Yearly Archives: 2012

When “Best Interests” Cannot Guide

Nov 28, 2012 Brian Bix1 comment

Whenever they can, advocates and politicians will re-characterize contentious debates in terms of the effects on children, even when the real concern is elsewhere.  The most prominent current example may be the debates on same-sex marriage, where those opposed to recognizing such unions refer regularly to alleged bad effects on children, even though those alleged effects are indirect and (at best) highly speculative.  However, talking about children avoids the less publicly acceptable view that likely motivates a large portion (though far from all) of the opposition to recognizing such unions:  a view that the homosexual lifestyle should be criticized rather than supported.

In Family Law doctrine, one can also find this sort of misuse of “best interests of the child”:  it is in a sense changing the topic, and calling one thing by a more favorable name.  Thus, there are principles for custody decision-making that purport to be (or be based on) the “best interests of the child,” but in fact reflect parental rights (e.g., the strong presumption for visitation by a non-custodial parent, even where there is strong evidence that this visitation is causing harm to the child) or other important social policies (e.g., refusing to base a custody decision on how a child might be harmed by the racist views of other people).

In Regulating Reproduction, I. Glenn Cohen similarly rebuts the use of “best interests” in one area of Family Law – the regulation of reproduction – and he does this with an added twist.  When one properly speaks of “best interests of a child,” the structure of the analysis is Option 1 as against Option 2 for the same child:  custody with mom as against custody with dad; adoptive placement with Family 1 versus placement with Family 2, or perhaps waiting for a better placement option to become available; having the medical treatment versus not having the medical treatment; and so on.  The decision-maker is to imagine the hypothetical future worlds for the child under the alternative choices and to evaluate which future is likely to be better.   However, when “best interests” is applied to the regulation of reproduction, there are no comparable comparisons; “best interests” analysis turns out to be, more often than not, both useless and incoherent.

Cohen’s focus is on policies affecting “decisions about whether, when, and with whom to reproduce.”  Such policies would include restrictions on who can use in vitro fertilization (IVF) (with some clinics excluding single patients, unmarried couples, older patients, and same-sex couples); laws requiring insurance coverage for IVF costs; laws requiring gamete donations to be non-anonymous; laws criminalizing surrogacy (or commercial surrogacy) or simply refusing legal enforcement of such agreements; and laws criminalizing incest between adult siblings.  As Cohen points out, the “best interests of the child” principle is commonly offered, by both judges and commentators, as one of the justifications for such policies.  However, this assumes a comparison that is almost always absent.  The argument is that children of same-sex parents or older parents or single parents or parents using anonymous gamete donors, etc., suffer some distinctive harm.  However, if (for example), a same-sex couple is not allowed to use the IVF treatment or the surrogate the couple needs to have a child, the child the couple might otherwise have had will now not come into existence.  It is not as though the same child could have come into existence, but with younger, married, opposite-sex parents who did not need to use a surrogate.  This is what Cohen (following Derek Parfit, Reasons and Persons (Oxford, 1984)) calls the “Non-Identity Problem.”  If the choice is between a particular child existing and this particular child not existing at all, then one can hardly say that this child was harmed by being born to a single parent, an older parent, a same-sex couple, a couple who used a paid surrogate or anonymous gamete donors, etc. — unless one could say that that child’s life is so bad that it would have been better had she never been born at all.  We are rightly reluctant to say that, even for children with rather unfavorable circumstances (and courts agree, as shown in their near-universal refusal to recognize claims of “wrongful life” on behalf of seriously ill or disabled children).

Cohen notes that sometimes policies affecting reproduction create “Imperfect Non-Identity Problems,” as there may be cases where the same child would come into existence with or without the policies.  Thus, the same gamete donor might donate even if anonymous donation is no longer allowed, and the same surrogate may be willing to offer her services despite the prohibition of payments above expenses.  In such cases, hypothetically, the same child could come into existence who would have been born without the regulation, and this same child would have the better circumstances created by the regulation – in any event, a true comparison can be made — but these cases are likely to be exceptional.  It is more likely that policies of these sorts will affect whether children are born and which children are born (e.g., as the class of potential gamete donors who will still donate even if they are to be identified differs from the class willing to donate anonymously, those having children using gamete donors will likely have genetically different children depending on which policy is in place, and those needing gamete donors may end up having no children if a policy of non-anonymity leads to a shortage of donors, as has occurred in some countries).

