Tuesday, June 3, 2014

Jill Hasday's New Book "Family Law Reimagined"

Cover: Family Law Reimagined in HARDCOVER

Looking forward to reading this.  Jill Elaine Hasday (Minnesota), has just published, Family Law Reimagined (Harvard University Press 2014).

From the book jacket: 

 One of the law’s most important and far-reaching roles is to govern family life and family members.  Family law decides who counts as kin, how family relationships are created and dissolved, and what legal rights and responsibilities come with marriage, parenthood, sibling ties, and other family bonds.  Yet despite its significance, the field remains remarkably understudied and poorly understood both within and outside the legal community.


Family Law Reimagined is the first book to explore the canonical narratives, stories, examples, and ideas that legal decisionmakers repeatedly invoke to explain family law and its governing principles.  These stories contend that family law is exclusively local, that it repudiates market principles, that it has eradicated the imprint of common law doctrines which subordinated married women, that it is dominated by contract rules permitting individuals to structure their relationships as they choose, and that it consistently prioritizes children’s interests over parents’ rights.


In this book, Jill Elaine Hasday reveals how family law’s canon misdescribes the reality of family law, misdirects attention away from the actual problems that family law confronts, and misshapes the policies that legal authorities pursue.  She demonstrates how much of the “common sense” that decisionmakers expound about family law actually makes little sense.

Family Law Reimagined uncovers and critiques the family law canon and outlines a path to reform.  The book challenges conventional answers and asks questions that judges and lawmakers routinely overlook.  It calls on us to reimagine family law.

June 3, 2014 in Books, Family | Permalink | Comments (0)

Monday, June 2, 2014

Choudhury on Gender Diversity

Barnali Choudhury, Queen Mary University, London, has uploded Gender Diversity on Boards: Beyond Quotas.  The abstract reads:  

Worldwide there is a growing interest in increasing the number of women on boards. While quotas have been proposed in many countries as a way to address this problem, several countries, including, Germany have rejected this approach. Nevertheless, it is apparent that change is needed as women continue to represent minorities on boards of some of the largest companies. 

Moreover, increasing the number of women on boards can be beneficial to firms. While it is not clear whether there is a positive relationship between increasing the number of women on boards and firm profitability, it is clearer that women make positive contributions to the board decision-making process. As a result, increasing the number of women on boards improves the quality of decisions made by the board. 

Given the benefits increased numbers of women on boards can produce for companies and countries’ lacklustre interest in quotas, this article canvasses methods by which boards can increase female representation without relying on quotas. As such, it looks to practices adopted by American football teams, Australian mentoring programs, and U.K. disclosure rules. It also examines existing workplace norms and practices which inhibit female labour participation. In doing so, it proposes alternative approaches by which Germany, and other countries can increase gender diversity on boards.

June 2, 2014 in Family, Work/life | Permalink | Comments (0)

Tuesday, May 20, 2014

CA Bill Proposes to Insure Equal Education for Pregnant Grad Students

2013 Legis. Bill Hist. CA A.B. 2350 (May 14, 2014)


This bill prohibits postsecondary education institutions from requiring a graduate student to take a leave of absence, withdraw from a graduate program, or limit his or her studies due to pregnancy or pregnancy-related issues. Specifically, this bill:

1) Requires institutions to reasonably accommodate pregnant graduate students so they may complete their graduate education programs.

2) Stipulates that an enrolled graduate student in good academic standing who chooses a leave of absence due to pregnancy, or who has recently given birth, shall return to her program in good academic standing following a leave period determined by the institution of up to two academic semesters, whichever is longer. A longer absence may be authorized for medical reasons.

3) Stipulates that a graduate student per (2) shall be allowed a period consistent with the institution's policies or 12 additional months, whichever is longer, to prepare for and take preliminary and qualifying examinations, and a 12-month extension toward the normative time to degree, unless a longer extension is medically necessary.

4) Requires every institution to have a written policy on pregnancy discrimination and procedures for Title IX pregnancy discrimination complaints and the name and contact information of the institution's Title IX compliance officer, and requires the policy to be made available to all students attending orientation sessions.

Basis for the proposed law?

