

Unmarried Same-Sex Parents: Obergefell’s Failure and Promise

Illegitimate Parents55 U.C. Davis L. Rev. 1583 (2022).

It can be difficult to imagine today, but in 2015 when Obergefell v. Hodges was decided, it seemed to many people that LGBTQ equality was nearly won, at least as to family law. Some employers, courts, and state legislatures even rolled back programs or protections for LGBTQ couples on the logic that those couples could marry and no longer needed things like domestic partnerships that replaced some of the legal benefits of marriage. Such optimism as to the impact of marriage equality was unfounded, of course, and in today’s political climate seems laughably naive. Marriage equality did not signal victory of LGBTQ equality generally, nor did it even eliminate different legal treatment of LGBTQ families, as Susan Hazeldean incisively demonstrates in Illegitimate Parents. Professor Hazeldean provides a comprehensive explanation of one of the starkest differences remaining in family law: unmarried same-sex couples are not recognized as legal parents in many circumstances where unmarried different-sex couples are.

As Hazeldean traces in her article, post-Obergefell optimism even convinced many judges. One particularly pointed example Hazeldean provides is a Kentucky court of appeal judge, who argued that choosing not to marry should be understood as effectively waiving parentage claims even to a child that the unmarried partner raised from birth. (P. 1599.) But as Hazeldean shows with a fifty-state survey of parentage laws, states vary wildly in how much protection they give parental relationships linking both members of unmarried same-sex couples and their children. In most states, Hazeldean points out, marriage is the only way for both members of the couple to establish a legal parent/child relationship.

One of the key contributions of Hazeldean’s article is her fifty-state survey, and she explains her data in impressively readable, accessible fashion. The comprehensive table appears as a nearly forty-page appendix that will undoubtedly be an immense resource for legal scholars, and in the body of the article she breaks down her data in two helpful ways. First, she divides states into three categories: states that provide robust protection for unmarried same-sex parents, states that are hostile and provide no protection to non-biological parents in unmarried same-sex couples, and the largest group, states with partial or uncertain protection. She provides a map showing what category each state falls into, which gives an immediate quick impression as well as a few surprises – Michigan, for example, is in the “no protection” category, which seems at odds with its recent progressive legislative agenda. (P. 1603.) One can easily imagine this page of Hazeldean’s article being circulated in state legislators’ offices.

In addition to the broad categories, Hazeldean outlines several specific ways that the parentage rights of unmarried same-sex couples can be recognized. She traces the availability of joint adoption for unmarried same-sex couples, the availability of second-parent adoptions, parentage rights coming from gestational surrogacy, parentage rights for children conceived through assisted reproductive technologies (ART), use of Voluntary Acknowledgments of Parentage (VAPs) for same-sex couples, and the application of functional parentage doctrines, concisely explaining and providing similar maps for each. Given the complexity of answering and explaining the broad question “what are the parentage rights of unmarried same-sex couples,” the work to organize all of this data and analysis seems herculean, yet Hazeldean not only amassed the data necessary to answer but explains it in graphical form that non-lawyers can likely understand.

Following this outline of the lay of the land, Hazeldean discusses possible legal claims to challenge the differential treatment of unmarried same-sex versus different-sex partners as unconstitutional under the federal constitution. While her arguments are excellent, in many ways this analysis seems irrelevant for the moment. As she acknowledges, given the current makeup of the Supreme Court and federal judiciary post-Trump, it is incredibly unlikely that such arguments would be successful in federal court. (P. 1672.) At best, lawyers might repeat some of the early steps of the campaign for marriage equality by bringing similar claims under state constitutions in more progressive areas. Her discussion of legislative reform seems more likely to actually happen in the foreseeable future – not her suggestion of congressional action, about which I am even more pessimistic than Supreme Court victory, but rather her proposal that individual state legislatures reform their unequal statutes. Given how clearly Hazeldean has broken down the specific failings and steps to ameliorate them, her article could be used as a checklist by enterprising legislators.

