Feminist Law Professors

(Note that this is cross-posted from my regular blog. So references are to earlier postings on that site. The links will take you there as needed.)
I started this thread with a specific question–should a man who engages in an isolated incident of casual sex with a woman be considered the parent of a child that results from the encounter? My proposed answer is no, and that’s really part of a grander contention that genetic linkage ought not to be a basis for status as a parent. I thought I’d start here by addressing what seems to me to be the obvious first objection–If we say that genetic linkage does not make you a parent, then aren’t we letting that guy from the one-night stand walk away scot-free?

My answer has two parts: “Not necessarily” and “So what if we are?” I’ll explain each below.

Not necessarily?–If the main concern here is providing financial support for the child (and I suspect it is) we can say that the man has financial obligations without saying he is a father. We’ve gotten into the habit of thinking of this as a quid pro quo sort of thing–you get to be the father so you have to pay support. But is there any reason why these two things have to be linked? There are countless situations where we simply hold people responsible for the consequence of their actions. I realize it might take some work to develop such a system, but nothing suggests to me that it would be impossible to do so. (I’m not sure if there are other concerns lurking here besides the child support one, but if there are, I think they can likely be addressed directly as well. That is, if there are consequences that we believe should follow from his actions, we can assign those consequences.)

So what if we are letting him walk away?–Well, in a way the question says it all. Why shouldn’t he walk away without obligation? (Notice that I’m assuming here that is what he wants to do. If he wants to be involved, then it’s a different story and I’ll deal with that another time.) The best objection to just letting him walk away is probably some concern with the well-being of either the child or the mother or society. I’ll talk about that at more length in coming days, but basically I wonder if it is really true that the child, for example, is better off if we rope the man in as “father.” What would make us think these two people who have no connection to each other beyond a few hours (if that) of carnal pleasure could effectively raise a child together? Why not let the mother either raise the child on her own or find a good partner/mate who can take on a parental role, too? Won’t everyone be healthier/happier/better off that way? I wonder about this both as a theoretical matter (which I can work through here) and as an empirical one.

I’ll end here with two parting thoughts. First, as a feminist, I cannot help noticing that what the concept of genetic parentage does is make fathers necessary. That is, if fatherhood can be based purely on the genetic link, then all children must have fathers. That means that women raising children without men are somehow lacking as families or perhaps even unnatural. I suspect this is part of the reason why cannot just let the man above walk away.

Second, I’ve got nothing against male parents. I know some wonderful ones. I think they deserve credit, support, praise and so on, just as female parents do. I think we do them a disservice when we lump them into a single category along with the one-night-stand man. Alas, I fear the term “father” as currently constructed does just that. I’d like to be able to say that they are fathers and he is not.

–Julie Shapiro (cross-posted on Related Topics)

Does “consciousness raising” exist today?  I recently asked a group of second-year and third-year law students that question.   Their answer was a resounding and collective, “Yes.”  

In Toward  a  Feminist  Theory  of  the  State, Catharine MacKinnnon  describes consciousness-raising groups as the means by which women came to discover their commonalities during feminism’s “second wave”:

[W]hat may have begun as a working assumption becomes a working discovery: women are a group, in the sense that a shared reality of treatment exists sufficient to provide a basis for identification – at least enough to begin talking about it in a group of women.   This often prearticulate consensus shapes a procedure, the purpose of which becomes to unpack the concrete moment-to-moment meaning of being a woman in  society that men dominate, by looking at how women see their everyday experience in it.   Women’s lives are discussed in all their momentous triviality, that is, as they are lived through.   The technique explores the social world each woman inhabits through her speaking of it, through comparison with other women’s experiences, and through women’s experiences of each other in the group itself.   Metaphors of hearing and speaking commonly evoke the transformation women experience from silence to voice.

What my students cited as examples of contemporary consciousness-raising bore little resemblance to Professor MacKinnon’s description, however.   As “consciousness-raising” experiences, the students cited blogs, CAKE parties (as in A Piece of Cake: Recipes for Female Sexual Pleasure) and informal conversation.   They were very clear that apart from CAKE parties, today’s “consciousness raising” takes place in mixed-gender environments.   Today’s consciousness raising does and must involve men, my students insisted.