1.  Because Title IX says so.

2.  To help get more women in STEM careers.

According to the University of California at Berkeley Law Earl Warren Institute on Law and Social Policy (Institute), in the STEM fields (science, technology, engineering, and mathematics), preventing pregnancy discrimination is of utmost importance because women are not advancing in the field at the same rates as men, largely because of pregnancy and family concerns. The Institute finds that women now represent a large part of the talent pool for research science, but many data sources indicate that they are more likely than men to "leak" out of the pipeline in the sciences before obtaining tenure at a college or university. The Institute opines that Title IX protection is particularly vital for working students because Title IX also requires pregnancy leave for educational programs as well as the workplace.


May 20, 2014 in Education, Family, Work/life | Permalink | Comments (0)

Wednesday, May 14, 2014

Hanna Rosin Says That Discrimination Against Fathers Is Exaggerated

From Rosin's Slate article:  

It used to be that women had to worry about men disappearing after they got pregnant or divorced. Now, some women have the opposite problem. A growing fathers’ rights movement is aggressively challenging what it sees as the courts’ assumption that the mother is the only real parent.  Men’s rights activists air their grievances about unfair child custody laws on sites such as A Voice for Men and on subreddits like Men’s Rights and The Red Pill


One recent study showed that people are generally in favor of joint custody, but they believe that divorce courts are seriously slanted toward mothers.

And, this too: 

But is this actually true? “There’s a real perception—even women share it—that courts are unfair to fathers,” says Ira Ellman, a custody expert at Arizona State University. But in fact the great revolution in family court over the past 40 years or so has been the movement away from the presumption that mothers should be the main, or even sole, caretakers for their children. Individual cases like Patric’s may raise novel legal issues, but on the whole, courts are fair to men, particularly men who can afford a decent lawyer.

May 14, 2014 in Family, Gender, Manliness, Masculinities | Permalink | Comments (0)

Tuesday, May 13, 2014

Millennial Moms

Millennial Moms Put their Unique Imprint on Parenting.  Moms age 18 to 34 "embrace their momness," live close to family, describe mothering as "fun," and rely on peers and their own judgment rather than the experts.

May 13, 2014 in Family | Permalink | Comments (0)

Saturday, May 10, 2014

The Truth About Mother's Day

Thursday, May 1, 2014

Prof Denied Tenure Because of Child-Care Leave

Lawsuit: Penn Denied Prof Tenure for Taking Child-Care Leave

A former history professor at the University of Pennsylvania is suing the school, claiming she was denied tenure because she took time off to have and care for her children.


Kristen Stromberg Childers, who taught at the Ivy League college from 2002 until 2010, contends in the federal discrimination lawsuit that her family-leave periods were the "determinative and motivating factors in the decision to deny tenure."


Childers took maternity leave during the 2003-2004 and 2007-2008 academic years for the births of her two children; she also took half-time, half-pay family leave in the 2008-2009 school year due to medical and educational issues her older child was having, the suit says.


She was denied tenure in February 2008 and again after submitting a new application in 2010.


Childers filed a grievance, and a panel in May 2011 found that the review process unfairly considered statements about the assistant professor's child-care leave in making its decision.


According to the lawsuit, the grievance panel found that the chairwoman of Penn's School of Arts and Sciences' personnel committee "inappropriately" wrote to the school's dean that "committee members found it especially hard to judge productivity in light of Dr. Stromberg Childers' family leave time and her junior leave." The dean later said in a letter that it was "difficult to give a balanced assessment" of the professor's productivity "because of the amount of family leave she has had."


May 1, 2014 in Education, Family, Work/life | Permalink | Comments (0)

Legal Reform for Women in Poverty

Jill Engle (Penn State), Promoting the General Welfare: Legal Reform to Lift Women and Children in the US Out of Poverty, 16 Journal of Gender, Race and Justice (2013).

