Jennifer Hendricks, professor of law and co-director of the Juvenile and Family Law Program, recently published a new book. Essentially a Mother: A Feminist Approach to the Law of Pregnancy and Motherhood argues that the law of pregnancy and motherhood has been overrun by sexist ideology. Over the past few decades, courts have held that a woman’s pregnancy hardly counts in her claim to parent her child and have stripped women of the right to abortion, treated surrogate mothers as mere vessels, and handed biological fathers automatic rights over women and their children. Essentially a Mother argues that feminists must overthrow this skewed value system and incorporate new kinds of feminist analysis that have been ignored in the law before now.
In this interview, Professor Hendricks sits down with Colorado Law’s Emily Battaglia to chat about her new book, the inspiration behind it, and the contribution she hopes it provides to the legal field.
Thank you so much, Professor Hendricks, for taking time to answer my questions. I would love to know: what was the inspiration behind this book?
JH: Thanks so much for taking the time to talk. The cases I point to as the crux of the book are a series of court cases about IVF mix-ups. These are cases in which women who had been struggling with infertility finally became pregnant through IVF at a clinic, only to learn that they’d been given the wrong embryos; they were then be forced to turn over the babies to the genetic parents (or even to would-be parents who bought someone else’s egg or sperm). These are hard and tragic situations, and I’m not saying there’s an easy or obvious way these cases should be decided. But what’s appalling to me is how easy the courts think those cases are—how quick they are to dismiss the birth mother’s claim in favor of the genetic parents. They basically turn her into an involuntary surrogate. In some cases, the judges have been quite horrible about scolding the birth mother, telling her it was all her fault for letting herself get attached to the baby that she literally made with her body. It’s an extreme example of how courts have come to define parenthood in terms of genes, to the exclusion of the actual work that parents do to create and care for their children—including not just pregnancy and birth, but all the caretaking that parents do after birth as well.
On the flip side, this minimizing of pregnancy—treating it as irrelevant to parenthood—helped pave the way for the supreme court’s decision in Dobbs v. Jackson Women’s Health, the case that overruled Roe v. Wade and eliminated the right to abortion. In that case, the Republicans on the supreme court told women that if they didn’t want a baby, they should just stay pregnant, give birth, and then place the baby for adoption. But we know that women who are denied abortions overwhelmingly reject adoption as an option. Why? Because an embryo is not the same as a baby, and having an abortion is not the same as giving up a child you’ve borne. Pregnancy is a lot of physical work, but it’s also very emotional for most people, so it leads to a bond even if it was forced on you in the first place. But the supreme court basically said pregnancy doesn’t matter, either physically or emotionally—it’s just an inconvenience. That’s the attitude that Essentially a Mother is trying to fight.
What are the main points you hope readers take away from reading this book?
JH: I hope to convince people that the law should define parenthood primarily in terms of caretaking for the child; and critically, the process of gestation and childbirth should be considered “caretaking” that establishes parental rights as soon as the child is born. Genes alone, without any caretaking, should not be enough. Fathers and others who don’t gestate their children can take care of them in other ways, and that caretaking should count more than just genes. We often romanticize pregnancy as some blissful, magical state, but we don’t give it real importance in terms of rights; while with fathers, we focus only on genes and child support. My argument is that, on the one hand, the law shouldn’t be acting like babies just appear out of nowhere when they’re born, with no connection to the person they just popped out of. On the other hand, the law also shouldn’t act like giving birth creates a mystical connection that is superior to other ways of becoming a parent.
More generally, I want people to see the connections between losing the right to abortion and denigrating pregnancy in other areas of the law, and in our culture. Women are suffering horribly, every day, from the loss of Roe v. Wade. As we fight to win back the right to abortion, we have the chance to do it in a much broader way that will protect everyone’s reproductive rights and freedoms. We must overthrow the entire skewed value system, currently enshrined in the law, that subordinates women, devalues pregnancy and other forms of caregiving, and denies too many people the right to choose whether to become parents and to raise their families with dignity and security.
Can you talk about how this book builds upon your previous work?
JH: Essentially a Mother is the culmination of work I’ve been doing on these issues for about fifteen years. The IVF mix-up cases are the tip of the iceberg in terms of how the genetic definition of parenthood has taken over family law. Defining parenthood in terms of genes is, at its root, a sexist approach to the law. It says that a pregnant woman’s nine months of gestation count for basically nothing when it comes to her claim to be the parent of the child she bears. Armed with this notion of parenthood, courts have handed biological fathers—even those who become fathers through rape—automatic rights over women and their children.
Part of the problem is a logical error that courts make in terms of what it means for the law to be sex-neutral. To me, the core of parenthood is caretaking for a child, so parental rights should be based on a caretaking relationship. That caretaking can come in a variety of forms, including pregnancy. Many courts and scholars, however, have implicitly concluded that pregnancy and childbirth cannot be part of the definition of parenthood, because that would be unfair to men. That means that genes are all that’s left for identifying the parents at the time the child is born. But that isn’t sex-neutral; that’s discrimination against the people who get pregnant, because you’re refusing to count this huge thing that they did.
The focus on genes also ends up hurting men who put a lot into taking care of their kids. When courts are judging fathers, the one thing they are likely to consider in addition to genes is whether a man paid child support. In one case, the supreme court denied parental rights to an unmarried father who had raised his son all by himself, because he’d never filed the paperwork to formally take financial responsibility. It’s all part of a pattern where the actual, physical labor of creating, birthing, and raising a child just doesn’t count for much in the law.
With this work, what perspective do you hope to add to the current field of research in this area?
JH: One of the things I talk about in the book is that a lot of feminist legal scholars have been surprisingly supportive of legal rules that minimize the importance of pregnancy. I think that’s because, abortion aside, a huge amount of feminist legal work is focused on employment law and constitutional law. In those fields, most of the fights in the past have been about women trying to win the same privileges as men by showing they are just as good as men at being a lawyer or a soldier or whatever. But family law is one of the most dynamic and exciting fields in legal scholarship right now, and it also has the most experience grappling with issues about gender and relationships. Essentially a Mother challenges constitutional lawyers to confront and incorporate new kinds of feminist analysis that have been ignored in the law before now.
The book is available for order at your local bookstore, from online booksellers, and from the University of California Press.
