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Borders as Burdens

B. Jessie Hill, The Geography of Abortion Rights, _ Geo. L.J. _ (forthcoming 2021), available at SSRN.

In The Geography of Abortion Rights, Professor B. Jessie Hill provides a novel, timely mapping of the “geographic dimension of abortion restrictions.” (P. 4.) Some restrictions rely on borders to serve as actual barriers, such as laws that attempt to restrict adults from transporting young people across state lines for abortion services. The effects of other laws, which force clinics to close, fix the borders of “abortion deserts” around which patients travel hundreds of miles to reach the nearest provider. Still other laws, such as medically-unnecessary ultrasounds, trespass bodily borders by requiring “visual and narrative mapping of physical spaces within the woman’s body.” (P. 5.)

In all and more of these examples, Hill argues that “regulating place is a way of subtly drawing lines of social exclusion and inclusion and re-inscribing social inequality.” (P. 6.) By this, she suggests that states, under the guise of protecting a patient’s health and safety, use law to demarcate borders that marginalize abortion care. The effects are uneven and regional, and the burdens of inaccessible care fall hardest on people who already find complying with state restrictions costly and difficult.

Hill spends a significant portion of the article analyzing state laws governing abortion facilities and providers that are designed to force clinics to close. As Hill explains, standalone clinics are the almost-sole providers of abortion in the country. Because of clinics’ isolation from health care generally, legislators easily can target abortion clinics through regulations that providers and clinics cannot and (in terms of patients’ health and safety) need not meet.

Mandating that providers obtain hospital admitting privileges, a restriction that has been at the center of two Supreme Court decisions, provides an example. Hill demonstrates that states typically defend regulation as neutral and apolitical; these laws do not ban abortion outright. Yet abortion rarely entails surgical intervention or necessitates a hospital bed, making privileges difficult if not impossible for most abortion providers to acquire.

As Hill highlights, the Supreme Court struck down Texas’s and Louisiana’s privileges requirements by concentrating on the lived consequences of law, particularly for rural and low income patients. The Court held that when clinics close, patients will have longer drives, more expense if pregnancy progresses, more logistical hurdles to overcome—like arranging childcare, time of work, transportation. A plurality of the Court raised similar concerns in the recent case, June Medical Services v. Russo. Even though five justices could not agree on the proper application of the undue burden test, both the judgment of the Court and Chief Justice Roberts’s concurrence concluded that a law that would shutter all but one clinic in Louisiana was an undue burden on the right to abortion.

Of course, courts have not uniformly struck down restrictions on providers and clinics. As Hill writes, “the line of causality [between the existence of onerous facility regulations and reduced abortion access] is not always obvious.” (P. 27.) One need only look to the dissent penned by Justice Alito in Whole Woman’s Health v. Hellerstedt, which argued that clinic closures are not the fault of a privileges requirement; instead, Texas’s clinic closures are tied to provider shortages and decreasing rates of abortion.

Hill responds to the problem of causality by reimagining the application of constitutional doctrines, such as the right to travel or state action. For example, laws forcing women to leave the state to exercise a constitutional right contravene, as Hill proposes, a right not to travel. The result, were courts to embrace such an approach, would be a constitutional guarantee for a minimum level of abortion access within state borders. But the willingness of courts to recognize such rights is also contingent on location: on the federal level, abortion rights depend on the district in which one files and the circuit that hears an appeal. And, as Hill notes, in a country where Roe is overturned and numerous states outlaw abortion, place becomes all the more important. In the near future, legal abortion rights could depend entirely on the states: half will permit abortion and just under half, concentrated in the south and Midwest, will probably ban abortion.

Constitutional challenges to abortion restrictions may go only so far in addressing the unequal distribution of abortion care because courts may be unable or unwilling to make geography matter less. In this regard, Hill might explore other avenues of delivering abortion services together with or beyond constitutional litigation.

The remote delivery of medication abortion, though far from a perfect solution, can help erase the stark lines that abortion restrictions draw and that future bans might impose. A physician licensed in a state (even if not physically present in that state) can counsel (online or over the telephone), prescribe, and, during the pandemic, mail pills to induce a medication abortion. Federal and state laws, however, have not made the expansion of remote care easy. Nineteen states, for example, require a physician to be present upon delivery of medication abortion. The FDA, through one of its safety protocols, requires patients to obtain the first drug in a medication abortion (mifepristone) in-person at the practice location of a certified provider. The rule effectively bars teleabortion, which is one reason why a federal district court suspended it for the duration of the COVID-19 national emergency.