This coeducation of consciousness raising is consistent with Rebecca Walker’s warning  over 10 years ago.   In her Introduction to the anthology To Be Real Telling the Truth and Changing the Face of Feminism (1995), Walker wrote:  

[I]f feminism is to continue to be radical and alive, it must avoid reordering the world in terms of any polarity, be it female/male, good/evil, or, that easy allegation of false consciousness which can so quickly and silently negate another’s agency: evolved/unconsciousness.

Inclusive non-polarity has immediate emotional appeal.   It allows us to live comfortably with our compromises.   Our relationships with particular men — as boyfriends, husbands, lovers, friends, brothers, fathers, mentors and colleagues — coexist with our understanding that men as a group exert privilege over women as a group.   But in the contemporary quest for an inclusive feminism, we have lost opportunities, outlets, groups, relationships in which we as women can share our experiences  with and of other women.   Consciousness raising as Professor MacKinnon described it is an atrophied feminist method that we should reinvigorate.

-Bridget Crawford

(Note that this is cross-posted from my regular blog.   So references are to earlier postings on that site.   The links will take you there as needed.)

This post is the electronic equivalent of a deep breath before plunging into the water. For the last few days I’ve been working at framing a question. Essentially I’ve asked whether a man who participates in an isolated incident of casual sex should be considered the father of any resulting child. I want to explore what happens if we say “no.” I want to suggest that might be the best answer.

This is a specific instance of a broader and more significant proposition–that we should abandon genetic linkage as a factor in determining parentage. Perhaps the fact that one is the source of egg or sperm should not figure into consideration of whether one is a parent.

While this seems a radical proposition, it’s worth noting that we’ve already traveled part of the way down this road. For centuries, a husband was recognized as the father of his wife’s child. Today, in the face of certainty that he is not genetically related to the child, the husband may be able to defeat the competing claim of the man who is the source of the sperm. Additionally many statutes define egg donors and sperm donors as “not parents.” (This is a common provision of statutes designed to promote and protect ART.) In both instances, the genetic link is irrelevant to determining who the parents of the child are. It is clear that law can and does manipulate determination of parental status to suit a variety of social purposes. Legal parenthood isn’t naturally determined: it’s a social/legal construct.

Despite this opening, we generally assume that genetic connection is the place where inquiries as to who is a parent should start. This will tell us the “real” parents, and then we can consider other factors as well.

But uncritically adopting the genetic connection as a starting point builds in a particular bias, one that might be of some concern to feminists. For men and women contribute equal amounts of genetic material when a child is created. Thus, if you start with the genetic link, you start with a vision of equally invested and equally entitled parents, one male and one female.

While this vision feeds nicely into an appealing cultural ideal of gender equality, it obscures a more complex reality. To state the obvious, only one of those two parents directly experiences pregnancy and childbirth. (That would be the woman, by the way.) But the only way to sustain the initial ideal of the equally invested, equally entitled parents in the face of this completely unequally distributed obligation is to discount the value of this contribution.

There’s nothing wrong with the ideal of equally invested, equally entitled parents. But I think we need to wonder whether contributing some strands of DNA is all that is necessary to attain that investment. That’s the larger frame for my picture.

–Julie Shapiro (cross-posted on Related Topics)

Today the Women’s Association of Law Students at my home institution, Pace Law School, held a brunch in honor of Professor Catharine MacKinnon. The students presented their annual “Pioneer of Justice” award to Professor MacKinnon in recognition of her work as a lawyer, scholar, teacher and activist. In her remarks to the assembled group of students, faculty, alumni, local lawyers and community members, Professor MacKinnon was thoughtful and thought-provoking. She said many things that have kept me thinking all day.

One of Professor MacKinnon’s remarks was simultaneously simple and complex: “Law does matter.” This belief in the law’s capacity to make equality meaningful is part of what makes her writing so interesting to me. Professor MacKinnon’s theory of gender and power is so comprehensive that it could descend into paralysis, but it doesn’t. From her unflinching study of the systemic subordination of women, MacKinnon emerges with optimism — an optimism that the law can and will do better.

After the brunch, Professor MacKinnon was extremely generous with her time. This semester, Darren Rosenblum and I have been teaching a 1-credit, intensive legal theory seminar centered around MacKinnon’s work. Professor MacKinnon met with our group of seminar students and shared ideas on everything from pop culture to sexual freedom. She brought a special intellectual energy and excitement to that classroom.

-Bridget Crawford