And About the Woman From the One-Night-Stand?

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For a while now I’ve been writing about the parental status of men where a child results from a one-night-stand. My conclusion has been that these men are not fathers of those children. They are, instead, like sperm donors. (Many, perhaps even most, people are quite comfortable with the idea that a sperm donor is not a father of a child produced with his sperm, even though he has a genetic link with the child. But the law on this does vary state to state.)

I’ve gotten comments, some on line here, some on Feminist Law Prof, where I frequently cross-post, and some privately, that seem to think I’m using a double standard–one rule for men and another for women. I don’t think I am, and I think I’ve said as much, but let me focus here on the parental status of the one-night-stand woman just to be completely clear.

Suppose the woman is pregnant after the one-night-stand. Is she a parent? Not at that point. First off, I don’t accept that there is a child at that point. No child means no parent. She does, however, have the chance to become a parent. If she decides (and remember, I’m indulging in a minor fantasy that she actually has a real choice here) to continue the pregnancy, then when she gives birth she will be a mother.

What makes her a mother at the point a child is born? It is not the genetic link. There is no reason why the genetic link would make her a parent when it would not make a man a parent. To say that would indeed be to employ a double standard.

But between the one-night-stand and the time of birth the man and the woman concerned here are in rather different positions. She is pregnant. He is not. And while we might say that he completed the task of fathering the child during that one-night-stand, her task continues, 24/7, for about forty weeks. At the end of which time, having provided the most intimate of care non-stop, I’d call her a parent. (For the moment I can also throw in that in deciding to continue the pregnancy she has demonstrated that she intends to be a parent, giving her an alternative claim. But I don’t really want to rely on that.)

Whatever our commitment to gender equality as a theoretical matter, the physical fact of pregnancy and childbirth remains a uniquely female experience. There can be only so much symmetry between the position of the man and the woman during this critical period. When the child is born, nine months or so after my hypothetical one-night-stand, she is a parent and he is not. It isn’t that I am using a double standard. It is that they have played different roles, roles that in this case are linked to their differing physical capacities.

-Julie Shapiro (cross posted to Related Topics)

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0 Responses to And About the Woman From the One-Night-Stand?

  1. yf says:

    It seems to me that you’re saying the involuntary physical nurturing that a women’s body provides to a fetus is, by itself, sufficient to make her a mother of the subsequent infant. I think you’re missing something. The role that a mother’s body plays for a developing fetus is, I think, no different than the role played by someone whose body is inhabited by a tapeworm, or a kidney stone. I think you need to incorporate the alternative claim of the mother’s active choice to provide care for the fetus.

    Imagine a hypothetical in which a woman is kidnapped, impregnated, and then strapped down on a gurney for the gestational period of the fetus, are you really prepared to call that woman a mother at the moment of birth? The mere physical role of incubator is certainly not necessary to establish that a person is a parent at the moment of birth, and I am not convinced that, by itself, it is sufficient.

  2. I think you propose a useful thought experiment. To me, the woman in the second paragraph (who is involuntarily carrying through with the pregnancy) is indeed a mother at the moment of birth. Which clarifies my thoughts–it isn’t about intent (except to the extent that intending not to be a mother leads a woman to have an abortion in which case there will never be a birth). It’s about function. And though I’ve never been pregnant myself, I think it’s a bit more then “a mere physical role as an incubator.”

  3. ls says:

    You compare men in a one night stand to sperm donors. Try comparing the same for women:

    A woman gestated a fetus produced from another woman’s ovum. Is a surrogate mother who agreed to carry the pregnancy for another woman/person/couple a mother in an equivalent way as a woman who underwent IVF with a donated egg with the purpose of raising the resulting child? Perhaps you consider that they are, at least at the moment of birth. If not, you have to acknowledge the role of intent.

  4. To IS:

    I’m not happy about the term “surrogate mother.” I’d prefer mother, flat out and unmodified. And, as I think I’ve said somewhere else, the egg donor is in the same position as the sperm donor. So the child born of the donated egg has one parent at birth–the woman who gives birth.

    I do realize this negates the possibility of enforceable surrogacy contracts. I promise to talk about that more soon.