Privileging Resistance

Nov 20, 2024 Aníbal Rosario-LebrónAdd a Comment

Aníbal Rosario-Lebrón

The Rules of Evidence have been increasingly criticized for serving as a tool to maintain patriarchy and White supremacy. Scholars have shown how rules such as relevance, excited utterance, character for untruthfulness, rape shield, or credibility discounting promote gender oppression. Similarly, they have uncovered how unregulated evidence, character evidence, and prior convictions have contributed to the carceral state and racial and economic inequality. Recently, however, two articles have come out advocating that instead of abolishing or reforming rules, we adopt new ones, specifically a new privilege, in the realms of pregnancy termination (Aziz Z. Huq & Rebecca Wexler) and children’s rights (Nila Bala).

Huq and Wexler advocate for a privilege to shield abortion-relevant data from “warrants, subpoenas, court orders, and judicial proceedings” to counteract the elimination of a federal abortion right after Dobbs. Bala goes even further, arguing for creating a testimonial and confidential child-parent privilege including digital and written communications not only to protect minors and parents against gender-affirming care and abortion criminal prosecutions but also in any other criminal, juvenile, or civil context. In addition to its broader application, Bala’s proposal struck me the most because her justification for creating the rule rests on a privileging resistance framework. In The History of Sexuality, Foucault observed that “[w]here there is power, there is resistance, and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power.” Bala’s forthcoming article greatly exemplifies this axiom.

She starts by recognizing that courts and scholars greatly disfavor privileges as the instrumental rationale to forego truth in favor of promoting privacy and relationships has been empirically disproven because most people are unaware of evidentiary privileges or misunderstand their scope and would share information regardless of the existence of the privilege. Consequently, scholars have argued that there is no reason to exclude this information from a trial.

Bala then turns to how women and children lacked judicial personhood and were considered property of the father/husband under coverture and how that was used to preclude women and children from testifying. As coverture disappeared, a spousal privilege emerged as a way to guarantee the interests of men. This privilege has been redefined and reinterpreted in an attempt to update it to our current goals of gender equality and purge it of its patriarchal character. The disappearance of coverture, however, did not bring a parent-child privilege (although it exists in a very limited form in a handful of states). Perhaps, as Bala aptly points out, the reason for it is that the United States continues to privilege marriage over other social relationships like child-parent and still treats children, in many respects, like parental property.

After disentangling this history of the child-parent privilege and patriarchal family structures, Bala proceeds to proffer a new instrumental justification for it. She argues that because the legal system relies on parents formally and informally as a legitimizing force in criminal and juvenile proceedings such as for Miranda waivers or access to other constitutional rights, they cannot be put in the conundrum of advising their children and being forced to testify or not providing advice to them to avoid testifying against their offspring. Although this argument is important, the most valuable contribution of her article comes when she offers non-instrumental justifications and embarks on describing how adopting the child-parent privilege is a tool of resistance.

First, she argues for the recognition of relational privacy (a conception of privacy resting on relational autonomy in which information can be shared with third parties but remain private for others outside that relationship) in the child-parent relationship to protect children rather than to shield parents’ decision making as the law has consistently done. This approach is crucial if we wish to rethink children’s rights. As Bala argues, we must recognize that even though children are not legally autonomous, we must foster the relationships that allow them to act upon their partial autonomy and become fully political adult actors. And we must provide legal means for children to do so.

This idea links directly with the privileging resistance framework that Bala advances in her article. She argues that adopting the child-parent privilege is a way to resist the oppressive legal system that separated Black and Native families in the United States and that continues to oppress them through the juvenile, criminal, and child welfare system. Protecting the communication between children and parents of these families is a way to honor their historical resistance strategy of teaching children to read and orally pass down traditions and to protect their intimate family spaces that have not been shielded from state intervention for so long. Taking as an example Australia, Bala also argues that the privilege would serve to decenter the carceral state as it would allow parents or anyone de facto or functionally in that position to engage with children in more successful approaches such as restorative justice by adding diversion opportunities from the legal system.

Similarly, the privilege would serve as a resistance tool in the healthcare context. Bala explains how, after targeting providers and allies, criminalization of abortion and gender-affirming care moves to the targeting of parents. As such, a child-parent privilege provides a way to resist an unjust law by foreclosing the use of evidence produced by the most involved parties.

Here lies, perhaps, Bala’s greatest contribution. Her approach challenges the implicit assumptions about the validity of the adversarial system and the substantive laws. In other words, her privileging resistance framework forces us to deal with the reality that the legal system will have unjust laws and that its design is unfair. Thus, we must build into the law resistance mechanisms that need not be justified under the validity of the legal system, but instead in its inherent injustice. I gladly accept her invitation to rethink the legal system always from the perspective of a locus of power in which privileging resistance is indispensable if we wish to construct a just society.

The Radical Reinvention of the Comstock Act

Oct 24, 2024 Rachel RebouchéAdd a Comment

Rachel Rebouché

In Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, Professors Reva Siegel and Mary Ziegler demonstrate how the anti-abortion movement’s effort to reinvent the Comstock Act (1873) as a national abortion ban lacks historical, legal, and democratic legitimacy.

The Act originated as an obscenity statute that criminalized “any article or thing designed or intended for the prevention of conception or procuring of abortion” or for “an indecent or immoral purpose.” Comstock revivalists, to borrow Siegel and Ziegler’s term, claim that the Act’s prohibition on mailing “any article or thing” bans the transit, in the U.S. mail, of all materials connected to abortion care—pills, equipment, or most anything else. Revivalists argue that courts should begin enforcing the Act to ban abortion nationwide, and some judges appear sympathetic to those arguments. In litigation described below, a federal district court and an appellate circuit court cited the Comstock Act in deciding to suspend FDA approval of medication abortion or to reimpose restrictions on it.

Siegel and Ziegler demonstrate why this interpretation of the Act is deeply flawed, combing through legislation, commentaries, letters, court cases, and other sources. In the late 1800s, Anthony Comstock and his allies began a campaign to write sweeping definitions of obscenity to safeguard “sexual purity” and to punish nonprocreative sex, inside and outside of marriage. Anti-vice activists viewed movements that sought to liberate women politically and sexually as threats to the “God-ordained” social order. As part of these efforts, they expanded the federal definition of obscenity to include writings and items intended for contraceptive or abortion use.

