Motherhood and Contract
Copyright (c) 2000 Buffalo Women's Law Journal
Buffalo Women's Law Journal
2000 / 2001
9 Buff. Women's L.J. 191
LENGTH: 10349 words
ARTICLE: Motherhood and Contract: Always Crashing in the Same Car
... Similarly, contracts for egg donation, child care, and other forms of
household labor have met with criticism from both ends of the political
spectrum. ... If attackers of maternal contracts express certainty about
anything, it is that the best child care is provided by the mother herself. ...
Coverture is no more, and the marriage contract obviously is not what it used
to be. ... These commonplaces mean that dissolving a marriage contract does not
always result in compensation for women. ... In other words, the marriage
contract is both an individual and a social contract, since, in asking a
community to recognize its commitment, a pair becomes an embodiment of that
community's idea of what a married couple is. ... As I have demonstrated in
the first two sections of this essay, the marriage contract is accompanied by a
series of other intimate contracts--over sexual activity, pregnancy,
childbirth, and child-rearing--that are as culturally pervasive as they are
binding. ... This radical compounding of value can be said to underwrite the
bulk of the demands that face women when they enter into the marriage contract.
... Their representation of surrogacy as just another contract for service,
however, does not adequately describe the cultural forces at work within
it--forces that only become apparent when the surrogacy contract goes awry. ...
[*191] The paradigms of contract and mother are undoubtedly at odds.
n3 Contract, in its most elemental legal guise, is at once a legally enforceable
agreement and the product of a negotiated transaction. Put another way, the
parties involved in a given contract are
"arm's-length transactors," understood to have bargained for whatever object or service a given contract
n4 By standing at arm's length, the transactors are able to reach some optimal,
mutually satisfactory result. This paradigm is, of course, an ideal within the
law; nevertheless, it forms the basis for contractual interaction and analysis.
n5 Still, the ideal's pervasiveness has shown most clearly in the ways it has
been reproduced outside of legal discourse. It appears not only in fundamental
economic textbooks, but also in guides to negotiating
[*192] and even in works that focus on education, diet, and sadomasochism.
However ubiquitous it may be in its current manifestations, however, this ideal
of the arm's-length transactor finds itself fundamentally at odds with the
equally pervasive ideal of a
"mother," the ultimate caretaker who never renounces the obligations that motherhood
n7 Part of this opposition arises out of the various dichotomies that demarcate a
mother's identity and domain, the irony here being that what is presented as
fundamentally natural and historically transcendent has itself been radically
transformed over the past two and half centuries. As Thomas Lacqueur and others
have demonstrated convincingly, late eighteenth-century idealizations of
motherhood brought with them a number of accompanying assumptions about the
nature of domesticity, defining it as a resolutely private space free from the
economic concerns of its public counterpart.
n8 Such an elegant partitioning of gendered space suggests as much about the
mutual dependence of motherhood and modern economic theory as it does about
Enlightenment ideals of symmetry. Placed squarely within
[*193] this domestic space--and at a time when American and Scottish political
economists were redefining a public sphere characterized by the contradictions
of individual self-interest producing public good--mothers became defined by
lack of self-interest. Motherly selflessness, furthermore, derived much of its
force from the biology of childbirth, breast-feeding, and early childcare,
rendering it all but inaccessible to men and childless women.
n9 The paradoxes attending its formulation, when opposed to those of the equally
"natural" arm's length contractor, are worth noting, since motherly selflessness in the
public world would prove as
"unnatural" as selfish negotiation in the private. Even more striking, however, are the
assumptions at work in contractual and motherly ideals concerning
"distance"--since arms-length transactors, by definition, must remain distant from the
other person bargaining, while representations of motherly experience often
idealize the closeness and connection between mother and child.
Yet, despite these paradigmatic differences, the concepts of arm's length
transactor and mother are far from exclusive in practice. Modern households are
strikingly economic entities, and it is no accident that the word
"domestic" emerges in the eighteenth century usually attached to the word
n11 However rarely
[*194] we might see
"economy" coupled either then or now, women still regularly contract for services
usually designated as tasks for mothers to perform.
n12 Women contract to take care of
[*195] other women's children and to do the household tasks designated as another
n13 They even act as surrogates, bearing children in other women's stead.
[*196] contracts" occur frequently and have a lengthy history.
n15 As might be suspected, they also inevitably come with vocal detractors, who
insist that motherhood must remain separate from the experience of contracting
for such services or, indeed, from any sort of contract at all.
One concern often raised, for example, is the threat of overreaching and
coercion, particularly for women who become surrogates. Confronting the issue
of whether surrogacy contracts are enforceable, Martha Field and Elizabeth
Anderson have argued that these contracts cannot be anything other than
[*197] since they can constitute offers that women simply cannot refuse.
n17 Similarly, contracts for egg donation, child care, and other forms of
household labor have met with criticism from both ends of the political
spectrum. While social conservatives have usually attacked such contracts by
claiming that women who do so have selfishly deviated from their true role as
mothers, liberal and progressive thinkers have pointed to the ways in which
these contracts have enabled wealthier women to exploit their poorer
counterparts in the name of achieving greater household equity.
n18 These same criticisms often accompany arguments attacking transacted labor
more generally, so that maternal contracts serve as emblematic cases of the
ways in which contract perpetuates inequality.
Implicit in these positions, of course, are assumptions about women's special
fitness for providing child care; coupled to these are even more determined
beliefs concerning motherhood. If attackers of maternal contracts express
certainty about anything, it is that the best child care is provided by the
n20 Even in the face of these criticisms, however, women continue to contract for
child care and other forms of domestic service, whether as purchasers or
providers, and they continue to struggle with the problems that these contracts
[*198] monetarily, and otherwise.
n21 This essay, then, seeks most fundamentally to explore the competing
ideological demands made upon women--and the negotiations that result--as they
encounter motherhood and the institutions associated with it: marriage,
pregnancy, childrearing, and domestic labor. In looking to the nature of these
negotiations, I wish to expose how women's experience of motherhood is marked
both by a series of legal contracts and by agreements that have the cultural
force of contracts, if not their legal effect. I do so to demonstrate the ways
in which women, when subjected to the competing demands of contract and
motherhood, act as they simultaneously are acted upon, particularly when they
attempt not to mother, or not to be mothers, even for a brief amount of time.
Much of my interest in the relationship between motherhood and contract stems
from a desire to analyze motherhood's power as an ideological construct and to
expose the often contradictory assumptions that characterize it. In other
words, I seek to explore the extent to which contract as an analytical approach
can be brought to bear upon motherhood--to demonstrate not only motherhood's
ideological contradictions but also the decisions women make when confronted
I. The Marriage Contract Revisited
I begin with the marriage contract because it is the primary contract women
negotiate with regard to motherhood and the legitimacy of her motherhood.
Referring to issues of legitimacy may at first appear archaic. Having a child
out of wedlock, after all, no longer results in equal protection violations for
the child or
[*199] inevitable social ostracism for both mother and child; yet recent debates over
welfare reform and abortion have confirmed that unwed mothers and their
children still experience profound discrimination and social stigma.
n23 In such a political and moral climate, marriage still functions as a powerful
legitimizing tool, and so my aim in beginning here is not only to examine how a
woman legitimates herself through the marriage contract, but also to
interrogate what that contract ultimately entails.
Coverture is no more, and the marriage contract obviously is not what it used
to be. Certainly women are not generally betrothed as infants through
contractual arrangements between families, nor can dissolution of a marriage be
considered as a broken contract between two men.
n24 Even the most cursory examination of courtship and marriage rituals, however,
shows the degree to which marriage is still characterized by a series of
agreements, some of which are overtly contractual. The most notorious of these
agreements, the prenuptial contract, echoes an earlier form of negotiation, but
here, the paradigm is not one of two men contracting for a transfer of property
but rather of a man and a
[*200] woman setting forth, either verbally with one another or in writing, the terms
of their agreement. Such contracts are entered into, of course, with the
knowledge that both parties can end that relationship, and that the division of
assets is set forth prior to divorce.
These commonplaces mean that dissolving a marriage contract does not always
result in compensation for women. Although courts will enforce prenuptial
agreements, they have been reluctant to acknowledge contracts for domestic
labor or affection, not only for the overtly contractual rationale of lack of
consideration, but also in the name of such contracts
n25 Idealizing marriage in this way produces counter-intuitive results, since such
exclusions result in traditional women's labor receiving no compensation in the
event of dissolution of the marriage agreement. Such judicial language
demonstrates two further tendencies at work here. First, it shows that when
contractual analogies are placed onto the marital contract, women's labor and
their accustomed contribution to a marriage are excluded from monetary
compensation. Second, it strongly suggests through this exclusion that if women
are remunerated for their labor, their compensation takes forms other than
Even in situations apart from the formal prenuptial contract, marriage does not
occur without a series of other gestures and agreements that have legal force.
Matters such as licensing, blood tests, and ceremonies combine to create a
marriage. Taking up this sense of social ritual and linguistic gesture as
ultimately legal, Carole Pateman thus defines the marriage contract as both the
ceremony of marriage and the act of consummation of the marriage.
n27 She also notes that marriage is a monolithic and inescapable contract: married
couples cannot choose between
[*201] several contracts when they marry; they can only elect to enter the marriage
n28 Beyond its historical function as an expression of male sex-right,
commentators have argued at length at what the marriage contract entails, and
what its components--moral, legal, and ideological--are, but there appears at
least to be a consensus that the marriage contract is almost wholly unlike
other contracts, and must be analyzed as such.
Bearing these views in mind, a marriage at first may appear to be a volitional
decision between two people too close at hand to be at arm's length from one
another; nevertheless, two people must agree to get married and, once married,
must create their own
"marriage" as they see fit. As any married couple knows, however, other conventions also
are at work here. Signing a marriage license and performing other necessary
rituals might make one's marriage legal, but the social conventions surrounding
one may very well enforce, either contractually or seemingly so, a model of
marriage very different from that originally envisioned by the two
participants. These social conventions, in Pateman's sense, are as central to a
"marriage" between two people as the vows they have made or the documents they have
In other words, the marriage contract is both an individual and a social
contract, since, in asking a community to recognize its commitment, a pair
becomes an embodiment of that community's idea of what a married couple is.
