Greer Donley, Parental Autonomy Over Prenatal End-of-Life Decisions
, __ Minn. L. Rev.
__ (forthcoming 2020), available at SSRN
In early 2019, controversy erupted when Virginia’s state legislature considered a bill that would loosen restrictions on abortion, including what are colloquially known as late-term abortions performed in the second and third trimester. Although such abortions are extremely rare – only 1.4 percent of abortions are performed from the twenty-first week of pregnancy and beyond, according to Planned Parenthood – people opposed to abortion used the discussion of late-term abortions to accuse the bill’s supporters of promoting infanticide. If it would be morally repugnant to, in President Trump’s words, “execute” a baby after birth, why is it not similarly repugnant to terminate a pregnancy past the point that most pregnancies are considered viable?
In her upcoming article Parental Autonomy over Prenatal End-of-Life Decisions, forthcoming in the Minnesota Law Review, Greer Donley turns this rhetorical question on its head. In many circumstances, parents have the right to decline medical care on behalf of their children. Faced with a catastrophic medical diagnosis and a plan of invasive, painful treatment with very limited chance of success, parents have the authority to make the unfathomably difficult decision to provide only palliative care and minimize their child’s suffering. Why, Donley asks, would we deny parents terminating a wanted pregnancy in the face of a devastating diagnosis the same authority?
This reframing of the late-term abortion debate is a stunningly effective and provocative move. Abortions are often condemned as cruel or selfish decisions, and late-term abortions are frequently described as particularly callous. Donley counters this description by reclaiming the label “parent” even for people terminating pregnancies and casting the decision as one motivated by love for the child. Her analysis is movingly bolstered by her use of an essay by Margot Finn, who had an abortion at 29 weeks after her baby was diagnosed with lissencephaly. As Finn described it,
The only thing that could have been worse than [my baby] dying would have been to continue knitting her small body together with my body, to keep growing bigger and bigger with her and go through a far more dangerous full-term delivery or perhaps even a C-section, should her brain swell with fluid, and then watch her be intubated and fitted with a feeding tube. The only thing worse would have been to feel personally responsible for every bit of her suffering thereafter, wishing I could give her peace and being unable to do it.
Donley argues that Finn’s decision to terminate her pregnancy to spare her child pain and an unavoidable early death is simply not captured by traditional descriptions of abortion as a privacy right.. The reason behind terminating the pregnancy is not to avoid becoming a parent too early, or to control the drastic life changes that result from pregnancy and parenthood. Instead, Donley treats such decisions as much closer to a parent declining life support or other heroic medical interventions – and to the extent that the expectant parent’s situation is meaningfully different, it is different in a way that increases the expectant parent’s decisionmaking rights.
Obviously, these decisionmaking rights are not unlimited, and Donley outlines principles to guide where her reframing would apply. A number of genetic anomalies can be diagnosed during pregnancy.. Only anomalies that result in certain death in childhood or anomalies that carry a substantial possibility of death in childhood and severe morbidity in all cases (would justify terminating the pregnancy as an exercise of parental authority, as opposed to anomalies that cause disability). This tracks how the law treats parents who choose to decline end-of-life medical care for their children: very roughly, the state may intervene if the medical treatment is minimally invasive and has a high chance of success in treating a serious condition, but has much less authority to disturb parental choices if a treatment would be disruptive, painful, and have little probability of improving the child’s prognosis.
This reframing has some potential risks in terms of how it changes the debate around abortion, which Donley rightly notes. To the extent that terminating because of a devastating medical diagnosis is a “good,” or at least an “acceptable,” reason for an abortion, it could make other non-medical reasons for terminating a pregnancy look worse. Further, if all people seeking an abortion are reframed as parents, the social judgment of such parenting decisions (and particularly mothering decisions) might become even more harsh. An even more charged conflict might result if the two parents disagree about whether to terminate the pregnancy. In the context of typical end-of-life decisionmaking for a child, both parents have equal authority, so disagreements between parents present a difficult conflict that courts might be called upon to resolve using their own assessment of the best interest of the child. In the case of prenatal end-of-life decisionmaking, Donley concludes that bodily autonomy must tip the scale in favor of the pregnant person, a tiebreaker that does not exist in the context of parents disagreeing about medical care for their child.
Finally, Donley acknowledges that there is a much deeper and broader discussion of the rights and lives of people with disabilities that her reframing touches upon. She argues that there is no objectively correct answer about where to draw a line around “when a disability is so severe that life is not worth living.” She suggests that the reproductive rights and disability rights communities can work in tandem by pushing medical, financial, and other support for parents who have children with disabilities, so that such costs do not play a role in an individual person’s decision of whether to terminate a pregnancy. That said, such an overlap in goals sidesteps the deeper question of how society recognizes the value of disabled lives. The risk of reframing abortion decisions made in dramatic circumstances as more sympathetic choices is that choices made outside of those dramatic circumstances look superficial, casual, or less justified.
To my mind, however, Donley’s argument is both a smart connection between fields of law traditionally treated as distinct and a deft rhetorical approach. Abortion is about privacy, but it is also about a lot of things that courts have not always acknowledged: gender equality, bodily integrity, and broader parenting decisions. Some people who have abortions are deciding whether to become parents, but more are making a choice about how to parent: A majority of people terminating a pregnancy have already had at least one child, and often seek an abortion because they cannot financially afford to support their family if another child is added to it. Many decisions to terminate even in the first trimester of pregnancy are in some ways a parenting decision, although they are rarely described as such. Donley takes late-term abortions and, through her label of prenatal end-of-life decision, explicitly names them as a parenting choice.
Parents seeking late-term abortions are criticized by people like President Trump as deciding to execute a baby. Donley flips that description on its head and defends what many see as the most extreme example of abortion’s harms as an incomprehensibly painful, compassionate, loving choice. Her article not only shows respect and empathy on a human level, but also offers a compelling legal shift that would grant such decisions the deference they deserve.
Cite as: Dara E. Purvis, When Abortion is Parenting
(July 30, 2020) (reviewing Greer Donley, Parental Autonomy Over Prenatal End-of-Life Decisions
, __ Minn. L. Rev.
__ (forthcoming 2020), available at SSRN), https://family.jotwell.com/when-abortion-is-parenting/
Over the past four decades, people have increasingly turned to reproductive technologies to form their families. As technologies such as egg freezing, in-vitro fertilization, and pre-implantation genetic diagnosis have developed and improved, processes that were once left to chance are now subject to human control. As a result, what were once hopes—for instance, deferring childbearing until some point in the future, or having a male or female child—have transformed into expectations on the part of technology users.
Yet expectations are sometimes dashed because of avoidable human error, like mislabeling a sperm sample or failing to check liquid nitrogen levels in high-capacity freezers. As Dov Fox shows in his comprehensive new book, Birth Rights and Wrongs, courts have largely been unsympathetic to lawsuits stemming from these types of errors. Fox convincingly argues that courts should redress thwarted expectations about reproduction through the tort of reproductive negligence.