A new administration could abandon the FDA requirement number of state legislatures already have expanded teleabortion within and across their borders. The challenge moving forward is building capacity for health care providers to prescribe and to deliver medication abortion over state lines. Place will still matter, but it could matter less with abortion-supportive policies and increased resources to help ensure access to abortion care.

That is to say, while constitutional arguments are important, political and legislative action may more immediately reconfigure the map of abortion access. And that is, ultimately, one of the central aims of Professor Hill’s article—upending borders to protect the right to abortion, an issue all the more important if the Supreme Court overturns Roe.

Cite as: Rachel Rebouché, Borders as Burdens, JOTWELL (November 17, 2020) (reviewing B. Jessie Hill, The Geography of Abortion Rights, _ Geo. L.J. _ (forthcoming 2021), available at SSRN), https://family.jotwell.com/borders-as-burdens/.

Rounding the Square Peg: Matsumura’s Redefining of Status Regulatory Schemes

Kaiponanea T. Matsumura, Breaking Down Status, 89 Wash. U. L. Rev. __ (forthcoming Jan. 2021), available at SSRN.

The COVID-19 pandemic has highlighted the precarity in which millions of people live in the United States. In his forthcoming article, Breaking Down Status, Kaiponanea T. Matsumura shows us how this precarity is intrinsically linked to the law’s inevitable (or perhaps willful) insistence on regulating important social, economic, and personal relationships through a status-based regulatory system. To discuss the obsolescence and ineffectiveness of this scheme and how it should be reformed to one in which status is defined independently from contract and adapted to the current social and legal landscape, Matsumura uses as a case study two statuses that are seldom thought today to be interrelated: worker classification and marital status.

This approach in and of itself is a great contribution to the scholarship of status. By taking this viewpoint, Matsumura is able to survey the typology of status. While dissecting the taxonomy of status, he establishes how the concept has been applied interchangeably to refer to interrelated legal and non-legal phenomena. This ambiguity has obscured the scholarly discussions about status-based regulation by selectively focusing on one of its aspects. As laid out in the article, this selective approach can be seen best in the social normative vis a vis legal effects critiques to Obergefell.

Yet, Matsumura has more in his hat than just a taxonomic study of status to enhance our understanding of its problems in our current regulatory scheme. After expanding on the undertheorized concept of status, Matsumura examines gig workers and non-marriages. By summarizing the transformation of romantic relationships (i.e. the rise on cohabitation and the corresponding decline in marriage) and in the market (i.e. the decline of the employer-employee relationship and the rise of non-long-term employees), the article shows how the regulation of marriage and employment have grown obsolete in light of the current social landscape. The lagging between how statuses are defined and how people have rearranged their relationships make existing legal approaches to statuses obsolete, resulting in an ineffective regulatory scheme. Its ineffectiveness is best epitomized by the remarks of a judge trying to apply employee regulations to Lyft’s gig workers by saying that it was like being “handed a square peg and asked to choose between two round holes.”

The square pegs are the current relationships workers established with their employers and the growing number of non-marital relationships. The round holes are the vestiges of the Blackstonian households. Matsumura explains how the status regulation of workers and non-marriages are, even after their many changes, still embedded in the regulation of master-servant and husband-wife relationships, respectively. This uncovering not only challenges our notions that the market and marriage have grown in opposite directions notwithstanding their common origin in the pater familias, but it also adds to the debunking of Henry James Sumner Maine’s long-held evolutionary wisdom that the law evolves from status to contract.

The article shows that any changes we have experienced in the regulation of status towards a contractual scheme by adding more customization power to the parties is always halted by the need to balance parties’ autonomy against lawmakers’ interests in regulating efficiently and addressing vulnerability. This inescapable reality of the conflicting interests between moving to contract to grant greater control to individuals over the legal consequences of their relationships and the lawmakers’ wishes to advance socio-political interests such as privatizing welfare, protecting parties with less bargaining power, and dictating the social meaning of the relationships themselves forces contracts to fold back into status.

