Nicole Medham is a third year law student at Columbia Law School and has these thoughts about a recent 20/20 episode that caught her attention when the authors of Freakonomics were interviewed about the what and why of various implications of feminism:

Last Friday’s edition of ABC’s 20/20 featured the authors of the bestseller Freakonomics, Steven D. Levitt and Stephen J. Dubner, who were promoting the sequel to their best seller SuperFreakonomics.  During the hour long broadcast, some time was spent on the authors’ controversial views of the women’s liberation movement.  Essentially, Levitt and Dubner argue that the principal beneficiaries of the liberation movement were not female teachers or financiers, but high end prostitutes.   To that end, both men say that those who seek to “save” women from prostitution should ask and determine why women are responding to the market and becoming [high end] prostitutes in the first place.  Additionally, the authors argue that the invention of hormonal birth control gave women more control over their future occupations; therefore, instead of having to choose an occupation like a teacher which would allow for flexibility to enter and leave the work force, they could choose to become doctors, lawyers, bankers, etc.  Because of this, Levitt and Dubner claim that the talent level of school teachers has fallen, thus leading to the seeming overall failure of the country’s public school system.

Let’s take on the prostitution issue first.  Of course to some anti-prostitution advocates, there is no need to question why women choose prostitution, as it is invariably a result of the sexist and patriarchal society we live in.  Yet, I can’t help but think that Dubner and Levitt are right in that this is question that must be asked in order to make any needed changes.  In order to solve anything, one must get to the root of why the “problem” is occurring in the first place.  The women who have supposedly benefitted aren’t the stereotypical prostitute one thinks of that sets up shop on a dingy poorly lit street corner.  These are often [well] educated, well versed women who had fairly stable upbringings.  In fact, the woman profiled on 20/20 actually had a husband, children, and stable job, all of which she left to become a [high end] prostitute, due to her claims of boredom.  So  why would someone like that and the other well educated and well traveled women not want to put their brains to use in an arguably more productive way toward society and choose to sell their bodies instead?

Maybe these women are just more frank and upfront about how some relationships involving sex works.  Arguably, what these women are doing is no different than women (or men for that matter) who date people solely for money and other material benefits.  Even in popular culture, there are some marriages that have taken place where money seems to be the only answer why a particular couple was together.   And, marrying for financial gain is a historical facet of the institution of marriage.  In those cases, however, the monetary transactions take place in a socially acceptable form of a relationship.   In any event, the fact that the woman profiled on the show made $5000 a week for 10 hours of work speaks volumes, though it may speak different things for different listeners.   But, just maybe it says that she’s smarter than many other women out there.

Dubner and Levitt’s next hypothesis argues that hormonal birth control led to truly talented women leaving the teaching profession thus leading to a decline in gifted teachers in this nation’s public school system.  First and foremost, correlation does not imply causation.  To be sure, the seven and a half minute segment didn’t really delve into the authors’ method s of reasoning and argumentation.  Thus, I’d be interested to see how they made that leap.  For the sake of argument, let’s say that they are right—that control over reproduction gave women more occupational choices and power.   How does it go from that to implicitly putting the blame on women for the failing public school system?  That’s a pretty big leap, I’d say.  Why not look at the affects of the pay these teachers receive, the environment in which some of them would have to teach had they not chosen other fields, or the affect of various federal government regulations that have left many educators frustrated?  Moreover, why not take into account the fact that men can be just as effective as teachers and that they aren’t courted as heavily into that profession. Like I said, without knowing their methodology, it’s kind of hard to argue against them.  But, from what was shown on 20/20, their reasoning is tenuous at best.

Friday the Iowa Supreme Court held unanimously that the state’s definition of marriage – a union of a man and a woman – violated the Iowa Constitution’s Equal Protection Clause.  This is the first court to do so unanimously, and the first mid-western court to do so.  No more can marriage traditionalists dismiss the idea of marriage equality as an elitist liberalism emanating from the People’s Republic of Massachusetts, the liberal sodom of Connecticut, or the Gomorrah of California.  No, we’ve got Iowa now – a rectangular state smack dab in the middle of the country, with the state motto:  “Our liberties we prize, and our rights we will maintain.”  You bet ‘cha.

I’ve got many thoughts about the ruling in Varnum v. Brien – here are some initial takes.  My critique of Justice Cady’s reasoning from the perspective of queer theory will follow later.