The book, an expanded and refined version of Fox’s already-influential Columbia Law Review essay, Reproductive Negligence, makes a compelling case for the recognition of a new family of torts centered around expectations about reproduction. Fox notes that some reproductive wrongs, like freezer failures, deprive people of the pregnancy or parenthood that they want. (Pp. 99-100.) Other wrongs result in the imposition of pregnancy or parenthood, for instance, because of an improperly performed sterilization. (Pp. 113-14.) Still other wrongs prevent people from having a particular type of child, like one with a desired trait or without a heritable disease. (P. 127-28.) Much like privacy torts, which have been broken into discrete claims, Fox argues that reproductive negligence takes the form of three claims: procreation deprived; procreation imposed; and procreation confounded. (Pp. 75-76). And just as the recognition of privacy torts expanded the notion of judicial redress beyond physical injury to “intangible harms to emotional tranquility or reputation,” (P. 55), so too should tort law expand to recognize interference with reproductive expectations.
But traditional conceptions of privacy torts are compatible with the bifurcated logic of the separate spheres, the assumption that the market structures economic life and the family structures affective life. They declare that certain facts and details, often associated with domestic life, should be kept away from the general public or should not be subject to financial exploitation. (Pp. 57-58.) Thus, they maintain the line between private and public, and reinforce the distinction between the home and the market. Reproductive negligence, by contrast, draws courts into the domestic realm to decide questions like whether the desire for a boy rather than a girl, or a white child instead of a mixed-race one, is legitimate and compensable. Given the well-documented hesitancy of courts to extend contract and tort law into the domestic sphere, it is unsurprising that courts have discounted reproductive injuries as arbitrary or fanciful (Pp. 59-62) and have deemed them impossible to value. (Pp. 141-64.)
Viewed in this light, Fox’s proposal is nothing less than an assault on the law’s exceptionalization of the family. Fox makes a compelling case that from a doctrinal perspective, the only thing distinguishing a botched vasectomy from a botched hip replacement, or a freezer failure at a fertility clinic from a similar failure at a wine storage facility, is that the former examples involve the creation or avoidance of familial relationships. And he disassembles common objections, for instance that babies are always blessings (Pp. 114-15), or that parents should love any child unconditionally (P. 132), showing that they do little more than assume that family relationships are somehow different and impervious to mainstream legal doctrines. This is not to say that other grounds to deny recovery for reproductive wrongs do not exist. Recognizing harms based on trait selection, for instance, may give rise to negative externalities such as stigmatizing disability or validating sex stereotypes. These harms may weigh against recovery under certain circumstances. But, at a minimum, Fox challenges the reader to come up with objections that are not the product of exceptionalism or to justify which forms of exceptionalism are valid.
That said, Fox exhibits ambivalence about the prospect of abandoning exceptionalism altogether. To emphasize the stark inadequacy of the current legal regime, Fox notes that “[f]ew other decisions or undertakings [aside from reproduction] so shape who a man is, how he spends his days, and how he wants to be remembered.” (P. 15.) Perhaps this is true, but sentiments about the specialness of reproductive choices tend to justify differential treatment. He also recognizes that it’s not just professionals who engage in conduct that may interfere with the other’s reproductive expectations. Intimate partners may lie about or misuse contraception, or conceal heritable traits that the other might have wanted to avoid. (Pp. 77-78.) The acts could result in similar deprivations of reproductive control. Yet Fox would set these acts aside because “[i]ntimate partners don’t owe each other a formal kind of obligation of the kind that medical specialists do to those they serve”: they do not owe each other a “duty of reproductive care.” (P. 79.) But why shouldn’t they? Distinctions such as these effectively redraw, rather than dismantle, the boundary between the spheres that makes Fox’s proposal so necessary in the first place. They take the acts that constitute reproductive negligence outside of the family sphere and place them in the economic sphere rather than questioning the division to begin with. The result is a smaller but equally robust zone in which the law does not enter.
Limiting the cause of action to professionals produces an additional type of impact. Given that the costs of involving medical professionals and other fertility experts in one’s reproductive decisions can easily run in the tens, if not hundreds of thousands of dollars, one’s ability to vindicate reproductive expectations still depends on economic status. Those without the money to hire professionals will be unable to assert cognizable harms. To be clear, limiting the cause of action to professionals with formal obligations may be both doctrinally defensible and pragmatic. Moreover, the inequality it produces is not a fatal argument against recognizing reproductive negligence: one could address it by subsidizing access to reproductive technologies for all. What this particular line drawing reveals, however, is that recognizing the tort could either be a beginning or an end. It could pave the way for a broader conception of reproductive rights, or it could retrench privilege, which is what the separation of the spheres accomplished in the first place.
Paternity: The Elusive Quest for the Father is historian Nara B. Milanich’s fascinating new history on the quest for paternity across time and space. Paternity is at once a history of kinship that crosses borders and a meditation of kinship at borders. It reveals something that literature has long understood: that quests—including the quest for paternity, literary and actual alike—are less about what we find at their mythic end than about what we learn about ourselves along the way. It also shows that the quest for paternity, like all quests, raises more questions than resolves them.
At its most basic, Paternity is a history of paternity testing over time and around much of the globe. The bookends of Milanich’s project are the Charlie Chaplin paternity drama that rocked 1940s San Francisco at one end (Pp. 1-8), and contemporary American family law’s multi-faceted approach to paternity in an age of DNA testing and alternative reproduction at the other (Epilogue). In between, each of Paternity’s eight chapters features paternity disputes from different parts of the world at different points in time. Some of these disputes were motivated by a desire for money, as in the fairly common cases of inheritance lawsuits and child support actions. Others were prompted by a desire for citizenship, as in the case of Chinese immigration petitions in early-twentieth-century America. Still others grew from a will to live, as in the case of Jewish racial paternity trials in Nazi Germany.
Throughout this journey, Milanich captivates readers with her explanations of the machines and methods that were recruited by science, law, and social practice in the perennial—and perennially elusive—search for the father. She describes the oscillophore, a machine that purported to determine paternity by matching “the vibrations of electrons in a drop of blood” between alleged fathers and children. (P. 36.) She recounts the practice of crystallography, which claimed to prove heredity through the “characteristic crystal pattern” of blood. (P. 38.) She discusses the reliance on human blood types as the key to unlocking the secret of parentage (Chapter 3) and tells of the ways other than blood that were deployed by law and science to read paternity on the body—methods like dactyloscopy (fingerprinting) (P. 127), odontology (the science of studying teeth structure) (P. 120), and anthropometry (the science of studying the human body and its proportions). (P. 144.) “The secret of paternity could be hidden in the tips of the fingers, the curve of the nose, a telltale mole shared by child and putative parent,” Milanich writes. Science “treated paternity like maternity, as a bodily condition that could be empirically observed.” (P. 131.) In this sense, Milanich’s history challenges a fundamental tenet of American constitutional law: that differential treatment of fathers and mothers is permissible precisely because the male body, unlike the female body, is thought to conceal indicia of parenthood.