Deviating from such a norm means threatening to break this agreement to abide
by the boundaries that marriage prescribes. A small amount of manipulation of
these contours might be possible providing both contractors agree to it (a
woman may not agree to
"obey" during the marriage ceremony, for example); and divorce is, at least at this
point in time, a possibility for married couples. Yet, the
[*202] opportunity to maneuver does not lessen the fact that, especially for women,
getting married and being married is to be subjected to an array of competing
(and contradictory) social conventions in exchange for certain legal and moral
protections. That is the
"deal" that a woman makes, or, in retrospect, finds herself to have made.
Considerable criticism in the last decade has been directed at modern marriages
for their supposed overemphasis on individuality and contract. These arguments
claim that current marriages are concerned less with commitment than with
selfish individuality, and, as such, harm children and threaten the social
n31 What these representations show more than anything is just how odd a social
and legal animal marriage is. At once a linchpin of social mores and of
punditry, its status shifts uneasily between both status and contract. Women
may get married for a variety of reasons, from the personal and emotional to
the economic and social, but once they are married, they achieve the status of
marriage. From this point onward, the law reflects this status and concerns
itself primarily with the nature of the relationships formed and the
maintenance of the commitments formed if those relationships are severed, i.e.,
the contractual underpinnings of marital status once again become apparent with
n32 In other words, marriage is status law, but contract shapes and informs it.
The contracts resulting in the status of marriage provide obvious social
benefits to women, since, along with the legitimization of the children born in
marriage, the act of sex itself is given legitimacy.
n33 As a result, to become a mother without the
[*203] sanction of the marriage contract is to cut against the model of social
interaction and male sexual ownership. Motherhood may be constituted through a
variety of social interactions and constraints, but actually becoming a mother
requires the rather unrelenting and unexceptional fact of sexual conduct.
n34 My concern here is not in spelling out biological niceties, but to note that
marriage's legitimization of the act of sex also means something for women who
have children outside of marriage, since these women who have children outside
of marriage are fulfilling their maternal function, but they have not
contracted to do so.
Acknowledging the presence of contract in marriage, I contend, makes
other contracts become more apparent as well, both in their form and in their
function. This is particularly true of those contracts that relate to
motherhood and the duties that motherhood imposes. In so stating, I now turn to
what a woman bargains for when she chooses to become pregnant, assuming at the
outset that such a decision is a choice.
n35 Given that contract is superimposed on both marriage and sex (both precursors
n36) I find motherhood in its most socially
[*204] acceptable form to embody a kind of contradiction in terms--a noncontractual
status that one should contract to enter. This same status places women in the
equally contradictory state of becoming either
"failed" or nontransacting transactors: women must at once negotiate the duties and
expectations motherhood imposes without appearing to do so, since the woman who
bargains over the
"terms" of motherhood is perceived to be an affront to the institution of which she is
a part. Even the process of becoming pregnant by choice demands that a woman
negotiate her way through a number of agreements and non-negotiable conditions.
Should these choices result in marriage, they include the presupposed
conditions of becoming a mother. A woman can try to resist this maternal status
that is part of the marital status, but her resistance nevertheless is defined
by the role of motherhood imposed upon her, even if she chooses not to have
children and that role is never realized.
n37 In other words, a woman who is married is
presumed to be a mother regardless of whether she becomes one--a presumption that, in
turn, forces her to assume a status supposedly free from the logistics of
contract and contractual choice.
II. Sexual Contract and Maternal Status
Of course, many women want to be mothers even outside of the love, affection,
and social approval they receive for having children.
n38 They find motherhood, its promises, and its attendant
[*205] duties attractive and fulfilling, so much so that they would make considerable
sacrifices at any negotiating table to gain them. Often, the degree to which a
woman values motherhood only becomes visible during divorce
proceedings--divorce being that instance not only when fraught financial and
parental negotiation occupy the same arena, but also when women become aware of
the financial value of the maternal agreements they made while married.
But what of women who decide not to have children? Into what negotiations must
they enter, and with what risks and what repercussions? Looking back to the
negotiating ideals espoused in contract law, we know that the process of
negotiating any contract entails the possibility of rejection: that a party at
any time may walk away from the bargaining table either permanently or to gain
better terms. Applying this paradigm to the negotiating process women face in
becoming mothers, we might consider the mother/contractor (or perhaps
"maternal transactor") to be similarly free, with all attendant risks, to walk away from the
prospect of motherhood by deciding to defer pregnancy or by determining not to
have children at all. Such a negotiating model would appear to apply most
readily to women who choose to abort a pregnancy, since ideally they have
weighed the pros and cons of motherhood and have rejected its prospects and
promises. In such situations especially, a woman can be perceived as being akin
to contract law's idealized arms-length transactor that empowered agent who,
however profound her maternal feelings, can take or leave a deal depending on
the terms offered.
Yet women who abort, however counterintuitively, reject precisely these
characterizations and views when representing themselves and their reproductive
choices. With a stunning regularity and sameness, women who have chosen to
abort their pregnancies point not to a revolutionary sense of negotiating power
[*206] but to the anxieties, personal anguish, and moral quandaries attending the
n40 Furthermore, their testimonies raise other associated issues. For example,
married women who have abortions after genetic screening often compare
themselves favorably to teenagers who have abortions as a result of
"immature" sexual activity.
n41 As such, a number of these women either describe their decision exclusively
within the context of their desire
to be mothers or by utilizing a language of maternal failure--i.e., that as a mother they
"good" or self-sacrificing enough to raise a disabled child.
n42 Such lamentations indicate that for some women there exist children not worth
motherhood's selflessness and sacrifice. In addition, however, they suggest a
complex awareness of the social contradictions attending abortion, issues
arising from the association of female selfishness with maternal
decision-making. Most women therefore explain their decisions to abort by
mourning both the child they would have had and the selfless ideal of
motherhood they would have valued. Both rhetorically and psychologically, such
an approach appears to be largely successful; women who abort disabled fetuses
perceive themselves (and are perceived) as deserving sympathy. Their line of
argumentation further suggests just how difficult it is for women to reject the
maternal role and the anti-contractual and anti-market rhetoric that
[*207] Such situations are accompanied by other forms of contractual reckoning as
well, forms that, not surprisingly, differ across ethnic groups. In a recent
study of women contemplating abortions after amniocentesis, white women usually
described their decisions in terms of selfishness and selflessness. Latina
women, meanwhile, spoke most often about avoiding fetal suffering, while
African-American women most often pointed to the views and needs of other
relatives and the availability of childcare. That women who face differing
pressures and social perceptions would describe their predicaments differently
is perhaps to be expected. Even more striking, however, is their common
perception of obligation--their shared sense that a vast range of
responsibilities will result from their pregnancies; that these
"female"; and that the duties of motherhood, even in the case of abortion, cannot be
wholly rejected. Even among women who have chosen to have abortions, the
concepts of selfless motherhood and maternal obligation play a central role in
self-definition and self-perception, even though a range of vocabularies might
be used to delineate what those obligations might be.
These prevailing criticisms about women's maternal selfishness, though, hardly
preclude the imposition of a transactor role being placed upon women's sexual
activity. Above nearly all other things, women are to be rational actors when
they have sex, especially in regard to whether a particular sex act results in
pregnancy. Even women who are presumed to be unthinking and oversexed are held
in line with this transactor ideal--they engaged in sex, knowing the
consequences, and must be made to pay for that activity. Regardless of her age
and in spite of prevailing assumptions about sex as a
"natural," uninhibited, unlearned, and hedonistic activity, a woman (or girl) who has sex
is presumed to be a kind of natural contractor, an innately rational transactor
[*208] aware of
"what she's getting into" by virtue of her essential sexual agency.
Yet once she has supposedly negotiated her role as a sexual actor, a woman must
then leave that role behind to become a mother. It is in this transition from
sexual contract to maternal status, moreover, that the contradictions attending
not to have children become most marked. A woman who aborts may be perceived as an
icon of sexual agency, but she also is seen to be flying in the face of
maternal presumptions and duties, particularly those of endless responsibility
and of limited fertility.
n46 In other words, a woman can perhaps be too pregnant, or pregnant too often;
she cannot, however safely decide
never to be pregnant, but rather only to delay being pregnant in an appropriate and limited way.
Saying no to motherhood, then, is at best a process of proper deferral--with
ensuing punishment if motherhood is not ultimately accepted, or if the mother
herself proves not ultimately acceptable.
III. On Not Having Children
For many people, choosing not to have children--or even explaining their
uncertainties about having them--is not possible.
n47 Ideologically speaking, a woman is never entirely infertile, nor can she
choose permanently to be infertile. This is not to say that no women are
infertile--on the contrary--but that women are never entirely perceived as
such. Rather, a woman is seen always as
potentially fertile, or as needing to become fertile. Such assumptions operate most strikingly in
the cases of infertile women
[*209] who want to have children, since even these women encounter an emblematic
combination of sympathy and thinly disguised anger. On one hand, they receive
copious advice, commentary, and (if possessing adequate funds) the most
advanced medical aid to treat the malady.
n48 On the other, they receive a fairly striking apportionment of blame,
particularly in an age in which infertility has been postulated in the public
imagination as an epidemic experienced by careerist women.
n49 Selfish in their sexual transactions or in their decisions to delay marriage
and to advance their careers, infertile women are presumed to be punished for
their selfishness by their infertility. Even amid the omnipresent force of
reproductive technology, their potential for atonement is limited at best.
n50 An infertile woman might be able to become pregnant with the help of such
technology, but she is not free of social sanction in putting herself through
such a process. Having presumed to contract for marriage with a measure of
equity, women who have achieved market success now find themselves told that
they are not only inferior women (unable to be mothers) but also
would be inferior mothers, since the same selfishness that has produced their
infertility would, in turn, produce potentially inferior offspring.
