The Never-Ending Quest for Gender Equality

I think we are rightly sensitive to issues of gender equity in parenting, but it seems to me it is also necessary to think critically about them.   This was brought home to me by this story in the newspaper today.  Does equality give a genetic father the right to be present at the birth of his child, just as the genetic mother will be?    Or does the different between being the one giving birth and not being the one giving birth justify different treatment?

For anyone who thinks hard about parentage gender equity is a difficult topic.    There are so many levels of sameness and difference that figuring out what amounts to equal treatment can be tricky.

On the one hand, men and women each contribute genetic materials to a child.  On that basis one could determine that they are similarly situated and so principles of equality would suggest equal treatment is appropriate.   But on the other hand, women are pregnant and men are not.   If in this regard they are not similarly situated, then equal treatment is not warranted.  How does one fit together the sameness and the difference?  

To give one example that seems clear to me:  Even though men and women may have a similar genetic investment in an offspring in utero, I think the woman gets sole authority to decide whether to continue the pregnancy or have an abortion.   The difference (she’s pregnant, he’s not) is more important to me than the sameness (they each have DNA invested.)  And I’d say the same even if she was pregnant with the last genetic offspring he could possibly produce.   To me, this result isn’t offensive to an equality principle–because the situations of the man and the woman are (to me significantly) different.

That set of sameness/difference is pretty much rooted in biology.   If one broadens the field of vision to consider social roles, it’s possible to observe different patterns of behavior.  So for example, among the heterosexual couples I know, women are much more likely to be more deeply engaged in day-to-day childcare stuff than are men.  I’m pretty sure I can find a raft of statistics that would extend this conclusion across large swaths of American society.   (Yes, this is a generalization.  There are households where it isn’t true.)

Personally I don’t think for a minute that this is biologically pre-0rdained.  But perhaps it doesn’t matter why things are as they are.   If they really are that way, do we need to take this into account?  Does the difference (mothers are spending more of their time in care of young children than are fathers) matter?  Or do we ignore it in the name of sameness (men and women are equally capable of taking care of young children)?

Let me give a “for instance.”   Suppose women really are doing substantially more of the child-care in a substantial majority of homes.   (That’s an assumption we can discuss, but let’s just go with it for a moment so you can see the argument here?)  Suppose when couples separate and judges have to award custody of children, they take account of who has been doing the work–on the theory that continuity is best for the child.  So in general, mothers end up with custody a lot more of the time than fathers do.

equal time, as they are (presumptively) equal parents.     Have we fixed the equality problem (assuming there was an equality problem)?

Suppose the parents who have been doing the main caretaking (mostly women but some men) actually care deeply about maintaining the routine.  They’re more attached to the child.   (It’s possible that that’s either the cause or the effect of the initial unequal division of childcare.)  Now that parent will have to bargain with the other parent to get back to the original division of time.   If the other parent doesn’t care terribly much about having that time with the child (which again could be cause or effect of the original division of labor), they’ll take money in exchange for the time.  And so you’ll end up having the child spending time in the same way as before, except now the household where the child spends most of her/his time will be poorer.  And most of those poorer households will be female-headed.

To my mind, this doesn’t seem like a very good fix.    Maybe we ought to take into account the “difference” we started with–spending more time with the kids?  (Note that you don’t have to tie that to gender–you can favor whoever spends the time, male or female.  But in the grand scheme of things, this balance will tip towards mothers.)

It’s too easy just to invoke the idea of equality and fairness in these cases.   Look at the response to the NJ case I started with:

Bruce Eden of Dads Against Discrimination called the ruling “another example of New Jersey’s anti-male discrimination in the family courts.”

No one’s going to be in favor of “anti-male discrimination” but I don’t think that’s the explanation for the NJ ruling.  I think the court got it right.


37 responses to “The Never-Ending Quest for Gender Equality

  1. I think the court got it right as well. The woman has a right to medical privacy, not to mention an unwanted person in the room during labor can increase her stress, which can stall labor and is bad for the health of both the mother and the child. I don’t see this as a case of a mom wanting to cut the dad out either – I read the full ruling, and she voluntarily allowed him to visit the baby in the hospital, and worked out a shared custody agreement with him voluntarily, without needing the courts to decide.

