The bad thing about feminist and queer theory in the academy is that the university thrives on originality and controversy. This may lead scholars to raise concerns that have already been addressed, or create pseudo-lacunae that they can fill.
In a recent review, Debra Satz challenges claims I make in an essay "Methods of Adoption: Eliminating Genetic Privilege," published in Adoption Matters: Philosophical and Feminist Essays (2005) edited by Sally Haslanger and Charlotte Witt.
Sat asks questions of positions I develop based on work by Martha Fineman's Neutered Mother (1995): contemplating a reproductive species whose offspring have a long period of dependence, what is the best decision rule for deciding on their custody? My argument is that the pregnant mother is the only figure with the prerogative to make this initial decision at birth, and that she can choose either to put the child up for adoption, raise her by herself, or contract with others, including other parent(s) to raise the child until the child reaches the age of 21. Paternal sperm-donors (via penises or other methods) are eligible for the mother to choose as kinship partners, but do not have independent claim to custody rights, on account of the silliness of awarding custody based on intercourse, as well as their failure to create their DNA. (Awarding custody rights based on ejaculating semen alone would be like giving a Pulitzer prize to the person delivering the newspaper.)
My essay repeatedly states that such people would not be excluded from being a parent, but that ejaculating sperm itself is neither necessary nor sufficient to give one the right to make initial custody determinations, and that the unique sacrifices of a nine month pregnancy do earn this right for gestational mothers.
The review by Satz is frustrating because I thought I anticipated the objections she voices, and responded to them. Below are Satz's comments and the portions of the original essay she overlooks, minus references and notes, which copying and pasting could not accommodate. My essay in its entirety is here. You decide!
Does biology matter at all to family bonds? To the rights of parents or children? Many of the contributors to Adoption Matters argue that the family should be conceived of as a voluntary association, entirely based on choice and liberal contract. Drucilla Cornell (2005) and Jacqueline Stevens (2005), for example, argue that parents should enter into relationships with one another by contract and that the state should not privilege one form of family over another. Stevens further argues that all parents should contract (or adopt) children independently of their biological relationship. This would put families formed through biological ties on equal terms with families formed through nonbiological ties; all families would be based on norms of contract and consent.I had written:
Adoption raises important questions about the applicability of a choice model when applied to the family, about the role of genetic ties in making individuals into parents, and about the nature of our obligations to children. Consider that in a typical contract two or more parties consent to undertake some transaction or activity. When we turn to evaluate a contract, the idea of "between consenting parties" is crucial in guiding our intuitions. Moreover, in our evaluation of the contract we will often need to look further than the contracting parties to see if there are significant consequences for parties that are not prima facie involved in the agreement at all.
As I argue above, no infant or small child can be party to any parenting agreement. Further, we must keep in mind that the child is the most vulnerable party affected by the parenting contract: small children are utterly dependent on their caretakers and could not survive without them. There is also reason to suppose (although I will not argue this here) that children require some amount of continuity of caretaking. These considerations suggest that we should limit freedom of the contracting parties. Of course, if we press on these considerations too much we might wind up with very little freedom for parents—back in the Orwellian world of parental licensing, with invasive scrutiny of parents' capabilities and motives. Cornell (2005) importantly constrains her contract model: she argues that although parents should contract for custody, once they have consented they must assume custodial responsibility for the rest of the child's life. Cornell's argument implicitly accepts the idea that we have obligations for others that do not depend on our ongoing consent. At the very least, our freedom to exit the contract is constrained by the interests of the child. If we accept Cornell's model of families in which parenting responsibilities flow from the interests of the child, the question still remains as to whether or not the initial obligation to parent arises only from an act of will.
The objectives guiding the following proposals arc as follows:Satz writes:
1. To provide children with resources and caretakers who can attend to
their physical, emotional, and intellectual needs.
2. To make viable long-term relations between a child and a child's caregivers.
3. To allocate the privileges and responsibilities of child care equitably,
and, as a corollary to this, to recognize the special relation of pregnant mothers to the children they bear.
4. To ensure that laws designed for the micro level resonate positively
in broader social discourses.
The policies offered below in pursuit of these objectives are of course not immune to violation, just as current family laws may be disobeyed. However, because these alternatives are much more flexible than rules giving rise to our current child-rearing roles, they are far less likely to be broken. They are also conducive to inviting people to participate in forming families through a range of encounters, not just sexual ones, and therefore may enrich other relations by allowing for this potential to develop, while at the same time lessening the pressure on sexual ones.
No single item below should be considered in isolation from the others .