As might be expected, this same brew of advice and animosity, with even greater
potency, greets a woman who does not want to have children. Choosing to
question what is above question, this woman may be said to occupy a more
[*210] position than the selfish aborter, who may still recuperate her abortion via
"chosen" motherhood. Unlike the selfish infertile woman, she is also beyond atonement,
since she suffers neither from her inability to have a child nor from painful
fertility treatments. If married, she moves entirely beyond the pale, since she
cannot even function (like unhappily unmarried and childless heterosexual
women) as an object of pity.
n52 Possessing no such means of self-justification or self-abnegation, she becomes
an affront to marriage itself, since her rejection of the maternal role becomes
an attempt to elude the terms under which she entered the contract and status
of marriage in the first place.
These negative judgments regarding women who do not have children, moreover,
are not confined exclusively to men. Women who decide not to become mothers can
provoke anger in other women, who sense a value judgment of their own choices
and the duties that have come with them.
n54 In addition, women
[*211] who do not have children are viewed as unthinking and unfeeling towards women
who do. Apparently unable to imagine the burdens associated with having
children, they are perceived as less emotionally and spiritually evolved.
n55 Yet ironically, these supposed incapacities of childless women in no way free
them from domestic and maternal responsibilities. Indeed, these are women who
are pressed into becoming caretakers of other family members and other women's
n56 Thus, even while she is considered less worthy because she is not a mother,
the childless woman nonetheless finds herself assuming her
"share" of maternal and familial responsibilities, since, by virtue of her being a
woman, she must utilize her time doing the work that mothers do.
As with the criticisms faced by women who have abortions, those faced by women
who choose not to have children differ depending on age and group
identification. A white and middle class woman, for example, might be blamed
for helping to create differential rates of reproduction among racial groups.
In such a situation, she is told she is the kind of woman who is entitled to be
a mother, who should be a mother, and who will be, by shirking her maternal
duty, causing harm to social stability and progress. By contrast, a woman who
belongs to a minority group or who is
[*212] working class faces censure for having too many children or for simply having
them at the wrong time. While such criticisms are fueled in part by a desire to
reduce reproduction in stigmatized groups, they are also driven by equally
powerful assumptions about fertility and sexual agency, particularly in regard
to minority women.
n57 The result is an almost untenable set of contradictions, since minority women
face both the larger societal prejudice that they should not reproduce even as
they are assumed to be incapable of managing their own fecundity.
n58 A woman of a minority group deciding not to have children
altogether, then, is apparently unthinkable. Put another way, where legislative and
popular views of personal and sexual responsibility demand fertility be
selective, women neither can become too fertile nor decide for all time not to
IV. On Having Other People's Children
Given the pervasiveness with which concepts of contract are inscribed into
ideas of legitimate motherhood and sexual activity, we might expect
reproductive agreements that rely upon legal contracts to be greeted with
either relief or indifference. A culture that already idealizes sex, marriage,
and reproduction as the
[*213] products of mutual agreement between equals might well embrace contract as a
tool to formalize such agreements. As the controversies surrounding surrogacy
and adoption contracts demonstrate, however, contracting for motherhood--or for
the duties that traditionally accompany it--usually produces the opposite
Nowhere is the ideological gap between bearing another's child and bearing
one's own child more apparent than in the controversies surrounding surrogacy.
Calling surrogacy, aptly enough,
"contract motherhood," a number of scholars have expressed concern over the fairness of the legal
agreements attending it.
n59 Often compellingly, they have questioned the capacity of women to make such
contracts, citing the disparities in bargaining power that exist between women
who are surrogates and the couples who contract with them.
n60 Such disparities, in
[*214] more radical critiques, have led commentators even to compare the situations
of surrogate transactors to those of prostitutes.
Given that surrogacy appears to be more often discussed and debated than
practiced, surrogacy itself exposes anxieties over any connection between
contract and motherhood. I find the relentless debate over surrogacy
interesting in part because it serves as an indicator of the anxieties people
feel over motherhood, both as an entitlement that women have and as a practice
in which they must engage. While expressing valid and, indeed, vital concerns
about exploitation and commodification, critiques of surrogacy nevertheless
often ignore the troubling contractual aspects inherent in
"real" motherhood itself. Most frequently, they presume that mothers perform their
labor (reproductive and otherwise) for free, and, in so doing, achieve their
due measure of legal and social legitimacy. This presumption is understandable
and perhaps unavoidable, yet it relies upon an inference that deserves
interrogation. Critiques of surrogacy contracts may claim that such contracts
change the function of a woman's uterus from
"motherhood" to that of
"service," but the fact that women have contracted to provide such a service does not
mean that women have necessarily
not contracted for motherhood either. As I have demonstrated in the first two
sections of this essay, the marriage contract is accompanied by a series of
other intimate contracts--over sexual activity, pregnancy, childbirth, and
child-rearing--that are as culturally pervasive as they are binding. The
responsibilities bestowed by such agreements, for most women, constitute the
"real" motherhood, which are further sanctified by the selflessness definitive of
Real mothers are not paid for their labor, then, not because it is valueless
but because it is supposedly priceless. Yet, when that labor is contracted out
to others--as it is every day to nannies, daycare workers, and domestic
laborers--it becomes transformed into low-paid (and often unskilled) work. It
is a transformation worth considering, especially for the ways in which it
allows us to locate, with precision, the source of laboring mothers'
"real," inestimable value. Maternal labor, however it may be priced on the open market
when done by others, apparently increases exponentially in (ideological) worth
when done by the mother herself.
n62 This radical compounding of value can be said to underwrite the bulk of the
demands that face women when they enter into the marriage contract. Given the
high value of such work when done by wives and mothers, it is assumed that
women entering marriage will of course avail themselves of the opportunity to
maximize their own worth. As might be expected, women who contract to have
their labor done for them face questions and criticisms similar to those
attending any act of outsourcing. Considering the magnitude of difference
existing between the value of her own labor and that of the person she pays, it
is difficult for her to defend such a cheapening of her duties even if her own
labor proves more profitable in the marketplace than in the home.
That such assumptions inform even radical feminist critiques of surrogacy is a
testimony to their pervasiveness and power. Arguing that surrogacy is
inherently harmful, theorists like
[*216] Carol Pateman presume the move from motherhood to surrogacy to be one of
desecration. Their representation of surrogacy as just another contract for
service, however, does not adequately describe the cultural forces at work
within it--forces that only become apparent when the surrogacy contract goes
n63 Simply put, were surrogacy merely a contract for service, a surrogate refusing
to give up a baby would have no legal case in court. Paid to nurture a fetus
and perhaps to provide half of its genetic material, the surrogate in a strict
contractual scenario has negotiated to exchange her parental right to that
fetus for a fixed sum. That courts have found surrogacy cases more complex than
other kinds of contract disputes suggests that surrogacy agreements obviously
involve more than just a contract for service. What is being bought is not the
ability to bear children but motherhood itself. Such a purchase involves much
more than simply acquiring the right to claim a child as one's own. With it one
also acquires the full cultural heft of motherhood: the right to claim maternal
status with all its accompanying privileges and duties; and the right to value
that status and those duties as priceless.
Where surrogacy contracts have come under dispute, the surrogate's ability to
claim this status of motherhood usually comprises the strongest part of her
case. Here, she argues that her own ignorance of the value of motherhood must
render the contract void; having contracted to provide a
"service," she discovers that
[*217] she is in fact imbued with the full status of motherhood. When considering
such cases, therefore, courts must determine what constitutes parentage, and
confront this question by weighing the competing claims of the ownership of
genetic material, the acts of carrying and giving birth to a child, and the
best interests of the child produced.
At least two inferences can be made from the cases and commentary surrounding
surrogacy. Most immediately, both suggest that
"real" motherhood is as much a matter of property and ownership as of embodied
experience. More broadly, they make plain that unreal mothers--those unable to
claim both genetic tie and embodied experience--have a much more difficult time
attaining the status of motherhood. Or, put another way,
"real mothers" are the women most likely to retain their high moral status if forced to
contract to have some of their duties done by other women.
The question of surrogacy becomes further complicated by the possibility of
adoption, often posited as an acceptable and less exploitative alternative to
n65 (While the politics of adoption themselves also have raised considerable
n66 adoptive couples are rarely if ever criticized for
not using a surrogate.)
n67 Women trying to become adoptive parents, however,
[*218] sometimes find themselves criticized for commodifying babies or confronted
with the task of conforming to adoption agencies' highly restrictive notions of
"mother" should be.
n68 They also confront many of the same cultural assumptions that come with
contracting with a surrogate. Sympathy for the birth mother and suspicion of
the adoptive mother are implicit in the transaction,
n69 and evaporate only when the child to be adopted is somehow disabled, damaged,
or otherwise (economically or literally) abandoned. In such cases, maternal
selflessness and self-sacrifice--mothering a child no real mother would
want--lets a maternal transactor off the contractual hook. Where the
selflessness of the mother has the power to remove the taint of contract, one
can safely adopt children only who have been refused by their
If adoption contracts have gained more rapid social acceptance than surrogacy
contracts, part of this relative ease stems from the degree to which the
pregnant female body figures in each transaction. When she
"gives" her child up for adoption or places it on what has been called the
"grey" adoption market, her pregnant
[*219] body is less central to the transaction than that of the surrogate mother.
n70 Her body, after all, has not been controlled during the course of the
transaction. A woman contracting to adopt a child, therefore, finds herself
involved in a less debased negotiation than when she contracts with a
surrogate. Whereas the centrality of the latter's pregnant body (and its
attendant claims) make this transactor's
"right" to the child more tenuous, she can contract for motherhood in an adoptive
context without any form of
Such distinctions suggest more about the prevailing anxieties attending women's
bodies than about the exploitation of women's bodily integrity. But most
striking in commentaries on adoption and surrogacy--and many can be found--is
the predominance of statements about the fragility of motherhood and the
potential for debasing it. Within these discussions, motherhood stands as a
transcendent construct, ahistorical, monolithic, and impervious to cultural
change. While such notions may be useful in the heat of a litigation battle,
they become roadblocks to understanding why some pregnancies are real and
others are not. Looking to the history of motherhood and the contractors
surrounding it, from wet-nurses to governesses, we find neither consistency nor
stasis in dominant notions of mother or child.
n72 The fact that other women have contracted for motherhood (and have done so
across centuries and national boundaries) does not
[*220] mean, of course, that surrogacy is somehow free of exploitation. However,
bearing in mind how other women have contracted for motherhood promises to make
our discussions of surrogacy and adoption more nuanced--particularly in
explaining how the issues attending the ideological desire for selective
reproduction transform so quickly into questions concerning the morality of a
market-based approach to reproduction. In the final section of this essay, I
take up this issue of the market, and explore what happens when motherhood
itself is commodified, and mothers, perhaps not surprisingly, come cheap.