American women and children have been poor in exponentially greater numbers than men for decades. The problem has historic, institutional roots which provide a backdrop for this article’s introduction. English and early U.S. legal systems mandated a lesser economic status for women. Despite numerous legal changes aimed at combating the financial disadvantage of American women and children, the problem is worsening. American female workers, many in low-paying job sectors, earn roughly twenty percent less than their male counterparts. Nearly forty percent of single mothers and their children subsist below the poverty level. The recession exacerbated this problem, mostly because unemployment rates skyrocketed and then stagnated for years. Sadly, though, many women with jobs still find themselves living in poverty in modern America. Social trends loom large in the constellation of factors impacting poverty as well, and this article examines the twin phenomena of women and children 1) ending up poorer after divorce than men, and 2) living in poverty as single-headed-households much more often than men. I also stress the deleterious effects of domestic violence and its link to the perpetuation of women and children in poverty.


I argue our legal system is equipped to build the scaffolding to facilitate our collective climb up and out. I advocate changes to government policies, and family law reform. Recent changes to federal benefits programs have exacerbated the problem of women and children living in poverty. Welfare reform and “domestic violence” provide a natural segue between the article’s two main sections. Modern family law developments such as no-fault divorce and the attendant decline of alimony are also analyzed.


May 1, 2014 in Family, Poverty | Permalink | Comments (0)

Thursday, April 24, 2014

Academic Dads Don't Carry Their Share of Parenting Work

The Family Law Prof Blog posted Even in Academia, Dads Don't Do Diapers.  The assumption of this study was that if there was gender equality in parenting anywhere, it would be in academia where men have more flexible time at home.  But, no.

Most of the academics in our study said they believe that husbands and wives should share equally, but almost none did so.” To be precise, only three men out of 109 reported that they performed half the child-care work. One possible explanation, according to the father-and-son duo, is that women derive a higher enjoyment of many of the activities involved in the care of small children. The Rhoads asked the men and women to report their level of enjoyment in performing 25 different tasks—everything from playing with the baby to washing his clothes. On almost every count, women said they experienced a higher level of satisfaction. Steven Rhoads admits the discovery that mothers enjoy changing diapers was, to his own mind, the most surprising aspect of his findings. “It shows you gender roles go pretty deep,” he says.

Are you kidding me?!?  The conclusion is that we enjoy changing diapers!  Please.  The entrenched gender role is not that women enjoy such crappy duties.  (Ok, I couldn't resist.)  But that they are socially conditioned not to show dissatisfaction with mothering or towards their children under threat of the "bad mother" indictment.  

April 24, 2014 in Education, Family | Permalink | Comments (2)

Friday, April 18, 2014

(Grand)Motherhood, Abortion Politics and Chelsea Clinton's Pregnancy

 Beth Burkstrand-Reid (Nebraska) joins us as guest blogger this month.  Her research focuses on reproductive rights and women's health, specifically abortion, birth control and pregnancy-related law. She is the recipient of the 2014 Award for Outstanding Contribution to the Status of Women, presented by the UNL Chancellor and the Chancellor's Commission on the Status of Women . Prior to her legal career, Professor Burkstrand-Reid was a journalist, with her writing appearing in The New York TimesThe Washington Post and The Wall Street Journal. She's on Twitter @beth_burkstrand. 

 Former first-daughter Chelsea Clinton announced yesterday that she is pregnant, news that was used by some as an opportunity to talk about abortion. (Yes, abortion).

 It seems that Chelsea's use of the word "child" when making her announcement struck a nerve: 

 Abortion supporter Chelsea Clinton announced today that she’s pregnant — not with a fetus or clump of cells but with a "child."  This is the same Chelsea Clinton who lamented last year that her grandmother didn’t have access to Planned Parenthood."   Clinton’s news was greeted with similar responses on Twitter. 

 The announcement also spawned speculation over whether impending grandmotherhood spells the end of Hillary Clinton’s presidential aspirations:

Others have noted that Hillary Clinton has seemed more cheerful and relaxed in recent appearances, fueling theories that there was good news in her life. With continued speculation around the former first lady’s plans for the 2016 presidential race, where she is the presumed frontrunner for the Democratic nomination, some have wondered whether a grandchild might make Clinton less likely to enter the fray.

“Some” have also wondered if that issue would ever have been raised if it was a grandfather-to-be mulling the race.