In summary, Cohen’s important article reminds us that, in the area of regulation of reproduction (as in many other areas of family law), we — commentators, courts, and lawyers alike — must get out of the intellectually lazy habit of defending our preferred public policies based on “best interests of the child,” and either find an alternative defense or change our policy preferences. ((For further work extending Cohen’s analysis in Regulating Reproduction, see also I. Glenn Cohen, Beyond Best Interests, 96 Minn. L. Rev. 1187 (2012) and Burying Best Interests of the Resulting Child: A Response to Professors Crawford, Alvaré, and Mutcherson, 97 Minn. L. Rev. (forthcoming 2012), available at SSRN.))

Suspicious Eyes: The Uneasy Relationship Between Feminism, Male Parenting, and Child Molestation Laws

Nov 2, 2012 Katharine Bartlett

How committed are feminists to gender equality?   In Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law (to be published this spring in the California Law Review), Camille Gear Rich identifies an issue as to which feminists have seemed almost willfully blind: gender bias in child molestation prosecutions.

The problem is this: men are prosecuted under child molestation laws for engaging in the same behaviors that mothers perform without fear of criminal sanction. As examples, Rich describes cases in which men have been prosecuted for bathing a child’s genitals by hand rather than with a washcloth, wiping a child’s bottom after toileting, applying diaper cream to a child’s genitals, bathing with a child, and kissing a child’s naked stomach, thighs, and genitals. These examples are revealing. We would not expect mothers to be under suspicion of child abuse for these kinds of behaviors; we are not terribly surprised that men are. Why, Rich asks, haven’t feminists found this troubling?

Perhaps we assume that child molestation statutes adequately distinguish innocent behaviors from alarming ones. Not so, Rich claims. Some child molestation statutes impose specific intent requirements compelling prosecutors to prove sexual motivation or illicit intent. Others carve out exceptions to general intent requirements for behaviors construed to be normal caretaker responsibilities. Either way, Rich contends, intent determinations turn on social norms (or “common sense”) about appropriate parenting behavior, and these norms are highly gendered. A mother blowing kisses all over a child’s belly is relatively common and unproblematic. The same behavior by a father, grandfather, stepfather, or boyfriend raises suspicion. Further, prosecutors tend to judge the appropriateness of some behaviors—for example, bathing with the child, parental nudity, diapering practices—by whether the child’s mother has authorized them. Mothers are the gatekeepers, and fathers parent at their own risk. They may do as mothers say, but not necessarily as they do.

Rich objects to the increasingly broad definitions of child molestation because, whether they are applied to just to men or to men and women equally, they intrude on family autonomy and privacy. Her emphasis, however, is on the specific damage caused by treating men differently. Gendered child molestation standards generate gendered parenting behaviors, as men understandably avoid actions that may raise suspicion about them as parents, even as women through these same actions deepen their own intimacy with their children.

Rich holds feminists at least partially responsible for the gendered standards she identifies. She blames primarily dominance feminists, who heightened awareness of sex abuse, urged successfully that legislators enlarge its definition, constructed molestation as a sex-specific wrong that men commit against innocent women and children, and insisted that prosecutors and judges believe women and children when they claim abuse. This strategy helped to entrench societal understandings of men as dangerous sexual predators who are not to be trusted to get too close to children, and constrained male behavior and self-definition accordingly.

Rich argues that spooking fathers is not in women’s interests, and that feminists should have known better. Liberal feminists, in particular, understood that loving and engaged fathers who enthusiastically assumed their share of caretaking responsibility for children were critical to equality for women. Rich concludes that these feminists failed feminism, and families, when they did not resist the overly broad and gendered construction of sex abuse that dominant feminists promoted. Perhaps liberal feminists were asleep at the switch; maybe they were reluctant to criticize a brand of feminism that seemed to put women’s interests front and center. Either way, she argues, they neglected to act on their own egalitarian principles.