Hazeldean’s article is relevant far beyond practical reform, however. She performs an interesting rhetorical roundabout regarding Obergefell. The earlier parts of the article stress how Obergefell’s narrow, Kennedy-centric logic about dignity failed to have broader relevance even within family law, and in fact may have made the legal treatment of unmarried people worse. It is striking how many of the laws and cases that Hazeldean cites to illustrate the treatment of unmarried same-sex parents precede Obergefell, implicitly highlighting how the case’s impact was cabined so tightly to the ability to marry. By the close of the article, however, Obergefell seems like a more useful case not as precedent, but as strategy. The multipronged campaign inching toward marriage equality until suddenly it seemed inevitable could be used as a model for more equal recognition of parentage.

There are also interesting intersections between Hazeldean’s focus on the nonbiological unmarried same-sex parent and other would-be rightsholders in parentage law. First are the potential claims of the children of such parents, which Hazeldean does not discuss since her argument focuses on the unequal treatment of parents according to sexual orientation. A claim brought on behalf of a child would likely be an uphill battle, since the Supreme Court has explicitly called such claims even weaker than those brought by a potential parent.1 As a rhetorical and political matter, however, it is a very strong argument to point out how such children are harmed by a state’s refusal to recognize one of their parents. As Hazeldean notes, focusing on the impact on children did sway some courts during marriage litigation, including Justice Kennedy in United States v. Windsor.2

Second, and perhaps even further afield from Hazeldean’s focus, the legal treatment of unmarried same-sex parents raises broader questions about how legal parentage is defined for all parents. As she points out, in almost all circumstances one member of a same-sex partnership is not biologically related to their child and is thus in a weaker legal position. (P. 1587.) A natural question is why biological or genetic relationships remain so central, even in contexts where we know only one parent (if any) will have such a link? The status of unmarried same-sex parents resembles in some ways the legal treatment of unmarried biological fathers, whose paths to secure legal parentage are often marriage, functional theories of parentage, or VAPs (which Hazeldean points out are not typically available to same-sex partners).  By highlighting the injustice of overreliance on genetics and the promise of other theories of parenthood, such as consent manifested in a VAP or functional parentage by doing the work of raising a child, Hazeldean’s logic points to more wholesale reform of how the law identifies parents for everyone. When marriage is increasingly a relationship status for wealthy and white people, why should it remain so dispositive for establishing parentage? The risk of a fifty-state survey can be that the survey becomes outdated as time passes, but because Hazeldean’s work speaks so directly to these broader issues, it seems likely that her article will be incredibly useful for years to come.

  1. Michael H. v. Gerald D., 491 U.S. 110, 130 (1989).
  2. United States v. Windsor, 570 U.S. 744 (2013).
Cite as: Dara E. Purvis, Unmarried Same-Sex Parents: Obergefell’s Failure and Promise, JOTWELL (August 3, 2023) (reviewing Illegitimate Parents, 55 U.C. Davis L. Rev. 1583 (2022)), https://family.jotwell.com/unmarried-same-sex-parents-obergefells-failure-and-promise/.

Black, Single & Middle Class

In 1997, New Line Cinema released the romantic drama Love Jones. The film was about two young professionals, their friends, and their lives in Chicago: Nia Long starred as Nina Mosley, a talented photographer, and Larenz Tate as Darius Lovehall, a newly-emerging poet. The writer/director (Theodore Witcher) wanted to “tell a love story . . . [t]here is a political agenda as well – to present young African American characters on screen that weren’t involved in some kind of social pathology.”

Sociologist Kris Marsh describes these characters as “young, educated Black professionals who have never been married, are child-free, and live alone or with unmarried non-romantic friends.” (P. 1.) The movie, Marsh observes, presented a “new face” for those who are Black and middle class (P. 7.), one that exists outside of the nuclear family paradigm. The movie title provides the demographic term for the group that Marsh studies in The Love Jones Cohort. They are Black, middle class, and SALA (single and living alone). While Marsh notes that “SALA” describes a type of household that is not limited to those in the middle class, and the Black middle class includes other family formations, the Love Jones Cohort brings the two concepts together. (P. 8.)

One challenge in situating this group is to define the characteristics of the Black middle class more broadly. In earlier research, Marsh had created a “Black Middle Class Index” that included education, income, home ownership, and occupation. (Pp. 9, 24-26, App. B.) In the book, Marsh explores the difficulty with defining the middle class, the complexities of using objective criteria, such as education, or subjective criteria, such as those associated with status, like church or social group membership. (Pp. 19-24.)