No less absorbing than Paternity’s history of paternity disputes across much of the world is its engagement with the question of kinship at the border. Sometimes, this is a literal border, as detailed in the riveting chapter on the United States government’s targeted use of blood group testing on Chinese immigration petitioners (as opposed to petitioners from other countries) to weed out the fraudulent claims of “paper sons” (Chapter 8). More often, though, Paternity presses the question of kinship at symbolic borders, and the symbolic border that appears to interest Milanich the most is that which exists between biological and social paternity. It is here where Paternity really shines, offering invaluable insights for legal readers interested in the regulation of the family in a world where alternative reproduction and novel family formation have led to ever-more-diverse varieties of social and biological kinship.
In Paternity’s Prologue, Milanich tells readers that “despite the unprecedented power of modern genetic science, paternity remains ensnarled in a thicket of unresolved social, economic, and political questions.” (P. 9.) Every chapter that follows debunks the idea that the history of paternity charts an evolution from performance to nature; from fiction to fact; from social paternity, embodied in legal doctrines like the marital presumption, to biological paternity, revealed through the marvels of science. Milanich shows that as the science of paternity testing grew more sophisticated and the fact of biological paternity became more accessible, social and political factors retained their power, often increasing, not decreasing, in significance.
For example, despite the availability of blood group evidence to disprove paternity in the early twentieth century, French courts “rejected [it] as ‘contrary to the general system of French law’ in which paternity was ‘not susceptible to direct proof’ and only to social ‘presumptions.’” (P. 115.) In both civil law and common law countries, “biological evidence ran aground on the shoals of social paternity” (P. 207), and biological evidence was often suppressed to avoid inconvenient truths, particularly when interracial relationships were involved.
On this last point, consider Chapter 7, which recounts the absorbing story behind an infamous lawsuit brought by an Italian husband, Remo Cipolli, against his wife, Quinta Orsini, who gave birth to a son whose biological father was an African-American GI stationed in Pisa following the city’s liberation by the Allies in 1944. Despite overwhelming biological and testimonial evidence that Cipolli was not his son’s biological father, a court in Pisa refused to credit it, ruling that Cipolli was the boy’s legal parent. For Milanich, the Cipolli case shows that sometimes biological paternity yielded to social paternity and to historically contingent factors, like post-Fascist Italy’s “privileging [of] marital paternity even when it was in manifest contradiction to cultural notions of biological truth.” (P. 199.) It also demonstrates that “[t]he history of paternity testing is also an antihistory: a history of when law and social norms conceal the identity of the biological father and … prohibit the use of scientific methods to reveal it.” (P. 207.)
Milanich concludes Paternity by showing that this subtle interplay between the biological and the social continues to inform the question of paternity even—or especially—today. Paternity’s Epilogue tackles the quest for paternity in the age of DNA, and there Milanich argues that “for all their novelty, scientific, commercial, social, and political developments recapitulate rather than revolutionize the history of paternity testing in the twentieth century.” (P. 247.) “[T]he dramatic advances of the DNA era have not resolved the tensions and ambiguities that modern paternity introduced almost a century ago,” she writes. Rather, “[t]he father is as ambiguous, as deeply contested, … as elusive, as ever.” (P. 247.) Moreover, “the tensions between the social and the biological … have been thrown into even sharper relief by a scientific test that promises to reveal the genetic tie with power and perfection.” (P. 263.)
In the end, Paternity shows that the history of the father has been the history of an “idea” (P. 21) and an “ideology” (P. 21)—an enduring “conceit.” (P. 15.) As noted earlier, quests at their heart are about questions, and “[t]he truly significant question about paternity,” Milanich says, “is not an empirical one—who is the father?—but a normative one—who do we want him to be?” (P. 266.) The normative father could be the person who best represents the state, or patriarchy, or marriage, or whiteness, or nationality. The point is that social and political factors have always shaped the answer to that question, and that the quest for paternity is less about using science to reveal the true father as it is about bending science to satisfy our fantasies about him.
Paternity’s social, legal, and political history of kinship should interest legal scholars invested in the question of how to regulate the family, particularly now that the science of reproduction has allowed new forms of social and biological kinship to proliferate. The book’s deconstruction of the border between social and biological kinship reminds us that biological understandings of the family are often no less fabricated than social ones, and that social kinship can become naturalized over time in ways that supplement or even supplant biological affiliation. In this sense, Paternity dovetails nicely with Professor Doug Nejaime’s new article The Constitution of Parenthood, which not only unearths social kinship in the same Supreme Court precedents that enshrined biology as the foundation of constitutional parenthood, (NeJaime, Pp. 279-305) but also demonstrates that the law over time has naturalized social kinship. For instance, NeJaime shows that in many states today, the term “natural family” is synonymous with the functional and legal family, regardless of whether it originates in blood. (NeJaime, P. 333.)
In addition, Paternity reminds us that the “distinct ways of defining paternity have no necessary politics. Biological essentialism is not inherently ‘conservative’ . . . Nor is there anything inherently ‘progressive’ about a social constructivist vision of kinship,” Milanich writes (P. 264). Kinship, she says, “has no preordained politics. Context is everything.” (P. 265.) This last insight struck a particular chord in me, someone who at times reflexively assumes that biological definitions of family are oppressively traditional and functional definitions liberatingly modern. Like all good histories, Milanich’s shows us that the history of the family has never been that simple, much as we might entertain the fiction that it is.
For those of us who spend any appreciable amount of time online—and lately, that is likely many of us—it has been difficult to miss Jia Tolentino’s recently published book, Trick Mirror: Reflections on Self-Delusion, which has enjoyed some measure of digital fame, appearing even on President Obama’s Instagram “Favorite Books of 2019” post. Despite its renown, it is perhaps not yet a “must read” for family law scholars and teachers, which is the genesis for this Jot: it is a book I liked lots, with a number of less-than-obvious connections to, and implications for, family law.
The book is organized into nine different essays that survey a series of contemporary topics ranging from the Fyre Festival debacle, as symptomatic of the modern economic condition, to the history of the University of Virginia, Tolentino’s alma mater, as it relates to sexual assault on campus. Tolentino is a beautiful writer—her sentences are tightly coiled around key insights and her cleverness never gets in the way of her clarity or coherence. In carrying us outside of the terrain of legal texts, Trick Mirror provides a novel vantage point from which to consider themes that lie at the core of family law. I focus here in particular on how Tolentino mines the ubiquity of performance in our public and private lives—her essays follow its stronghold from marriage, to social media, to the lack of meaningful representation. Questions of performance similarly permeate family law, plaguing its very existence: inquiries into performance have the power to decide what families are and which families matter at the same time that they can expose it all as a sham, revealing the whole system to be “no more than a sustained pattern of conduct.”