Consequently, Matsumura questions the desirability of moving to a full contractual scheme and defends the theory that statuses, albeit inevitable, can be effective and powerful regulatory tools. Here, perhaps, lies the greatest contribution of the article. Matsumura invites us to look at the regulation through status independently from contract and proffers a multi-layer design to think of its reform.

He identifies three axes that in the status literature have been discussed and critiqued in isolation. The first axis (aggregation/disaggregation) addresses whether the bundle of legal consequences associated with a status are kept together or disentangled. The second axis (binarism/pluralism) focuses on the number of categories under which an individual could be classified. The final axis (boundary policing) deals with the entering and exiting of the status. In other words, its concerns are when and how to determine whether an individual falls within the status and how people transition in and out of their statuses.

With this taxonomy, Matsumura attempts to identify design questions to guide us in our reform efforts of romantic and work relationships (and beyond) which would not focus on a selective or single aspect of status. He invites us with these categories to find combinations to round the square peg or square the round holes so that we can disrupt our regulatory scheme.

This invitation resonated with me in multiple levels. First, as a proposer of abolishing marriage and using other proxies to regulate the granting of privileges and rights to families, including non-traditional families such as cohabiting couples, polyamorous units, and non-sexual families, I questioned myself about whether I have been engaging in selective critiques of statuses or whether I have been really re-thinking marital status outside the Blackstonian household in a comprehensive way. It also invited me to rethink in more detail the third relationship of the Blackstonian household, that of the father and the children, and how we can disrupt its status regulation.

I am sure reading Matsumura’s article will invite similar and more profound reflections from family law scholars and authors in other areas. But most importantly, it will be a great departing point for rethinking how we regulate essential social, economic, and personal relationships to construct a more egalitarian world.


Editor’s Notes: For another review of this article, also published today, see Brian Bix, A Status Breakdown, JOTWELL (November 3, 2020).

Also, please note that Jotwell’s Contributing Editors make their own selections as to what to review; review topics are not assigned by the Section Editors.

Cite as: Aníbal Rosario-Lebrón, Rounding the Square Peg: Matsumura’s Redefining of Status Regulatory Schemes, JOTWELL (November 3, 2020) (reviewing Kaiponanea T. Matsumura, Breaking Down Status, 89 Wash. U. L. Rev. __ (forthcoming Jan. 2021), available at SSRN), https://family.jotwell.com/rounding-the-square-peg-matsumuras-redefining-of-status-regulatory-schemes/.

A Status Breakdown

Kaiponanea T. Matsumura, Breaking Down Status, __ Wash. U. L.R. __ (forthcoming 2021), available at SSRN.

One of the hottest topics in family scholarship today is the proper legal treatment of unmarried cohabiting couples. Of course, it is hardly a new topic: it has been a center of controversy at least since the Marvin v. Marvin decision almost 45 years ago. On one side, it has been argued that giving unmarried couples marriage-like rights (equitable division of property at the end of the relationship or a claim for something like alimony) would undermine the public policy favoring marriage, while also not respecting the autonomy of those who declined to marry precisely to avoid such obligations. On the other side, refusing any marriage-like rights to long-term unmarried cohabitants would arguably fail to protect vulnerable parties (in particular, those partners, usually women, who have given up careers) and create an unjust result between the parties (where often one party leaves a long-term cohabitation with much more property than the other, often after having promised that household earnings would be shared).

During the decades since Marvin v. Marvin, the number of couples cohabiting outside of marriage has increased significantly; the Census in 2018 reported that more people in the 18-24 year group were living with a partner than were living with a spouse. However, outside a handful of states (e.g., Washington State, with its status of “Committed Intimate Relationship”), and excluding the small number of couples who enter detailed written agreements, unmarried cohabitants are still treated as legal strangers. Indeed, as Kaiponanea Matsumura points out in “Breaking Down Status” – and others have pointed out as well1 – cohabitants are treated by the law worse than legal strangers, as courts will regularly refuse enforcement of informal agreements between cohabitants (exchanges are presumed to be made altruistically) that would be more likely to be enforced between strangers. (P. 58.)