In 1878, the Supreme Court affirmed the Act’s constitutionality and held that the power to establish post-offices included the authority to regulate what could be mailed. In the same era, the standard for determining obscenity was based on what would affect the most impressionable citizens. (P. 34.) But the Act quickly became a tool for revenge between private citizens and the vehicle by which Anthony Comstock and others targeted supporters of free love and critics of obscenity laws.

Siegel and Ziegler detail how the Act’s punitive consequences and inconsistent enforcement chilled sexual expression and censored speech. Eventually, public opposition to the Act led to its disuse and appellate court decisions narrowed the application of the law. The trials and sentences of “Comstockery” opponents, such as Mary Ware Dennett and Margaret Sanger, received wide publicity and condemnation. Dennett’s conviction led to appellate decisions that narrowed the application of the Act: United States v. Dennett, 39 F.2d 564 (2d Cir. 1930), for example, refashioned the threshold for obscenity, focusing on the impact on society at large rather than on its most impressionable citizens. (P. 53.) Both court decisions as well as public resistance shifted the understanding of what was obscene and what was not, namely, legal healthcare that the Act never targeted. In interpreting the Act, courts protected physicians’ rights to “[promote] the well-being of their patients.” Even the Act’s most strident champions, including Anthony Comstock, had no intention of banning lawful abortions but targeted unlawful abortion, which was seen as a means of hiding illicit sexual conduct.

Although the Comstock Act has been mostly dormant for the last one-hundred years, the provisions on abortion have remained in the U.S. Code, though Congress repealed the language on contraception. Perhaps this is not surprising in an era when pre-viability abortion was a constitutional right. But consider that the rest of the Comstock Act, with its criminal federal punishments for mailing all “obscene, lewd, lascivious, indecent, filthy or vile article[s]” stands, too. Siegel and Ziegler write: “The obscenity law was enacted and then preserved on the books, entrenched against reform or repeal by forms of government action that today we would view as unquestionably unconstitutional and that branded certain forms of political speech, intimate behavior, and reproductive decision-making as unworthy long after enforcement of the obscenity statute had ceased.” (P. 10.) Contesting Comstock, over the life of the Act, helped pave the way for constitutional rights to contraception in Griswold and Eisenstadt and then to abortion in Roe. The Supreme Court developed the right to privacy from challenges to state obscenity laws (mini-Comstock Acts), which fundamentally intruded on the most intimate decisions of people’s lives.

Nevertheless, anti-abortion activists are counting on judges to enforce their interpretation of the Act. Alliance for Hippocratic Medicine alleged that the FDA exceeded its regulatory authority in approving the first drug in a medication abortion, mifepristone. The Supreme Court decided in June 2024 that Alliance had no standing to sue. But that was after a federal district judge in Amarillo and a panel of the Fifth Circuit Court of Appeals suspended, among other holdings, the FDA’s decision to lift a rule that would permit mailed medication abortion. As noted, both courts cited the Comstock Act as a potential bar to shipping pills, and other items, to patients.

While the Supreme Court made no mention of the Comstock Act in its Alliance opinion, the arguments accepted by the lower courts in the case are not going to disappear; indeed, they have a trajectory that predates Dobbs, the case that overturned Roe, and they are the basis of plans for an anti-abortion presidential administration

Bills calling for repeal of Comstock’s abortion language have been introduced in the Senate and the House but presently have slim chance of passing. Even if the bills fail, federal legislators should have to take a position on the Comstock Act. Representatives should have to publicly support a law that, enacted at a time when women could not vote, polices all sexuality through the criminal law. They should have to say out loud that Anthony Comstock’s vision of morality and punitive censorship should govern everyone’s lives.

Comstockery provides an invaluable resource for refuting revivalists’ arguments, shining a light on the Act’s history, and demonstrating how resistance to Comstock—and its definition of obscenity—yielded modern understandings of fundamental rights to expression and intimacy. Revivalists’ rewriting of this history is not a project of adhering faithfully to the text of an act, as Professors Siegel and Ziegler convincingly demonstrate. It is an end run around what revivalists cannot achieve through any democratic process—an absolute, criminal ban on abortion applied across all states.

In Loco Reipublicae and the Parental Duty to Expose Children to Ideas Outside the Home

Sep 25, 2024 Catherine SmithAdd a Comment

Catherine Smith

Toni Morrison’s Nobel Prize winning novel, The Bluest Eye, and Maia Kobabe’s Gender Queer: A Memoir, topped the list of the 2022-2023 school year’s banned books. Certain groups of parents invoke their rights to restrict their children’s access to viewpoints different from their own about history, race, gender identity, and reproductive health. Anne Dailey’s important article, In Loco Reipublicae, provides a different take: parents should have a constitutional duty to their children to expose them to ideas outside the home to prepare them for democratic citizenship.

In a salute to children’s rights, In Loco Reipublicae claims a new middle ground in a constitutional framework that has far too long abdicated to parents a “unique and near-absolute custodial authority for children’s citizenship rights.” (P. 428.) According to Professor Dailey, an expansive parental rights doctrine limits young people’s exercise of their own rights because it fails to recognize that parents have constitutional duties to their children. The article turns to children’s well-established First Amendment right to exposure to the “marketplace of ideas” as an opening salvo and a means to illustrate what could be a paradigm-shifting parental obligation to steward children on the path to becoming independent rights-holders. (P. 426.)

The Supreme Court and democratic theorists have highlighted the importance of children’s free speech rights to “foster their development as democratic citizens.” (P. 421.) Yet, the unchecked role of parents in stifling children’s rights operates as a constitutional jurisprudential gap between these First Amendment aspirations and children’s actual ability to realize those rights. (Pp. 436-38.) As Dailey explains, “protection for relatively unrestricted parental authority over children’s exposure to ideas fortifies a system of family governance that effectively negates children’s rights to engage with ideas outside the home.” She provides a more normative vision:

Parents may seek to inculcate their beliefs in their children, but they cannot deprive children of the basic knowledge that other belief systems exist, a knowledge critical to developing the skills of democratic life. Parents are not obligated themselves to instill democratic norms, or agree with them, but they are obligated to respect and facilitate children’s opportunity to become democratic citizens by exposing children to the world of ideas outside the home. (P. 426.)

A significant hurdle to closing the child-rights limiting gap is the well-established notion that parents are private actors free from constitutional duties to their children. In Loco Reipublicae begs to differ and persuasively argues for a more evolved understanding of the role of parents in a democracy. (Pp. 449-50.) Resting on the proposition that “children are different by virtue of their in-custody status,” the article relies on Supreme Court jurisprudence to powerfully argue that “children cannot effectively exercise their rights without the approval, tacit or otherwise, of their custodial caregivers.” Just as the state assumes constitutional duties attendant to its lawful custody of children as in loco parentis (“in the place of the parent”), in loco reipubulicae claims the inverse, “parents standing in the place of the state” must also assume constitutional duties to children (Pp. 451.)

