On the surface, Jennifer Hendricks’s Essentially a Mother is a book about the law of pregnancy and parenthood. On a deeper level, however, it is an especially timely tour de force, which reestablishes the importance of relational feminism as a critical theory that offers valuable insights and lessons for today’s scholars and activists.
Hendricks takes readers on a comprehensive yet concise academic journey across the legal debate over sex equality and accommodations of pregnancy in the workplace; changes in the status of unwed genetic fathers as legal parents under various circumstances; the Constitutional rights of parents over their children; the laws that govern and regulate surrogacy; and finally, abortion. Along the way, Hendricks provides a theoretical overview of the schools of thought that shaped feminist jurisprudence.
Hendricks’s overview is rich and valuable for everyone. Students who are taking their first steps in academia can glean from it the necessary background for the relevant legal cases, as well as other developments in the law and feminist theories. Hendricks excels at explaining the law and complex theories in a clear and easy-to-understand way. The more knowledgeable and sophisticated readers will benefit greatly from the range of topics Hendricks weaves together to make her case, the historical perspective she provides, and the sharp insights she offers.
The focal point of the overview and analysis is Hendricks’s reading of the so-called “Unwed Father” Supreme Court cases.1 In these cases, the Court considered pregnancy and childbirth, involving both biology and caretaking, to be the model for the kind of parenthood that the law should protect. Because biologically born men cannot get pregnant, the Court crafted for them a different biology-plus-relationship test for parentage in terms they can fulfill. The test provides a pathway to parental rights for biological fathers who “established a substantial relationship” with the child.
Hendricks argues that the Unwed Father cases are unique in two naturally interrelated ways. First, as sex-equality cases, they accommodate “natural” biological differences regarding pregnancy in the laws of parentage, unlike sex-equality in workplace cases. (In labor law, the Supreme Court has held that the law does not require the rules of the workplace to contain the burdens resulting from pregnancy because it should address only artificial barriers to sex equality.) Second, the values that underlie these cases are relational (“feminine”) values, because they privilege relationships over status and genetics. Nevertheless, in applying and interpreting these cases, the law gradually downgraded the role of pregnancy and care and instead moved to center genetics in defining parenthood. This approach led to results such as rapists being recognized as legal parents of their victims’ children. At the same time, the law required biological fathers to comply with procedures like putting their names on putative fathers’ registries and providing financially for the children to be recognized as legal fathers. As a result, four decades after the last of these cases was decided, marginalized biological fathers (poor, immigrant, and the like) who look after their children find themselves being denied parental status because of failure to meet paperwork requirements or to pay child support, while their caretaking is effectively ignored.
Hendricks turns to relational feminist insights to explain this approach of the law. Unlike its ancestor, cultural feminism, relational feminism avoids classifications and essentialism about innate characteristics of either women or men, and focuses instead on criticizing the values the law protects and offering alternative ones as worthy of protection. Relational feminists have argued that American law is based on the assumption that people are separated from one another and the most important purpose of the law is to protect and sustain individuals’ autonomy. The value of relationships under this vision is derived from their being consciously pursued and chosen, to fulfill the need for connection and safeguard an individual from loneliness. The law should guarantee that individuals can create and form relationships rather than being concerned with fostering existing ones.
The alternative account that relational feminists offer starts from the premise that individuals are connected to other individuals through relationships (not always chosen, which does not necessarily make them unwanted). For example, we all start out on the baby’s side of a relationship, needing and experiencing being cared for. The law should therefore value and protect relationships as the basic human condition, acknowledging that they might lead to one individual being dominated by the other and protecting individuals against such subordination. These interests and needs are not necessarily feminine but those of the systematically subordinated and oppressed.
Applying these insights to the Unwed Father cases, Hendricks explains that “[w]hen the Unwed Father Cases protected existing caretaking relationships, they were in a sense speaking in a language that’s foreign to the American legal system – they were in a different voice” (P. 88). It was destined, therefore, that judges, lawyers, and legislators would apply these precedents in a language they are used to speaking, which undervalues relationships and advances individual autonomy, including the right to pursue and establish new connections.
Hendricks seeks to reestablish the work of caretaking as the essence of parenthood. While gestation is one way of performing that work (P. 4), Hendricks recognizes that there are other ways of performing caretaking, like day-to-day care for children. It is what some of the biological fathers (those whose claims were recognized) did in the Unwed Father cases. Hendricks even acknowledges that some genetic fathers and other expecting parents can acquire parental rights at birth if they were involved in the pregnancy by encouraging the pregnant woman (P.191). Hendricks does not claim that gestation is inherently more valuable than other forms of caretaking but argues that it satisfies the biology-plus-relationship test, therefore “[a] woman who gives birth is essentially a mother;” her status as the legal parent is the starting point. By contrast, while genetics should count as a factor, it is not enough to establish parentage, not even when it is accompanied by intent, and even when such intent takes the form of a formal agreement.
Although Hendricks’ argument is controversial, it is also compelling. As I was reading through the book, I felt the need to revisit and rethink my own arguments about defining parentage, even if we are not widely divergent in our approach. Yet, I wish Hendricks would elaborate more on how expecting parents can satisfy the requirement for creating a caretaking relationship before birth. This issue is relevant to many individuals who are systematically disadvantaged or powerless, for example, a female partner of a pregnant woman. Such elaboration also seems desirable given the broader argument of the book about the failure of the law to protect existing relationships and the potential of relational feminism to serve as a general theory of oppression.
Revisiting relational feminists, Hendricks situates her analysis of the laws of parentage and pregnancy within a broader claim regarding the distorted values that American law protects. From the distance of time, we can truly appreciate the new layers that relational feminism has acquired, its significance and value. Hendricks indeed cites Angela Harris reminding us that relational feminism is not merely about women or gender; rather, it is a theory criticizing the values of the American legal systems, which protect the interests and needs of the powerful and the privileged. As such, relational feminism can be understood as a general theory of oppression, providing the conceptual tools to fight against not only patriarchy but oppression of all sorts. Hendricks reminds us of the price we pay when we play by the flawed rules of the system trying to achieve just goals. The most recent example she discusses concerns, naturally, the right to abortion. Arguing for the right to abortion as a right to autonomy created a weak and contingent right, in her analysis. It was meaningless for women who could not afford to pay for abortion: it did not support a claim for Medicaid coverage even when abortion was medically needed. The gradual erosion of this right over the years, culminating in Dobbs v. Jackson Women’s Health, seems predictable. An emphasis on relationships and the inherent risk of being a mere vehicle for the needs of another in this relationship could have made the case for the right to abortion stronger. But Hendricks argues that reshaping the values of the legal system cannot be achieved by tinkering with legal doctrines in the courts, since “[t]he courts, and especially the Supreme Court, have almost always been a reactionary force against women’s rights” (P. 193). Instead, she argues that the way forward is “through political action outside the courts” (ibid).
This lesson about grounding rights-based claims on a faulty foundation is especially timely for present-day activists who consider new strategies to defend and safeguard valuable interests and rights. For example, Hendricks’s discussion of Constitutional parental rights, in addition to that of abortion, sounds as a cautionary note for using this framework to protect children’s interests. Essentially a Mother arrives just when we need a reminder that it is time to update the values at the basis of American law and that relational feminism shows us how to do it.
- Stanley v. Illinois, 405 U.S. 645 (1972); Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380, 394 (1979); Lehr v. Robertson, 463 U.S. 248, 262 (1983).