    • I agree. For me this is not a difficult case. I think it is about medical privacy and not parentage or parental rights. But I thought the invocation of equality principles by Dads Against Discrimination was interesting. To me this exemplifies an overly simplistic approach that does not take account of the fact that there are some actual differences between men and women.

  2. My parent's donor is my father

    I absolutely and completely agree that the mother has every right to say who she wants in the delivery room. She is in labor, she is the patient and her comfort has to come first. Period. This is just crazy in my opinion, that this is even being debated. The judge was right.

    BUT, this is bigger than just a delivery room rights issue. This was discussed on The Five and they came around to asking the question, what about in the case of “sperm donors” and how do you define “sperm donor”…

    • I confess that I have not had time to watch the video yet, but I wanted to offer a preliminary observation. I don’t think it makes any difference whether he is a dad (legally or socially) or not. He doesn’t get to be in the delivery room because she gets to control that time. That, for me, is as big as this issue gets. I think it is pretty clear that he is a legal parent.

      Tying this to larger issues–about parentage of sperm donors, say. Or about the appropriate legal treatment of sperm donors–seems to me to muddy the waters. I’m afraid that is what makes this otherwise easy case seem more difficult and complicated.

      But I’d better to watch the video–I know. And will get to that later today. Promise.

      • My parent's donor is my father

        Is it clear that he is the legal parent (up until the delivery and signing of legal documents)? What if this child is not his biological child? Would the mother in that case have the right to exclude him as the legal parent? They weren’t married.

        • I think these are important questions. It is not clear that he is the legal parent until he is actually recognized as such. That cannot happen until after the child is born. And perhaps this is important in thinking about the decision.

          I’m particularly interested in thinking about whether the mother could exclude the husband if she wanted to–imagining a case where a husband was about to be the legal father of the child. (I’m not sure he’s a parent until the child is born, either.). If the point is the woman’s right to privacy and self-determination, then it seems to me it makes no difference who it is that is insisting on being present. She gets to pick. But the court in this case made rather a deal of the couple not being married.

          I think perhaps more important to me is that they were estranged. And of course, this issue will only come up with estranged couples. Only where there is pretty serious estrangement would you end up in court over this.

          I cannot help but think of all the instances where the court has noted that someone (usually someone claiming de facto parentage) was present at the birth and cut the cord. Whatever it’s legal meaning, that’s a culturally important role. But it doesn’t seem to me to be one you can force your way into.

      • But her personal authority to determine issues related to her own health care and treatment and to determine who gets to witness her spread eagle on a birthing table under unflattering lights – some people just might not want company during labor, they’re busy. – all that has nothing to do with her being anyone’s parent it has to do with her dictating the terms of her medical care and deciding what happens to her own body. I hardly think that has anything to do with proving something about her authority over the child she gives birth to or whether or not she is a parent just because she does not want anyone but her and medical staff around her. Not even a husband or spouse would have a “right” to be all up in her business at a medical appointment. Certainly the father has just as much of an obligation to be taking care of his child as she does and she should not block him from seeing his child but the child has to be born first. Her body’s gestational experience is all hers and nobody else’s nobody shares pregnancy with her.

        • This is off topic but i can’t let it go. Women do NOT have to give birth spread eagled on a table. The problem is the medical staff who are untrained and by and large uninterested in attending births in a more natural and modest position.

          • They opened me like a can both times. I apologize for my tv educated understanding of labor and delivery. You are the LDR nurse and I will retract my statement that women might feel they only want the doctor to see them giving birth due to body privacy feelings. I really don’t know I was not awake I don’t think for either of mine really. I remember hearing them say Sam was not doing so well and that Ruby had so much hair she had bangs.

    • Wow they had a pretty good discussion. I learned that the judge said it was because the father wasn’t a husband that the woman’s privacy rights allowed her to refuse him to be there. I liked Bob’s argument, except when he said it should not matter if they were married or not, I think that should matter.

      • The reason marriage makes a difference is because marriage is the only thing that shows their official consent to having offspring together, to having each other’s offspring, and to the rights and responsibilities (which are loss of rights). It’s also presumed consent to being social and legal parents together too, and to sharing their fertility, their sickness and their health, their bodies bodies (that’s the “bodily unity” that Ryan Anderson talks about, they consent to becoming one full human body and if the body’s reproductive system works a marriage has a right to get it functioning and reproduce, but when any part of it is not healthy, the whole marriage is not healthy). No implied guarantee to success. An inability to have children, or a desire to reproduce with someone else, using someone else’s sperm or with mistresses, was not allowed and never justified, whether by accident or intentionally. There were laws against that, even. But the flip side of that is a right to have children, approval and support for children.