Liberal feminist complacency on this and related family law issues has created the need, and space, for a “new camp of post-dominance” feminists,¹ with which Rich allies herself. By Rich’s description, these feminists have more backbone than liberal feminists, and they take more seriously the feminist values of autonomy and liberty. They believe that the law is overly paternalistic when it intervenes too much in family relationships, and that this paternalism “prevents women from exercising personal agency to decide what kinds of family relationships they would like to form.”  More broadly, post-dominance feminists oppose the “sexual suspicion of men at the heart of the dominance feminist critique”—suspicion that “threatens men who have adopted an ethic of care.”

Many family law issues have divided feminists, but this one may be more challenging than most. Rich anticipates the potential downsides to the attention she draws to the lack of gender neutrality in the prosecution of child molestation—that the conduct of mothers will be more closely scrutinized; that too much latitude will be given to abusive fathers; and that only the most privileged men will benefit from creating more gender-neutral standards. Rich responds to these difficulties by acknowledging the necessity for women’s autonomy and children’s safety, and by arguing that greater parental autonomy will serve gay parents as well as middle-class fathers.

Yet it is not clear that the problem Rich describes can be easily resolved. The inconsistency she identifies suggests anxieties about parenting, sex, and equality that many feminists, despite their own best intentions, cannot seem to dispel. We want men to share responsibility for children and are critical of them when they do not do so. At the same time, we do not seem to trust men with children in the same way we do mothers. Rich argues that feminists cannot have it both ways: we cannot both treat men suspiciously, as second-class parents, and expect their full and equal commitment as loving caretakers. She’s right, of course—whether or not we have the will to act on her powerful insights.

Delinking Sex/Gender from Parenting

Oct 5, 2012 Carlos Ball1 comment

As we all know, the question of whether sex/gender should serve as an eligibility criterion in the distribution of marriage licenses has received a vast amount of attention over the last two decades. Although the issue of whether sex/gender is a crucial element of parenting has received less attention, it is no less important. In this exciting and path-breaking article, Darren Rosenblum calls for the unsexing of motherhood and fatherhood—that is, for the severing of parental categories from biological sex. In Rosenblum’s perfect world, anyone—regardless of sex—can be a mother or a father. The decoupling of parenting from sex will “ultimately eliminate the presumption that the primary parent is the mother, in which case a parent of any sex could claim to be the primary parent.” He adds that “[p]arents would be expected to provide nurturing, support, structure, and discipline to children, but they would not need to divide these and other elements of childcare based on parental biosex.”

As Rosenblum perceptively explains, a powerful interplay of institutions and norms help to link parenting categories with sex. One of these is the market. The fact that men dominate the market sphere reinforces cultural stereotypes about women’s “natural” capabilities in the domestic sphere. And natural understandings of motherhood place great importance on genetics, gestation, and lactation, seemingly ignoring the fact that it is possible for women—those who become parents through adoption or surrogacy, for example—to be mothers in the absence of one or more of these biological factors.

After detailing the powerful forces that contribute to the sexing of parenting, Rosenblum cautions that legal rules promoting thin gender neutrality will not lead to its unsexing. Here Rosenblum astutely uses the Family and Medical Leave Act (FMLA) as an example. On its face, that statute offers male and female parents the same unpaid leave opportunities. This gender neutrality is thin, however, because it leaves in place powerful social default rules that discourage men from taking parental leaves and place greater childcare responsibilities on women. The FMLA also does not account for market forces that reward male paid work, which create further disincentives for men to take unpaid leaves.