V. Bad Mothers as Transactors
Much as a woman who chooses not to have children occupies an irredeemable
position within reproductive ideologies, a mother either unable or unwilling to
be selfless is perhaps the greatest affront to motherhood of all. This woman is
unable to meet social standards of care for her children or else harms them by
commission or omission.
n73 Even in the course of examining motherhood as a positive experience for
women--one that can be unique, fulfilling, and indeed worthy of
celebration--the figure of the bad mother stands as an ever-present attendant
on that experience. Bad mothers (depending on whom you ask) are abusive and
neglectful, surrogate and adoptive. They work because they can't stand to stay
at home and they stay at home because they can't stand to work. As signs of
moral decay, such women embody selfishness and insane autonomy. The bad mother
is a useful device; she stands as a model of self-reproach and as a means of
policing other mothers. She also is a marvelous assurance for one's own
behavior. Through her women must confront themselves as
[*221] mothers and as women who at some point might wish to abandon motherhood
Her specter perhaps looms largest over the issue of childcare, and registers
most distinctly where child care workers harm or kill their charges. In such
cases, the mother of the child will find herself criticized for leaving her
child or exposing that child to harm. The fact that children are more likely to
come to harm at the hands of parents and relatives than under the care of a
stranger is beside the point; what is condemned is her decision to walk away
from the child.
n75 Such criticisms are particularly strident in the case of mothers who do not
"have" to work. Women who separate from their children on the basis of economic
necessity can at least claim to prefer the home to the marketplace. These
processes of differentiation and self-determination reveal the associated
beliefs that what is best for children is a mother's continual presence, and
that anything less will harm them.
n76 The fact that attacks on women in the market have been most virulent towards
elite women--those most able to contract and most able, in a sense, to submit
to the private subsidy of mothering--indicates
[*222] that the prospect of a mother outside of the home becomes most threatening
when she does not have to be there for her own economic survival. She is most
not to care, to be a bad mother abandoning her duty of selflessness, when seduced
by her own market power.
Even in cases where all of the maternal labor in a household is contracted to
outside laborers, the contractual relationships that result are nevertheless
gendered. The manner in which women perceive the relationship between
themselves and the caretaker indicates that they view this work as
"their" responsibility. In terms of who interviews and takes care of the logistics of
childcare, women do the bulk of this work. Married women who are mothers,
moreover, often consider that their salaries (not their husbands') pay for
domestic assistance, suggesting that even their transacting market-based selves
assume responsibility for childrearing and domestic labor. The model produced
here is one of mother as reduced market actor and as potentially bad mother,
regulating and providing for the private sphere and having, at best, limited
involvement in the public sphere.
The contradictory status of the maternal transactor is further supported by the
fact that the most frequent maternal contracts are those least likely to be
acknowledged as such. Our unwillingness to associate motherhood with nannying
and other forms of childcare
[*223] confirms the idea that real motherhood and contracted childcare are an
ideological contradiction in terms. Their real wages being of low value,
furthermore, preserves the idea of real motherhood as occupying a space outside
of the market.
n78 For these reasons, attempting to value maternal labor is often derided
(derived?) as offensive or impossible, since the affection and satisfaction
women receive from it makes it of such high value that doing so becomes
useless. Still, women's experiences of doing unpaid labor in the private sphere
indicate other forces at work. Women customarily spend their time away from
work on domestic care. Men, primarily, do not. Where
"leisure time" away from work is supposed to be a means by which people recover from their
work day and find rejuvenation in rest and recreation, women may be so
overworked that they cannot take advantage of the benefits that the private
sphere can offer.
n79 Instead, women occupy their hours of leisure with work that is
"theirs"--"theirs" as duties to be assumed rather than as obligations to be rewarded.
As such, we must conclude that maternal labor receives sentimental rather than
economic value, and that maternal transactions are always attended by some kind
of flaw or failure. As she negotiates her way between the public and private
sphere, the maternal transactor is reminded constantly that other people's care
can never be as good as hers, and that every moment spent in the marketplace
harms her children. Whether transacting to have work done for her or
contracting to do work for another, she is reminded again and again that the
experience of transacting harms all the parties involved by alienating
caretaking from its supposedly
"natural" and biological mores and moving it to a form of low-level economic
exploitation. Once she does so, she is told that the labor is no longer
"special" because it is no longer provided by a particular kind of mother; it may be
compensable, but it will never be priceless. The responsibility is hers in the
contracting. The experience is hers for the contracting. And in all events she
will end up a bad mother, once her negotiations begin.
[*224] Part of my insistence in this essay on re-imagining marriage, pregnancy, and
child-rearing through the language of contract, then, has arisen out of my
desire to demonstrate the usefulness of contract as an analytical paradigm to
feminists to demonstrate the ways in which women encounter motherhood and the
costs they incur as they attempt to negotiate their relationship with that
institution. In the process, however, I hope that I also have demonstrated the
ways in which all of these topics are presided over simultaneously (and
contradictorily) by ideas of contract and status. While recognizing the
transactions mothers enter, we must also recognize the ways in which women,
through motherhood, have been given an offer that they cannot refuse. Both
motherhood and contract are surprisingly fluid, so much so that an overly rigid
formulation of choice is neither useful nor realistic. If motherhood is a
status, and a status that cannot be refused in its entirety, then the ways in
which mothers are allowed to transact offer up other insights that demonstrate
the threat that even these limited negotiations present to prevailing ideals of
both motherhood and contract.
n1 DAVID BOWIE, LOW (RCA Records 1977).
n2 Lecturer, College of General Studies, University of Pennsylvania.
n3 As Adrienne Rich and others have noted, a woman's experience of motherhood
diverges from the institution of motherhood.
See, e.g., ADRIENNE RICH, OF WOMAN BORN: MOTHERHOOD AS EXPERIENCE AND INSTITUTION,
see also ANNE FINGER, PAST DUE: A STORY OF DISABILITY, PREGNANCY, AND BIRTH 169-72 (The
Women's Press Ltd. 1990). However, the paradigm of motherhood is always
embodied in the mother. Even the gender neutral
"parenting" or the gestures made by various authors that nurturing can be done by both
sexes often imply (or use) the word
See, e.g., JULIA GRANT, RAISING BABY BY THE BOOK: THE EDUCATION OF AMERICAN MOTHERS 3-10
(1998); ALICE MILLER, THE DRAMA OF BEING A CHILD at 34-39, 54-56, 74-75, 125-27
See FARNSWORTH ON CONTRACTS,
§ 1.2, 5. (3d ed. 1997) 7; ANDERSON ON THE
UCC, § 1-102:286, 192-93. (3d ed. 1981-90).
See, e.g., Farnsworth,
supra note 4, at
see also CORBIN ON CONTRACTS,
See, e.g., PAUL A. SAMUELSON
& WILLIAM D. NORDHAUS, ECONOMICS 3-5, 80-85, 265-68 (1998); CAMPBELL R.
& STANLEY R. BRUE, ECONOMICS 10-11 (1996); ROGER B. MYERSON, GAME THEORY:
ANALYSIS OF CONFLICT 2-5 (1991);
see also PAT CALIFIA, MACHO SLUTS 10-27 (Alyson Publications 1988); ELLEN FEIN
& SHERRIE SCHNEIDER, THE RULES: TIME TESTED SECRETS FOR CAPTURING THE HEART OF
MR. RIGHT (1995); BARRY SEARS, ENTER THE ZONE: A DIETARY ROAD MAP 1-8, 35-85
(1995); THEODORE R. SIZER
& NANCY F. SIZER, THE STUDENTS ARE WATCHING: SCHOOLS AND THE MORAL CONTRACT,
(1999). For an idiosyncratic vision of contract,
see KATHY O'DELL, CONTRACT WITH THE SKIN: MASOCHISM, PERFORMANCE ART, AND THE
1970s 3-17 (1995).
See, e.g., Karen Czapanskiy,
Volunteers and Draftees: The Struggle For Parental Equality,
38 UCLA L. REV. 1415, 1416, 1451-63 (1991).
See LEONORE DAVIDOFF
& CATHERINE HALL, FAMILY FORTUNES: MEN
& WOMEN OF THE ENGLISH MIDDLE CLASS 1780-1850 149-92 (1987); THOMAS LAQUEUR,
MAKING SEX: BODY AND GENDER FROM THE GREEKS TO FREUD 194-207 (1990); JOAN
WILLIAMS, UNBENDING GENDER: WHY FAMILY AND WORK CONFLICT AND WHAT TO DO ABOUT
IT 1-3 (2000); CAROL SHINER WILSON, LOST NEEDLES, AND THE ARTISTIC ENTERPRISE
IN BARBAULD; EDGEWORTH, TAYLOR,
& LAMB, IN RE-VISIONING ROMANTICISM: BRITISH WOMEN WRITERS, 1776-1837 167-90
supra note 8, at 200-207; JOAN WILLIAMS,
supra note 8, at 1-3. For a discussion of a more recent evocation of these
distinctions and the tensions that they can produce, see SARA RUDDICK, MATERNAL
THINKING: TOWARDS A POLITICS OF PEACE 28-30 (1989)..