        But unmarried men haven’t got that approval or secured anyone consent or made any legal promises and haven’t committed to each other’s bodies as their own, and don’t have a right to have children with anyone. So it’s hard to see how they could have any claim to being present at someone else’s birth of their baby.

      • If they had been married, he definitely would have had some of the rights this guy went to court for like being on the birth certificate. Not sure about being able to insist on being in the delivery room though, since husbands have no legal say in the wife’s pregnancy per the US SC.

      • Specifically:

        “There, the Supreme Court struck down a
        provision of the Pennsylvania Abortion Act that
        was designed “to protect a spouse’s interests in ha
        ving children within marriage and in protecting
        the prenatal life of that spous
        e’s child.” Id. at 908, 112 S. Ct. at 2836, 120 L. Ed. 2d at 735.
        (appendix to joint opinio
        n) The court recognized that a husb
        and has a “deep and proper concern
        and interest…in his wife’s pregnancy and in th
        e growth and development of the fetus she is
        carrying.” Id. at 895, 112 S. Ct. at 2830, 120 L.
        Ed. 2d at 727 (opinion of the court) (quoting
        Planned Parenthood v. Danforth, 428 U.S.
        52, 69, 49 L. Ed. 2d 805, 96 S. Ct. 2841
        (1976)). Nonetheless, the cour
        t noted that even between a hu
        sband and wife the mother’s
        interests prevail: ”

        “If the right of privacy
        means anything, it is the right of
        the individual, married or single, to
        be free from unwarranted governmental
        intrusion into matters so fundamentally
        affecting a person as the decision whether
        to bear or beget a child.’” The Consti
        tution protects indivi
        duals, men and women
        alike, from unjustified state interference,
        even when that interference is enacted
        into law for the benefit of their spouses. ”

        “f para
        mount importance to the
        issues before this court, the C
        ourt spoke not only of the mother’s
        superior interest in the abortion
        context, but of her superior interest when sh
        e takes the child to term. Secondly, the Casey
        majority opined that before the birth of the child
        , a husband’s deep interest in the pregnancy and his wife’s health does not equal
        the wife’s interest in the child. Moreover, the Supreme Court
        opined that spousal notification was an undue bur
        den on a pregnant woman in the context of
        abortions. Casey, supra,, 505 U.S. at 894, 112 S.
        Ct. at 2821, 120 L. E
        d. 2d at 725-26 (joint
        opinion). In essence, while acknowledging the
        state’s and husband’s interest, the Supreme
        Court cautioned against state action in the pre-
        birth time frame that would interfere with the
        individual right possessed by the mother. “

        • I agree with everything they said but not how they said it. Specifically them referring to a woman who has not had a child as the mother. A woman that has an abortion is not a mother she’s just a woman making a decision whether or not to have medical treatment. To call her the mother makes it sound like she’s making decisions about her child’s life and health. But there is no child. I think it implies a level of master authority over children by the mother that is excessive when really the issue is not her authority over a child but just her body. They just should not have said mother

      • “Secondly, the Supreme Court in Casey placed pa
        rticular emphasis on the special interest
        a married father has in the health of his child a
        nd wife. The Court opined that even when the case
        involves a husband and a wife, the wi
        fe’s interests prevail. It follo
        ws from this holding that when
        the man and woman are unmarried, the woman’s inte
        rest is stronger still.
        Thus, the court finds
        that the father’s pre-birth inte
        rests in the instant case are lo
        wer than those of a husband. ”

        Yeah, I don’t think he would have won if they were married, his argument would have been stronger, but the woman still would have won.

      • how offensive. and if they were married? so what. still her body, her decision.

  3. what a ridiculous case. it should have been thrown out of court. its actually far more similar to abortion than custody. he can’t be there for the birth because that has nothing to do with child care and everything to do with a physical process (and possible medical interventions ) to her body. her body- her decision. his rights only begin once the child is out of her body.
    even if she was declared an unfit mother and scheduled to have her child taken away immediately upon birth, he could not be at the birth, the most he could do is wait in the parking lot or something.