1. The government should provide health services to everyone, including
reproductive health services.
2. The government should make child-care services available to all parents.
3. Every child has one mother, the person who gave birth to him or her.
4. Every child shall have one or more parents. For purposes of legal custody, a parent is someone, including a mother, who adopts a child alone or in a group of two or more.
5. The adoption is valid until the child is twenty-one years of age.
6. The mother is responsible for finding one or more parents to raise
her child within three months of birth. She fulfills this responsibility either by (a) signing an enforceable contract with the state acknowledging that she is adopting the child by herself; or (b) by forming a larger group to legally adopt the child; or (c) by finding another adult or group that will sign this contract; or (d) by requesting that an officially sanctioned adoption agency perform these activities. No
money other than incidental fees can be exchanged for the purpose
of executing adoption contracts.
7. All adoption contracts will require minimum adult commitments to
8. Marriage is a purely private activity, receiving no recognition as a legal status by any government agency.
Taken together, the above proposals would directly accomplish the rather mundane objectives mentioned, the goals of which differ not much if at all from those offered by mainstream and even conservative commentators on the family. One would be hard pressed to find the critic advocating family policy designed to increase children's chances of being malnourished, unsafe, and stupid. The major difference between the present framework for family policies and the one used to develop the above recommendations is that the latter does not attempt to meet its objectives
through mediated, confusing, and unfounded religious aims or genetic fantasies.
Cornell says parenting contracts should be for life. While such ties over life are definitely something to aim for, it seems very important to make sure the rules governing child rearing are narrowly tailored to the task. People can survive and flourish even if their parental units break up after they are twenty-one; this may not true for children who are younger. I selected twenty-one as a possible threshold, because that is is the age when most people in developed countries finish their formal education. The number is based on the belief that parents should commit to making education a financial possibility for their children. I am not sure that this is really right. Perhaps the state should guarantee funding for her education, or perhaps the interest of the child in an education beyond high school does not outweigh the parents' desire to cease what may well be uncomfortable relations among each other or with the child by that time. That is, as a social value as well as a utilitarian one, we can imagine a calculus that gives heavy weight to family stability, whatever form that family takes, but does not ignore tensions that arise inn any social setting, especially such a demanding one as the family, tensions that themselves make for an unhappy home.
From a child's point of view, the need for the family to be stable and nurturing decreases over time. While of course one prefers those caring for children to be always on good terms, a child's survival depends less on this over time. Conceptually, then, there is a point at which considerations of parental discord trump the interest of the child . That point will depend on the particularities of the situation. None of this requires that families dissolve their emotional and other ties; it merely ends their legal responsibilities, and even here the agreements may be revisited with a new contract.
Arguments such as those by Stevens and others in Adoption Matters certainly provide a needed corrective to the tendency of our society to engage in gene fetishism. But how compelling are they on their own? What of the mother who is lackadaisical about her pregnancy while the father concerns himself with the health of the growing fetus and makes preparations for its birth?I had written:
What of a woman who is a gestational surrogate for another woman? Suppose that a woman who objects to abortion on religious grounds carries a child to term. Why does her gestation establish a claim to motherhood in the absence of any desire to have a child? Against the view that fathers have no parental rights, it might be argued that men may engage in procreation explicitly with the intent of assuming a caretaking role with their child. Having and raising children is central to the life that many men as well as women want. Even if genes alone do not give rise to rights, why can't a preconception commitment to shoulder the responsibilities associated with parenting give rise to some parental claims?14 A man can be involved in and take responsibility for even a newborn infant. He may have had long-standing relations with the mother, shared in her life over decades, and actively planned for the arrival of the child. Or he may have simply coerced her into sex. Perhaps biology and a demonstrated commitment to nurture can establish a father's claim to have the opportunity to maintain a tie with his genetic offspring. The problem with proposals like Stevens's is that they run the risk of locking women and men into traditional gender roles, wherein women by default must assume primary parenting responsibility for the newborn child. These observations show, I think, that we cannot define parental rights without taking into account the needs of children for secure ties with their caregivers (which probably means giving biology some weight) and evaluating the extent of the reciprocity, care, and responsibility intended and shown by adult caregivers.