In “Breaking Down Status,” Matsumura approaches the problem of how to treat long-term unmarried cohabitants indirectly, by offering an intriguing and detailed comparison between domestic relations status (married or unmarried cohabitants) and worker status (full-time employee or independent contractor). For both employment and intimate relationships, the author shows how the legal status options developed long ago, in a far different time, have come to fit current practices and expectations poorly. On the employment side, the proper characterization of gig workers (e.g., Uber and Lyft drivers) has made salient how the options of “employee” and “independent contractor” both seem problematic. Each status comes with its own bundle of benefits and disadvantages, and each falls short of the experiences or needs of most gig workers. For example, gig workers do not seem to be independent contractors in the core sense of that label, in that they often work for only one company, and their terms of employment are generally set by that company. On the other hand, gig workers often have a flexibility regarding the number of hours worked that traditional employees do not have.

In the area of domestic relations, there are many unmarried couples who hold themselves out as married, and generally follow the norms and expectations of married couples in their community. However, there are also many unmarried cohabitants whose behavior and self-perception fill the whole spectrum from “basically married” to mere “friends with benefits.” And while one might picture a partner refusing to marry as some rich man who selfishly wants to keep all the property to himself, there is also, as a number of observers have reported, the reality of single, working class mothers “reluctant to commit to a marriage-like relationship because of concerns about a partner’s income stability, expenses, and debts.”2

As Matsumura points out, status relationships tend to encapsulate a complex of autonomy, dependency, vulnerability, and oppression. An obvious reformist reaction is to argue that each situation should be judged individually, taking into account all the circumstances. This is the impulse that creates equitable exceptions to legal rules, and one also finds it in Family Law, in doctrines like equitable (de facto) parental status and equitable adoption. However, as is well known, what is gained by individual consideration comes with costs – uncertainty, unpredictability, and too much discretion to judges (keeping in mind that many judges do not share “our values” – regardless of how one fills out the content of “our values”). It is not surprising that these equitable doctrines tend to become ever more rule-like over time: to create more predictable outcomes regarding when (e.g.) equitable parental status will be granted and when it will be refused. And, as Matsumura argues, the intermediate solution of having a large variety of statuses also has difficulties: like the “numerus clausus” idea in property law (not having too many categories of property),3  having too many family categories, or allowing parties to create an infinite number of new status structures through private agreement, which can quickly lead to confusion and inefficiency.

The article draws broad lessons: that in the government’s treatment of its citizens, it is inevitable that people be divided into categories, and it is convenient if those categories – “status” categories – often contain bundles of rights and obligations. Matsumura’s take-away is clear: “Status is inevitable.” (P. 55.)

However, the article does not prescribe resigned acceptance of misfit statuses. Matsumura believes that statuses can be reformed, though he warns that the process is rarely straightforward. What solves one problem may create another; it is hard to serve well autonomy, efficiency, and dependency (or even any one of them alone – e.g., responding to vulnerability can also have the unintended effect of encouraging vulnerability). Finding the right legal response to unmarried cohabitation (and gig employees) will require creativity and hard work.


Editor’s Notes: For another review of this article, also published today, see Aníbal Rosario-Lebrón, Rounding the Square Peg: Matsumura’s Redefining of Status Regulatory Schemes, JOTWELL (November 3, 2020).

Also, please note that Jotwell’s Contributing Editors make their own selections as to what to review; review topics are not assigned by the Section Editors.

  1. E.g., Courtney G. Joslin, Autonomy in the Family, 66 UCLA L. Rev. 912 (2019).
  2. Naomi Cahn & June Carbone, Blackstonian Marriage, Gender, and Cohabitation, 51 Ariz. St. L.J. 1247, 1273 (2019).
  3. Thomas W. Merrill & Henry E. Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle, 110 YALE L.J. 1 (2000).
Cite as: Brian Bix, A Status Breakdown, JOTWELL (November 3, 2020) (reviewing Kaiponanea T. Matsumura, Breaking Down Status, __ Wash. U. L.R. __ (forthcoming 2021), available at SSRN), https://family.jotwell.com/a-status-breakdown/.

Termination of Parental Rights of Mothers with Disabilities: The Role of the Americans with Disabilities Act

Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone & Stephen Fournier, The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions involving Disabled Mothers, __ Yale L. & Pol'y Rev. __ (forthcoming), available on SSRN.