Homeschooling provides an area of childrearing that might breach a parental duty to expose children to ideas—if homeschooled children are not exposed to the world of ideas. This type of isolation at the hands of parents if allowed to go unchecked by the state restricts children’s exposure to different ideas and democratic values, limits their critical thinking skills, and denies children identity-formation needed to develop their own independent citizenship rights.

The article not only provides the benefits of imposing parental duties, it also directly tackles some of the challenges such as: defining what constitutes a “harmful idea,” addressing concerns about increased state power to intervene in family life and the risks it poses, and the possibility of infringing on the exercise of parents’ religious beliefs. With these concerns in mind, Dailey seeks to “fortify the parent-child relationship while, at the same time, respect[ing] children as developing democratic citizens in their own right.” (P. 419.) She provides four ways to achieve this more balanced vision, including: requiring courts and legislatures to set limits on parents’ rights when they stand in the way of children’s development of citizenship rights; affirming state authority to enforce parental duties to children outside the home; recognizing children’s independent decisionmaking in certain contexts; and providing parents with the support they need to fulfill their in loco reipublicae duties. (P. 426.)

In Loco Reipublicaie boldly centers children’s rights and adeptly fills an existing jurisprudential gap by infusing parental rights with important duties to respect and facilitate children’s exercise of their own citizenship rights. It is a children’s-rights-forward shot across a heavily prioritized parents’ rights bow. It’s about time.

Family Law Exit Rights: A Provocatively Slippery Slope

Aug 15, 2024 Dara E. PurvisAdd a Comment

Dara E. Purvis

If you do not read as much about celebrity gossip as I do, you likely missed recent news that Shiloh Jolie-Pitt, the child of actors Angelina Jolie and Brad Pitt, filed to remove “Pitt” from her name within days of her eighteenth birthday. The split between Jolie and Pitt was sparked by an alleged incident of domestic violence and several of Jolie’s other children have already informally dropped “Pitt” from their names, so the petition itself is unsurprising. Also unsurprising, however, is that every article I saw about the name change petition included Brad Pitt in the headline—so no matter what her legal name will be, Shiloh will continue to be identified as Brad Pitt’s daughter.

But what if she could also petition to sever that link? The story reminded me of a fascinating article published last year by Sean Hannon Williams arguing that adult children should have exit rights from the parent/child relationship and mapping out several versions of what that exit might look like. Professor Williams uses a less sensational but more concrete example to illustrate the need for exit rights; an acquaintance raised by an abusive mother used an adult adoption to sever her legal relationship with her biological mother. Williams points out that the adult adoption was only possible because the woman’s stepmother was willing to become a replacement legal mother—in the absence of someone willing to take on that legal status, his acquaintance would have no ability to legally separate herself from her biological mother. He asks why adult children should be “trapped in a legal relationship that they never consented to,” (P. 668) and spends the rest of his article outlining the why and how of exit rights for adult children.

Williams begins by dispensing with what he calls the “natural law façade of family law,” (P. 672) arguing that availability of divorce upon demand and adult adoption, both of which require the consent of only one person exiting the marriage or parent/child relationship, show that family relationships are not permanent. He then outlines theoretical justifications for an adult child’s duty to their parents, both rejecting them as a moral obligation and arguing that even if they did create a moral duty, that duty should not be enforced through family law. Williams moves on to examine the question from the point of view of the adult child wanting to exit the relationship. I found this portion of the paper to be one of the most thought-provoking sections, particularly when Professor Williams discusses different family roles as elective (assumed by choice), ascriptive (imposed from outside), or conscriptive (imposed by one member of a relationship upon another person). (Pp. 693-96.)

As Williams describes, a single family relationship can take on any of these forms depending on the circumstances—becoming a parent might be elective or ascriptive (particularly in the wake of Dobbs v. Jackson Women’s Health), the parent/child relationship could be elective on the parent’s side but ascriptive on the child’s, or ascriptive on a parent and theoretically elective on behalf of the child if another parent or the state chooses to seek child support on behalf of a minor child. These identities are complicated further once existing examples of exit are included—marriage is jointly elective, but taking away the status of “spouse” can be elective by the party seeking the divorce yet ascriptive/conscriptive if the other person would rather stay married. (P. 696.) Some of the most active debates within family law implicitly center on what relationships should fit into which type of identity.

Having described the current state of unequal and shifting roles within family law, Professor Williams moves on to discuss the stakes for an adult child who wishes to terminate their legal relationship with their parent. There are some legal implications of remaining in the parent/child relationship—primarily inheritance rights and the ability to make medical decisions for an incapacitated parent or child—although they are obviously fewer than before the child reaches the age of majority. But in addition to the legal stakes, Professor Williams also stresses the social and identity-related stakes for an adult child who doesn’t want any tie to their parent. He analogizes the identity aspect to marital divorce, asking the reader to consider how they would feel if the state removed the legal tie to a former spouse, but insisted that you remained spouses in name only. Williams argues, probably correctly, that anyone who supports the existence of legal divorce would bristle at the idea, seeing expressive value in saying who you are not in a familial relationship with, and argues that adult children have the same interests in severing all links to a parent.

Having made his case for the “why,” Professor Williams outlines a number of possible exit regimes, including the substance of whether the former parent and child would become legal strangers or simply have asymmetric obligations (P. 714), such as allowing the adult child to inherit and make medical decisions for the parent if the parent was incapacitated, but not giving the parent the same rights. He also describes six different procedural options of what might justify terminating the parent/child relationship. (Pp. 715-25.) Many of the questions I thought of as I read were covered in the last section of the paper confronting possible objections, which I appreciated since many readers may bristle at the idea of adult children being able to both go “no contact” and cut off their parent legally.

As my example of Shiloh Jolie hopefully illustrates, this is not an article that convinces the reader of a thesis and is then neatly slotted into future footnotes demonstrating a single conclusion. Instead, the article has stuck with me because of how well it raises a raft of questions not just about the specific idea of adult children severing the legal relationship with their parents, but broader themes such as the idea of permanence in family statuses and the interactions between legal and social roles. I have some remaining prosaic questions: the law draws a bright line at the age of eighteen between “child” and “adult,” but my instinctive response to an argument about divorcing parents varies if I imagine an eighteen-year-old versus a thirty-year-old. The law’s bright line seems increasingly artificial and inaccurate, and severing a legal relationship before a person’s frontal lobe is fully developed and at an age when parent/child relationships can often be tempestuous seems saliently different than the same choice made by a person who is by any measure a fully cognitive adult. I also wonder about the potential exploitation of such exit rights—an eighteen-year-old who will receive considerable need-based financial aid for college if they are deemed to have no parents, for example.