H/T @LEBassett


April 18, 2014 in Abortion, Family | Permalink | Comments (0)

Thursday, April 17, 2014

Pregnant Drug-Addicted Women as Felons

Rachel Carlson (Mississippi) has posted A Gap in the Criminal Justice System: Creating a New Class of Felons in Pregnant Drug-Addicted Women, a State-by-State Analysis.  From the abstract:

Increasingly across the United States pregnant women who seek help for drug addiction are finding themselves in a courtroom defending criminal charges instead of a doctor’s office or rehabilitation facility. Women are being criminally charged for being addicted to drugs, an offense not punishable by criminal law in any other circumstance than pregnancy. While these women are being charged after the birth of their child, the drug abuse occurred while they were pregnant. The history of reproductive rights and drug legislation and the history of pregnant women who are criminally prosecuted for the use of controlled substances will be addressed in Part I of this article. Part II of this article provides a broad analysis of how each state currently addresses the ever-prevalent prosecution of these women, including a chart with the relevant statutes and cases. Part III explains why the issue is deeper than due process rights and whether the legislatures intended for child or minor to include fetus or unborn child. Finally, Part IV discusses other possible options states should explore to put a stop to the creation of a new class of felons.

April 17, 2014 in Family, Reproductive Rights | Permalink | Comments (0)

Friday, April 11, 2014

In Utah Gay Marriage Case, State Argues Existence and Importance of Gender Differentiated Parenting

In Thursday's oral argument before the 10th Circuit US Court of Appeals in case of Utah's ban on gay marriage, the state emphasized the importance of gender in marriage and the risk of harm from "genderless" marriages.  Essentially that moms and dads are simply different and provide complimentary roles.

 From the State's brief:

“And Utah voters, … reaffirmed among other things their firm belief—also supported by sound social science—that moms and dads are different, not interchangeable, and that the diversity of having both a mom and a dad is the ideal parenting environment.” *** 

Common sense and a wealth of social-science data teach that children do best emotionally, socially, intellectually and even economically when reared in an intact home by both biological parents. Such arrangements benefit children by (a) harnessing the strong biological connections that parents and children naturally feel for each other, and (b) providing what experts have called “gender complementarity”—i.e., diversity—in parenting. *** 

This biological advantage is further enhanced by the unique, gender-based contributions that fathers and mothers make to their children’s wellbeing. While the value of gender diversity in parenting is common sense to many, the notion likewise finds confirmation in a growing body of social science research. As a group of 70 scholars recently concluded, the “empirical literature on child well-being suggests that the two sexes bring different talents to the parenting enterprise, and that children benefit from growing up with both biological parents.” In other words, the benefits flow not just from having two parents of any gender, but from what scholars call “gender-differentiated” or mother-father parenting: “The burden of social science evidence supports the idea that gender-differentiated parenting is important for human development and that the contribution of fathers to childrearing is unique and irreplaceable.” Indeed, research shows that men and women parent children differently, and in so doing contribute distinctly to healthy child development.

April 11, 2014 in Family, Gender, Same-sex marriage | Permalink | Comments (0)

Thursday, April 10, 2014

Study Finds More Stay at Home Moms

From NPR, In Turnaround, More Moms are Staying Home, Study Says

After decades on the decline, the number of "stay at home" moms in the U.S. has risen, with 29 percent of women with children under 18 saying they don't work outside the home, according to a new report by the Pew Research Center.


The figure from 2012 is up from 23 percent in 1999.

Mothers With Children Who Don't Work Outside The Home:

1967 — 49 percent

1999 — 23 percent

2012 — 29 percent


"The recent turnaround appears to be driven by a mix of demographic, economic and societal factors, including rising immigration as well as a downturn in women's labor force participation," the Pew study finds.