See, e.g., Robin West,
Jurisprudence and Gender,
55 U. CHI. L. REV. 1, 2-3, 20-26 (1988);
see also PATRICIA WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 225-27 (1991). The arm's
length transactor and the rational
"economic man" have met with ample criticism for not being sufficiently contextualized.
See, e.g., NANCY FOLBRE, WHO PAYS FOR THE KIDS? GENDER AND THE STRUCTURES OF CONSTRAINT
1-10, 16-28 (1994); NANCY C.M. HARTSOCK, MONEY, SEX, AND POWER: TOWARD A
FEMINIST HISTORICAL MATERIALISM 39-41 (1983); MARGARET JANE RADIN, CONTESTED
COMMODITIES 1-15, 164-72 (1996). For further discussion, see Ian R. MacNeil,
Efficient Breach of Contract: Circles in the Sky,
68 VA. L. REV. 947, 948-52 (1982); Ian R. MacNeil,
Economic Analysis of Contractual Relations: Its Shortfalls and the Need for a
"Rich Classificatory Apparatus,"
75 NW. U. L. REV. 1018, 1019-27 (1981).
See, e.g., THE LADIES' LIBRARY; OR, ENCYCLOPEDIA OF FEMALE KNOWLEDGE, IN EVERY BRANCH OF
DOMESTIC ECONOMY: COMPREHENDING, IN ALPHABETICAL ARRANGEMENT, DISTINCT
TREATISES ON EVERY PRACTICAL SUBJECT, NECESSARY FOR SERVANTS AND MISTRESSES OF
FAMILIES. I. A MOST EXTENSIVE SYSTEM OF COOKERY. II. A COMPLETE BODY OF
DOMESTIC MEDICINE. III. THE PRESERVATION OF BEAUTY, AND PREVENTION OF
DEFORMITY, IN WHICH IS INCLUDED A VAST FUND OF MISCELLANEOUS INFORMATION, OF
THE HIGHEST IMPORTANCE IN DOMESTIC LIFE, IN TWO VOLUMES, (London, Printed for
J. Ridgway, No, 1, York Street, St. James Square. 1790). This genre continued
into the nineteenth century, through a series of works that were intended to
help a woman manage her household: kitchen, servants, accounts, and health and
education of children.
See, e.g., DOMESTIC ECONOMY, AND COOKERY, FOR RICH AND POOR; CONTAINING AN ACCOUNT OF
THE BEST ENGLISH, SCOTCH, FRENCH, ORIENTAL, AND OTHER FOREIGN DISHES,
PREPARATIONS OF BROTHS AND MILKS FOR CONSUMPTION; RECEIPTS FOR SEAFARING MEN,
TRAVELLERS, AND CHILDREN'S FOOD, TOGETHER WITH ESTIMATES AND COMPARISONS OF
DINNERS AND DISHES, THE WHOLE COMPOSED WITH THE UTMOST ATTENTION TO HEALTH,
ECONOMY, AND ELEGANCE, BY A LADY. 1-10, 60-101 (London, Printed for Longman,
Rees, Orme, Brown, and Green, Paternoster-Row, 1827); JOHN EDWARD WATSON, THE
HOUSEWIFE'S DIRECTORY: BEING THE MOST COMPLETE SYSTEM OF DOMESTIC ECONOMY EVER
SUBMITTED TO PUBLIC NOTICE v-vi (London, Printed for William Cole, No 10,
Newgate Street, 1825). Attempts to develop domestic
"economy" as a field of academic study continued throughout the nineteenth century as
well, occasionally as a recuperative attempt at achieving women's equality
without the vote.
See, e.g., CATHARINE E. BEECHER, A TREATISE ON DOMESTIC ECONOMY, FOR THE USE OF YOUNG
LADIES AT HOME AND AT SCHOOL, 5-7, 49-68 (revised ed., Harper
& Bros., New York, 1846); CATHARINE E. BEECHER, HARRIET BEECHER STOWE, THE
AMERICAN WOMEN'S HOME, OR PRINCIPLES OF DOMESTIC SCIENCE, BEING A GUIDE TO THE
FORMATION AND MAINTENANCE OF ECONOMICAL, BEAUTIFUL, HEALTHFUL, AND CHRISTIAN
HOMES, 15, 17, 20-21, 463-67 (J.R. Ford
& Co., New York, 1869); CATHARINE E. BEECHER, THE TRUE REMEDY FOR THE WRONGS OF
WOMAN, WITH A HISTORY OF AN ENTERPRISE HAVING THAT FOR ITS OBJECT 5-29, 39-40
& Co., Boston, 1851); CATHARINE E. BEECHER, WOMAN'S PROFESSION AS MOTHER AND
EDUCATOR, WITH VIEWS IN OPPOSITION TO WOMAN SUFFRAGE i-ii (Dedication), 5-6
(New York, Maclean, Gibson,
& Co., 1872). Although Beecher recommends her approach to domestic economy and
training (and remunerative employ for women) as a means for women to achieve a
greater measure of economic security and a more stable home life, she also
recommends that boys be taught some domestic skills as a means of aiding their
wives and families, if not supplanting them.
See REMEDY at 51-60; DOMESTIC ECONOMY at 163-64.
n12 In making this statement, I also recognize that men are capable of performing
these same services; that primary male caretakers exist; and that men also have
nurturing capacities. However, the fact that such tasks are done by men
intermittently, or rarely, does not negate the fact that these tasks are
nevertheless designated women's, particularly a mother's, responsibilities.
See ARLIE RUSSELL HOCHSCHILD, THE TIME BIND: WHEN WORK BECOMES HOME AND HOME
BECOMES WORK, 38-44, 115-33 (1997); Barbara Ehrenreich,
Maid to Order: The Politics of Other Women's Work, HARPERS, April 2000, at 59-60. Czapanskiy's metaphor of
"draftees" is useful as a conceptual starting point for an understanding of the contrast
between a woman's and a man's experience of contracting to perform these tasks.
supra note 7. A man can perform these services, if he in fact chooses to do so; he
can choose to deviate from an assigned status as a father to engage in
caretaking, but that same sense of choosing to do so rather than having to do
so makes the quality of this process somewhat different. To use the language of
contract once again, a man can walk away from the transaction or up the ante of
the bargain; a woman may transfer responsibility to another caretaker but
cannot, as it were, move away from the table. A woman contracts to shift some
of the burden imposed upon her at all times, a man chooses time, place, and
See, e.g.,, ARLIE HOCHSCHILD, THE SECOND SHIFT 6-7 (1989). Some scholars have referred
to the work that women do, whether for their own families or for others, as
See Patricia Hill Collins,
Shifting the Center: Race, Class and Feminist Theorizing about Motherhood, in DONNA BASSIN, MARGARET HONEY, AND MERYL MAHRER KAPLAN, REPRESENTATIONS OF
MOTHERHOOD 59-62, 72-73 (1994); Sarah Ruddick,
Thinking Mothers/Conceiving Birth, in REPRESENTATIONS OF MOTHERHOOD, at 33-35.
Cf. Julia A. Hanigsberg,
Homologizing Pregnancy and Motherhood: A Consideration of Abortion,
94 MICH. L. REV. 371, 374 (1995) (utilizing term). Ruddick does draw a distinction between
"motherwork" as a means of envisioning a range of familial arrangements and possibilities
Thinking Mothers, at 36-39. For some recent discussions of questions of reinventing familial
arrangements and subsidy of caretaking,
see e.g.,, Martha Albertson Fineman,
Cracking the Foundational Myths: Independence, Autonomy, and Self-Sufficiency,
8 AM. U.J. GENDER SOC. POL'Y & L. 13 (2000); Twila L. Perry,
Caretakers, Entitlement, and Diversity, 8 AM. U. J. GENDER, SOC., POL'Y
& L 153 (2000); Catherine J. Ross
& Naomi R. Cahn,
Subsidy for Caretaking in Families: Lessons from Foster Care,
8 AM. U. J. GENDER SOC. POL'Y & L. 55 (2000);
see also MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER
TWENTIETH CENTURY TRAGEDIES (1995).
n14 Of course, surrogacy and adoption contracts have been and continue to be
See infra notes 59-71 and accompanying text.
n15 The same treatises that involve
"domestic economy" also involve, in large part, the management of the various contracts that the
lady of the house would enter into, as employer of servants, housekeeper, and
See supra note 11. The discussions of childrearing would also involve discussions about
how best to avoid nursery maids who would drug or otherwise mistreat children.
See id. The histories of women who have been hired for domestic labor, particular
women of color, have also been widely discussed.
See, e.g,. W.E.B. DU BOIS, THE PHILADELPHIA NEGRO: A SOCIAL STUDY, WITH A NEW
INTRODUCTION BY ELIJAH ANDERSON, TOGETHER WITH A SPECIAL REPORT ON DOMESTIC
SERVICE BY ISABEL EATON (1996); ELIZABETH R. HAYNES, UNSUNG HEROES, THE BLACK
BOY OF ATLANTA, NEGROES IN DOMESTIC SERVICE IN THE UNITED STATES (1997);
HOCHSCHILD, SECOND SHIFT,
supra note 13, at 4-5, 232-35, 239-47; NICKY GREGSON AND MICHELLE LOWE, SERVICING
THE MIDDLE CLASSES: CLASS, GENDER AND WAGED DOMESTIC LABOUR IN CONTEMPORARY
BRITAIN (1994); PHYLLIS PALMER, DOMESTICITY AND DIRT: HOUSEWIVES AND DOMESTIC
SERVANTS IN THE UNITED STATES, 1920-45 (1989); Dorothy E. Roberts,
Spiritual and Menial Housework,
9 YALE J. L & FEMINISM 51 (1997); Ehrenreich,
supra note 12 at 60-70.
n16 Women who contract out their maternal labor find themselves facing a variety
of hostile responses as well as contradictory messages about the
appropriateness of their work both inside and outside of the home.