Rosenblum contrasts the FMLA’s thin gender neutrality with the thick neutrality of Sweden’s parental leave policy. Under that policy, two employed parents are entitled, as a unit, to up to eighteen months of parental leave. But in order to receive the maximum amount of leave time, each parent is required to take two months of leave. After that, couples are free to apportion between themselves the remaining time as they deem best. The policy also requires that the leave be paid (at 80% of salary for the first three hundred and ninety days and at a flat rate after that). In addition, the policy allows both parents to be on leave simultaneously and permits both to return to work part-time until the child reaches the age of eight. And, finally, the Swedish government provides a comprehensive child daycare system, which helps parents with the transition back to work.

Like the FMLA, the Swedish leave policy is gender neutral. But as Rosenblum persuasively argues, only the Swedish leave rules account for the market and social forces that make it less likely that men will take parental leave from work. Creating incentives for both parents to take time off from work in order to care for children has led the vast majority of new Swedish fathers to take parental leave.

One of the reasons why this is a superb article is that Rosenblum is fully cognizant that the unsexing of parenthood will not come about through legal rules that fail to account for the economic, social, and cultural forces which promote gendered parenting. Indeed, thin gender neutrality’s failure— which in my view includes not only the FMLA, but also the repudiation of the tender years doctrine and the notion that only men should be responsible for alimony and child support—to degender parenting is striking. Our laws may promote gender neutrality in parenting, but our culture lags far behind.

As Rosenblum points out, much of the unsexing of parenthood is taking place in family forms outside of the traditional married heterosexual household. Single individuals and same-sex couples, for example, parent in ways that combine the traditional maternal and paternal roles. Indeed, the empirical literature suggests that lesbian parent couples are able to divide the work outside and inside the home more equitably than married heterosexual parents. It is likely that this is in large part because same-sex couples are not able to fall back on default rules that assign parental roles and responsibilities according to gender.

Although the challenges in degendering parenthood are daunting, this article helps us understand the nature of those challenges while offering a compelling vision of how to overcome them.  I do not know if it will be possible to fully unsex parenting in our lifetimes. But after reading Rosenblum’s article, I am more persuaded than ever that it is crucial that we try.

The Uniform Sister-wife Act: Ensuring A Fair Share of the “Marital Pie ”

Sep 11, 2012 Camille Gear Rich

Adrienne Davis’s recent article, Regulating Polygamy: Intimacy, Default Rules and Bargaining for Equality, is a must read for family law scholars, marriage equality scholars, as well as anyone interested in understanding the limits of contemporary analogies made between gay marriage and polygamy.

Davis begins her analysis by highlighting the fundamental difference between these two frequently compared marriage forms. She argues that gay marriage proponents’ commitment to dyadic two-person marriages makes their quest starkly different from polygamy proponents’ quest for social recognition of a marriage model that recognizes the affective and cooperative links between multiple marriage partners.

Davis convincingly argues that scholars analogizing between these two types of marriage only seem convincing because they frame the debate at a high level of generality. They argue that both marriage forms require that we honor a right to “freedom” in the formation of intimate relationships, speaking in the “due process” and “fundamental rights” idiom of Lawrence v. Texas. However, Davis argues that polygamous marriage’s constitutive and non-shared feature is its seriality. Polygamous unions are constantly in the process of contracting and expanding, she explains, as the partners to the marriage add and subtract spouses. With this contrast made clear, Davis moves to an analysis of the distinct and deeply serious agency risks inherent in polygamous unions, with the goal of showing how they might be overcome.

In order to properly regulate polygamy, she explains, we must focus on the special autonomy and economic risks faced by sister wives in polygamous marriages. While she does not make this pitch explicit, she invites her readers to imagine the creation of a “Uniform Sister-Wife Act,” a series of sticky default rules that would ensure that partners to polygamous marriages can protect their fair share of the “marital pie” in the face of a constantly evolving marital relationship.

Davis is fearless and unflinching in the portrait she paints of polygamous unions. She challenges us to take polygamy on the terms we currently find it, typically established as a one husband, multiple wife model, with the husband as the expected primary financial support. Additionally, she reveals the numerous, diverse and radically different constituencies with a vested interest in polygamy’s decriminalization: feminists, Mormons, Christian fundamentalists, immigrant groups, members of the Nation of Islam and black nationalists.  (Who knew that one of the largest groups of practicing polygamists is a collection of the last two groups mentioned above, living in Philadelphia?)