The questions that keep popping up in my mind, however, are broader. Thinking about how and why legal relationships create an identity that a person might want to discard prompted a range of questions about the causality between legal relationship, social norms, and identity values. Professor Williams writes at length about the identity value of a legal status, which I find very easy to recognize in other family law contexts. For example, when marriage equality was still in question, it seemed obvious why giving same-sex couples all the legal consequences of marriage but calling their relationships something else like domestic partnerships or civil unions was still not equal. But that may not be true throughout family law, or it may not be true where the granting of legal recognition itself was the significant identity-conferring move.

For example, there has been some recent media attention to the plight of ultra-Orthodox Jewish women trapped in a marriage because their husband refuses to give them a gett, a religious divorce. Such women are free to secure a civil divorce, but it is the private social and religious identity as still married that is significant to them, not their legal status as recognized by the state. And as mentioned earlier, every single news story about Shiloh Jolie had words such as “daughter of Brad Pitt” in the headline, and if Shiloh were to sever Pitt’s parentage through an adult adoption I am confident headlines would continue to link the two. Professor Williams talks about the significance of social norms around marriage as one reason justifying exit rights (P. 700), but as polyamory wins greater public recognition and acceptance it seems fair to question whether those norms have as much strength as they used to. And if those norms weaken, and the identity-granting dimension of marriage becomes less important, by Professor Williams’s logic that divorce is necessary to remove the identity of “X’s spouse,” if society doesn’t care if you’re X’s spouse does that weaken the case for no-fault divorce?

I don’t have answers to any of these thoughts, but it is rare that a single article prompts so many open-ended questions in my mind. Professor Williams described his goal as “begin[ning] a conversation,” (P. 712) and he has succeeded many times over.

Building the Constitutional Canon for Children’s Rights

Jul 17, 2024 Naomi R. CahnAdd a Comment

Naomi R. Cahn

When I teach canonical parentage and child custody cases such as Michael H. v. Gerald D. or Troxel v. Granville, I ask the class what they know about Victoria or Isabelle and Natalie Troxel. Students are often a little startled to hear the names of the children at the core of these cases, and we then discuss how rarely the children’s actual interests are addressed. The cases are framed as battles between adults over their rights to the child; even though Victoria asserted her own liberty and equal protection claims, the Michael H Court was highly dismissive of them.

Catherine Smith has been working to change that situation. Along with Northwestern Pritzker School of Law Associate Dean Robin Walker Sterling and George State College of Law Professor Tanya Washington, Smith has received a grant of over $2 million to fund a new project, The Advancement for Children’s Constitutional Rights Consortium. One goal is to develop a new casebook, Children and the Constitution, which will focus on children’s rights in the constitutional law canon. Professor Smith’s article, “Children’s Equality Law” in the Age of Parents’ Rights, provides insight into some core aspects of what this revisioning of the constitutional canon might involve. The article notes that, while one conception of children’s rights could include both liberty and equal protection rights, an even “broader conceptualization could invoke a panoply of young people’s social and civil rights.”

“Children’s Equality Law” focuses on one aspect of the new conceptualization that Smith envisions, the possibilities of using the Equal Protection Clause to protect young people when discriminatory treatment results in “group-based hierarchies.” The article notes that constitutional law relies on an assumption that parents have the political power and authority to ensure their children’s well-being. That assumption is not always accurate, Smith points out, and children need their own discrete rights because their parents may be unable to provide the protection they need.

As an initial matter, the article observes that the class of children has never (or at least not yet) been deemed to be subject to any level of scrutiny beyond rational basis. This is partially the result of the Supreme Court’s emphasis on parental rights to the care, custody, and control of their children; correspondingly, Smith observes, parents are presumed to act in their children’s best interests. While others have explored the benefits and drawbacks of that assumption, as well as its use as political rhetoric, Smith looks at a different set of concerns.

Even when parents seek to act in their children’s interests, Smith observes, they may not have the power to promote their children’s interests. As an example, Smith turns to Oyama v. California, 332 U.S. 633 (1948). Kajiro Oyama bought property for his six-year-old son, Fred, in 1934, and a second parcel of land in 1937. Kajiro Oyama subsequently petitioned for guardianship of his son. At the time, California’s Alien Land Act prevented those who were ineligible for American citizenship from buying agricultural real estate, with any property purchased in violation of the law escheating to the state. (The Court explained, in note 3, that federal law permitted “only [] free white persons and persons of African nativity or descent” to be naturalized, and that “it seems to be accepted that Japanese are among the few groups [sic] not eligible for citizenship.”). During World War II, California filed a petition against the Oyamas to declare an escheat of the two pieces of land, and the California courts found that Mr. Oyama’s purchase of the land was made with the intent to avoid application of the Alien Land Act.

Both son and father sued, claiming that the Alien Land Act violated their rights under the Equal Protection Clause. The Supreme Court found that Fred Oyama, an American citizen, had been discriminated against because his father was Japanese, without even reaching the claim that his father had experienced discrimination. To be sure, the discrimination was based on citizenship, rather than childhood. That is, the discrimination was based on the parent’s country of origin, not on discrimination between the rights of adults and children.

In other cases, such as Brown v. Board of Education and Levy v. Louisiana, Smith notes that consideration of children’s rights has been critically important. Such cases, and others discussed in the article, show that “children need rights to protect themselves” (P. 546). Their parents were, essentially, powerless, unable to safeguard their children’s rights.

While these cases do give some voice to children’ interests, they do not, by themselves, articulate a robust jurisprudence that addresses the parameters of children’s rights as individual liberties. Moreover, Smith observes that “[t]he cases are rarely seen or interpreted as a collection of cases establishing a children’s equal protection jurisprudence” (P. 550).

By bringing these cases together, Smith persuasively argues for just such a jurisprudence of children’s rights. The overall project of rewriting the constitutional canon to center children’s rights is groundbreaking.