The Black Middle Class cohort, according to Marsh’s careful description, includes marital and nonmarital couples, as well as single people, and it grew from 6% of all Black households in 1980 to almost 14% in 2010. (P. 27.) Within that cohort, a declining percentage conform to the traditional nuclear family model of married parents with children. An increasing percentage – 13% in 2010 – belong to the Love Jones Cohort. (P. 10.)

Just after the Preface, Marsh introduces us to the 62 members of the Love Jones Cohort whom she interviewed. Their stories are at the core of the book and become interwoven with the rich sociological and demographic analysis in the book’s ten chapters. The Cohort included 43 women and 19 men; one caveat that Marsh makes is that only one identified as belonging to the LGBTQIA+ community. (Pp. 1, 13.) The gender imbalance in participants is reflected in the Love Jones Cohort itself, with women making up more than two-thirds of such households. (Pp. 10-11.) Marsh is attentive to gender differences in experiences.

The book is informed by four goals. First, Marsh wants more attention to, and integration of, the Love Jones Cohort in the policy, scholarship, business, and community spheres. Second, Marsh seeks to highlight the role of “structural racism . . . in individual dating and marriage outcomes.” Third, Marsh suggests that the research in the book might prompt people to rethink how, when, and why they ask the why aren’t you married question and potentially turn it around so it becomes why are you married. Finally, Marsh is trying to show that the Love Jones Cohort is a distinctive group within the demography of families that are Black and middle class. (P. 15.) Throughout, as she has noted in other work, she explores how the experiences of those in the Love Jones cohort are “informed by interlocking systems of oppression.” Thus, for example, in the book, Marsh points out how home-buying is affected by the “structural racism when it comes to acquiring assets” as well as discrimination based on singlehood status. (Pp. 117, 125-126.)

The ten chapters range from an exploration of the complicated definitions of the Black middle class to extensive discussion of the racial wealth gap and intergenerational mobility to analysis of residential choices to the development of coping mechanisms, such as the support received from family members and friendship groups. (P. 161.)

Marsh challenges stereotypes about single people as well, such as being reluctantly unpartnered. Instead, many of the study participants– two-thirds – were single by choice, and, while that characterization did not differ by gender, it did differ by age; those age 40 and above were far more likely to report being single by choice (85%) compared to those under the age of 40 (55%). (P. 74) Some of the positive aspects of singlehood included “’freedom’” and “’own space and life,’” while some of the negatives were “’lonely’” and “’disappointed/sad.’” (P. 94.)

Marsh is careful to note that their “choice” was shaped by social forces, including systemic inequalities. (P. 82.) Many of her subjects were both single by choice and also aware, to some degree, of how circumstances affected their life choices about partnering and children. In other words, some members of the Cohort expressed ambivalence: singlehood was not always a first choice, but rather an adaptive one, and some participants, at least, seemed open-minded about partnering off in the future. Marsh acknowledges the complexities of defining subjects who might actually be in a state of transition. Indeed, Marsh observes that participants’ speculation “about finding a long-term partner and so leaving the Love Jones Cohort challenges one of [her] research’s assumptions that [the proportion of] SALAs will” continue to increase. (P. 81.) Yet her forthright acknowledgment of the transitory nature of intimate partnerships helps to bolster the conclusion that the Love Jones Cohort deserves recognition even if some individuals happen to move out of the SALA category.

As a framing mechanism for family law scholars, The Love Jones Cohort challenges conventional notions of family. In discussing the various economic and social advantages that families receive, such as tax or health insurance benefits, Marsh suggests that SALAs should be considered to be a “family of one” and receive the same benefits as other family forms. (Pp. 166, 167.) At the same time, Marsh points out, that does not mean that SALAs are isolated or that they don’t receive support from family members and friends. (Pp. 86-87.) Friends play, Marsh finds, “starring roles in [participants’] lifestyles and emotional well-being.” (P. 86.) In recognition of these relationships, Marsh also calls for “institutionaliz[ing] augmented families,” facilitating the creation of “family units with friends” through the law – which she dubs “The SALA Family Plan.” (P. 167.)