Trick Mirror most legibly concerns family law in its final essay, “I Thee Dread,” which addresses the legal and social implications of marriage as Tolentino explores her own decision not to marry. In fewer than 30 pages, Tolentino summarizes the gamut of family law insights on marriage: the gendered weight of history in claiming who counts as a wife, the invention of numerous traditions (including how white took hold as the color of a bridal dress and how a bride became the metonym for a princess quite literally when Queen Victoria married Prince Albert “in a formal white gown trimmed with orange blossoms” thereby sealing “the symbolic link between ‘bride’ and ‘royalty’”), and the aspirational, albeit reductive, qualities that attend the present-day wedding (which have “intensif[ied] into the idea of a wedding as a ‘sort of Everywoman’s coronation’”). (Pp. 268-69.) While family-law-informed readers will not stumble over Tolentino’s casual invocation of the term “coverture,” they might be intrigued by some of the connections she makes between weddings, reality TV, and class mobility, which meet their flamboyant apex in the show Who Wants to Marry a Multi-Millionaire?. (P. 283.) As Tolentino catalogues, however, love and money are linked at every juncture, even if less ostentatiously—from marriage as a vehicle through which to ascend to the upper-middle class (P. 274), to the cost of the wedding itself, to the price tag attached to mere attendance (“I have spent, at a bare minimum, at least $35,000 on weddings to date”). (P. 282.)
Tolentino also makes a convincing case for how a wedding sets the stage for a lifelong performance, casting women as eternal brides in their own lives. “Expectations of bridal beauty have collided with the wellness industry,” Tolentino argues, to create “a massive dark star of obligation.” (P. 274.) She describes the female condition in a world saturated by Instagram, self-actualization, and barre classes. Performance collides with technology over social media, creating a perfect storm where “[s]elfhood buckles.” (P. 15.) While technology has broadened the ways in which women can, for example, become more beautiful, “[w]e still know surprisingly little about, say, hormonal birth control pills, and why they make so many of the one hundred million women around the world who take them feel awful,” just as we have failed to better “our wages, our childcare system, [or] our political representation.” (Pp. 93-94.) “[T]echnology,” Tolentino submits, “has made us less than oppositional.” (P. 93.)
The advent of technology exposes well-trod foundational fault lines—have we advanced in ways that trap us in old and familiar patterns? Various family law contexts present this paradox, as attempts to secure rights to assisted reproductive technology reveal. Contemporary feminism, updated and amplified on the Internet, offers an analogous puzzle: has equality been achieved when “instead of being counseled by mid-century magazines to spend time and money trying to be more radiant for our husbands, we can now counsel one another to do all the same things but for ourselves?” (P. 81.)
Tolentino writes about the inescapability of performance with precision when it comes to the practice of weddings and, in particular, the practice of being a heterosexual woman. She captures the tragicomic plight of the modern millennial who questions the desirability and suitability of entering an institution that involves guests “get[ting] up in the middle of their frisée salads to thrash around to a Bruno Mars cover” (P. 268) at the same time that it is, really, “the only period in a woman’s life where she is universally and unconditionally encouraged to conduct everything on her terms.” (P. 289.) Tolentino is, however, considerably less skeptical in discussing the legalization of same-sex marriage, and celebrates the Supreme Court’s decision in Obergefell v. Hodges, wholly and unproblematically. Confident that “gay marriage brings the institution into its viable future,” Tolentino embraces weddings that invert traditional heteronormative performances, without pausing to wonder whether the institution itself might contain any intractable, disciplining attributes.
The predicament Tolentino raises over and over again is whether we are even capable of seeing, given how we have been conditioned, nearly imperceptibly, to accept the way things appear to be. Tolentino turns to literature to expose how our eye has been shaped, and in the process, shrouded. Summarizing novel after novel, she shows that the “female condition” presented is “one of whiteness and confinement” and “[t]he heroine’s text tells us that, at best, under a minimum of structural constrictions, women are still mostly pulverized by their own lives.” (P. 128.) The baseline set by literary classics conceals the differences that exist outside those works; a “numbing sense of asymmetry” ensues for those who are excluded. (P. 127.) The solution Tolentino ultimately offers is procedural—she can only uncover the mechanisms through which we have been acclimated to accept inequality writ large.
Gender, race, and class are buried in literature as they are in family law. Family law scholars have then, by necessity, been attentive to the ways these categories affect not only the regulation of families, but the antecedent question of who counts as a family in the first instance, and who can claim regulation by the rules of family law. Trick Mirror’s reliance on analysis helps to underscore the importance of questioning texts that we receive as inherited wisdom—be they literary, social, or legal—and in so doing highlights the commonality of the endeavor we are engaged in. And that, I liked lots.
Deborah A. Widiss, The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia
, __ Comp. Lab. L. & Pol'y J.
__ (forthcoming, 2020), available at SSRN
In the mid-1980s, Professor Wendy Williams posed “equality’s riddle”: does pregnancy result in women being unequal, thus needing special workplace protections, or should pregnancy be treated the “same” as other workplace conditions? The essence of the riddle concerns the best way to promote sex equality, more specifically whether pregnancy requires accommodation or whether it can be handled in the same manner as other physical conditions.
In her article, The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia, Professor Deborah Widiss updates the dilemma Williams posed by examining the impact on sex equality of the differing approaches of paid parental, bonding leave laws in the United States and Australia. Spoiler alert: the article compellingly shows that the riddle has not yet been solved. While the U.S. approach may foster formal equality, the Australian approach may result in more overall time spent in caretaking.
The U.S. has chosen the same-treatment approach. Anti-discrimination law mandates that pregnant workers be treated the “same” as other employees, while the Family and Medical Leave Act provides equal amounts of unpaid leave to parents, regardless of gender. Although the U.S. has no paid federal parental leave, Widiss focuses on state paid-leave laws (more than one-quarter of the population lives in one of those states), which offer each parent the same, non-transferable benefits. Each parent is thus eligible for bonding leave, depending on the state, of between four to twelve weeks of paid leave.
By contrast, Australia initially chose the special-treatment approach, providing new mothers one year of unpaid maternity leave and structuring its sex discrimination law to permit this differential treatment. Subsequently, Australia revised its national paid parental leave program in 2011, and it provides unequal, although seemingly gender-neutral benefits: the “primary carer” is given eighteen weeks of coverage, while a “Dad and Partner Pay” (DAPP) program provides two weeks of benefits to a secondary caregiver. While both programs are available to either parent, the birth mother is the default recipient of the primary carer leave.
Internationally, most countries have distinct paid leave policies for mother or fathers, so Australia’s is somewhat in line with those policies because it offers differing levels of leave based on parental role. Typically, mothers receive more of that leave; indeed, in six countries, including Canada, Switzerland, and New Zealand, maternity leave is the only type of paid leave that is available for the birth or care of a child. In other countries, including Sweden, some portion of paid parental leave is reserved exclusively for fathers. In the U.S., however, the rights are independent for each parent.
Some of the difference in approach among countries may, Widiss suggests, be due to background laws concerning gender equity. The U.S. promotes formal equality and gender neutrality in its sex discrimination laws, while Australian law includes special accommodations for women “premised on a substantive conception of equality that suggests that differential treatment may be essential to equalize opportunity.” (P. 3.) Indeed, the Australia Sex Discrimination Act explicitly permits “special” accommodations for women relating to pregnancy or childbirth. (P. 15.) Moreover, U.S. law may be friendlier than Australian law to claims of discrimination based on parental caregiving responsibilities (P. 21), although, as David Fontana and Naomi Schoenbaum point out, laws surrounding pregnancy itself remain “sexed.”