"Stay at home" mothers includes women who remain in the home to care for family as well as those who say they don't work outside because they are unable to find work, are disabled or enrolled in school

April 10, 2014 in Family, Work/life | Permalink | Comments (0)

Tuesday, April 1, 2014

Structural Solutions to Family Violence

Deseriee Kennedy (Touro) has posted From Collaboration to Consolidation: Developing a More Expansive Model for Responding to Family Violence, 20 Cardozo J. L. & Gender 1 (2013)

The Article finds evidence to suggest that there has not been significant improvement in the incidence or severity of family violence and more radical responses to family violence are needed. It proposes a decisive move from collaboration and communication to a consolidation of domestic violence and child welfare agencies that would fund domestic violence agencies to provide services to families experiencing domestic violence except in families where the harm or threat of harm to the children is severe. This approach would require child welfare agencies to refer all but the most serious cases of family violence to domestic violence agencies, which would be funded to respond to family violence issues holistically.

April 1, 2014 in Family, Violence Against Women | Permalink | Comments (0)

Thursday, March 27, 2014

What the Feminist Challenge to Coverture Means for the Modern Fathers' Rights Movement

Michael Higdon (Tennesse) has posted Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men, Alabama L. Rev. (forthcoming). Higdon explores

“Thwarted Fathers” and “Conscripted Fathers” — to reveal a serious problem that both share. Namely, the fathers in both categories have suffered a significant abridgment of their reproductive freedom, which the Supreme Court has identified as a fundamental right, either by having fatherhood forced upon them without consent or by having fatherhood withheld from them by deceit and subterfuge. In addition, what is particularly troubling about both classes of cases is that, in all of them, the person who was allowed to ultimately control the father’s reproductive freedom was the mother. After all, in both cases, it was decisions the mother unilaterally made that determined how much reproductive freedom the biological fathers would ultimately enjoy. 

Thinking of the problem in those terms, such laws start to bear some resemblance to common law coverture, whereby all the wife’s legal rights were placed in the hands of her husband, which he would then dole out to her if and when he saw fit. Feminists fought hard to end these legal disabilities and, in the process, revealed the harms that arise from one gender being given dominion over the legal rights of the other.

This argument, though, is based on the assumption that feminists fought coverture by demanding equal parenting rights.  Nineteenth-century feminists did challenge coverture and its restrictions on property and contract by demanding formal and substantive equality of rights.  But, for parenting rights, these feminists demanded gender-specific rights of sole female control. Challenging the prerogative of forced marital sex, the marital rape exception, involuntary motherhood, and parental custody and guardianship laws, feminists demanded unilateral, woman-only control.  Voluntary motherhood, the right to choose when to procreate, the unilateral right to refuse sex, and maternal custody presumptions were the solutions--all gender-specific, unilateral, female-only rights.  Why?  Because in parenting, the woman was the sole partner who had to bear the pregnancy and care for the child. 

March 27, 2014 in Family, Legal History, Reproductive Rights | Permalink | Comments (0)

Saturday, March 15, 2014

Subversive Graham Crackers and Gay Dads Commercial

Honey Maid Ad: Gay Dads Are OK - So Long as they are Rich and White

[T]he advertisement highlights the contemporary boundaries and privileging of certain gay identities. Indeed, the men describe themselves as traditional. “Marriage, and a family, and having kids was always important,” they tell us.


These men are white. This family is affluent. And they are men; their gender presentation is normative in no way conflicting with traditional conceptions of masculinity. Without denying that the ad reveals the tremendous progress made in the achievement of gay rights and recognition, it simultaneously demonstrates the limits.

March 15, 2014 in Family, LGBT, Manliness, Same-sex marriage | Permalink | Comments (0)

Thursday, March 13, 2014

No Father's Rights in the Delivery Room

New Jersey Judge Rules Women Can Keep Fathers Out of the Delivery Roomor at least non-marital fathers.

A New Jersey judge likely made history this week when he released an opinion that found women can keep the biological father of their children out of the delivery room.

The case was argued by telephone — while the New Jersey woman was in the hospital to give birth.


The judge ruled that requiring the father's presence would pose 'unwarranted strain' on the mother.


He cited a patient's right to privacy and a pregnant woman's right to control her body. The ruling says women also are not obligated to inform a father when they're going into labor. Some fathers' rights groups say the decision is discriminatory. The New Jersey ruling applies only to biological fathers not married to the mother.

         Across the U.S., more than 40 percent of births are outside marriage.