There’s no missing the midwestern tone to this decision.  It reads very differently from the decisions granting marriage rights in Connecticut and California.  Coming from the mid-west myself, I recognized its ethos as characteristically workman-like – what I call “lunch-box lawyering” – no fancy language, it’s straightforward, accessible to the regular person, and its rightness speaks for itself.  Justice Mark Cady, who wrote the opinion for the entire court, stays clear of soaring language about civil rights, about the dignity of gay men and lesbians, or about the sanctity of marriage as a fundamental building block of society.   Solid, clear, step by step.  As I said to Nan Hunter in an e-mail yesterday about the opinion: “Every i is dotted, every t is crossed.  In the end they conclude that ‘gay people are Iowans too – and heck, that’s good enough for us.’  Not the stuff of queer theory, but then it’s the Iowa Supreme Court, gosh dern it.“  After all, look at the plaintiffs:

These are regular folks who do the dishes, go to church, work to pay their mortgages, love their kids – just like straight Iowans.  Indeed, that is what the Iowa Supreme court found, over and over, “Like other Iowans, they (the gay and lesbian plaintiffs) prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected – a belief embraced by our state motto.”  Later the court goes to great pains to point out that the gay plaintiffs are in committed and loving relationships, many raising families, wanting the state to recognize the importance of their relationships and desiring the stability that recognition entails just like regular heterosexual Iowans.

The court also makes every effort to situate the marriage case within the context of local Iowan values.  Whether it was a refusal to recognize the legitimacy of slavery in 1839, a recognition that racial segregation violated the Iowa Constitution in 1873 long before the U.S. Supreme Court did in 1954, or being the first state to grant women the right to practice law in 1869, Iowans have had their own strong sense of justice and fairness, and as the court noted, “in each of these instances, our state approached a fork in the road toward fulfillment of our constitution’s ideals and reaffirmed the ‘absolute equality of all’ persons before the law as ‘the very foundation principle of our government.’”

What they’re saying here is this: don’t think we’re doing this because of some carpet-bagging gay rights lawyers from Lambda Legal in New York – we’re just taking the next step in a road that is distinctly local and Iowan.  Iowans have never stood for unfairness – even when others did – and we won’t now.  This isn’t a culture war – it’s what good people should do.

This is Iowa – the state with the not-too-flashy Eastern Goldfinch as its state bird, and the dependable Oak as its state tree.  No camelia (Alabama – too smelly), poppy (California – of course), or eastern white pine tassel and cone (Maine – sounds gay to me) for Iowa’s state flower.  They’re happy with the wild prairie rose (pictured left).  And if god-loving gay people want to get married, then it seems only fair that we should let ‘em.

In this may lie the decision’s greatest value – bringing the issue to the middle part of the country in terms that are distinctly mid-western.

- Katherine Franke

From Columbia Law School Professor Patricia Williams, via The Nation

For some years now, the biotechnology of fertility enhancement has been exalted as God’s gift to the biblically barren. A relentless narrative of entitlement intertwined with prayerfulness has framed infertility as a tragedy, an oppression, an agony, a disease. Some have proclaimed a “right” to a “natural,” biologically related child, a child “like me.” Unusually large Middle American families–some with up to eighteen children–are offered movie deals and television programs.

Against the backdrop of a cold, impersonal and lonely world, these well-feathered and overly populated nests look villagey and warm. It’s an undeniably seductive vision, even if other options like adoption and fostering are almost never mentioned. Also less discussed are the side effects of this mad race for biological generation at all costs: the likelihood of multiple births, low birth weight and birth defects; the ethics of using poorer women as fetal hatcheries; the health risks to young women who have their “Ivy League” eggs extracted for handsome sums of cash.

There are loads of good reasons to think about regulating these medical procedures; we should have come up with something other than a “free market” for them years ago. But now, with the birth of Nadya Suleman’s octuplets in Bellflower, California, we are confronting a perfect storm of eugenic outcry. With a plunging economy, all the well-rehearsed elements of the “undeserving” welfare queen are lined up: Suleman is single, disabled, unemployed, on food stamps and has six other children under the age of 8, one of whom is reportedly autistic. She lives in a matchbox-size house with her resentful parents, who think she’s insane. Toss in that funny, foreign-sounding name–which turns out to be, gasp, Iraqi!–and the backlash is in full swing.

No doubt Suleman has emotional problems. But rather than caring about her mental health, much of the media are content to pillory her as a drain on the public dole–selfish, frivolous, calculating and cruel. No Brangelina-style accolades of “God Bless ‘Em” in People magazine. Just impassioned calls to cut off her remaining sources of income and to criminally prosecute the doctor who fertilized her. The Atlanta Journal-Constitution even ran an op-ed calling for the government to appoint a legal advocate for every child born to an unmarried woman, since the “lack of a father’s guidance” must be “a major cause of [children's] suffering.” Furthermore, in the case of Suleman’s children, “the legal advocate would file suit against the fertility clinic or a physician who knowingly contributed to their abuse–life in a multiple-child household headed by a single woman.”