See FAYE D. GINSBURG
& RAYNA RAPP, CONCEIVING THE NEW WORLD ORDER: THE GLOBAL POLITICS OF PRODUCTION
78-79 (1995); JOAN WILLIAMS,
supra note 8, at 31-50;
see also Nancy Duff Campbell
& Judith C. Applebaum,
Here's What U.S. Parents Really Need, SAN DIEGO TRIBUNE, Feb. 18, 1999, at B-11, B-9; Cathleen Decker,
Mothers Agree on Many Childcare Issues, Fathers See Things Differently, LOS ANGELES TIMES, June 13, 1999, at A32; Marilyn Gardner,
Search for a Truce in the Mommy Wars, The CHRISTIAN SCIENCE MONITOR, Mar. 5, 1999, at 2; Iris Krasnow,
It's Time to End the 'Mommy Wars," WASHINGTON POST, May 7, 1999, at C5;
see also Joan Williams,
Gender Wars: Selfless Women in the Republic of Choice,
66 N.Y.U. L. REV. 1559, 1624-32 (1991).
See., e.g., ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS (1993); Martha Field,
Surrogacy Contracts--Gestational and Traditional: The Argument for
31 WASH. L. J. 1, 5-8 (1991); Gena Corea,
The Reproductive Brothel in GENA COREA ET AL., MAN-MADE WOMEN: HOW NEW REPRODUCTIVE TECHNOLOGIES AFFECT
WOMEN 38-43 (1987) (discussing the prospect of reproductive brothels, where
impoverished and third world women are made to bear children for little to no
see also DEBORAH L. RHODE, JUSTICE AND GENDER: SEX DISCRIMINATION AND THE LAW 224-25
supra note 16; Ehrenreich,
supra note 12; Gardner,
supra note 16; Joan Williams,
Gender Wars, supra note 16.
See, e.g., SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY 41-43 (Basic Books 1989);
PATRICIA WILLIAMS, THE ROOSTER'S EGG: ON THE PERSISTENCE OF PREJUDICE 170-74
See Margaret K. Nelson,
Family Day Care Providers: Dilemmas of Daily Practice in EVELYN NAKANO GLENN, GRACE CHANG, LINDA RENNIE-FORCEY, MOTHERING: IDEOLOGY,
EXPERIENCE, AND AGENCY (1994); GINSBURG
supra note 16; Carol Sanger,
Separating From Children,
96 COLUM. L. REV. 375, 376-400 (1996).
See HOCHSCHILD, TIME BIND,
supra note 12, at 1-50.
See AMY DRU STANLEY, FROM BONDAGE TO CONTRACT: WAGE LABOR, MARRIAGE, AND THE
MARKET IN THE AGE OF SLAVE EMANCIPATION (1998); PATRICIA WILLIAMS, ALCHEMY OF
RACE AND RIGHTS,
supra note 10, at 15-50, 219-25, for discussions of how contract exacerbates
inequality. A number of the contracts that will be discussed in this essay have
not always been enforced in the courts, such as surrogacy contracts, or are
illegal, such as contracts for sex. However, I wish to examine these contracts
(or contract-like arrangements) as a means by which to examine how women
negotiate their relationship to motherhood, but also what the failure of these
agreements entails for them as well.
See Linda C. McClain,
47 HASTINGS L.J. 339 (1996); Dorothy E. Roberts,
The Only Good Poor Woman: Unconstitutional Conditions and Welfare,
72 DENV. U. L. REV. 931 (1995); Carla M. da Luz
& Pamela C. Weckerly,
Recent Developments: Will the New Republican Majority in Congress Wage Old
Battles Against Women?,
5 UCLA WOMEN'S L.J. 501 (1995);
see also WILLIAMS, ROOSTER'S EGG,
supra note 19, at 2-14 (discussing the media phenomenon of the
n24 To be sure, adherents and critics of arranged marriage, same-sex marriage, and
marriage itself, are legion.
See, e.g., Linda S. Eckols,
The Personal and Social Implications of Same Gender Matrimony,
5 MICH. J. GENDER & L. 353 (1999); Laurel Remers Parde,
The Dilemma of Dowry Deaths: Domestic Disgrace or International Human Rights
Catastrophe?, 13 ARIZ. J. INT'L
& COMP. L. 491 (1996); Jeffrey Evans Stake
& Michael Grossberg,
Roundtable: Opportunities for and Limitations of Private Ordering in Family Law,
73 IND. L. J. 535 (1998); Andrew Koppelman,
Is Marriage Inherently Heterosexual?,
42 AM. J. JURIS. 51 (1997);
see also Christine S.Y. Chun, Comment,
The Mail Order Bride Industry: The Perpetuation of Transnational Economic
Inequalities and Stereotypes,
17 U. PA. J. INT'L ECON. L. 1155 (1996). However, the paradigm of
"marriage" as a chosen relationship between two people, a man and a woman, is the
paradigm at issue in this essay, and indeed, in other contexts as well.
See, e.g., Defense of Marriage Act, Pub. L. 104-199, 110 Stat. 2419 (1996).
See Katharine Silbaugh,
Marriage Contracts and the Family Economy,
93 NW. U. L. REV. 65, 78-88 (1998);
see also Brian Bix,
Bargaining in the Shadow of Love, The Enforcement of Premarital Agreements and
How We Think About Marriage,
40 WM. & MARY L. REV. 145, 147-162 (1998) (providing history of enforcement of premarital agreements).
supra note 25;
see also Katharine Silbaugh,
Turning Labor into Love: Housework and the Law,
91 NW. U. L. REV. 1 (1996).
n27 CAROLE PATEMAN, THE SEXUAL CONTRACT, 162 (1988).
Id. at 163. For useful overviews of the meanings of marriage, see Bix,
supra note 25, at 162-74;
see also Silbaugh,
supra note 25, at 111-117.
See, e.g., Bix,
supra note 25, at 206-07; Amy L. Wax,
Bargaining in the Shadow of the Market: Is there a Future for Egalitarian
84 VA. L. REV. 509, 565-593 (1998).
But see Ira Mark Ellman
& Sharon Lohr,
Marriage as Contract, Opportunistic Violence, and Other Bad Arguments for Fault
1997 U. ILL. L. REV. 719, 737-747 (rejecting contractual approach).
supra note 27, at 162-65.
See MILTON C. REGAN JR., FAMILY LAW AND THE PURSUIT OF INTIMACY, 176-83 (1993);
see also MARGARET BRINIG, FROM CONTRACT TO COVENANT, BEYOND THE LAW AND ECONOMICS OF
THE FAMILY 1-14, 18-25, 83-109 (2000); JOHN J. WITTE, JR., FROM SACRAMENT TO
CONTRACT: MARRIAGE, RELIGION, AND LAW IN WESTERN CULTURE (1997). For another
set of viewpoints rejecting a contractual model of marriage on conservative
see, e.g., Gary L. Bauer,
End No-Fault Divorce, USA TODAY, Dec. 29, 1995, at 10A.
See, e.g., Bix,
supra note 25, at 162-68, 250-51.
n33 Mary Joe Frug links anti-prostitution laws with the
"maternalization" of the female body and claims that the legitimization of children within the
context of marriage is part of that process of maternalization. In drawing this
connection, Frug questions the conduct of a legal system that reduces women's
sexual identities to paradigms of
"the mother" or
"Anti-prostitution rules maternalize the female body. They not only interrogate
women with the question of whether they are for or against prostitution; they
also raise the question of whether a woman is for illegal sex or whether she is
for legal, maternalized sex." Mary Joe Frug,
A Postmodern Feminist Legal Manifesto,
105 HARV. L. REV. 1045, 1055 (1992).
n34 Even allowing for the use of new reproductive technologies by some
individuals, what might be called the
"old fashioned way" still predominates.
"Choosing" to become pregnant is a best case scenario. However, if
"choosing" to become pregnant includes a variety of
"choices" that one does not elect to choose, the experience of an unwanted pregnancy
only increases the number of conditions that are placed upon a woman who is
also a mother.
supra note 17 at 134-40. Their choice, as such, has been to contract for legally
legitimate sex that results in pregnancy (marriage), rather than to contract
with men for sex that may or may not result in pregnancy, a contract for sex
that may have some degree of social acceptance or legal tolerance but is not
legally legitimated (being sexually active), or criminalized sex
(prostitution). The fact that women can enter into
"domestic partnerships" with other women, have sex with other women, or become pregnant through
artificial insemination does not undo the analysis here.
n37 In embracing a contractual, volitional model of sexual activity, the figure of
the prostitute, for some scholars, has been posited as a means by which women
can reject a maternal role.
See, e.g., Frug,
supra note 33 at 1058-59;
see also CALIFIA,
supra note 6, at 19-20; Aline,
Good Girls Go to Heaven, Bad Girls Go Everywhere, 131-34; Phyllis Luman Metal,
One for Ripley's, 119-21
in SEX WORK: WRITINGS BY WOMEN IN THE SEX INDUSTRY (Frederique Delacoste
& Priscilla Alexander eds., 2d ed. 1998). The manner in which a prostitute is
perceived and valued, and how those perceptions relate to perceptions of women,
are other matters altogether, and beyond the scope of this essay.
supra note 27, at 190-218,
with Sylvia A. Law,
Commercial Sex: Beyond Decriminalization,
73 S. CAL. L. REV. 523, 530-42, 586-600 (2000).
n38 Perhaps not surprisingly, the amount of social approval one receives often
corresponds with what kind of woman one is.
See Lisa Ikemoto,
The Code of Perfect Pregnancy: At the Intersection of the Ideology of
Motherhood, the Practice of Defaulting to Science, and the Interventionist
Mindset of Law,
53 OHIO ST. L.J. 1205 (1992); McClain,
supra note 23.
supra note 25, at 76-87. For an in-depth proposal for valuing household labor in the
event of divorce, see Martha M. Ertman,
Commercializing Marriage: A Proposal for Valuing Women's Work through
Premarital Security Agreements,
72 TEX. L. REV. 17 (1998).
n40 BARBARA KATZ ROTHMAN, THE TENATIVE PREGNANCY, 200-40 (1994); Joan Williams,
Gender Wars, supra note 16, at 1560; Mark O'Keefe,
Abortion Story Comes out of the Confessional, COLUMBUS DISPATCH, March 12, 1999, at 02F;
see also http://www.naral.org/issues/issues_stories3.html.
n41 RAYNA RAPP, TESTING WOMEN, TESTING THE FETUS: THE SOCIAL IMPACT OF
AMNIOCENTESIS IN AMERICA 236-38 (1999).