And this effort has resonance with so many other strands of contemporary scholarship. Consider the work of Aaron Tang, who has found that while children won in over 60% of their cases heard by the Supreme Court from 1953-2022, they continue to confront hurdles to improvements in child welfare and educational equity. Tang argues that, “over the long run, real and substantial social progress is unlikely to be driven by nine justices in robes.” Tang suggests that “work[ing]’ in the trenches” to change policy could be a meaningful source of promoting children’s rights. In addition, Smith’s use of Oyama as an example of the utility of children’s rights also provides a stunning example of Kaipo Matsumura’s observation of the need to “fit [] Asian Americans into the story we teach about family regulation.” Rose Cuison-Villazor has already argued for the need to incorporate Oyama into the property and constitutional law canons, and Smith cites Cuison-Villazor’s work to show how children’s rights can impact the “marginalized groups” of which these children are members.

Ultimately, Smith’s article breaks down silos, revealing the extent to which our blinkered categories have resulted in an impoverished understanding of the constitution and the law more broadly. “Children’s Equality Law” shows why children’s equality matters in constitutional law, in other legal fields—and to families themselves.

Against Normalizing Bodies

Jun 21, 2024 Albertina AntogniniAdd a Comment

Albertina Antognini

This Fall in my Family Law class, a student emailed me a Saturday Night Live clip after our discussion of Dobbs v. Jackson Women’s Health Organization. It is a Weekend Update skit, where Kate MacKinnon plays Justice Amy Coney Barrett, who is being interviewed by the anchor, Colin Jost. Throughout the interview, MacKinnon—as Justice Barrett—keeps repeating various iterations of “Do the nine. Just do the nine and pop it.” The “nine” refers to the nine months (or 40 weeks) of gestation; the “pop it” refers to the act of giving birth. The reason the clip is funny, in a tragic sort of way, and the reason my student shared it with me, is because MacKinnon’s breezy directives perfectly capture Dobbs’s complete failure to acknowledge any of the physical facts of pregnancy and birth. Later that semester, during the section of our course that addresses how the law accommodates pregnancy, another student sent me a TV advertisement made by Frida, a company that sells products for new parents. The ad shows a woman postpartum, waking up in the middle of the night to pee. It is intimate and matter-of-fact. Anyone who has given birth, or has been with someone who has given birth, will immediately recognize the hospital-issued mesh underwear, the extra-long cotton pads, the peri bottle filled with lukewarm water. The ad made headlines for being rejected for a spot during the 2020 Oscars ceremony. In an email, the Academy of Motion Picture Arts and Sciences suggested that Frida offer “a kinder, more gentle portrayal of postpartum.” The student sent me the ad to follow up on our class discussion about how the experience of birth, and what immediately follows, is so rarely depicted.

Gestation, pregnancy, and birth, along with the bodies that house these and other life processes, are mostly missing from the laws that regulate them. This is why Kate Clancy’s book, Period: The Real Story of Menstruation, is such vital reading. Put simply, “[b]odies matter.” (P. 182.) They matter in myriad ways that are neither obvious nor straightforward. The principal lesson Clancy’s book offers family law scholars is methodological—she provides us with tools to help identify how alleged facts about bodies and bodily activities are often better understood as judgments that are made as a matter of science or, as the case may be, as a matter of law.

Turn after turn, Clancy critiques seemingly objective scientific hypotheses as the products of specific, and contingent, worldviews. There is the widespread scientific theory that menstruation is merely the detritus the body discards after a failed pregnancy—“[u]seless, rather than useful.” (P. 40.) Clancy questions the primacy of this theory, “interrogating these moments when characteristics most commonly associated with femininity are rendered useless.” (P. 40.) There is also the theory that reproduction is the result of female passivity—“having already produced all the eggs it will ever need before birth, [the ovary] is…just waiting for her prince” (P. 72)—and male activity—with sperm “as the explorer and actor” (P. 73.) But as Clancy repeatedly explains, “[t]he ovaries are anything but passive” and “are always up to something.” (P. 66.) Then there is the theory that “normal” menstruation should occur every 28 days, like clockwork. Yet the very notion “that there can be a normative menstrual cycle goes against the contextual menstrual cycle that we actually see in the wild.” (P. 10.)

Clancy spends much of her book debunking the assumption that what is normal, or average, is somehow neutral. Take Norma, a statue first shown in the American Museum of Natural History in 1945. Norma was designed by Dr. Robert L. Dickinson, a gynecologist, and Abram Belskie, a sculptor. Meant to capture the average American woman, Norma’s measurements were compiled from a variety of sources, including insurance records, college campuses, and the Bureau of Home Economics sizing statistics. (P. 51.) In the end, Norma’s proportions did not correspond to those of any single woman—after holding a contest to find someone with the statue’s dimensions, the winner ended up only approximating Norma’s figure. (P. 52.)

If Norma is not in fact observable “in the wild,” then one way of understanding the work she does is that of presenting a contestable ideal of the American woman in the guise of merely describing her. The proof is in the pudding: the data used to identify Norma’s measurements were “calculated across only a certain set of desirable populations, excluding people of color, queer people, disabled people, and anyone who might dare to occupy multiple of these identities.” (P. 51.) This was no accident—Dr. Dickinson was influenced by the work of eugenicist and anthropologist Ernest Hooton. (Pp. 51-2.) While it might be tempting to dismiss Norma as the product of a bygone era when eugenics and science were one and the same, defining what is normal continues to involve imposing what should be, rather than describing what is. As Clancy notes, the tendency in biological research is still to “averag[e] toward a mean phenomenon,” which leads to results that “may not be describing anything that is actually real.” (P. 77.)

Clancy counters the pull of Norma by identifying how statements that are not meant to reflect or impose any value judgment are doing just that. This is no easy feat, Clancy demonstrates, because what we ignore holds sway not only over the narratives we tell, but also over the data we see and therefore collect. We know, for example, a lot about exercise and the effects that “traditionally male movements” have on the body. (P. 98.) But we “rarely pay attention to the everyday domestic labor that takes up the days of most women of the world.” (P. 98.) The consequence? Missing data, for one. About health, menstruation, and reproduction. But focusing only on men further means that important physical processes are mischaracterized as maladaptive, and bodies that do not fit the norm are pushed into spaces that cannot adequately support them. Indeed: “How much of the hassle of periods is because they are a hassle, and how much is because the structures that underlie family, home, work, and being out in the world make them a hassle?” (P. 20.)