Going beyond the jurisprudential aspects of these laws, Widiss focuses on who actually takes the leave. In the states that have implemented paid leave, she points to early evidence showing that fathers are increasingly likely to take advantage of the opportunity. For example, in 2004 in California, when paid leave first became available, men took 15% of all bonding leave, while by 2018, they took 38%. (P. 19.) That large percentage (note that, even in California, women still take 62% of the leaves) is not replicated in all states, and Widiss suggests that future research should analyze whether fathers’ leavetaking is correlated with the level of benefits and time available.
In Australia, the statistical picture is different. Virtually all of the “primary carer” leave is claimed by the birth mother, while virtually all of the DAPP leave is claimed by the father. (P. 19.) Accordingly, Widiss observes that U.S. policies have been more successful than Australian in encouraging men to claim parental leave benefits for infant caregiving. On the other hand, Australian policies are more likely to provide new mothers “a reasonably ample period of time away from work.” (P. 24.)
Widiss places these outcomes in the context of the countries’ norms around caregiving and the U.S. minimal approach to a social safety net for working parents. In the U.S., more than 40% of mothers with a one-year-old child work full time, compared with only 14% of similarly-situated Australian mothers. (P. 24.) In addition to the lack of paid federal leave, the U.S. does not provide paid time off for caring for sick family members, workplace flexibility, or limits on mandatory overtime. And Widiss notes that the U.S. system disadvantages single-parent families—the subject of her related article, Equalizing Parental Leave, 105 Minn. L. Rev. ___ (forthcoming, 2021). On the other hand, Australia seeks to “normalize men’s use of leave” and protect against family responsibilities discrimination; it already provides various protections for caretaking at work. (Pp. 24-25.)
The article provides a rich description of different approaches to “equality’s riddle.” Although Widiss does not endorse one over the other, she concludes by noting the ongoing challenge to ensuring social and legal support, so that parents can manage their lives as workers and caregivers. Her article shows the importance of carefully considering the goals of any approach to parental leave—and that there is no easy answer on how to respond to contemporary work-family challenges while ensuring gender equality.
Cite as: Naomi R. Cahn, The Paradox of Parental Leave
(April 13, 2020) (reviewing Deborah A. Widiss, The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia
, __ Comp. Lab. L. & Pol'y J.
__ (forthcoming, 2020), available at SSRN), https://family.jotwell.com/the-paradox-of-parental-leave/
Courtney G. Joslin, (Not) Just Surrogacy
, __ Cal. L. Rev.
__ (forthcoming, 2021), available at SSRN
Legal conflict over surrogacy has been with us in the U.S. for more than three decades. And yet the conversation in scholarly, legal, and policy debate remains largely centered on the question of whether to permit or prohibit the practice. In an important new article, (Not) Just Surrogacy, Courtney Joslin brings new and critical insights to the conversation about surrogacy—focusing on not whether to allow, but how to regulate. Joslin, one of the country’s leading legal experts on family formation through assisted reproduction, makes two especially significant contributions—one descriptive and the other normative.
Joslin catalogues how every U.S. jurisdiction regulates surrogacy. This includes whether the jurisdiction prohibits or permits surrogacy—and if it permits surrogacy, whether it includes both gestational surrogacy (in which the person serving as surrogate is not genetically connected to the child) and genetic surrogacy (in which the person serving as surrogate is genetically connected to the child). But Joslin goes well beyond these initial questions, supplying the first comprehensive review of surrogacy regulation across multiple dimensions from the perspective of both intended parents and individuals acting as surrogates.
In my own work, as Joslin explains, I have focused on each state’s treatment of intended parents in gestational surrogacy arrangements—paying particular attention to whether states treat intended parents with a genetic connection to the child differently than intended parents without such a connection. Yet parentage constitutes only one of the axes on which Joslin examines intended parents. Throughout the article, and most comprehensively in Appendix B, Joslin charts what she terms “Intended Parent (IP) Protections” in each jurisdiction that allows surrogacy in some form. These protections include: whether individuals, without respect to marital status, gender, or sexual orientation, may form families through surrogacy arrangements; whether one or both of the intended parents must be genetically connected to the child; whether the intended parents can pursue surrogacy without showing that it is medically necessary to have a child; whether the intended parents can pursue surrogacy without undergoing a home study; whether the intended parents are treated as legal parents by operation of law; and whether the intended parents can secure a pre-birth order of parentage.
Joslin’s article explores not only the status of intended parents but also the status of individuals who serve as surrogates—an area that has received scant scholarly attention. In Appendix C, Joslin documents what she calls “Persons Acting as Surrogate (PAS) Protections” that might exist at various points in the arrangement. These include: whether the person acting as surrogate must be represented by independent counsel; whether the intended parents must pay for counsel for the person acting as surrogate; whether the person acting as surrogate retains the right to control her own behavior leading up to and during the pregnancy, for example, decisions about diet and exercise; whether the person acting as surrogate retains decision-making authority with respect to the pregnancy, including decisions regarding selective reduction of embryos and termination; whether the person acting as surrogate gets to select the doctor of her choice; and whether the intended parents are required to take custody of the child, such that the person acting as surrogate is not treated as a legal parent with responsibility over the child.
Joslin’s descriptive work constitutes a major contribution. It will be invaluable to lawyers, legislators, and advocates working in the field. And it should inform scholarly work going forward.
Joslin’s exhaustive research on existing surrogacy regimes also allows her to uncover important normative stakes. The normative debate on surrogacy has largely been framed around the decision to allow or prohibit the practice—whether it promotes or undermines equality and freedom. Joslin shows that how surrogacy is in fact regulated—once it is allowed—raises equally important questions of equality and freedom. Joslin rightly treats surrogacy as a practice that implicates the interests of multiple parties and urges us to attend to the particulars of how each party is treated. A surrogacy regime, Joslin shows, can be more or less equality- and autonomy-promoting, and that depends on how it regulates the status of the intended parents as well as the interests of the individuals who serve as surrogates.
In my own work, I have focused on surrogacy because the practice has the capacity to unsettle conventional norms governing family formation and parenthood, depending on how it is regulated. In particular, whether individuals are recognized as legal parents, regardless of their genetic connection to the child, relates to whether surrogacy disturbs, or instead reflects and perpetuates, traditional understandings of the family. If the state refuses to treat a woman who relies on both a gestational surrogate and an egg donor as a legal parent, what does that say about motherhood? If the state refuses to treat a nonbiological father in a same-sex couple who has a child through surrogacy as a legal parent, what does that say about fatherhood? Legal systems that allow surrogacy but limit the recognition of intended parents in this way may reproduce views of the family that see motherhood as a biological fact and fatherhood as a secondary, derivative status.
Joslin shows how many forms of regulation—not simply parental recognition—may destabilize or entrench traditional views of family and parenthood. States can promote equality and autonomy by allowing access to surrogacy arrangements regardless of marital status, gender, sexual orientation, or genetic connection. On the other hand, states can perpetuate views that intended parents are not real parents by requiring that they undergo home studies before using assisted reproduction to have children or by failing to treat them as parents by operation of law (and instead requiring adoption).