The right to parent is recognized by the Supreme Court as a fundamental right, but this right remains elusive for many groups, including parents with disabilities. The Americans with Disabilities Act (“ADA”), heralded as landmark legislation for people with disabilities, turned thirty this year. However, parents with disabilities are still not adequately protected by the ADA, especially when they are involved with the child welfare system. In a forthcoming article in the Yale Law & Policy Review, Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone, and Stephen Fournier use empirical data to demonstrate how the ADA is routinely ignored in parental termination decisions in the child welfare system and suggest ways to ensure that the parenting rights of people with disabilities are protected. The article analyzes results of an empirical study conducted by Robyn M. Powell as a part of her doctoral dissertation. It contextualizes the results of her empirical work with a rich discussion of disability law and policy. I found it striking how the authors demonstrate with data that parents with disabilities are denied a key tenet of reproductive justice, the right to parent with dignity.

The article describes how the legislative history of the ADA indicates that the ADA was designed to protect parents with disabilities, especially in child welfare proceedings. Title II of the ADA requires child welfare agencies and courts to abide by a host of requirements including: providing people with disabilities an equal opportunity to participate in services, programs, and activities; administering services, programs, and activities in the most integrated setting appropriate to the needs of people with disabilities; and not applying eligibility criteria that tend to screen out people with disabilities. The article notes that most importantly, the ADA requires child welfare agencies and courts to treat disabled people on a case-by-case basis, consistent with facts and objectives, and not based on stereotypes and generalizations about people with disabilities.

The article begins with a discussion of the history of eugenics in the United States that prevented people with disabilities from having and raising children. The authors examine the 1927 Buck v. Bell Supreme Court decision, in which Justice Holmes infamously noted that “three generations of imbeciles are enough.” After Buck v. Bell provided the imprimatur of authority to state sterilization laws, actual use of sterilization statutes skyrocketed. For example seventeen states enacted or revised their sterilization statutes in the four years following the decision. The article describes how Buck v. Bell thus laid the foundation for over 65,000 forced sterilizations authorized by state law. The article also details how laws restricting marriage by people with disabilities prevented and continue to prevent people with certain disabilities from marrying and subsequently raising a family. Despite the obstacles people with disabilities have faced in terms of parenting, the National Council on Disability notes that at least 6.2 percent of American parents who have children under age 18 have at least one reported disability, with even higher percentages for American Indian/Alaska Native parents (13.9%) and African American parents (8.8%).

The article next describes the empirical study of 2,064 appellate termination of parental rights decisions that involved mothers with disabilities decided between 2006 and 2016. 93% of the cases studied resulted in the termination of parental rights. Future work comparing this statistic with termination of parental rights cases involving mothers who did not have disabilities would be helpful to put this number into context. The study also found that cases involving mothers with psychiatric disabilities or multiple disabilities were significantly more likely to end in the termination of parental rights than those with mothers with physical or sensory disabilities. Only six percent of the cases raised the ADA and only two percent actually found that the ADA applied. The article describes In re Hicks/Brown, a unanimous 2017 Michigan Supreme Court decision that reversed a termination of parental rights decision due to ADA violations in a case involving a mother with an intellectual disability, holding that “termination of parental rights without reasonable efforts is improper and efforts cannot be reasonable absent reasonable modifications.” (P. 15.)

By discussing the first study to conduct quantitative analyses to identify factors that predict whether the ADA is raised or applied in these cases, the authors make a significant contribution to the literature. I found the legal and policy ramifications of the study, and the normative suggestions made by the authors, to be compelling. The authors first posit that the study results may reflect a need for education and training of judges and attorneys about the ADA and confirm that the ADA is not being effectively used during termination of parental rights proceedings with parents with disabilities. The authors note that majority of mothers in this study had incomes below 200% of the federal poverty level and likely had court-appointed attorneys to represent them. The authors suggest practical strategies for ensuring that such attorneys receive ADA training and support from disability rights attorneys. They also suggest the need for better oversight and enforcement of ADA violations in the child welfare system by the Department of Justice and the Department of Health and Human Services. Finally, the authors suggest that community-based services and supports are essential reasonable modifications required by the ADA that should be provided to parents with disabilities as soon as they are involved with the child welfare system.