Id. at 136-63, 245-48; ROTHMAN,
supra note 40, at 5-11, 239-43.
n43 These shifts can be seen both in the utilization of anti-market rhetoric by
See FAYE GINSBURG, CONTESTED LIVES: THE ABORTION DEBATE IN AN AMERICAN COMMUNITY
(1998). A similar rejection of the market can also be seen by the utilization
of maternal rhetoric by the pro-choice movement from moving from
"abortion on demand" to
"pro-family, pro-child, pro-choice."
See Joan Williams,
Gender Wars, supra note 16, at 1592-95. In so stating, I do not wish to intimate that all women
who have abortions somehow want to have callous, facile views of themselves and
their bodies, or that the pro-choice movement has given up all claim to women
asserting control over their reproductive capacities. Rather, I want to
emphasize that it is so difficult for women to reject motherhood in any form,
even the most self-destructive form imaginable to a particular woman, that
motherhood itself becomes one of the few acceptable justifications for refusing
supra note 41.
See Martha C. Nussbaum,
"Whether for Reason or From Prejudice?, Taking Money for Bodily Services,
27 J. LEGAL STUD. 693, 717-18 (1998); GINSBURG
supra note 16, at 147-49;
see also FEIN
supra note 6.
n46 Calls for personal and sexual responsibility presuppose limited fertility even
when sex is considered a legitimate activity. In an era in which women can be
considered too fertile, the fact that women
can control their fertility does not erase an unspoken premise of
supra note 40, at 13.
See JANE BARTLETT, WILL YOU BE MOTHER? WOMEN WHO CHOOSE TO SAY NO xi-xiii (1994);
CAROLYN M. MORRELL, UNWOMANLY CONDUCT: THE CHALLENGE OF INTENTIONAL
CHILDLESSNESS xiv-xvi, 2-10 (1994).
See ELAINE TYLER MAY, BARREN IN THE PROMISED LAND: CHILDLESS AMERICANS AND THE
PURSUIT OF HAPPINESS 231-41 (1995).
See MARGARET MARCH
& WANDA RONNER, THE EMPTY CRADLE: INFERTILITY IN AMERICA FROM COLONIAL TIMES TO
THE PRESENT 244-47, 254-55 (1996); MAY,
supra note 48, at 213-17. In some ways, this phenomenon is not all that new: women
have been at other times that too much education would render them infertile or
See, e.g., GRANT,
supra note 3, at 212-13.
n50 The publicity surrounding infertility and reproductive technology indicates,
among other things, that children are the ultimate entitlement and marker of
success, and that failure is not without its costs, emotional as well as
supra note 48;
see also Carol Sanger,
M is for the Many Things,
15 S. CAL REV. L. & WOMEN'S STUD., 15, 53 (1992).
supra note 48, at 217-23:
see also DIANA RAAB, GETTING PREGNANT AND STAYING PREGNANT: OVERCOMING FERTILITY AND
MANAGING YOUR HIGH-RISK PREGNANCY (1991); GALE A. SLOAN, POSTPONING PARENTHOOD:
THE EFFECT OF AGE ON REPRODUCTIVE POTENTIAL (1993).
supra note 48, at 182-99;
see also SUSAN FALUDI, BACKLASH 3-46, 82-111 (1991).
n53 Women who decide not to have children are told repeatedly that they will
regret their decision or are warned they will be seized with relentless
maternal longings. Childless women, if they are married, also find that their
marriage will not be treated as a
"real" marriage without children.
supra note 47, MAY,
supra note 48, at 131-32; ELAINE CAMPBELL, THE CHILDLESS MARRIAGE--AN EXPLORATORY
STUDY OF COUPLES WHO DO NOT WANT CHILDREN 94-113 (1985);
see also MAUREEN MILLER, DOUBLE INCOME, NO KIDS . . . YET: HOW TO RESOLVE THE
MOTHERHOOD/CAREER DILEMMA AND HAVE IT ALL 20 (1989). ("Even though you may be confident about your negative views on children
now, it is important to be at least aware of the way the desire to be a mother may
creep up on you unexpectedly, releasing emotions and psychological pressures
which will surprise you by their power.") Ironically enough, intentionally childless women also sometimes receive
criticism for not deciding to
"balance" work in the market and motherhood, and their decision is denigrated for having
been made without first-hand knowledge of childrearing--which would moot the
childlessness problem. These criticisms, however, also insinuate that the only
true knowledge of mothering is available to women who parent their
See KATHLEEN GERSON, HARD CHOICES: HOW WOMEN DECIDE ABOUT WORK, CAREER, AND
MOTHERHOOD 140-53 (University of California Press 1985);
see also GRANT,
supra note 3, at viii-ix.
n54 Ironically, for women who do have children and who are middle class, a
decision to stay at home and mother is defended in part on the grounds that
doing so is a
"career," whereas women who are not middle class do not have a
"career" when they are in the home, perhaps because their work does not deserve such a
title. This particular dichotomy has resurfaced as of late in the popular
press, but also was noticeable in the debate over welfare reform.
See ANN CRITTENDEN, THE PRICE OF MOTHERHOOD: WHY THE MOST IMPORTANT JOB IN THE
WORLD IS STILL THE LEAST VALUED 87-109, 236-74 (2001); CHRISTINA BAGVLI
TINGLOF, THE STAY AT HOME PARENT SURVIVAL GUIDE: REAL LIFE ADVICE FROM MOMS,
DADS, AND OTHER EXPERTS 1-6, 62-79, 147-52, 234-240 (2000); WILLIAMS, ROOSTER'S
supra note 19.
supra note 47; MORRELL,
supra note 47.
n56 In keeping with the charged atmosphere surrounding maternal labor or
"motherwork," these obligations receive a variety of responses from women themselves.
See PATRICIA HILL COLLINS, BLACK FEMINIST THOUGHT: KNOWLEDGE, CONSCIOUSNESS, AND
THE POLITICS OF EMPOWERMENT, 42-47, 122-123 (Unwin Hyman, Inc. ed., 1990);
supra note 47, at 117-150; Barbara Katz Rothman,
Beyond Mothers and Fathers: Ideology in a Patriarchal Society, in MOTHERING: IDEOLOGY, EXPERIENCE AND AGENCY 155-56 (1994); Carol B. Stack
& Linda M. Burton,
Kinscripts: Reflections on Family, Generation, and Culture, in MOTHERING: IDEOLOGY, EXPERIENCE AND AGENCY 31-42 (Routledge ed., 1994).
n57 These assumptions have been put into practice via sterilization abuse, either
through forced sterilization regimes in the United States for the
"feeble minded," or through sterilization of women of color without their consent.
supra note 48, at 95-125;
see also DANIEL KEVLES, IN THE NAME OF EUGENICS: GENETICS AND THE USES OF HUMAN
HEREDITY 96-112 (1985).
n58 This presumption of rampant fertility is perhaps most telling for African
American women, who have been stigmatized as being always available for sex and
reproduction, or for reproducing too often and irresponsibly.
supra note 23 at 340. Yet an African American woman deciding not to have children
altogether would not be behaving as her overly fertile self, nor, from another
vantage point, would she be a woman resisting racism by having children.
supra note 56 at 122; Roberts,
Housework, supra note 15, at 68-70. And where a prevailing viewpoint is that African American
women are unable to refuse sex, it is not difficult to understand how a woman
may not be seen to possess the power to refuse reproduction. Similar concerns
present themselves with Latina or Native American women, who have also been
subject to sterilization abuse by doctors.
supra note 48 at 191-94;
see PATRICIA WILLIAMS, ALCHEMY OF RACE AND RIGHTS,
supra note 10, at 217-19.
See, e.g., Leslie Bender,
Teaching Feminist Perspectives on Health Care
& Law: A Review Essay,
61 U. CIN. L. REV. 1251, 1269-70 (1993) (summarizing different approaches); Joan C. Callahan
& Dorothy E. Roberts,
A Feminist Social Justice Approach to Reproduction-Assisting Technologies: A
Case Study on the Limits of Legal Theory,
84 KY. L.J. 1197 (1996); Dorothy E. Roberts,
The Genetic Tie,
62 U. CHI. L. REV. 209, 273 (1995); Sherylynn Fiandaca,
Comment: In Vitro Fertilization and Embryos: The Need for International
8 ALB. L. J. SCI. & TECH. 337, 366 (1998). For a discussion of racial issues and ideas of genetic ownership, see Roberts,
Genetic Tie, supra at 209-13; Dorothy E. Roberts,
Race and the New Reproduction,
47 HASTINGS L.J. 935 (1996) (discussing racial differences in the manner in which one values one's own
genetic legacy and the surrogacy question in general). For a good discussion of
different doctrinal approaches to surrogacy and proposed solutions to the
problems it poses, see Lori B. Andrews,
Beyond Doctrinal Boundaries: A Legal Framework for
81 VA. L. REV. 2343 (1995).
supra note 27, at 210-13. There is a small library of scholarship on the question of
surrogacy and new reproductive technologies.
See, e.g., Kyle C. Velte,
Egging on Lesbian Maternity: The Legal Implications of Tri-Gametic In-Vitro
Fertilization, 7 AM. U. J. GENDER SOC. L.