Period, then, is a study on how to interrogate baselines—even those supposedly set by biology, data, and facts. This move is essential for family law scholars to undertake. Consider the following statements, from different Supreme Court opinions: “Fathers and mothers are not similarly situated with regard to the proof of biological parenthood.” Nguyen v. INS, 533 U.S. 53, 63 (2001). “California law, like nature itself, makes no provision for dual fatherhood.” Michael H. v. Gerald D., 491 U.S. 110, 118 (1989). Each statement is presented as an obvious, and observable, fact about the way things are. Each statement, however, uses facts to present a contestable interpretation of how things should be. In Nguyen v. INS, the Supreme Court relies on proof of biology to support the differential treatment of unwed parents based on the underlying assumption that the unwed mother will care for the child while the unwed father will not—a result of the social understanding of motherhood vis-à-vis fatherhood. In Michael H. v. Gerald D., a plurality of the Court refuses to recognize a biological connection as relevant to fatherhood and defines it exclusively with respect to marriage—a legal rather than a natural construct. Taking a page from Clancy’s book allows us to understand how these descriptions mask prescriptions—here, about who should be recognized as a parent.

Clancy ends by relying on fantasy novels to help articulate an alternative world that would allow all kinds of bodies to flourish without being forced to conform to a pre-existing hierarchy. (Pp. 175-79.) The turn to science fiction is borne in part out of necessity, as it offers possibilities for addressing non-normative bodies that go beyond current responses, which oscillate between suppression and erasure. (P. 178.) Despite Clancy’s appeal to fantasy, the book is, ultimately, grounded in the physical and actual—its goal is “to give hope, to act on hope, that what our bodies produce and excrete and transform matters and that to care for our material body is a radical act.” (P. 21.) So what would a family law that acknowledged all bodies—bodies that menstruate, for a time, bodies that get pregnant, bodies that lactate—look like? We can only imagine.

How much is the lost chance to reproduce worth?

May 23, 2024 Philomila TsoukalaAdd a Comment

Philomila Tsoukala

Since Dobbs was decided, abortion rights advocates have been nervously looking around the legal landscape wondering what doctrinal domino is likely to fall next. At this very charged moment, Professors Dov Fox and Jill Wieber Lens bravely chose to write about the downsides of legally underestimating the ravages of reproductive loss post-conception. In their recent article, Valuing Reproductive Loss, they offer the first empirical study of jury awards in tort cases on reproductive loss, which they define as ranging from mismanaged embryos in the IVF context all the way to mismanaged pregnancies, including early miscarriages and late term stillbirths. The authors suggest that the legal system is not treating prenatal life in a coherent manner and hypothesize that racial and class biases may have a lot to do with the resulting awards in the cases they analyze. They also offer a normative framework for valuing such losses in the tort context, one that they hope will promote reproductive justice, but also bring doctrinal coherence to the treatment of reproductive loss.

Valuing Reproductive Loss starts with a striking example of seeming doctrinal incoherence. A couple in Texas lose their son, whom they had already named “Adam” in utero, at forty weeks of gestation because of a negligent delay in proper birth care. Texas law deems Adam to be an “unborn child,” but his parents cannot recover for his wrongful death. Texas law does not allow medical malpractice claims when the malpractice causes the death of an unborn child. Had the doctor in question been accused of performing an abortion even at five weeks of gestation, the doctor involved would have faced serious criminal consequences, ranging from a hefty monetary fine to significant time in prison. However, when it is time for the parents to claim compensation for the loss of a full-term baby via medical malpractice, the state blocks them from doing so, at least if what they want is compensation for the fetus as a separate individual. The gestating person can recover compensation for their own bodily injury, as though the lost fetus were another limb, despite the law’s panegyric characterization of the fetus as an “unborn child.” Taking it one step further, the authors highlight that if the loss of the embryo had happened in vitro, via the negligent destruction of someone’s embryos because of a clinic’s freezer malfunction, the would-be parents would only be able to seek compensation for their loss through the category of destruction to personal property. Similar inconsistencies can be found in states that allow abortion, where fetuses are also sometimes recognized as persons in the context of a wrongful death suit, while at other times they are merely described as body parts. Professors Fox and Lens thus show that reproductive loss is ridden with inconsistency, with a fetus being a lost limb in one case and a deceased person in the next and cases varying within but also between states.

The empirical part of the article consists of a database of jury awards in reproductive loss cases that satisfy two conditions: 1) reproductive loss must have occurred after conception, and 2) the plaintiff must have sought to have a child. The authors end up with 158 jury awards-out of more than a thousand initial cases, which they analyze along different explanatory axes.

Even though most awards are given in cases of stillbirth, the authors argue that the stage of pregnancy doesn’t explain why some of the highest value awards were given in cases of lost embryos via clinic mistakes. Similarly, they point to the fact that a stillbirth is valued at anything from less than $100,000 to over $10,000,000, without much discernible rhyme or reason. Professors Fox and Lens next examine whether the type of legal claim, negligence or wrongful death may explain the award levels. Even though they do find a 40% greater chance of a high value award in cases of wrongful death rather than negligence, they argue that the data yield incoherence on this axis as well. Last, they look at damage caps imposed by tort reform statutes and claim that the only effect of tort reform caps is to yield results that have nothing to do with the type of injury involved. High award if the defendant is not a doctor, low value award if the defendant is a doctor.

The next section offers perhaps the most important contribution of the article: a thorough discussion of the ways in which doctrinal criteria for compensating reproductive loss open the door to widespread implicit bias creep-in, especially regarding race and class. For example, returning to work soon after the loss occurs is often mentioned as evidence of injury that is likely minimal. As the authors rightly point out, the capacity to postpone returning to is directly related to income levels. Those who can afford to take time out because of relative wealth are judged to be more affected by pain and therefore more injured than their poorer counterparts who rush back to work to make ends meet. Often, juries are asked to judge how much a specific baby was wanted to decide whether and how much compensation may be needed. Here again, wealth related factors may creep in. Plaintiffs who are seeking compensation for IVF related reproductive loss can easily demonstrate the great lengths they went to to create embryos and attempt a pregnancy. A poor working mother of five on the other hand is often asked to prove how and why this additional pregnancy may have been wanted. Big family size counts against adjudicating damages, not only because it is harder to prove that a particular additional child was wanted but also because the presence of other children is said to mitigate the reproductive loss. As the authors note the correlation of family size to race creates a unique opportunity for racial bias to creep-in: “Black and Latino families…are twice as likely as white or Asian families to have four or more children.” (P. 82).