  4. It’s her medical appointment of course its up to her whether or not she wants anyone else in the room and frankly it is up to the doctors and nurses as well whether or not they can work in an environment with a bunch of lookie-loos in the room. Extra people are only allowed in the room if she wants them there and its only been for the past 40 years or whatever that they’ve allowed it here. At Versis(sp?) in France I was in the room where Marie Antoinette and others gave birth it has a bed and like a big viewing area with a rail for all the people in Kingdom Come to watch.

    • Wow, a big viewing area? OK, I googled it and found this story. I haven’t finished reading it yet but the first paragraph is so interesting and relevant that I will copy it here. Today, we have DNA testing but I don’t think Prince George was publicly tested like Marilynn thinks should be mandatory and recorded in the public document.

      “After eight years of marriage, Marie Antoinette gave birth to her first child. Hundreds of courtiers were present at the birth. At the time at Versailles, Queens and princesses of the blood were required to give birth in public to prevent the baby being swapped and thus compromising the succession should he (French laws only allowed males to succeed to the throne) survive infancy and become king. This was an embarassing ritual and Marie Antoinette’s first laying in such a harrowing experience that the Queen refused to give birth in public ever again. Let’s see how things went.”

      The number of spelling mistakes in that article make me think that Marilynn wrote it herself!

      • Oh, I see that they had public witnesses because they were worried they’d swap in some random male child if the Queen gave birth to a female.

        • The room is really really big and the viewing gallery is huge, but set back from the bed a ways. I was pregnant with Sam actually on the tour. I could not imagine giving birth in a situation like that but I work in healthcare design and construction and birthing rooms are getting huge with all the friends and family that women now get to invite. Some of the rooms are as big as one of the old fashioned wards with beds lined up against the walls. It’s a little ridiculous especially since these days if labor lasts more than 10 minutes they wheel them off to an operating room and give her a c-section. The family stay’s behind in their party suite pops a bottle of champagne soaks in the hot tub and has some complimentary chocolate dipped strawberries and waits for Jr to arrive.

      • owch.
        that stuugne

  5. But having sole authority over her own body has nothing to do with how much authority she has over the person she gives birth to – its not her body, it’s theirs. Yes, that body is half her but it’s also half the father and that body has a right to be taken care of by both people. Honestly nothing that happened prior to birth should count in determining the relationship between the adult and the child. Having offspring makes the person a parent, the road to that point is not germane to whether or not the relationship exists and gives rise to the obligation. If you ask yourself “could this child exist if this other person was swapped with someone else?” and the answer is no then they are the parent and caused the person to exist. If the answer is yes and they could be swapped with someone else who had exerted the same level of influence, then they are not the parent and did not cause the child to exist and don’t have the obligation. I think that the law should never have allowed there to be a back up person for financial reasons when the actual parent is not able to be identified because what it does is shortcut the person’s right to the due process of court approved adoption, among other things. The exceptions just result in black market adoption situations where people who are not parents don’t have to disclose their true relationship and don’t have to demonstrate their fitness. The title is usurped rather than obtained with careful oversight from disinterested third party.

    I was just thinking maybe in cases where the state has a financial interest in the outcome like is always the case with adoptions, that judges from other states or like a federal judge should preside over the case because it’s fairly blatant in my state that the permanent placement in an adoptive home is the objective to prevent the state from having to meet its own obligation to help support minors whose parents are absent or destitute.

    • I just want to identify the point at which I clearly disagree with you. It’s where you say “that body has a right to be taken care of by both people”. (That body being the child.). It’s not that I don’t think children have rights–I think they do. But I don’t see why they have a right to be taken care of by those two particular people (the genetic parents.). They may have a right to know who those people are and even to contact with them (if the child wishes it). But I don’t see the right to be taken care of by them.

      In general I think it is your assertion of this right that leads to lots of our more fine-grained disagreements so I think it worth highlighting the point here.

      I know it is relatively pointless to belabor this, but I’ll agree that a child has a right to be taken care of by its parents. The problem is figuring out who “the parents” are. For you it’s figured by genetics. But that isn’t the only possible answer. Hence our disagreements.