March 13, 2014 in Abortion, Family, Healthcare, Reproductive Rights | Permalink | Comments (0)

Tuesday, March 11, 2014

Redefining Feminism

Mary Ziegler (Florida State) joins us as a guest blogger this month.  Her work in legal history focuses on the law and history of abortion, illegitimacy, contraception, marriage, and child care. Her post last week introduced her topic of exploring feminist legal history.

What do we mean when we talk about feminism? My book project has forced me to reconsider how I would answer this question. My scholarship fits comfortably within any classic definition of feminist legal history: I focus on the intersection of law and history in the context of reproductive health, divorce, marriage, and abortion. I consider myself a feminist and a historian. I brought these understandings of myself and my work to the book and the question at its core: how did Roe v. Wade impact social-movement debate and what can the history of the decision teach us about law as a tool for social change, in the context of gender relations more broadly? Research for the project took me to over seventeen archives, to the basement of convents, and the offices of anti-feminists. The most fun came in the oral histories I conducted with over 100 of those who participated in the abortion wars in the decade after Roe. I spoke with men and women, doctors and homemakers, lawyers and activists, abortion opponents and population controllers, and feminists of every stripe. What I learned made me wonder what it meant to be “pro-choice” or “pro-life.” As importantly, the research made me question who should count as a proper object of study for women’s legal history.

At the beginning of my research, I had treated pro-choice activism as synonymous with the women’s movement—unquestionably a core subject for feminist legal historians. I learned that the relationship between women’s rights and the legalization of abortion was much more contested than I had predicted. Identifying a cause with women’s rights had profound ideological and strategic ramifications. Physicians, population controllers, and even feminists wondered if embracing the rhetoric of women’s rights would set back the progress of abortion reform.

Law also played a surprising and unanticipated role in the creation of the abortion-rights cause. On the one hand, feminists could use the Roe decision in arguing that their movement should frame abortion as an issue of women’s rights. The Supreme Court’s approval made the idea of abortion as a woman’s right more legitimate, more mainstream, and more politically palatable. On the other hand, feminists’ wish to preserve that victory created damaging internal debates about the proper scope of a reproductive-justice agenda, about protections against sterilization abuse, and about what counted as true reproductive liberty.

I wonder how often causes and social movements we identify as feminist have a more troubled history. Did different legal movements once count as feminist? Might social causes associated with feminism today once have had a radically different meaning, both legally and politically? It is questions like these that make Women’s History Month more exciting than ever for feminist legal historians.

March 11, 2014 in Abortion, Family, Legal History, Theory | Permalink | Comments (0)

Thursday, March 6, 2014

The Underside of Father's Rights

Kelly Allison Behre (West Virginia) has posted Digging Beneath the Equality Language: The Influence of the Father's Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform.  Here's the abstract:

In 2004, a fathers’ rights group formed in West Virginia to promote “Truth, Justice, and Equality in Family Law.” They created a media campaign including billboards and radio spots advocating for male victims of intimate partner abuse and warning about the dangers of false allegations of domestic violence, sexual assault and child abuse, even offering a $10,000 award to anyone who could prove false allegations of abuse were used against a parent in a custody case. In 2007, they released a study concluding that 76% of protection order cases were based on false allegations or were unnecessary, and warned that protection orders were often filed to gain leverage in divorce and custody cases. They coupled their research with language created by a national fathers’ rights group to propose a new law to sanction parents making false allegations of intimate partner violence during custody cases. The Governor signed the bill into law in 2011. 

To anyone unfamiliar with the fathers’ right movement, this story may not cause concern, let alone outrage. But another look at the research and the law may raise red flags. In spite of its dissemination between and beyond the fathers’ rights movement, the evaluation conclusions bear little rational relationship to the findings. The research is at best misguided and confused, and at worst, a deliberate attempt to mislead the public in order to promote a political agenda. The new law is inexplicably redundant, as both the domestic relations code and criminal code already provide sanctions for parents who make false allegations of abuse. The law was essentially a solution created to prove a problem by shifting the public policy focus from protecting victims to questioning their motives and potentially silencing them. 