Joslin’s treatment attends to the normative stakes not only in the state’s treatment of intended parents but also in the state’s treatment of the person acting as surrogate. The question of the interests of those serving as surrogates has, in conventional debate, been framed around two pivotal moments: the decision to serve as a surrogate and the decision to surrender the child. Opponents of surrogacy argue that women do not (or cannot) meaningfully consent to act as surrogates and that women should not be made to surrender the child if they change their mind. Proponents of allowing surrogacy criticize these arguments as paternalistic and worry that they trade on stereotypes that fuel arguments to restrict women’s reproductive rights more generally. What this debate misses is the way that regulation of the practice itself has significant consequences for understandings of women’s agency and reproductive autonomy.
Critically, Joslin shows how the treatment of intended parents and the treatment of persons serving as surrogates are intrinsically connected. If the intended parent can make a decision about the pregnancy—for instance, requiring multiple embryo transfer or delivery by caesarean section—then the rights of the person acting as surrogate are diminished. The grant of authority to the intended parents undermines the autonomy and equality of those who serve as surrogates. As Joslin shows, the stakes bleed well outside the bounds of surrogacy arrangements. Instead, regulations concerning the rights of the person acting as surrogate have consequences for the rights of pregnant women more generally.
The specifics of surrogacy regulation have largely escaped notice. Beyond those of us drafting legislation of this kind, scholars and activists have paid scant attention to the concrete details of surrogacy legislation, instead continuing to focus on the question of whether to allow or prohibit the practice. Joslin’s article should be a wake-up call: The regulation of reproduction is happening in legislation on surrogacy, and it matters to broader debates on autonomy and equality.
Cite as: Douglas NeJaime, Surrogacy, 2.0
(March 25, 2020) (reviewing Courtney G. Joslin, (Not) Just Surrogacy
, __ Cal. L. Rev.
__ (forthcoming, 2021), available at SSRN), https://family.jotwell.com/surrogacy-2-0/
Aziza Ahmed, Floating Lungs: Forensic Science in Self-Induced Abortion Prosecutions
(2019), available at SSRN
The criminal regulation of abortion seems to be making a strong comeback. Aziza Ahmed in her draft paper, Floating Lungs: Forensic Science in Self-Induced Abortion Prosecutions, examines this trend, placing it in the context of what she calls a “prosecution-based approach to social issues including abortion, caretaking, and pregnancy.” (P. 4.) Ahmed’s paper offers a disturbing and important dive into the criminal prosecution of women who attempt to abort without help from a doctor—only to stand accused of crimes ranging from feticide to infanticide, to criminal child neglect, if the fetus was deemed to have been born alive. It is an inquiry that merits attention from family law scholarship, which has increasingly recognized that family regulation resides at the interstices of multiple regulatory regimes, including criminal law.
The paper’s title refers to the forensic test, the Hydrostatic or Floating Lung Test (HLT or FLT), used to determine whether a fetus was born alive. In its simplest form, it involves submerging the lungs in water and observing if they float, which would be an indication of the presence of air, possibly in the aftermath of drawing a breath. The test was invented by Galen, a Roman physician (129AD-200AD), but emerged as a criminal trial tool in the 17th century and, according to Ahmed, is making a reappearance in cases that involve criminal prosecutions of women who have tried self-managed abortion, miscarried, or even given birth to a stillborn baby. Part of the problem with the test seems to be that, as part of a criminal procedure, it rightly belongs in the seventeenth century. The relevant forensic literature has concluded that the test is unreliable, as good as “witchcraft” according to some lay commentators. Courts, however, regularly resort to it. According to Ahmed, the courts are in fact legitimating an unreliable test, partly influenced by the pressures of the carceral state, the need to produce finality and certainty in cases where there is little room for that, and a moral panic about pregnancy and abortion.
The first part of the paper explores the recent history of state engagement with abortion, pregnancy, and parenting, focusing on the shift from welfare law to criminal law in the eighties and nineties, a moment that also introduced us to “crack babies” and “shaken baby syndrome.” Ahmed argues that, in both of those cases, agreement within the scientific community about either the effects of cocaine on fetuses or the existence of a medically recognizable “syndrome” was lacking. Court acceptance of both pathologies further solidified national panics about caretaking and drug use by young mothers, especially minority mothers. Ahmed argues that the same movement from dubious scientific evidence to court acceptance is currently happening in the context of self-induced abortions, which are likely to increase, given the momentum of punitive anti-abortion legislation and the relative ease of obtaining abortifacients online.
Ahmed delves into the Purvi Patel case in order to illustrate the test’s problematic use in criminal courts. Patel, a young woman from a conservative South Asian family, used abortifacients, and delivered a fetus which she believed was dead. The state insisted it had been born alive. It prosecuted Patel for feticide and neglect of a dependent resulting in death. The HLT was employed to prove that the fetus had been born alive. Two expert witnesses, one for each side, came to contradictory conclusions, noting, however, the limitations and potential false positives of the test, which occur frequently. The prosecution won, and Patel was sentenced to thirty years. Despite the fact that the decision was partly reversed on appeal on constitutional grounds not involving the HLT, the test was accepted as legitimate, and Patel’s fetus was deemed to have been born alive on that basis. Even worse, the court seemed to validate the test regardless of where the alleged breath had been drawn inside or outside the birth canal. This overlooked the standard legal rule that the child needs to have been expelled from the birth canal for the determination of a live birth. The paper then offers a brief history of HLT’s use by the courts since the nineteenth century that further highlights an overall inconsistent approach to the test since the nineteenth century, while more recent cases have relied on the test as proof of life.
The paper’s discussion of the reasons why such a dubious test persists is perhaps the richest part of the article and the one that can potentially be mined for further development in a next version of the draft. First, Ahmed places the HLT in the broader context of rules of evidence on the admissibility of scientific expertise in criminal cases. The HLT survives against the background of very problematic evidentiary standards in regards to scientific expertise. Despite skepticism about forensic science, much of it remains admissible in criminal trials. (P. 26.) According to Ahmed, the return and perhaps further solidification of the HLT comes as a response to an intense need for finality and blame happening at a politically charged time when anti-choice activists have often successfully pushed for a conflation of abortion with infanticide. Ahmed argues that the current moment is also characterized by a moral panic about pregnant women who do not seem to behave according to a maternal instinct and seek instead to end their pregnancies. While Ahmed suggests that the application of the test has a raced and gendered logic, as do moral panics, the raced aspects of its application could use more detailed treatment.
Ahmed ends with the policy proposal that we should abandon the test altogether. This is not simply because of the test’s unreliability. Indeed, if we follow Ahmed’s thinking to the end, it leads to the conclusion that the decision about whether a fetus was born alive is a highly charged one, morally and politically. Rather than provide an objective way to assess when life begins, forensic science reflects and emerges from this fraught moral and political terrain. Overall, the paper compellingly draws our attention to the forceful comeback of punitive abortion regulation. Family law curricula sometimes heavily focus on the constitutional law aspects of decisions to have or not have a family. Ahmed points us to the growing shadow of the criminal law and compels us to pay attention.