Finally, in accord with Marsh’s four goals, the book provides transformative insights for the developing field of Singlehood Studies. That field has, like the Love Jones Cohort itself, been growing both within and outside of the law, but that movement, Marsh observes, “seems oriented toward a white gaze. This book represents an attempt to center on the voices of both Black men and women in singlehood and single studies research.” (P. 16.)

Cite as: Naomi R. Cahn, Black, Single & Middle Class, JOTWELL (July 5, 2023) (reviewing Kris Marsh, The Love Jones Cohort: Single and Living Alone in the Black Middle Class (2023)), https://family.jotwell.com/black-single-middle-class/.

The Persistent Failure to Value Care

Yiran Zhang, The Care Bureaucracy, 99 Ind. L.J. __ (forthcoming 2023-24), available at SSRN (May 17, 2023).

Whether and how to value caretaking is one of family law’s intractable questions. The California Court of Appeal in Borelli v. Brusseau provides one well-known and widely-taught answer: “even if few things are left that cannot command a price, marital support remains one of them.”1 Borelli refuses to uphold an oral contract alleged by Grace Brusseau to take care of her husband at home after he suffered a stroke, in exchange for certain property. The court reasons that the contract lacked consideration because the duty of mutual support undergirding the marital relation meant she was already required to provide such care.2 Thus, the personal services Grace furnished “for the decedent in his home, for the duration of his illness, thereby avoiding the need for him to move to a rest home or convalescent hospital” were rendered for free.3 “[I]n the majority’s view,” Justice Poché details in dissent, the spouse “had a pre-existing or pre-contract nondelegable duty to clean the bedpans herself.”4

Borelli’s outcome is largely unexceptional. The law routinely undervalues, if not entirely devalues, care provided in the context of an intimate, familial relationship.5 As it turns out, this is not unique to family law. Yiran Zhang’s article, The Care Bureaucracy, cogently shows how endemic the undervaluation of care is, despite beginning from a different premise – namely, that caretaking is work, the economic value of which the government has recognized through Medicaid, “the largest payer in long-term care” and “the most significant driver of the recent trend toward home-based long-term care.” (Pp. 11-12.) That is, even where there is some consensus that the provision of care is necessary and compensable, and even where that care might be undertaken by a non-family member, current regulation falls woefully short in capturing its full extent and assessing its value. The Care Bureaucracy covers a wealth of topics, including issues related to poverty law, employment law, and health care law; this family law Jot focuses on the paper’s intricate, pragmatic, and imbricated discussions of how care is regulated – to the detriment of those who give and receive it.

Care is a capacious term, often used to signal a general class of activities, which means that it can also be a vague term. Zhang, however, relies on “historical and ethnographic scholarship[] as well as regulations, guidelines, audit reports, and public hearing records related to Medicaid Home and Community Based Services (HCBS) programs” (P. 9), to ground her piece in accounts of what the day-to-day work of care entails. It requires helping an individual to “‘dress, bathe, use the toilet, or get in and out of his bed . . . not to mention the household tasks of cooking, shopping, or cleaning.’” (P. 4.) It requires preparing soft foods and allowing a patient to walk around, while following carefully and unobtrusively, behind. (P. 21.) Ultimately, it requires a dynamic between caretaker and care recipient that is “flexible, holistic, and relational.” (P. 22.)

To manage and assist with the provision of such care, the government relies on what Zhang identifies as the “care bureaucracy,” a term that is both descriptive and critical. The care bureaucracy converts the “integral care relationship into a list of physical tasks, meticulously quantifies the value of care work through procedures enforced by medical professionals and requires exacting documentation to repetitively prove the need and occurrence of the care work.” (P. 4.) These requirements affect the patients and caretakers in various ways, which the piece conveys from their perspective, in their own words. Patients bristle at the invasion of their privacy and autonomy, explaining that they–of course–mind that their caregivers have to keep a running record of them “in [ ] pajamas all the time.” (P. 59.) Care workers, in turn, describe the “‘level of anxiety’” the demands of the bureaucracy create, as they balance adhering to its rules and fulfilling their patients’ needs. (Pp. 55-56.)