Birth mothers contribute intensive,constant, long-term labor to reproduction that fathers do not. However, Locke believes that fathers can make up for this by making sure to provide for their children economically and, equally importantly, taking a strong role in ensuring their education. Importantly, Locke offers no language at
all to suggest he thinks women are incapable of providing these themselves--
e .g., canards about only men being strong enough to earn money or smart enough to teach. Rather, he presents these masculine stereotypes of breadwinner and teacher as those compensatory to men's inability to give birth and their desire to reciprocate for the life they have been given. While Locke himself makes these arguments to say that at minimum women have equal rights to parental authority to those of men, he
seems to hint at more far-reaching implications, and surely we can extend those today. If Locke is right—-that sperm itself does not give men any rights to the fetus—and if custody decisions must be made at birth, then the only person who has earned the prerogative to initiate these is the pregnant mother, a subject position inadequately represented in present law.
Cornell and other feminists who want to challenge the potentially restrictive
sex-role implications that might follow from such an emphasis on the specificity of pregnancy would probably respond that although only birth mothers are pregnant, nothing about this act precludes establishing pregnancy's equivalences with other activities, say, contributing money or time in child-raising. Indeed Cornell makes just this point, turning around the Lockean position outlined above by using the fact of such compensations as evidence there is nothing so special about pregnancy.
But are these apt comparisons? Is it sensible to consider pregnancy as just one more form of nurturance, one that is equivalent to, for instance, driving a child to soccer practice or saving money for her college education?
The felicity of such analogies depends on whether we agree that the risks, excruciating pain, and uninterrupted dedication to the physical task of pregnancy can be equated with the cumulative labors invested in other life-sustaining enterprises, such as contributing food, shelter, and other goods and emotional attentions to an infant and child.
Pregnancy as Sui Generis
A further objection to equating pregnancy with financial support alone
is that the equivalence seems to call forth the idea of blood money that offends common sensibilities in other contexts. lf we take offense at flesh as collateral for money (Shakespeare 1965), then perhaps we should also take offense at the Lockean offer of fathers paving for education and providing inheritances as a way of paying off the debt that sons owe their mothers, for in that situation a woman 's flesh is literally being taken from her, in exchange for financial consideration given her child (as payment of debt for one's own birth) (Locke 1988, I . 55 and passim). Pregnancy involves one's entire body being at the beck and call of another human organism twenty-four hours a day for several months. And pregnancy entails a non-negligible risk of death. Some commentators have pointed out the relative safety of the abortion procedure in contrast to giving birth as a basis for invoking Good Samaritan laws as the grounds kw abortion rights. But analogies to hypothetical Good Samaritan laws for organ donors—suggesting that criminalizing abortion would b e
like requiring kidney transplants of unwilling donors—do not hold, for reasons that are somewhat revealing. Not only do current medical ethics not require such sacrifices, the norm is that they would not allow them, as pregnancies threaten the donor's life, require huge amounts of forbearance and hardship, and are physically intrusive. Our medical ethics guidelines seek to shelter individuals from such sacrifices and are especially cautious in the area of financial remuneration.
The point is not that a sexualized body should never be regarded in terms of labor power, one feminist critique of prostitution, but rather, that the very particular harms and risks expected of pregnant women are so enormous that no liberal society would allow this, that pregnancy itself would be rejected altogether by the same principle that liberals forbid slavery, even as a so-called choice-—a practice with which women 's reproductive choice activists have sometimes, quite aptly, analogized unwanted pregnancies. The very arguments distinguishing the condition of pregnancy for purposes of abortion rights arguments resonate in calls for acknowledging the condition of pregnancy as one that entails special legal recognition. While it is unconstitutional for states to allow even mutually consensual slavery, and it is on against all norms of medical ethics to expect one individual to put her life at risk to preserve another, there is no discussion of legislation to protect women from the potential harms of pregnancy.
The dangers of pregnancy notwithstanding, the U .S. Department of Health and Human Services has not invoked the Hippocratic Oath's maxim of "First Do No Harm" as grounds for prohibiting pregnancy, which suggests that this is an act that really is sui generis. Unlike Cornell, my own objection to Fineman's "Mother/Child" dyad is not based on its wrongly excluding people from the category, but on it wrongly including those as "mothers " who do not labor to bear children. Current laws wrongly instill a dichotomy between genetic and adoptive parents and also fail to distinguish the contributions of' a woman's pregnancy to the life of her child, raising the question of new laws that would remedy these fables and lacunae.
No doubt Satz and others can find flaws in the arguments that privilege the pregnant mother as the default person who makes an initial custody decision but these should be stated, as opposed to Satz ignoring these points altogether. The lackadaisical pregnant mother every bit as much as the fastidious one risks her life through pregnancy. If Satz dislikes the principle of risk, pain and labor behind the decision rule I argue for, or if she thinks it is possible to for a "lackadaisical mother" to avoid these during pregnancy, then it would be great to hear why this is the case.