In the penultimate section, Fox and Lens offer a three-step normative framework to counter the current chaotic state of the field. The first step in the process is an inquiry into the “individualized subjective injury,” which they contrast with the seeming blanket pronouncements in tort law about the meaning of reproductive loss. What is it exactly that the plaintiff lost in losing this chance to have a baby according to their own subjective judgment? In this step, various kinds of evidence could be introduced, with a heavy emphasis on the plaintiff’s own testimony about the meaning of the loss and additional evidence of specific life impacts, such as disrupted health, or relationships. The heavy emphasis is on allowing plaintiffs to define the meaning of their loss, whether that is understood as emotional pain and suffering for the loss of a pregnancy or an embryo rather than the loss of person or a limb. At this stage, the authors also recommend extensive jury instruction in potential biases to avoid the unconscious implicit bias creep-in that they believe is likely rampant in the field.

The second step would be a judgment about the probability that the plaintiff would have taken home a baby but for the wrongful behavior of the defendant. The obvious result of this step is that plaintiffs would only be able to recover for the realistic chance of reproductive success. Stillbirth cases would yield higher value awards, since the chance of a live birth increases with the progression of a pregnancy, while the lowest values would be found in instances of embryo loss. Finally, the Fox and Lens analysis suggests that there should be a third step for accounting for specific types of traumas imposed by wrongful behavior such as enduring the birth of a stillborn child or losing your final chance to reproduce (at least using your own genetic materials).

The very last part of the article explicitly discusses Dobbs. At a moment in time when the judicial politics of the anti-abortion advocates seem to be carrying the day, a framework that proposes to group together under reproductive loss such disparate events as a full-term stillbirth and the destruction of an embryo on a clinic tray is bound to be read as stemming from a concept of the embryo as a human person. The authors insist that their approach is instead inspired by the idea that different people have different notions about what it is exactly that they lost in losing a frozen embryo or an early-stage pregnancy and that it is these subjective notions that should guide the inquiry into the injury rather than the monolithic conceptions of anti-abortion .

Still, the implications of their proposal are worth considering more, perhaps in future articles, not only from the perspective of potential interaction with abortion rights, but also from the perspective of further considering questions raised by their initial definition of reproductive harm as well as by their normative framework. For instance, why start at conception? Is losing your ovaries in a botched operation any less harmful to the chance to have a genetically related baby than losing any one embryo in an IVF cycle? If it is not a concept of the embryo as human person as such, then all kinds of different reproductive losses could fit into the category of reproductive loss. Wouldn’t broadening the definition of reproductive loss partly deal with anxieties about the potential use of the very concept for post-Dobbs anti-abortion rhetoric?

Regarding the normative framework, the inquiry into the subjective notion of the injury in step one, seems in direct contrast to the generalized probabilistic accounting of chances of live birth in the second step. Many IVF patients with a 30% chance of a successful cycle don’t usually see themselves as being part of that statistic. They may imagine that this time is their time, this time, it’s going to work for sure. Why not let their subjective sense rule? Would surrogates be able to sue for their reproductive loss if they defined their loss as such? How do we draw the line between which kinds of subjective understandings we will take seriously and which ones we will discount in step two of the process?

The authors draw some lines already, arguing that statistical data that closely reflect race and class disparities should not be baked into the step-two probabilistic discount of damages. I believe they are correct; we should not allow the system to reinforce systemic racism by punishing the people who are already disadvantaged by it. By the same token, why should we allow the same system to reinforce systemic age and gender-based discrimination by applying a huge discount to potential damages for older women using IVF based on their reduced chances of a pregnancy? That would be letting clinics off the hook too easily. Some of those clinics already base their business model on cycling as many older patients as they can in endless out-of-pocket IVF cycles. The proposed framework would still allow these clinics quite a bit of room for wrongful behavior, in the knowledge that they are only dealing with people whose chances of actual success at any given cycle are not great.

All of these questions simply highlight the richness of the framework that the authors have come up with. The article is a huge step forward in directly discussing reproductive losses and undoing the usual stigma associated with them, as well as in highlighting the class and race disparities that are likely to creep in the field. But defining reproductive loss in the manner that the authors have brings in inevitably charged questions around abortion politics, which merit further discussion.

Looking up to Obergefell

Apr 22, 2024 Kaiponanea MatsumuraAdd a Comment

Kaiponanea Matsumura

It has become a common refrain among progressive legal scholars and activists that Obergefell v. Hodges, securing the right of same-sex couples to marry under the Fourteenth Amendment, primarily benefits already privileged members of the LBGTQ+ community, leaving those with marginalized racial, gender, and class identities behind. These scholars claim that the right to marry will either fail to benefit communities of color, sidestep the systemic issues that subordinate them, or even legitimate structures of white supremacy. (Pp. 220-21.) The prediction that follows is that securing marriage rights for same-sex couples will appease the wealthy, white, cisgender contingent, ultimately undercutting support for the movement’s more transformational goals of sexual and gender liberation, and the push to value broader configurations of relationships. I have raised these very views in class every time I teach the marriage equality cases.

An exciting new study by Professors Russell Robinson and David Frost challenges these views, cautioning that they need to be qualified if not substantially revised. Robinson and Frost start from what should be a pedestrian—but in fact feels like a radical—premise: perhaps we should ask LGBTQ+ people who are also racial, gender, and/or gender-identity minorities how they themselves perceived Obergefell’s “personal impact on their lives and relationships.” (P. 222.) The responses they receive are, to put it mildly, tantalizing. Although only a slim majority of participants described Obergefell as having “an emotionally meaningful impact on them,” very few criticized the decision to make marriage equality a priority. (P. 226.) Several participants were able to distinguish between their own personal disinterest in marriage and their happiness at other members of the LGBTQ+ community being able to marry. (P. 229.) And several reported that the decision made them feel more included and less stigmatized within their families of origin, religious institutions, and communities. (P. 236.) The authors contend that these findings should influence how legal scholars talk about the Obergefell decision and conceive of the relationship between judicial decisions and lived experiences of equality. I will argue here that their findings should also guide the development of future social movement strategies.