Nadya Suleman’s saga, in other words, has highlighted a deep cognitive dissonance about whether children are “assets” or eternal expenditure, divine joy or devilish curse in a time of dwindling planetary resources. When I first heard of Suleman, my immediate thought was of Andrea and Rusty Yates–married, fundamentalist Christian believers in that ubiquitous story line about going forth and multiplying no matter what. After caring for and home-schooling five very young children with no assistance but prayer, and with accumulating signs of postpartum psychosis, Andrea Yates woke up one morning and drowned all her children with quiet efficiency.

And so the specter of psychotic breakdown haunts me when I think of the Suleman abode: one autistic child, plus 2-year-old twins, plus four other kids ages 3 to 7, plus eight newborns ranging from one to three pounds, plus a grandfather who has gone back to Iraq to earn more money for the family, plus a grandmother furious at the medical professionals who “assisted” her daughter, plus a surreally chipper Nadya, who despite the miserable odds remains enrolled as a graduate student in, of all things, pediatric counseling. This situation is undeniably sheer madness, but the public discussion seems fixated on the question of whether she can “afford” so many kids, as though if she was rich, this would be sane.

This past fall The New York Times Magazine ran a cover story by Alex Kuczynski, fashion writer and self-confessed “cosmetic surgery addict.” Her wish to have a child was framed by fierce determinism, the “natural outgrowth” of marriage to her husband–without whom she “would skip the child.” Kuczynski is married to a man whose “sperm had a track record”–six other children by two prior wives. She, the third bride and twenty years her husband’s junior, described herself as engaged in nothing less than a “battle for my fertility”; having a biological child was “necessary,” a “mad desire,” a “compulsion” and “proof” of the marital bond, without which she faced “wrecked hopes” and an “abyss of grief.” Indeed, to die “without having created a life is to die two deaths: the death of yourself and the death of the immense opportunity that is a child.” When she thinks she’s pregnant, she feels a “shiver of victorious accomplishment…. my own fecundity triumphant.” When she tells people she’s not, she feels “barren, decrepit, desexualized,” “branded with a scarlet ‘I’ for ‘Infertile,’” “the dried-up crone with a uterus full of twigs.”

Just because Kuczynski is married and wealthy does not make her less obsessive or more profound than Suleman. Kuczynski sounds like a sad, silly child mooning over “fertile but fit” stars like Halle Berry, Nicole Kidman, Salma Hayek and “John Edwards’s sometime mistress,” who all had babies in their 40s. Likewise, Suleman takes heart looking at Angelina Jolie. Suleman and Kuczynski represent disturbing emotional extremes. But that should not excuse the rest of us from examining the oppressive competitive natality that seems to have gripped us–the fantasies of “baby bumps” and breeding, always breeding, yet more of “our kind.” Our culture’s antifeminist backlash and its unrealistic aspirations have bewitched Kuczynski and Suleman, these two young women who are so addled and so suggestible, so endowed and yet so impoverished. All these years after the age of “liberation,” perhaps it is time to revisit the myths we still concoct about childless women’s worth.

Yesterday, the Gender and Sexuality Law Program kicked off its spring 2009 colloquium with the presentation and discussion of Professor Anna Marie Smith’s paper entitled “Reproductive Technology, Family Law, and the Post-welfare State: The California Same-Sex Parents’ Rights ‘Victories’ of 2005.“ Professor Smith’s article touches on several facets of parental rights and its intersection with political theory, the law, and same-sex relationships; however, we spent the bulk of the time discussing Smith’s illumination of some of the “unintended consequences” of the National Center for Lesbian Rights (NCLR)’s participation as amici in the Elisa B. case, and the impact those consequences might have on poverty law, family law, and LGBT and single mothers’ parental rights more broadly.

Here are the facts: In California, two lesbian women (Elisa and Emily) in a relationship each bore children via donor insemination. During this time, the women agreed that Emily would be the “stay at home” mother, and Elisa would be the family “breadwinner.” The two women separated after having three children (Elisa moved away, taking her child, while Emily stayed in California with twins); Elisa initially continued financially supporting the children, but after some time, stopped. Emily subsequently applied for California’s public assistance benefit for single mothers of “needy families,” otherwise known as TANF. TANF requires its beneficiaries to initiate proceedings with the state to identify absent second parents of their children to assist in the collection of support payments from him or her. Emily was the absent second parent, so the state went after her for child support, and NCLR filed amicus briefs on behalf of the state. When California won, and Elisa B. was required to pay child support to Emily under TANF, the decision was hailed as a victory for LGBT families everywhere.