& POL'Y 431 (1999); Malina Coleman,
Gestation, Intent, and the Seed: Defining Motherhood in the Era of Assisted
17 CARDOZO L. REV. 497 (1996); Judith F. Darr,
Assisted Reproductive Technologies and the Pregnancy Process: Developing an
Equality Model to Protect Reproductive Liberties,
25 AM. J. L. & MED. 455 (1999); Judith F. Darr,
Regulating Reproductive Technologies: Panacea or Paper Tiger?,
34 HOUS. L. REV. 609 (1997); Martha Field,
Surrogacy Contracts--Gestational and Traditional: The Argument for
31 WASH. L. J. 1 (1991); Marsha Garrison,
Law Making for Baby Making: An Interpretive Approach to the Determination of
113 HARV. L. REV. 835 (2000); E. Ann Kaplan,
The Politics of Surrogacy Narratives, in FEMINISM, MEDIA,
& THE LAW 193-202 (Martha A. Fineman
& Martha T. McCluskey, eds.) (1997); JOHN A. ROBERTSON, CHILDREN OF CHOICE:
FREEDOM AND THE NEW REPRODUCTIVE TECHNOLOGIES (1994); Kermit Roosevelt III,
The Newest Property: Reproductive Technologies and the Concept of Parenthood,
39 SANTA CLARA L. REV. 79 (1998); Alan Wertheimer,
Exploitation and Commercial Surrogacy,
74 DENV. U. L. REV. 1215 (1997); Mary Lynne Birck, Comment,
Modern Reproductive Technology and Motherhood: The Search for Common Ground and
the Recognition of Difference,
62 U. CIN. L. REV. 1623 (1994); Denise E. Lascarides, Note,
A Plea for the Enforceability of Gestational Surrogacy Contracts,
25 HOFSTRA L. REV. 1221 (1997). Similar questions have presented themselves in the area of egg donation for
See, e.g., Katheryn D. Katz,
Ghost Mothers: Human Egg Donation and the Legacy of the Past,
57 ALB. L. REV. 733 (1994); Ann Reichman Schiff,
Solomonic Decisions in Egg Donation: Unscrambling the Conundrum of Legal
80 IOWA L. REV. 265 (1995).
supra note 17, at 38-39, 44-45;
supra note 27, at 212-13; ANDREA DWORKIN, RIGHT WING WOMEN 181-88 (1983). Other
studies have linked prostitution and surrogacy as forms of commodification of
women, without necessarily stating their equivalence.
See, e.g., RADIN,
supra, note 10, at 131-53.
Housework, supra note 15; Silbaugh,
supra note 25.
n63 While Pateman states that the surrogate mother is selling herself in a more
fundamental way than the prostitute is, she also claims that the surrogacy
"reveals little about the
institution of marriage, prostitution, or 'surrogate' motherhood. The surrogacy contract is another means by which patriarchal subordination is
supra note 27, at 215. I would argue that the surrogacy contract, whether it is
breached or honored, reveals a great deal about how these particular
institutions are valued within the legal system and within a broader social
context. What I have found striking in the context of surrogacy cases is that a
woman who has (depending on whom we believe) sold her body has been found to
have some sort of a claim at all, even if that claim may not prove successful.
I think the fact that these cases even make it into court indicates the way, in
which the status of motherhood is difficult to ignore, even if the fact of that
recognition is insufficient to prove that woman's case. For perhaps
the paradigmatic, if not inescapable, examples in law and scholarship on
Johnson v. Calvert, 851 P.2d 776 (Cal. 1993);
In re Baby M, 537 A.2d 1227 (N.J. 1988).
See, e.g., Linda Lacey,
O Wind, Remind Him I Have No Child: Infertility and Feminist Jurisprudence,
5 MICH. J. GENDER & LAW 163 (1998); Roberts,
Housework, supra note 15, at 56-63.
See, e.g., Field,
supra note 17, at 6-11 (claiming that the surrogacy market may harm the adoption
"market" and lessen the likelihood of adoption of children with disabilities).
See, e.g., Susan Frelich Appelton,
"Planned Parenthood": Adoption, Assisted Reproduction, and the New Ideal Family, 1 WASH. U. J. L.
& POL. 85 (1999); Elizabeth Bartholet,
Beyond Biology: The Politics of Adoption and Reproduction, 2 DUKE GENDER J. L.
& POL'Y 5 (1995); Hawley Fogg-Davis,
A Race-Conscious Argument for Transracial Adoption,
6 B.U. PUB. INT. L.J. 385 (1997); Jacinda T. Townsend,
Reclaiming Self-Determination: A Call for Intraracial Adoption, 2 DUKE GENDER J. L.
& POL'Y 173 (1995); Comment,
The Best Interests of the Child: Eliminating Discrimination in the Screening of
27 GOLDEN GATE U.L. REV. 167 (1997).
n67 The opposite, however, is far from the case; in the face of exploding world
population and with so many children not having
"good" homes, the decision to use a surrogate rather than to adopt is to be selfish
once again, justifiably or not.
See, e.g., Lacey,
supra note 64, at 175-80.
supra note 41; Lacey,
supra note 64, at 164. What is not often questioned, however, is what is being
expected of women who might potentially adopt or contract with a surrogate, or
how they are being perceived as a result of their negotiations. Given the
inequities that often result in a woman's giving up a baby, it is difficult to
separate that situation from other forms of exploitation, unless we are willing
to accept the fact that some of the women involved do not want to be mothers.
See, e.g., Lacey,
supra note 64; Sanger,
supra note 20, at 490-99.
n69 Conversely, women who do not give up their babies for adoption are considered
to be selfish for not giving babies (or transacting for them) with women and
men who do want them. Particularly for unmarried white women, this particular
experience of anger and recrimination occurs because they are not providing a
needed commodity to women who want and deserve to be mothers. It is therefore
that women are walking away from a particular agreement that is supposed to
further their prospects and expectations, such as giving up their white baby to
a white family, so that they may pursue, perhaps, market-based success or more
See, e.g. Martha C. Ward,
Early Childbearing: What is the Problem and Who Owns it? in GINSBURG
supra note 16, at 142-56.
See, e.g., Garrison,
supra note 60, at 860-65 (discussing adoption
"market" and repercussions).
n71 Granted, at this point in time, we can postulate a variety of approaches to
adoption, including open adoption, but I am interested in the way in which the
"birth mother's" body can be under erasure in the context of an adoption, such that the adopted
baby itself is postulated as a gift, or, at least that the child is not as
"bought" as in a surrogacy situation.
supra note 20, at 490-99 (discussing this conflict); Lucy S. McGough
& Annette Peitier-Falahahwazl,
& Lies: A Model Statute for Cooperative Adoption,
60 LA. L. REV. 13 (1999);
but see MAGGIE AND LINDA KIRKMAN, MY SISTER'S CHILD (1983) (depicting sisters'
surrogacy agreement and advocating for gift surrogacy).
supra note 8, at 353-41; ALAN RICHARDSON, LITERATURE, EDUCATION,
& ROMANTICISM: READING AS SOCIAL PRACTICE 1780-1832, 25-40, 167-252; (1994);
supra note 20 at 391-409.
See Marie Ashe,
"Bad Mothers" and Welfare Reform in Massachusetts: The Case of Claribel Ventura, in FEMINISM, MEDIA,
& THE LAW 203-16 (1998); Marie Ashe
& Naomi R. Cahn,
Child Abuse, a Problem for Feminist Theory,
2 TEX. J. WOMEN & L. 75-76 (1993).
See HOCHSCHILD, TIME BIND
supra note 12, at 224-39. For a dramatic evocation of these possibilities, see
ANDREA PEYSER, MOTHER LOVE, DEADLY LOVE: THE SUSAN SMITH MURDERS (1995).
n75 The hostility directed toward Deborah Eappen during the Louise Woodward trial
is a case in point.
See, e.g., Christy Bacque,
Babies Need Their Own Mothers, OTTAWA CITIZEN, Nov. 26, 1997, at A16; David Sapsted,
Hate Mail for Eappens as au Pair Awaits Fate, DAILY TELEGRAPH, Nov. 10, 1997, at 7; Ed Hayward,
Backers of Nanny, Eappens, Wage War on Web, BOSTON HERALD, March 9, 1998, at 1; Ed Vuillamy
& Mark Tran,
Lifestyle of a 'Yuppie' Put to Trial: British nanny Louise Woodward May not be
the Defendant in the Boston Baby Trial, THE OBSERVER, Oct, 19, 1997, at 19;
see generally Ashe
supra note 73.
n76 These criticisms do not apply for all mothers. Women who stay at home with
their children while on public assistance face considerable revilement of all
by virtue of their social status.
supra note 10, at 117-20, 200-04 (comparing numbers of women on AFDC with women
receiving private subsidy from husbands); WILLIAMS, THE ROOSTER'S EGG,
supra note 19. This approach, oddly enough, contrasts with other forms of blaming of
mothers (particularly overbearing and omnipresent mothers) for disabilities and
supra note 3; MILLER,
supra note 3; RICHARD POLLAK, THE CREATION OF DR. B: A BIOGRAPHY OF BRUNO BETTELHEIM
n77 Mothers in the market, however, do not necessarily fare all that much better.
Contrasted with these visions of the bad mother is the bad worker who lets her
personal commitments get in the way of her experience in the market. In such a
way, the 'strength' that has been expected by mothers, indeed superhuman
strength, has been co-opted into a particular model of the ideal employee who
"balance" a variety of commitments without letting her employer down.
See JOAN WILLIAMS, UNBENDING GENDER,
supra note 8 (discussing
"ideal worker" problem);
see also AASTA S. LUBIN, MANAGING SUCCESS: HIGH-ECHELON CAREERS AND MOTHERHOOD (1987).
Women in support staff or factory positions encounter similar tensions, with a
smaller margin of economic safety.
See, e.g., EILEEN BORIS, HOME TO WORK: MOTHERHOOD AND THE POLITICS OF INDUSTRIAL
HOMEWORK IN THE UNITED STATES (1994); HOCHSCHILD, TIME BIND,
supra note 12, at 143-73;
see also Melissa A Childs, Comment,
The Changing Face of Unions: What Women Want From Employers,
12 DePAUL BUS. L.J. 381 (1999/2000).
See JOAN WILLIAMS, UNBENDING GENDER,
supra note 8; Roberts,
Housework, supra note 15.
See HOCHSCHILD, SECOND SHIFT,
supra note 13, at 2-10, 27-28, 37-40.
Prepared: March 22, 2003 - 5:02:29 PM
Edited and Updated, March 23, 2003
Philosophy 111A Page