The data for the study come from interviews the authors conducted with 99 individuals in three cities, Chicago, San Francisco, and New York City, between the summers of 2015 and 2019. The authors created the pool of subjects by oversampling LGBTQ+ people of color, transgender, and non-binary people, with the goal of achieving a “critical mass of multiple subgroups.” (P. 222.) Participants were initially found by inviting people from a large number of LGBTQ venues, including non-mainstream venues such as coffee shops, bookstores, people of color-oriented community groups, and churches, as well as advertisements, the authors’ professional networks, and, ultimately, snowball sampling. From a total of 992 people who responded to the eligibility questionnaire, the authors invited 120 participants for an interview, 99 of whom ultimately completed those interviews. Slightly more than half identified as gay or lesbian; half identified as queer, bisexual, transgender, genderqueer, and/or non-binary. Over two-thirds identified as people of color. The interviews lasted 60-90 minutes and covered a variety of topics. The questions forming the basis of the instant study were as follows: “In June 2015, the Supreme Court ruled that same-sex couples have a fundamental right to marry. Has this decision impacted your thoughts about marriage? If so, in what ways?” Unmarried participants were also asked “whether they personally were interested in marrying and why or why not.” (P. 225.)

The authors and their research assistants coded for several themes in the participants’ responses, including, but not limited to, “Emotionally Meaningful for the Participant”; “Happy that Other People Can Marry”; and “Criticism of Marriage as Heteronormative, Patriarchal, or Inconsistent with Queer Values.” (Id.) These codes form the basis for numerical findings, like the finding that 55% of participants described Obergefell as having an emotionally meaningful Impact on them, and that only 11% criticized marriage as an oppressive, patriarchal institution. Given the study design, these findings are not generalizable. Rather, the relatively large and diverse sample provides a rich and varied lode of descriptive material for the authors to mine. It is the transcript excerpts quoted at length in the article that really captivate.

The authors quote from an exchange with a bisexual Latina in her mid-20s to illustrate some of the themes they observed. The participant describes how her professor, “a Catholic” and “one of those most religious people that I’ve ever met,” announced to the class that she was finally able to marry her partner. The participant’s reactions appear to unfold in real time: “It’s just one of those like, ‘Wait here.’ Then it also hit me like, I never knew. . . . Then I thought, wait, you’re really, really religious, why does that feel like there’s something wrong with that? I was like, oh, okay. Then it just made me feel happier.” (P. 226.) The participant continues, “Then I started to realize there were more [same-sex couples] holding hands now all of a sudden in public. I remember a couple saying the reason they always hold hands is because they remember when they were little, they saw a couple do that, . . . and that was their sign of hope that maybe one day I can hold a hand too. That’s why I tend to always hold hands [with my female, Latina partner], ‘cause you never know how people are perceiving it or what you’re making someone feel.” (P. 227.) The authors describe this as “a cascade of positive developments in [the participant’s] life and community that swept far beyond marriage itself[,]” having an intergenerational as well as communal impact. (Id.)

Of course, some participants have critical views about Obergefell. One participant, a Black gay man in his 50s, says that “marriage was just going to give gay White men more access to power and resources in a way that Black gay men specifically would not have access to.” (P. 230.) Another participant, a Latinx, gender non-conforming gay man in his 20s, opines that “to be viewed as a dignified human being in this society because I’m married . . . . I don’t approve of that.” (P. 232.)

The analysis section of the study is full of important insights for family law and civil rights scholars. The authors contend that focusing on access to marriage ignores all the other work that the right to marry may be doing to uplift people positioned at the bottom of the LGBTQ+ community. Participants believe that the right to marry has conferred respectability regardless of whether they actually married. Some participants express confidence that they can “transform the right rather than conform to mainstream forces in the heterosexual, cisgender community and the White LGBTQ community.” (P. 236.)

The authors astutely observe that several of the participants expressing negative views of marriage equality were legal scholars and queer activists, and note the possibility that their views might reflect queer-theoretic and radical feminist critiques of marriage rather than the experiences of people on the ground. (P. 237.) In so doing, they caution those of us who teach and write about marriage to question our assertions about the relationship between marriage law and inequality, and to recognize the different types of work that marriage equality might do for those still excluded from its benefits, like friends, relatives, and people in polyamorous relationships.

Finally, the authors remind us about the limits of our careful doctrinal analysis: the general public may care less about Justice Kennedy’s casual stigmatization of nonmarital relationships or the fact that Obergefell did not technically elaborate an independent Equal Protection Clause holding. (Id.) Instead, for many of the study participants, the opinion is foremost about anti-subordination, leading the authors to speculate that perhaps in time the court of public opinion will “shed Justice Kennedy’s exclusionary rhetoric about marriage serving as the only pathway to human happiness and civic belonging,” and transform Obergefell into an opinion “centrally advancing equality for all.” (P. 238.)

The importance of these insights is immediately apparent when considering another social movement in medias res. In recent years, several advocacy groups have successfully worked with municipal governments to create domestic partnership statuses for multi-partner relationships. Best-selling books, news articles, and TV shows have brought more attention to consensual non-monogamy (“CNM”.) As we speak, an American Psychological Association (“APA”) task force (of which I am a part) is drafting a report to be considered for adoption by the APA summarizing the current state of psychological research and making policy recommendations akin to those made on behalf of the LGBTQ+ community starting four decades ago. Many of the same questions and debates raised in the context of same-sex marriage—whether people really want the rights in the first place; why more people have not registered for the municipal domestic partnerships; whether communities should be focused instead on abolition or other strategies; who would stand to gain or lose from formal recognition—are being asked as scholars and advocates consider the way forward. Robinson and Frost’s article is a timely reminder to the nascent CNM movement(s) to think intersectionally and not to lose sight of the voices “at the bottom” as it forges ahead.

Egg Donation, Commodification, and Coercive Payments

Feb 23, 2024 Brian BixAdd a Comment

Brian Bix

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

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

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

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

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

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

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

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

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

1. Like Krawiec (P. 1 n.1), I follow the convention of speaking of gamete providers as “donors” even when they are being paid (beyond their expenses).
2. Kimberly D. Krawiec, Markets, Morals, and Limits in the Exchange of Human Eggs, 13 Geo. J. of L. and Public Policy 349, 354 (2015).
3. As the article reports (Pp. 7-8), ASRM’s most recent set of ethical guidelines also notes this unjustified difference in treatment.
4. See, e.g., Alan Wertheimer, Coercion (1988); see also Matt Zwolinski, Benjamin Ferguson & Alan Wertheimer, Exploitation, in The Stanford Encyclopedia of Philosophy (Edward N. Zalta & Uri Nodelman eds., 2022).
5. See, e.g., Kimberly D. Krawiec, No Money Allowed, 2022 U. Chi. Legal Forum 221 (2023).

The Harm of “Nothing Burgers”

Jan 26, 2024 Josh Gupta-KaganAdd a Comment

Josh Gupta-Kagan

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

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

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

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

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

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

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

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

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