Here’s the problem: The state of California brought this case against Elisa B, not Emily. Why? Because TANF requires its recipients to initiate proceedings to identify and go after their ex-partners for child support. This poses a particularly dangerous dilemma for recipients who have experienced domestic violence: get the benefits, or risk the repercussions of opening up contact with the partners who abused them. In fact, Smith points out that indeed, all TANF recipients are robbed of their autonomy to decide whether to contact their former partners at all, or at least, on their own terms, and not via the state.  

Sudhir Venkatesh, a sociologist and Director of the Center for Urban Research and Policy at Columbia University, gave insightful commentary, noting the social and cultural assumptions that all those involved in the litigation process inevitably make in the process of advancing case law. He also brought up the question of decision-making: when TANF recipients are faced with the difficult choice of whether to contact the child support payer in order to receive benefits, what goes into that decision-making process, and are there other ways to negotiate relationships with child support payers?

Other interesting points raised: (1) what about “vertical” family relationships, that is, parent-child relationships, and how does autonomy play into that relationship?  What if there is a conflict between protecting the autonomy of the “horizontal” family relationship to the detriment of the parent-child relationship? (2) Is there a legal consciousness story to be told here, one that centers on affirmative rights to a relationship between the social mother and child versus the responsibilities to which a social mother must adhere vis-a-vis her child after the relationship ends? and (3) To what extent are these cases about redistribution of benefits from one LGBT parent to another, or about recognition of a status relationship between the two?

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.

Nazneen Mehta is a second-year law student at Columbia Law School and is writing a Note on the international market in surrogacy services – particularly between relatively affluent “intended parents” in the US and poor female surrogates in India. Her Note will examine the ways in which this market might better be regulated by law in order to protect the rights and interests of the surrogates in India. Her research has taken her to Mumbai, India over the winter break to better understand the conditions under which the surrogates are working. What follows are her initial reflections on this research:

Alex Kuczynski’s story, “Her Body, My Baby,” about her experience bonding with the woman who became her son’s surrogate mother portends the rise of what Noa Ben-Asher on this blog suggested are “new and surprising extra-legal familial structures.”

But, maybe not. In a largely obscure industry that is becoming increasingly transnational, Kuczynski’s story could be the outlier.

Surrogacy has quietly spread beyond national borders, creating a multi-million dollar global industry that joins together women like Kuczynski with poor women in developing nations. But unlike Kuczynski and her surrogate, Cathy Hilling (with whom she was on a first-name basis), the surrogates in these developing nations will never share tuna sandwiches or host backyard barbeques with the “intended parents.”

In fact, very few surrogates in developing nations will meet the parents for whom they are carrying a child. As a doctor at an international surrogacy clinic in Mumbai, India, related to me, the clinic discourages intended parents from meeting the woman the center has chosen to be the surrogate. The doctor explained that the women come from the ranks of India’s poor, and if they “see foreigners,” the women may try to get more money or resources out of the intended parents. There is no “wink and nod” custom, and the reality of class division lie exposed between the intended parents and the surrogate.

The selection process further removes intended parents from knowing the individual women who become their surrogates. Kuczynski pored over the profiles of potential surrogates, reading each woman’s personal story and employment demands. International surrogacy agreements, however, are largely facilitated by surrogacy clinics operating in developing nations. The clinics recruit a pool of poor women to become surrogates and then assign the women to intended parents. There are no personal stories about the women’s lives or ambitions to distinguish one from another; women need only pass the clinics’ health and psychological screening to become a surrogate. (The selection process implicates the issues of race and class discussed by Khiara Bridges on this blog, and suggests that her analysis of Black women in the U.S. could extend to poor women of color in developing nations).

I make these comparisons between international surrogacy and Kuczynski’s story not to push normative claims about either type of surrogacy agreement. Rather, I contrast the two models to bring international surrogacy into the discussion. And to suggest that in the battle between the legal frameworks mentioned by Ben-Asher—the surrogate as hired outsider vs. surrogate as extended family member—the former may be pulling ahead.

We miss our wonderful colleague Carol Sanger, the Barbara Aronstein Black Professor of Law at Columbia Law School, who is on leave this year, but she is making good use of her leave.  She has just completed a new article on the use and abuse of ultrasound technology in steering women to chose not to abort a fetus.  The abstract of the article is below.  The full article is available here.