Accounting for the work of care seems to be one of the benefits of the bureaucratic approach, which “provides a language to turn invisible, fluid care into a list of digestible quantifiable work.” (P. 31.) Zhang shows, however, that the bureaucracy of care nonetheless continues to keep much of this work invisible. At the most basic level, whatever fails to make it into the documents required by Medicaid– when, for example, a particular service is not approved by a recipient’s care plan – does not count as work worth compensating. (P. 27). Someone, however, still has to do that work. So, when the Medicaid plan allows only for a limited set of services, the rest falls, inevitably, on what the caretakers or family members are willing to do at their own expense, without compensation. (Pp. 27-28.)

Perhaps the most glaring example of caretaking that receives no recognition is the work of managing the bureaucracy itself. Users must “continuously navigate and comply with the bureaucracy to maintain eligibility and access care service or care payment” (P. 57), while caretakers must adhere to the bureaucracy’s numerous technical requirements, which can “interfere[] with the delivery of their care” (P. 58.). This work is, Zhang explains, “invisible” given that it does not amount to “a recognizable care task that the Medicaid program authorizes . . . or even mentions.” (P. 58.) As such, it is unpaid.

The labor of bureaucracy, and the work of care, is done mainly by women. The family member who provides caregiving is disproportionately female (P. 59), while the caretaking the Medicaid system relies on is performed by poor women (P. 14), specifically “low-income women of color and immigrant women” (P. 7). Medicaid remains a program for low-income families and over half of the workers themselves are on public assistance. (Pp. 37-38.) The consequences of extracting additional labor without compensation directly impacts communities who are already marginalized, who already have difficulty accessing material goods, and who do not have the political clout to change the way their work is recognized. It is also a reason why the care they provide is undervalued in the first instance.6 Zhang locates the care bureaucracy somewhere in-between the coercive and punitive state experienced principally by poor families of color, and the general lack of support the state provides to families overall. But she expressly situates Medicaid’s means-tested system in its welfare origins, with which it shares a basic distrust of its participants – both the care workers and the recipients. These factors help to explain the ubiquitous concerns over fraud that plague it, which are part and parcel of the larger infrastructure that hyper-regulates and polices poor families of color. (Pp. 38-42.) Significantly, the concerns over fraud exacerbate the one-way ratchet towards undervaluing care, and the audits that take place to ferret out the fraud are exclusively concerned with catching “false positives of overpayment.” (P. 48.) By definition then, this frame ignores the under-provision of care, and fails to address the plight of those “patients and families who would qualify for and significantly benefit from the public care program [but who] are kept out of it.” (P. 48.) It also extends the “surveillance and punishment tools” the care workers already habitually experience. (P. 51.)

Care work further suffers from its associations with the family, and the kinds of assumptions Borelli enshrines. The care workers receive little to no standardized training, which reinforces the notion that their work is unskilled; they also occupy an “outsider status” in that they are neither considered medical professionals nor, for many purposes, employees. (Pp. 50-51.) The professional and the familial have porous boundaries, though. Many care workers enter the field after having personally cared for a family member; these experiences increase a person’s willingness to pursue it as a job. (P. 63.) Once engaged as caretakers, they regard the autonomy they possess, along with the creation of kinship, even if “‘fictive,’” as important reasons to remain. (P. 61.) Family and family-like ties co-exist with professional ones, mostly to the detriment of the care workers and family members. The public care system relies on the availability of unpaid care provided by family members to function (P. 28), and family caregivers are less likely to enroll in the public care system, which would enable them to receive compensation for their work. (P. 60.) Rather than crowd out altruistic behavior, the commodification of care depends on its continued presence.