As a result of Davis’s efforts we are left with a far more complicated understanding of the role polygamy plays in contemporary American culture.  Her project would have been vastly simpler had she bracketed the contemporary realities of polygamous unions and focused her model solely on the highly seductive, feminist utopian version of polygamy that some scholars have imagined. ¹ This utopian version assumes that polygamous marriages may contain more than one husband, and/or that women and men exercise relatively equal economic power in the home, as both sexes are equally able to participate in the world of paid work. Davis instead invites the reader to embrace some of the more disturbing examples of polygamy, as it is practiced today.  She reveals that the attendant risks associated with contemporary polygamous unions can be addressed by drawing on models in partnership law.  As a result of her efforts we have a careful, thoughtful, and provocative analysis of the risks of domination produced by existing polygamous unions, even as she gives us tools that will allow for the regulation of the imagined polygamous unions of tomorrow.

Davis’s piece of course will make readers think of the now-cancelled HBO Drama Big Love, which followed the trials and travails of Bill Hendrickson and his three sister wives  (Barb, Nicki and Margene) as they negotiated life in suburban Utah.  Davis explains that by moving polygamy from the compound to the suburbs, the show’s producers ushered polygamy into a new era in popular discourse, inviting us to imagine the polygamous family as just another family living next door.  But after reading Davis’s piece, feminist viewers of Big Love will be reminded of the complex economic dance these sister wives faced as the marriage evolved.  As the series progressed, multiple unexpected forms of domination emerged, prompting numerous questions.  What recourse does a sister-wife have when she is forced to become the primary childbearer for the entire family?  What recourse does she have when another wife attempts to outsource childcare duties to her?  What legal remedies can she claim when exploitative demands are made on her earnings by her fellow sister wives? Finally, and perhaps most importantly, what recourse does she have when she opposes the introduction of a new sister wife?

The utopian vision of polygamy that some feminists imagine makes these negotiations seem seamless and easy.  Big Love reveals that they are often ugly and difficult.  Regulating Polygamy provides solutions to some of the thorniest problems, and reveals that others are simply unexceptional challenges that are already embedded in dyadic marriages.

Davis’s piece is profoundly important in my view because it comes at a time when utopian feminist arguments about polygamy are gaining ground. She draws our attention to the information deficits and negotiation risks women face prior to entering these marriages, and the potential dilution of voting interest and economic share as the marriage evolves to include more partners. The issues she raises are sure to give readers pause, particularly those who subscribe to view that we should fold back into the family relationship many of the maternal and wifely responsibilities working mothers now outsource to housekeepers, nannies and other care providers. That is, feminist readers may conclude that women are far safer in dyadic marriages – albeit relying heavily on the network of commercial or extended family helpers that Melissa Murray describes,² rather than accepting the complications polygamous marriages bring. I myself am deeply concerned about the way marriage often compels working women to outsource the most difficult “wifely” nuturing and care giving responsibilities, and to assign them to poorly paid brown and black bodies. I am deeply concerned about the tendency to downshift intimacy and caregiving into short term, disposable relationships—a kind of treatment we do not expect in families.  Yet Davis’s article makes one profoundly aware that expanding the marriage relationship and bringing in new partners to share these responsibilities does not resolve these perennial questions.  Indeed, it makes resolution even more fraught.

There is much to recommend Regulating Polygamy.  One can trust Davis to be a neutral and pragmatic guide as she explains polygamy’s challenges.  She is neither an advocate for polygamous marriage, nor a detractor intending to warn us away from this family form.  The reader leaves her discussion with a better understanding of how commercial law can provide helpful direction as we determine how to create legal protections that will adequately inform and ensure the fair treatment of sister wives (and potentially brother husbands) in the future. However, she also paints a compelling picture of the challenges we face in attempting to regulate polygamy. Policymakers would do well to keep her on speed dial if they ever take up this challenge.