Courtney G. Joslin, Autonomy in the Family
, 66 UCLA L. Rev.
912 (2019), available at SSRN
What is the role of autonomy (choice) in American marriage law, and what should it be? This question is salient for topics like the proper treatment of premarital and marital agreements, but, as Courtney Joslin points out in her article, Autonomy in the Family, it also has clear importance for the proper treatment of non-marital cohabitants.
As Joslin reports, the basic contemporary approach to the legal treatment of cohabitation follows some variation of the 1976 California case of Marvin v. Marvin. That case authorized the enforcement of express and implied agreements between cohabitants, no longer treating all such agreements as unenforceable because they contradict public policy. However, as the author sums up, Marvin basically treated cohabitants as legal strangers, parties who can enter into agreements altering their rights and obligations to one another but are not required to do so. One justification offered for this approach centers on autonomy: because it is open to couples to marry, those who do not marry should be seen as having “chosen” to avoid the reciprocal duties that come with marriage, as well as the equitable sharing of property and the possible alimony claims that are available to spouses upon divorce, unless they agree otherwise.
As the article recounts, parentage law started on a similar path. Marriage provided the only sure means for a biological father to gain rights (and duties) relative to his children, while adoption provided the path for adults who were not the biological parents of the children in question. Those parties who passed up the opportunity to marry a child’s legal parent or to adopt the child were held to have “chosen” not to be a legal parent, and the courts felt justified in treating them as legal strangers to the child.
There were then a string of cases involving same-sex couples who had chosen to raise a child together, but by law could not marry and by circumstances or legal restrictions never got around to having the non-biological parent adopt. In these cases, the courts allowed the biological parent to exclude the former partner from the child’s life, even though the couple had earlier chosen to act as co-parents. Joslin shows how, partly in response to such cases, courts and legislators began to move away from a focus on formalities in determining parental rights and towards a more holistic, functional approach. This approach better reflects the family choices the parties had actually made as well as better serves the interests of the children.
Joslin argues that a similar move would be valuable in the legal treatment of non-marital cohabitants. Marvin had only moved the law part-way: cohabitants were treated, at best, like legal strangers; Joslin argues that they needed to be treated as family. Part of the problem with a focus on formalities for cohabitants (did they marry or not?) is that research shows that “the failure to transition to marriage often is not the result of an express, deliberate decision-making process.” (P. 966.) Also, the “decision” is frequently not mutual; the veto on getting married is usually made by the man, expressing and exacerbating gender inequality. Even couples living together has been shown by recent research frequently to be more “‘a slide into cohabitation’” than a deliberate decision by the couple. (P. 971).
The article concludes that the legal treatment of family form, like the legal treatment of parental status, should move from form to function, to “how the parties viewed themselves as family members, and the degree to which the parties relied on each other.” (P. 965.) Only in that way will the law begin to “recognize and respect the actual family formation choices people have made.” (P. 987.)
As Joslin points out, models already exist for how this could be done—including examples from the State of Washington, some Canadian provinces, and some European countries. For instance, under Washington’s “committed intimate relationship” status, long-term cohabitants hold a number of the same rights as married couples. In particular, the committed intimate relationship status presumes joint ownership over property acquired during the relationship and provides for equitable division of such property by the court upon dissolution.
Joslin also voices openness to an intermediate legal status, giving non-marital cohabitants fewer protections and rights compared to marriage; she advocates for allowing couples to opt out through express agreement (thus protecting autonomy through “opt out” rather than the “opt in” approach of Marvin); and she encourages state experimentation so that there might be real-world tests of different legal approaches to see which ones work best.
Yuvonne Lindgren, Trump’s Angry White Women: Motherhood, Nationalism, and Abortion
, __Hofstra L. Rev.
__ (forthcoming, 2019), available at SSRN
In June, columnist E. Jean Carroll added her name to the list of women who have alleged that President Donald Trump sexually assaulted them, describing him raping her in the dressing room of a department store over two decades ago. In response, Trump said that Carroll was “not my type.” The controversy revived a discussion from the 2016 election asking how a man with multiple credible allegations of sexual assault, recorded on audio boasting that he grabbed women “by the pussy,” received a significant proportion of women’s votes— according to exit polls, fifty-two percent of the votes of white women.
In Trump’s Angry White Women: Motherhood, Nationalism, and Abortion, forthcoming in the Hofstra Law Review, Yvonne Lindgren provides a fascinating explanation rooted in the fights around abortion. She traces a shift in the anti-abortion movement’s tactics after Roe v. Wade to focus on protecting a specific traditional vision of white motherhood through to today’s political and legal conflicts. In her telling, this change in anti-abortion rhetoric laid the groundwork for modern conservative arguments that claim white nationalist motherhood as their standard in broader culture wars. Lindgren’s argument is not only persuasive in its own right, but also helps to explain other movements in the law to limit women’s autonomy within the family and promote a narrow idea of appropriate motherhood.
Lindgren begins by summarizing how anti-abortion arguments changed in the wake of Roe v. Wade. Initially the focus of anti-abortion activists was on the fetus and how abortion should be viewed as the murder of that fetal life. Citing Mary Ziegler’s research, Lindgren explains how activists shifted their focus from the fetus to the pregnant woman, arguing that abortion harmed women and motherhood as an ideal. Phyllis Schlafly, famously succeeding in her fight to prevent ratification of the Equal Rights Amendment, trumpeted motherhood as the source of morality for American society that would be irrevocably weakened by a constitutional amendment protecting gender equality.
This shift focused upon mothers, but it also cast a particular vision of the family and gender relations within it. I have previously written about the power of hegemonic masculinity, telling men that they are insufficiently masculine if they do not conform to a specific idea of what men are supposed to be: focused on proving their masculinity by competing with other men and refusing to engage in any activities coded as feminine such as caring for children. Lindgren’s article provides examples of this, such as Andrew Cherlin’s work describing the importance of stereotypical gender roles within the family for men who lacked power in the workplace.
The call to protect this vision of a “traditional” family undergirds legal controversies stretching across family law today. Obviously, the abortion debate continues with increased legislative activity restricting access to abortion as state legislatures anticipate the Supreme Court revisiting and reversing Roe v. Wade. Increased legal restrictions on the conduct of women within a family unit can also be traced to the power of the nationalist family: attempts to broaden exemptions so that employers need not provide health insurance coverage for contraceptive methods, legal punishment for the actions of women taken while they are pregnant that might harm the developing fetus, and continued refusal to fund paid parental leave and childcare allowing women to stay within the workforce all trace back to what Lindgren describes as the socially constructed symbolic power of the abortion right. Lindgren’s conclusion, that the fight for abortion rights must include broader issues such as economic justice, helps to both explain current political arguments and point a way forward for progressive activists stymied by white women’s support for Trump and his political movement.