The devaluation of care work is not inevitable. Zhang concludes her piece by discussing the existing Program of Comprehensive Assistance for Family Caregivers (PCAFC), which she describes as having a more flexible structure for managing the dynamic relationship between need and care. Zhang is quick to acknowledge the many differences between Medicaid and PCAFC, and the ways that PCAFC, which is specifically set up for veterans and their family members, is not a viable blueprint for reforming Medicaid. Nor does PCAFC necessarily correct the inequities in terms of who gives care, or who is expected to give care. Rather, she offers it as an example of a different model of state-run care – as “a continuous, intimate, and stable relationship between two parties whose well-being is closely related” (P. 66) – which the same government is capable of implementing. Importantly, it also complicates a vision of the state that is either purely coercive on the one hand, or wholly inadequate on the other. The paper does not have the space or time to present a comprehensive reform agenda, nor should it, given its focus. But this means I can look forward to learning about what models of care Zhang thinks might actually succeed in future work.

  1. Borelli v. Brusseau, 12 Cal. App. 4th 647, 655 (1993).
  2. The majority did not find that Grace Brusseau was lying, or that the contract as alleged did not exist – it held that the law could not recognize such a contract because it lacked consideration and was against public policy. Id. at 652.
  3. Id. at 651 (internal quotation marks omitted).
  4. Id. at 655 (Poché, J., dissenting).
  5. See, e.g., Albertina Antognini, Nonmarital Contracts, 73 Stan. L. Rev. 67, 104 (2021) (describing how case law refuses to uphold express contracts that involve services provided in the course of a nonmarital relationship for various reasons, including “determining that the contract was based on sex and therefore illicit; that it was based on love or affection and therefore unenforceable; or that services rendered inhered in the relationship itself and are therefore insufficient to impose any obligations on the other party”).
  6. See Dorothy E. Roberts, The Value of Black Mothers’ Work, 26 Conn. L. Rev. 871, 873-75 (1994) (discussing the devaluation of the care provided by Black mothers and explaining how “[m]aternalist rhetoric has no appeal in the case of Black welfare mothers because society sees no value in supporting their domestic service”).
Cite as: Albertina Antognini, The Persistent Failure to Value Care, JOTWELL (June 6, 2023) (reviewing Yiran Zhang, The Care Bureaucracy, 99 Ind. L.J. __ (forthcoming 2023-24), available at SSRN (May 17, 2023)), https://family.jotwell.com/the-persistent-failure-to-value-care/.

Nothing, Nowhere, Not Right Now

Jay Caspian Kang, The Loneliest Americans (2021).

I have sometimes wondered whether it matters that the experiences of Asian Americans are nowhere to be found in the family law canon. This omission should be surprising. People from Asia have been skirting the shores of the Americas since the 17th Century. Within two decades of California becoming a state, people from Asia, mostly men from China, made up 25% of the entire work force and played a crucial role in developing the state’s infrastructure.1 These men, and others in western states, soon faced anti-miscegenation and immigration laws designed to prevent them from marrying and producing American-born children—laws concerning the bread and butter of family law. People from Asia or of Asian descent, some 22.4 million of them, are now the fastest growing minority group in the United States, largely because of family preferences in immigration law. Surely, I have told myself in passing, these and other developments should fit into the story we teach about family regulation. Surely, too, there are legal interventions that could strengthen Asian families or validate their shared experiences. But soon after I begin considering the possibilities, I am waylaid with doubts: What, if anything, are those shared experiences and values, and are they worth preserving, here? And would anyone, even Asian Americans themselves, really care about these stories?

The Loneliest Americans, by New York Times staff writer Jay Caspian Kang, is an epistemology of these ambivalences. Asia, Kang explains, means nothing to the immigrant from Korea, who finds little in common with people from countries like the Philippines or China. (P. 59.) Additionally, the highly skilled workers and their descendants who arrived after the Hart-Celler Act of 1965 (which replaced national origin-based immigration with a preference system favoring family reunification and skilled workers) have at best a tenuous, mostly imagined connection to the exclusion, lynchings, discrimination, and interment experienced by earlier Asian laborers and their descendants. (P. 57.) Above all, Kang provocatively argues, the upwardly mobile contingent of post-Hart-Celler Asian Americans are not invested in an Asian American identity because they hold onto the belief that it is possible on some level to assimilate into whiteness: thus, they hollow out Asian Americanness from the inside.

To be clear, Kang does not suggest that Asian Americans are naïve enough to believe that they themselves can become white. Mapped onto the Black-white binary that some have argued defines race relations in the United States, Asian Americans’ upward economic trajectory suggests that some should already have achieved that distinction. Kang notes, however, that this “narrative elides one crucial question: How do you actually become white if you’ve never felt white a day in your life . . . ?” (P. 78.)