A Hug From the State: Recognizing Stillbirths

Jul 19, 2012 Melissa Murray

In the not too distant past, it was taboo for women (and men) to speak openly about miscarriages, infertility, or anything having to do with the delicate business of giving birth.  More recently, however, the social anxiety around these topics has receded.  Many of us now speak openly about the pain of a miscarriage or an unsuccessful round of IVF.  Indeed, some find it cathartic to broadcast their grief to a wider audience, blogging about their experiences or discussing it with friends (broadly defined) on social media.  But it is one thing to enlist friends and social media in the grieving process.  It is quite another thing to involve the state.  Or is it?

That is the question that Carol Sanger takes on in “The Birth of Death”: Stillborn Birth Certificates and the Problem for Law.  In this penetrating and thought-provoking Essay, Sanger takes on the taboo subject of stillbirth—the act of delivering a dead child—and the emergent movement that seeks to enlist law to help the parents of stillborn children deal with their grief and loss.  Specifically, Sanger considers “Missing Angel” legislation—laws that authorize the state to issue parents a birth certificate for a stillborn child.  The whole thing sounds at once macabre and incongruent—issuing a birth certificate for a child that was born dead?  But, as Sanger observes, it makes perfect sense to grieving parents, for whom the standard issue fetal death certificate fails to capture the magnitude and profundity of their loss.

In order to understand the nature of the loss, Sanger explains, one must understand the transformation of pregnancy and childbirth in our culture.  Medical technology has “permanently altered our relationship to the fetus.”  In particular, obstetric sonography “has made fetuses present” in the lives of their families “in ways that once were possible only after the baby was born.”  This process, which Sanger terms “social birth,” now precedes biological birth.  And it is the fact of social birth that makes stillbirth—and the standard legal response to it—so confounding to grieving parents.  A fetal death certificate seems to many parents of stillborn children “an offensive and bureaucratic response to their circumstances and suffering.”  It denies for many the basic fact that there was a pregnancy, labor, and the delivery of an actual baby, rather than a fetus.  In short, it is a clinical response that fails to capture the complexity of the parent-child relationship in utero, and in failing to grasp the nature of this relationship, compounds the parents’ grief.

Stepping in to supplant the fetal death certificate (and all of its inadequacies) are Missing Angels Acts, which authorize states to issue stillborn birth certificates.  The difference in nomenclature may be mere semantics to some, but for grieving parents it is deeply meaningful.  As Sanger observes, the certificates are at once an artifact of mourning, a public record that provides “dignity and validation” and a posthumous change of status to the lost child, and a means of confirming parental identity.  Sanger is quick to note that stillborn birth certificates, unlike other forms of public records, do not confer a tangible benefit or right upon the surviving family members.  Their purpose is primarily therapeutic—“a hug from [the state] for grieving mothers.”

It all seems pretty innocuous.  If a stillborn birth certificate offers some solace to grieving parents, what is the harm?  Sanger does not disavow Missing Angel Acts and their aim to push the state into a more compassionate and therapeutic posture, but she does urge us to think critically about what this development might mean for legal culture.  As an initial matter, Sanger notes that stillborn birth certificates are something of a legal fiction—and one that may compromise demographic integrity if unchecked.  But her concerns go beyond the integrity of public record-keeping.  Stillborn birth certificates, like victim impact statements, take seriously law’s affective and therapeutic potential.  And, as Sanger’s account of those who lobby for Missing Angels Acts suggests, this potential is real and meaningful—law can “soothe the emotional needs of a distressed constituency.”  But Sanger worries about the collateral consequences of this therapeutic turn.  Legal recognition, she notes, is a tricky business.  In recognizing the pain of stillbirth, does law prioritize this form of fetal loss above others like miscarriage, elective abortion, or the destruction of unused embryos?  Should these other forms of fetal loss be documented, and the grief with which they are associated recognized, by the state?  How do we determine the “appropriate scope of legal compassion?”

