Friday, January 20, 2023
Katharine K. Baker, Equality, Gestational Erasure and the Constitutional Law of Parenthood,
35 J of the American Academy of Matrimonial Lawyers 501 (2022)
This article calls into question the abundance of academic writing that criticizes, as inconsistent with equality principles, the constitutional law of parenthood. Some of this criticism, concerned with gender stereotypes, argues that the current doctrine’s preferential treatment of gestational mothers inexcusably discriminates against fathers. Other critics focus on how the Supreme Court’s approach to gestational investment excludes same sex partners from parental rights. Both of these critiques argue that the work of gestation has been overvalued. They both endorse a kind of gestational erasure, but they differ sharply on where they root the essence of parenthood. Those concerned about equal treatment for fathers root parenthood in genetics. Those concerned about equal treatment for same sex partners root parenthood in parental investment. This article highlights the tension between these positions and challenges those willing to erase the relevance of gestation at both a normative and practical level. It explains how discounting the relevance of gestation will have serious consequences for the law of abortion, adoption and custody, placing already vulnerable women at more risk of being controlled by men they want to escape. Further, this article argues that the current constitutional doctrine, which recognizes the salience of gestation, necessarily incorporates what LGBTQ advocates argue must be incorporated into decisions about parenthood: parental investment. What is inconsistent with LGBTQ equality in parenthood is not a regime that recognizes gestational investment, but one that reifies the genetic essentialism on which the gender-stereotype critique relies.