Instead, whitening is inherently a generational project, which means it is inherently about the family, and, consequently, family law, expansively conceived. For immigrants themselves, children are the vehicle to assimilate into American culture and into whiteness. Children acquire English proficiency and use school as a launching pad to ascend to the middle class, presumptively bringing along the entire family. (Pp. 79-83.) This mindset frames the proliferation of test preparation centers in Chinese and Korean immigrant communities, where parents send their children to maximize their chances of getting into elite public schools, prep schools, and universities. (Pp. 115-128.) And it inevitably informs views about the importance of test scores in those admissions processes: as Kang wryly observes, “Nearly all the wealthy, assimilated parents I [know] ke[ep] their opinions [about New York’s use of standardized testing for admission to its most prestigious schools] to themselves, or, when pressed, spew[] out gibberish about ‘complicated situations’ and pine[] for some utopia where minority groups w[ill] not be pitted against one another.” (P. 128.) At the end of the day, however, those parents “still believe[] in the virtues of a pure meritocracy” and still see this meritocracy as the “best shot” for their children to overcome racial barriers. (Pp. 128-129.) Kang suggests that less assimilated Asian immigrants believe the same thing, just less self-consciously. If this is true, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College is not only about the fate of affirmative action, but the fate of some Asian families as well. The current discourse surrounding the legal dispute elides this dynamic.

Assimilation can also be generational in the biological sense when Asian Americans have children with white partners. Unlike earlier Asian immigrants, post-Hart-Cellar Asian Americans have not been subjected to laws designed to stunt the growth of Asian American families. Kang, the child of post-Hart-Celler Korean immigrants, begins the book by describing how he would stare at his newborn daughter and her “full head of dark hair and almond-shaped eyes[.]” (P. 3.) He recounts his “troublesome hope” that she would resemble her mother, “half Brooklyn Jew, half Newport WASP,” and join the ranks of “one who could either pass or, at the very least, walk around with the confidence of some of the half-Asian kids I had met—tall, beautiful . . . .” (Id.) Being biracial, he assumed, would ease her ability to “get[] a seat at the wealthy white liberal table” and “have the spoils of full whiteness.” (P. 11.) Importantly, her easy access to the white world would be a mark of his own assimilation, and a culmination of a process that began with his parents: “My parents, when they immigrated from Korea to the United States in 1979, could not have conjured up the details of their future granddaughter’s life, but they must have been after something like it.” (P. 229, emphasis added.)

Kang is too careful a writer not to have implied a binary in which whiteness is beautiful and Asianness less so, hence the “troublesomeness” of his hopes. He explores this dynamic in a chapter on MRAZNs (an acronym for Men’s Rights Activist Azns (“Asians”)). MRAZNs react to the perceived beliefs that Asian men are viewed as objectively unattractive and that Asian women are mostly interested in white men. They attribute these beliefs to this country’s history of white supremacy. Through this lens, Asian women who date white men are traitors, complicit in the plan to subjugate and eventually eliminate Asian men through interbreeding. (Pp. 186-194.) Here we see the flip side of marriage and reproduction as a tool of assimilation and acquisition of whiteness. If marriage and childbearing are marks of success, then the inaccessibility of intimate relationships becomes a manifestation of societal rejection, a failure of the intergenerational quest: family becomes the benchmark of failure. MRAZNs therefore lash out at their “oppressors” notwithstanding the fact that many of them have achieved high degrees of educational and financial success.

MRAZNs engage in tactics such as doxxing and online harassment that are deeply inappropriate, and Kang criticizes this aspect of the movement. But he expresses some sympathy for their rage: “[W]hy would you trust those Asians who deny Harvard is discriminating against Asian applicants, who tweet jokes about your small dick and your flat face, who seem almost embarrassed every time there’s a hate crime against your people? They will sell you out in a minute to maintain the illusion of the multicultural elite, and then they’ll go off and marry a white man and laugh in your face.” (P. 201, emphasis added.) MRAZNs intuit what some legal scholars have made explicit: that romantic preferences are shaped by structural factors, including the law.2 Here, too, is an opportunity to explore how law can be a tool to dismantle prejudices that affect family formation.