Cite as: Dara E. Purvis, Abortion, Motherhood, and Donald Trump
(July 17, 2019) (reviewing Yuvonne Lindgren, Trump’s Angry White Women: Motherhood, Nationalism, and Abortion
, __Hofstra L. Rev.
__ (forthcoming, 2019), available at SSRN), https://family.jotwell.com/abortion-motherhood-and-donald-trump/
Professor Naomi Cahn undersells her recent Iowa Law Review article, Revisiting Revocation upon Divorce? (Revisiting Revocation), when she concludes it by saying that “this Article contributes to the ongoing conversations about the relationship between decedents’ intent, formality, and function in trusts and estates law.” (P. 1949.) While Revisiting Revocation surely makes the contribution that Cahn describes, it also does considerably more. In revisiting the increasingly common and expanding state rule that divorce revokes any transfers of probate (and sometimes non-probate) (P. 1887)) assets to a former spouse as well as to a former spouse’s family members, (P. 1886) Cahn contributes to the growing literature on the legal “spaces in between” two binaries in the areas of intimate and family life. Other scholars, including Cahn, have investigated the legal spaces in between (or outside of) the perceived extremes of marriage and non-marriage and of male and female. Here, Cahn devotes her attention instead to the legal space in between the perceived extremes of marriage and divorce. In so doing, Cahn sheds light on one of the lesser-known—but tremendously important—ways in which the law treats marriage as a relationship that differs in kind from other species of relationships and as an event that differs in kind from other life events.
The main subject of Revisiting Revocation is the rule that “a final divorce settlement or annulment of a marriage revokes all provisions in the will in favor of the former spouse.” (P. 1886.) Adopted “in almost all U.S. states,”((P. 1886) the revocation upon divorce rule has expanded over time, applying in some states today to probate as well as to nonprobate transfers and covering even “the ex-spouse’s family members.” (P. 1887.) The rule assumes that while I might like my sister-in-law enough to include her in my will while I am married to her sister, my testamentary benevolence vanishes upon divorce, which apparently severs all property ties between certain individuals that arise through marriage. (An interesting counter-example in this regard is incest law, which in some states continues to apply to affinity-based relationships even when the very reason for the incest prohibition—marriage—goes away through either divorce or death). While technically a rebuttable presumption, Cahn shows that the revocation upon divorce rule is “rarely rebutted” (P. 1891) in most states and “appears virtually irrebutable” (P. 1889) in some. She tells the story of Jesse and Virginia Lee Suiters, who were married for forty-one years (and separated pursuant to a separation agreement for the last ten of those years). (Pp. 1889-90.) Jesse Suiters died shortly after the couple divorced, and his will, which was drafted while Jesse and Virginia Lee were separated (and had been for seven years), devised his residuary estate to “Virginia Lee Suiters.”(P. 1889.) Nevertheless, because of the state’s revocation rule, a Maryland court declared that Virginia Lee was not an eligible beneficiary of Jesse’s residuary estate. (P. 1889.) Cahn tells similar stories where courts have applied their state revocation upon divorce rules in ways that “rendered the decedent’s intent irrelevant.” (P. 1890.)
After discussing the rule and its near “irrebutability,” Cahn turns to the tension that exists between the rule’s underlying assumptions and recent trends in family law, including trends favoring a “therapeutic” (P. 1893) and “collaborative” (1895) (rather than an adversarial and antagonistic) model of divorce as well as trends favoring shared parental decision-making and caretaking (rather than assignments of “custody” to one parent and “visitation” to another). (P. 1894.) In addition, Cahn argues that the revocation rule exists in tension with her own empirical research and with emerging sociological findings, both of which suggest that “ex-family members sustain strong ties” (P. 1895) after divorce and that “divorce might not necessarily dissolve kinship ties” relating to property and inheritance. (P. 1896.) She also points out some of the rule’s “disparate impacts” (Pp. 1898-1903) based on gender, class, and race, and considers alternative approaches in non-U.S. jurisdictions, many of which “continue to adhere to a system in which divorce has no effect” (P. 1903) on probate and non-probate transfers to former spouses and their families. For all of these reasons, but particularly because of the rule’s disconnect with the key animating principles of property law (honoring testator intent) and family law (encouraging collaboration between ex-spouses after divorce), Cahn advocates reform of some kind, including more extreme approaches (like abolishing the presumption altogether) (P. 1907) and less extreme alternatives (including “a more liberal interpretation to the statutory language” surrounding the presumption’s rebuttal). (P. 1909.)
Revisiting Revocation’s look at property law’s revocation rule partakes of a much longer narrative about the extent to which the law—and property law in particular—has regulated the family in the shadow of ideas and ideals about marriage and the marital family. It is little surprise that many of the Supreme Court’s “illegitimacy” cases from the 1970s concerned property law and its regulation of the non-marital family. For a long time, state intestacy laws prohibited non-marital children from inheriting from their parents, and especially from their putative fathers (and vice versa); some states even voided testamentary bequests from parents to certain non-marital children as well as inter vivos and causa mortis transfers of certain property between unmarried persons. In cases contesting these and similar laws, courts flagrantly undermined the so-called touchstone of the law of wills—effectuating testator’s intent—in an effort to uphold an image of the family that was at once marital and monoracial.
Today, we often talk about the ways in which the law—and especially family law and property law—reflects a respect for “private ordering” over “state moralizing” in our most intimate domains. Cahn’s Revisiting Revocation reminds us that the “private ordering” interpretation of property law and family law is incomplete, but one piece of a much more complicated mosaic. As it did in the past, the law today continues to undermine property-based private ordering in order to promote a particular image and understanding of the family. To be sure, the revocation rule could stem from something less objectionable and more administrative: the belief that divorced spouses would have changed their wills to reflect their true intentions, but simply forgot to. On this view, the revocation rule is a better proxy for testator intent than no rule at all. As Cahn points out, however, recent empirical work by Professor Adam Hirsch belies the “administrative convenience” interpretation of the revocation rule, as Hirsch has found that close to two-thirds of divorcing spouses “did not want to disinherit entirely their former partners.” In other words, when polled at likely the most acrimonious phase of their relationship, most people favored at least some property transfers to former spouses.
The revocation rule likely persists, then, not because it is thought to approximate testator intent, but rather for three reasons. First, the rule reflects and reproduces our belief that marriage (and quasi-marriage in some jurisdictions) is different not just in degree but in kind from other relationships. Second, the rule reflects and reproduces the belief that a breakdown in the marriage co-exists with a breakdown in the personal and emotional bonds that preceded it. While this might be true in some cases, it surely is not true in all; indeed, some spouses might divorce because of marriage (and its institutionalization of romance) rather than in spite of it, a possibility which problematizes the revocation rule’s use of divorce as a proxy for emotional disconnection. Third, the rule reflects and reproduces our general inability to envision a space, even an uncomfortable and counterintuitive space, in between (or outside of) perceived extremes. In this case, those perceived extremes are marriage and divorce, and the interstitial space a place where couples are not married but not quite “divorced”—in all senses of that term—either.
Editor’s note: For an earlier review see Solangel Maldonado, “Renegotiated Families” and Donative Intent, JOTWELL (April 26, 2019).