Importantly, Sanger’s critique of the promise and perils of public recognition has implications that extend beyond the narrow context of stillbirth and fetal loss.  For example, scholars of marriage and sexuality have frequently noted the degree to which legal recognition turns on exclusivity—for recognition to mean something, there must be an other that goes unrecognized.  With this in mind, Sanger’s point that the recognition of stillbirths prioritizes some forms of fetal loss over others echoes concerns that many have over the question of legal recognition of same-sex couples through marriage and alternative statuses.  Relatedly, her observations regarding the stillbirth birth certificate’s ability to provide dignity and validation sound in the same register as appeals for marriage equality that evoke the marriage license’s ability to dignify and validate same-sex relationships.  In the context of the marriage equality debate, most have accepted unquestioningly law’s ability to confer this kind of dignity and validation.  But Sanger’s nuanced reading of Missing Angels Acts belie such a facile conclusion.

Relatedly, Sanger worries that Missing Angels Acts allow the state to promote a kind of compulsory reproductive mourning that shapes emotional responses in ways both miniscule and profound.   She argues that, in providing a legal imprimatur for stillbirth mourning, Missing Angels Acts “define stillbirth as a particular kind of event and suggest what suffering mothers of stillborn children need (or are supposed to need) and how they can get it.”  Though private gestures like a doctor referring a grieving parent to a support group, effectively do the same thing, there is something distinctive about the state taking on this role.  The tension between the public and private that Sanger identifies in the context of stillbirths also applies in the marriage equality debate.  Though the mainstream LGBT rights movement has pressed for public recognition through marriage, others have argued that the state’s role in recognizing marriage contributes to a normative preference that renders marriage more or less compulsory for all who are eligible for it.  They argue that the state should take no role in recognizing adult intimate relationships at all, relying instead on private ordering for legal recognition.  This is not to say that The Birth of Death provides a platform for those who would reject marriage equality.  But the comparison between marriage equality and the stillborn birth certificate underscores Sanger’s point that the politics of public recognition—whatever the legal context—are complex and fraught.  Though Sanger focuses her lens solely on stillbirths, The Birth of Death offers important insights that transcend this narrow issue.

Sanger’s final caution focuses on the tension between Missing Angels Acts and abortion politics.  As she notes, “[p]art of the strategy to make abortion hard to get and hard to choose has been to define fetuses and embryos as infants, children, persons, and victims.”  Though the Missing Angels Acts advocates profess no stake in abortion politics, it is easy to see the many ways in which the issuance of a stillbirth birth certificate implicates the question of fetal personhood.  In the end, Sanger does not take a position in the debate, noting only that the salient issue is “whether there are reasons to hesitate before blurring traditional markers between life and death and between private and public mourning as a matter of law.  And if we do blur these lines, how should we conceptualize and measure the costs of doing so?”

In the end, there is much to recommend this piece.  First, it is a classic Essay—a thought-piece that explores an interesting issue, but does not succumb to the temptation of offering a hastily cobbled together prescription.  Instead, its purpose is to inform and provoke thought.  On these fronts, The Birth of Death is resoundingly successful.

Second, I love that The Birth of Death is classic Carol Sanger, which is to say that it, like much of her work, is neither exclusively doctrinal nor exclusively theoretical, but instead focuses on the relationship between law and culture.  And it is her trenchant eye for identifying one-offs like the Missing Angels Acts and locating them in a broader cultural and legal milieu that is Sanger’s trademark.  In this way, The Birth of Death echoes her recent work on Infant Safe Haven legislation (Infant Safe Haven Laws: Legislating in the Culture of Life, 106 Colum. L. Rev. 753 (2006)) and mandatory fetal ultrasounds for those seeking abortions (Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice, 56 UCLA L. Rev. 351 (2008)).  Though pieces that blend law and cultural studies have been criticized for being fluffy and insubstantial, The Birth of Death, like Sanger’s other work, offers a robust portrait of legal culture anchored in her careful parsing of legal text and supported by her keen eye for important historical and literary detail.  In the end, it is the kind of piece that stays with you, popping up at unexpected moments and forcing you to see the world in a new light.