As the MRAZN example reveals, not all post-Hart-Celler Asian Americans share equally in the prospect of assimilation. Unskilled individuals arrive through the family reunification process as well, not to mention refugees and people who are undocumented. Kang accuses assimilationist Asian Americans (of which he is a part) of repeating the sanitized narrative of the “multicultural coalition of the upwardly mobile and overeducated,” where “everyone [is] doing well enough to celebrate their differences,” (P. 218), instead of allying with the working-class immigrants for whom whiteness is so hopelessly out of reach that it is not even a concern. These assimilationists believe the promise that by living “as a part of a multicultural elite” and erasing “all the unseemly parts of Asian America,” essentially “acting in the role of a white liberal,” they can cloak themselves, or at least their children, in whiteness. (P. 149.)

These assimilationist tendencies do not only complicate the project of advocating around an Asian American identity: they create something of an existential paradox. Kang recognizes that if his daughter in fact achieves “full whiteness,” something he simultaneously hopes for and fears, it will only be because she is able to “betray her father’s anxieties over belonging and identity and step into something that [he] do[es] not understand,” an un-race-conscious existence. (P. 219.) Full assimilation inevitably results in alienation from the previous generations, a form of intergenerational abnegation.

I should state explicitly that I have concerns with The Loneliest Americans, most prominently Kang’s casual essentializing of post-Hart-Celler Asians. Yet I appreciate the extent to which Kang illuminates how family is central to the experiences and aspirations of post-Hart-Celler Asian Americans, and the ways in which the legal landscape has mostly facilitated, but sometimes thwarted, those aspirations.

Kang has also succeeded in identifying the precise nature of the difficult choices faced by scholars who are interested in considering how to make the law more responsive to Asian American concerns. Obviously, these concerns are not universal. But more insidiously, to the extent they are rooted in values like filial piety or gender differentiation, they might be unpalatable or embarrassing, out of step with the liberal, individualist ethos embraced by the white-adjacent assimilationists. As just one example, some Asian American families structure their spending around the assumption that adult children will eventually serve as their parents’ de facto retirement plan. Yet only 30 states (excluding New York, with its large Asian population) have filial responsibility statutes on the books, and only three enforce their laws consistently. In states like California, for example, enforcement is rare (nearly all cases pre-date the 1970s), and only available where there is demonstrable need, which may not match the expectations of the parents. To protect these expectations, states could tailor and enforce filial responsibility laws by adding the expressed expectations of the parties as a factor for courts to consider. Yet to advocate for stronger filial responsibility laws, which would certainly protect some elders in the Asian American community, risks endorsing a heteronormative view of the family with which one (and here I admit that I am hiding behind the third-person pronoun) might not want to be associated.

Kang ends the book by vowing to step away from the protective cloak of whiteness and committing to cast his lot with the Asian American working class. One senses, however, that the comforts of whiteness may be too good for him to refuse. I feel a similar ambivalence about leaving the protective confines of our mostly white family law, with its established parameters and well-trodden debates. But I am telling myself here and now that the rewards may be worth the effort.

  1. See Ronald Takaki, Strangers from a Different Shore 79, 88-89 (1998).
  2. For examples of scholarly accounts documenting the role that the law plays in the formation of romantic preferences, see Solangel Maldonado, Romantic Discrimination and Children, 92 Chi.-Kent L. Rev. 105, 131-33 (2017), and Russell K. Robinson, Structural Dimensions of Romantic Preferences, 76 Fordham L. Rev. 2787, 2788 & passim (2008). As these scholars note, laws like anti-miscegenation laws, which deemed Asian men inappropriate objects of white affection, or the War Brides Act, which gave American soldiers easier access to Asian brides and girlfriends, have impacted the development of what might otherwise be viewed as subjective preferences.
Cite as: Kaiponanea Matsumura, Nothing, Nowhere, Not Right Now, JOTWELL (May 5, 2023) (reviewing Jay Caspian Kang, The Loneliest Americans (2021)), https://family.jotwell.com/nothing-nowhere-not-right-now/.