At first glance, the modern fathers’ rights movement and law reform efforts appear progressive, as do the names and rhetoric of the “father’s rights” and “children’s rights” groups advocating for the reforms. They appear a long way removed from the activists who climbed on bridges dressed in superhero costumes or the member martyred by the movement after setting himself on fire on courthouse steps. Their use of civil rights language and appeal to formal gender equality is compelling. But a closer look reveals a social movement increasingly identifying itself as the opposition to the battered women’s movement and intimate partner violence advocates. Beneath a veneer of gender equality language and increased political savviness remains misogynistic undertones and a call to reinforce patriarchy.

March 6, 2014 in Family, Violence Against Women | Permalink | Comments (0)

Sunday, March 2, 2014

Higdon on Marginalized Fathers and Demonized Mothers

Michael Higdon at Tennessee Law has uploaded Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men.

The abstract: 

Just last month, in the state of Utah, twelve biological fathers filed suit, challenging the state’s adoption laws — laws the fathers allege permit “legalized fraud and kidnapping.” Specifically, these laws require nonmarital fathers to promptly take legal action in Utah to preserve their paternal rights. A problem arises, however, as mothers from other states have started traveling to Utah specifically to surrender newborn children for adoption. The fathers, unaware that their children are being placed for adoption in another state, fail to take action in Utah and, as a result, are permanently deprived of all parental rights. In that sense, these laws — which actually are not much different than the adoption laws of other states — permit nonmarital mothers to effectively thwart a man’s desire to father a resulting child. 

Although not the subject of the Utah lawsuit, at the other end of the spectrum, many are surprised to learn that the law also permits a nonmarital mother to force fatherhood on men who never even consented to the sexual act that produced the child. Male victims of statutory rape, for example, in every case to consider the issue, have been ordered to pay child support for children that were a product of the rape. Likewise, adult men who are victims of sexual assault as well as men whose sperm was taken without their consent (and subsequently used to artificially inseminate a female) have also been consistently ordered to pay child support for the resulting child. In all of these cases, the mother’s wrongdoing has been ruled irrelevant. 

In the enclosed article, Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men, I explore examples of both kinds of fathers — I refer to them as “Thwarted Fathers” and “Conscripted Fathers” — to reveal a serious problem that both share. Namely, the fathers in both categories have suffered a significant abridgment of their reproductive freedom, which the Supreme Court has identified as a fundamental right, either by having fatherhood forced upon them without consent or by having fatherhood withheld from them by deceit and subterfuge. In addition, what is particularly troubling about both classes of cases is that, in all of them, the person who was allowed to ultimately control the father’s reproductive freedom was the mother. After all, in both cases, it was decisions the mother unilaterally made that determined how much reproductive freedom the biological fathers would ultimately enjoy. 

Thinking of the problem in those terms, such laws start to bear some resemblance to common law coverture, whereby all the wife’s legal rights were placed in the hands of her husband, which he would then dole out to her if and when he saw fit. Feminists fought hard to end these legal disabilities and, in the process, revealed the harms that arise from one gender being given dominion over the legal rights of the other. In the attached Article, I argue that the laws relating to the reproductive rights of nonmarital males have effectively evolved into a modern day form of coverture and, thus, must be opposed for the very same reasons coverture was opposed. In addition, given the parallel these laws share with coverture, the reaction to which has greatly shaped modern feminism, feminist legal theory is an ideal lens through which analyze the harms befalling nonmarital fathers. 

Of course, feminists have, understandably (and often justifiably), looked at the fathers’ rights movement with some skepticism. After all, a victory for fathers could very much come at the expense of those rights feminists have fought long and hard to secure for mothers. As I analyze in the article, however, this concern need not always be the case. And indeed, when it comes to the law as it relates to the reproductive freedom of nonmarital males, feminists are not only the group best situated to wage that battle, but also a group that should have a vested interest in victory. Specifically, as I explore in the Article, the laws in question not only harm nonmarital males, but at the same time, pose significant harms to women. For this reason, I conclude with a list of potential solutions to these problems, identifying areas where change can be instituted so as to offer greater protection for men, but at the same time, preserve current protections afforded women.

March 2, 2014 in Family, Theory | Permalink | Comments (0)