      • That’s one of the rights in the UN Declaration on the Rights of the Child. It also allows for exceptions when its not possible for the child to be raised by the genetic parents, but the general right remains, even if it can’t be fulfilled in tragic situation.

        Tess pointed out that some signatory countries have allowed sperm and egg donation, but that contradiction doesn’t mean the Declaration wasn’t referring to a child’s natural parents, it just means they kind of forget about signing it fifty years ago, or think it doesn’t matter anymore, but they are wrong. Deliberately separating children from their parents violates their rights and those countries are breaking their treaty.

      • I’ll split hairs here and say that “figured by genetics” is a method of identifying the people responsible for creating the child because the people who caused the child to exist are responsible for supporting the dependent person they created. The reason why it must be them who with the duty first is to formalize the chain of custody and ensure the bio parent does not offer their child as a gift or sell their child as property

        • Using genetics is a method of identifying people who are legal parents, but it is only one method. As for whether one is selling a child (which we agree to be bad) that depends on what it is that gives one parental rights in the first place–which is to say this circles back to the beginning.

    • “If you ask yourself “could this child exist if this other person was swapped with someone else?” and the answer is no then they are the parent and caused the person to exist. If the answer is yes and they could be swapped with someone else who had exerted the same level of influence, then they are not the parent and did not cause the child to exist and don’t have the obligation. ”

      The only way this is true is if you believe genetics is what makes a parent and if the adult raising a child lacks generics then they are not a parent and could never have a parental relationship with that child.

      • Greg where would a non-genetic parent get a child to raise? Someone else has to cause a child to exist in order for anyone to ever be a non-genetic parent right? Otherwise they are raising an imaginary non existent child. Otherwise they are just pretending to raise child. They have to actually get one from someone else if they can’t cause one to exist themselves.

        • The point was as always I’m reinforcing the idea that parents aren’t necessarily people who conceived a child. It’s something I’ll never agree with you on but will always call you out on it because it’s something I’ve felt strongly about for many years.

          • And my point is where do non bio parents get the kid’s that they raise? They don’t make them themselves they get them from somewhere. Who do they get them from? What do we call people who have offspring? People that have offspring are in a position where they can either keep and raise them or not and if they don’t keep and raise them there needs to be a good reason why not because there is the possibility that they might profit from not raising them and that is unethical

  6. I believe the UN Declaration talks about “parents” but it doesn’t say what makes a person a parent. It doesn’t refer to “genetic parents”, for example. Thus it raises the very question I am interested in: What makes a person a “parent” for the purposes of the law (which includes the UN Declaration)?

  7. It’s a medical procedure and she has the right to privacy. The courts got it right and were very specific in using “pre-birth” in the ruling.

    Julie, I’m surprised you haven’t commented on the shocking outcome of a case in Colorado where “psychological parents” who were NOT adoptive parents retained primary custody over the legal father (on the birth certificate) in a long drawn out contested adoption case spanning 6 years, where the father signed up on the putative father’s registry in their home state (CO) pre-birth and supported the expectant mother…

  8. If the division of physical care is unequal the division of financial support will be unequal in the opposite direction which then equalizes parental contribution. Clearly one could not stay home to tend to an infant someone else paid the bills. Modern families strive for a more equitable division of the labor and finances so that the child has close to an equal amount of time with each parent. It’s a great goal to strive for but the law needs to assume the worst case scenario although because some parents might both be able to find part time jobs, there will be those who cannot. So the law needs to address what parents are supposed to do in the worst case scenario where they have to split the labor unequally and the fair thing to do is split financial burden unequal in the opposite way. The result should be balanced burden for each parent. There is also some attempt made to give the child balanced access to both parents balanced time with each but even living in the same house together when the parents are madly in love they rarely get totally balanced time with both parents because of the way labor and financial support typically have to be divided.

    Sadly the modern family solution is generally that nobody gets a part time job and both parents provide the same percentage of their incomes in financial support and that they both do equally little in terms of care giving and the person that does the care giving is typically a paid outsider who the child won’t form a permanent lifelong bond with. It’s just the reality of the modern expensive world we live in and the increasingly common situation where parents don’t have their children within eye sight most of the time each day. Parents used to teach their kids at home whatever it was they needed to know in their tribe or whatever, not send them away all day to be taught by someone else.

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