Abstract:
Several state legislatures now require that before a woman may consent to an abortion, she must first undergo an ultrasound and be offered the image of her fetus. The justification is that without an ultrasound, her consent will not be fully informed. Such legislation, the latest move in abortion regulation, supposes that a woman who sees the image will be less likely to abort. This Article explores how visual politics has combined with visual technology, and how law has seized upon both in a campaign to encourage women to choose against abortion. While rarely analyzed, the significance of seeing, or what one court has called sensory and contemporaneous observance, in fact appears throughout the law. This Article develops a visuality of law, focusing specially on the treatment of fetal imagery.

Drawing upon medical and ethnographic literature on sonography, this Article situates the regulatory appeal of mandatory ultrasound within a preexisting visual familiarity with the fetus. I argue that while a welcome and rewarding experience in the context of wanted pregnancies, ultrasound becomes pernicious when required by law in connection with abortion. The argument I develop is that not only is an abortion decision itself protected, but so is the deliberative path a woman takes to reach that decision.

Mandatory ultrasound intrudes upon that protected area of decisionmaking in several respects. First, simply by virtue of having an ultrasound, a pregnant woman is promoted into the category of mother and it is against this conscripted status that she must proceed. Second, unlike other compulsory forms of abortion disclosure, the statutes require the woman to use her body to produce the very information intended to dissuade her from pursuing an abortion. The resulting fetal image is intended as a self-evident statement about the meaning of human life.

But characterizing the fetus as a child, as most ultrasound statutes do, is a political description, not a scientific one. It confuses medically informed consent with what I identify as morally informed consent, that realm of personal considerations that are a woman’s alone to determine. Imbued with indelible social meaning, the mandatory ultrasound requirement replaces consent with coercion – not about the ultimate decision, but about how a woman chooses to get there.

Did you ever stop to think that, despite all the international variations in policy and laws on reproductive rights, the experience of pregnancy and childbirth is truly universal?  We all have been part of the reproductive process, whether going through it or being the product of it. Nancy Northup very eloquently made this point in a recent panel entitled “New Scholarship in Reproductive Rights,” sponsored by the Columbia Journal of Gender and Law, the Center for Reproductive Rights, the Gender and Sexuality Law Program, and the Human Rights Institute.  In addition to Nancy Northup, President of the Center for Reproductive Rights, panelists included Vickie Jackson, Professor at Georgetown University Law Center (visiting at CLS); Linda Fentiman, Professor at Pace University School of Law (visiting at University of Houston Law Center); Khiara Bridges, CRR/CLS fellow; Jessie Hill, Professor at Case Western University School of Law; and Carol Sanger, Professor at CLS (written submission).

This panel was great for someone (read: me) who cares very much about reproductive rights – but doesn’t know much about what’s been going on on the ground lately.  A few tidbits I learned: (1) abortion regulation varies enormously from country to country, (2) there have been a number of really important transnational cases that have expanded the notion of reproductive rights as human rights issues (i.e., one case in South America where the court found that essentially forcing a woman to give birth and not giving her access to an abortion amounted to cruel and degrading treatment), (3) there is an abundance of criminalization of pregnant women vis-a-vis their fetuses, which really goes against all the goals of criminalization (rehabilitation, deterrence, and so forth), (4) a New York City public hospital provides hostile, judgmental, and thus substandard care to low-income pregnant women of color, who have a reproductive right – to choose to give birth (and, largely by virtue of their race, are scorned by health care professionals who refuse to recognize these women’s rights to reproduce), (5) maybe we need to make access to abortion/reproductive rights a more affirmative governmental duty, (6) maybe we need to sound the discussion of abortion rights in a “right to health” framework because then we have a less gender-specific framework that recognizes the importance of autonomy in medical decision-making and gives respect to the doctor-patient relationship.  Read more about the panel here.  

Jeannie Chung

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.

On Monday, the Supreme Court denied cert. in a case in which a sperm donor sought to have a Kansas court declare him the legal father of the children born to a woman who had been inseminated with his sperm by and through a licensed physician. Under Kansas law:

The donor of semen provided to a licensed physician for use in artificial insemination of a woman other than the donor’s wife is treated in law as if he were not the birth father of a child thereby conceived, unless agreed to in writing by the donor and the woman.

In this case the sperm donor sought to have the statute declared unconstitutional on the ground that it denied him the equal protection of the laws on account of his sex, and that it violated the substantive due process rights secured by the 14th Amendment inso far as it deprived him of a fundamental right of paternity. The Kansas Supreme Court declined to find the statute unconstitutional, and the U.S. Supreme Court chose not to review the case on Monday. For more on the case, see Nancy Polikoff’s blog.