Although the authors did examine income and substance abuse histories as variables in their work, some sociodemographic data, such as the race of the parents, is often absent in appellate court decisions–so it could not be analyzed in this empirical work. The authors also have another forthcoming piece (which will be published in the Missouri Law Review) analyzing different variables in the same empirical study. I look forward to future work by these authors that may illuminate how race intersects with disability and poverty in child welfare decisions. Anyone interested in the “staggering inequities” people with disabilities and their families experience within the child welfare system should read this excellent piece.

Cite as: Seema Mohapatra, Termination of Parental Rights of Mothers with Disabilities: The Role of the Americans with Disabilities Act, JOTWELL (September 18, 2020) (reviewing Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone & Stephen Fournier, The Americans with Disabilities Act and Termination of Parental Rights Cases: An Examination of Appellate Decisions involving Disabled Mothers, __ Yale L. & Pol'y Rev. __ (forthcoming), available on SSRN), https://family.jotwell.com/termination-of-parental-rights-of-mothers-with-disabilities-the-role-of-the-americans-with-disabilities-act/.

When Abortion is Parenting

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, JOTWELL (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/.

Reproductive Exceptionalisms

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.1 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.2 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.

  1. See, e.g., Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497, 1498 (1983).
  2. See Janet Halley & Kerry Rittich, Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism, 58 Am. J. Comp. L. 753, 754 (2010) (noting as a descriptive matter that families are treated as exceptional in numerous areas of the law, and that this exceptionalism produces a variety of distributional effects).
Cite as: Kaiponanea Matsumura, Reproductive Exceptionalisms, JOTWELL (July 3, 2020) (reviewing Dov Fox, Birth Rights and Wrongs: How Medicine and Technology are Remaking Reproduction and the Law (2019)), https://family.jotwell.com/reproductive-exceptionalisms/.

Kinship at the Border

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.1

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.)2 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,3 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.

  1. For a discussion of this trope in constitutional sex-equality law, see Courtney Megan Cahill, The New Maternity, 133 Harv. L. Rev. 2221 (2020). Milanich complicates this conventional narrative by showing that science and law did surveille the male body—even more than it did the female body—in the search for parenthood.
  2. Milanich contrasts Italy’s privileging of the marital family over the pursuit for racial “purity” with Nazi Germany’s willingness to throw “open marital paternity to contestation … by state officials” in order to “reveal bioracial truth.” (P. 199.)
  3. Douglas NeJaime, The Constitution of Parenthood, 72 Stan. L. Rev. 261 (2020).
Cite as: Courtney Cahill, Kinship at the Border, JOTWELL (June 8, 2020) (reviewing Nara B. Milanich, Paternity: The Elusive Quest for the Father (2019)), https://family.jotwell.com/kinship-at-the-border/.

Reflections on Family Law

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.”1

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.2 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.3

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.4 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.

  1. Ariela R. Dubler, Wifely Behavior: A Legal History of Acting Married, 100 Colum. L. Rev. 957, 1009 (2000).
  2. See Michael Boucai, Is Assisted Procreation an LGBT Right?, 2016 Wis. L. Rev. 1065, 1069 (2016) (identifying how “ARTs reinforce some very conventional kinship norms, even as they enable the creation of undeniably ‘modern’ families”).
  3. See Melissa Murray, Marriage as Punishment, 112 Colum. L. Rev. 1, 6 (2012) (“The history of marriage as punishment [] suggests the totality of state regulation of sex and sexuality.”).
  4. See, e.g., Khiara M. Bridges, Family Law, The Oxford Handbook of Law & Humanities 465, 466 (2019) (“the poor frequently do not have the occasion to come into contact with the laws around marriage and divorce that structure the families of those with class privilege” and so “the family law that largely concerns the poor treats the families under its jurisdictions quite differently from the family law that largely concerns those who are not poor”).
Cite as: Albertina Antognini, Reflections on Family Law, JOTWELL (May 11, 2020) (reviewing Jia Tolentino, Trick Mirror: Reflections on Self-Delusion (2019)), https://family.jotwell.com/reflections-on-family-law/.

The Paradox of Parental Leave

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, JOTWELL (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/.

Surrogacy, 2.0

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, JOTWELL (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/.