Columbia Journal of Gender and Law

The Coronavirus as a Changemaker: Opportunities to Advance American Maternal Care in the Wake of the Pandemic

2022-02-28T19:37:11+00:00

Birthing people in the United States pay more than citizens of other high-income countries and receive lower quality care, most of which is provided by physicians in hospital settings. Legal restrictions on midwives—the result of two centuries of pervasive sexist, racist, and anti-immigrant campaigns—prevent birthing people from making meaningful choices about their preferred birthing location and attendant, even though hospital births carry risks of their own. Policymakers may be hesitant to amend legislation and regulations due to a misperception that community birth is unsafe and that those who choose it are irresponsible. However, the COVID-19 pandemic presents an opportunity for change. In an effort to avoid hospitals, which are overwhelmed with COVID-19 patients and have enacted strict limits on support personnel during labor, birthing women are increasingly turning to community birth. Midwives and their clients can capitalize on this increased demand by advocating for an updated maternal care system.

Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships

2021-09-25T06:31:03+00:00

Same-sex marriage is now a reality across Western countries. While this was a positive achievement for the LGBTQ community, some crucial questions remain unanswered. One of these questions concerns the future of nonmarital statuses, such as domestic partnerships or civil unions. After the legalization of same-sex marriage, U.S. states are simply phasing them out.

I wish to argue against this trend. Based on an original analysis of empirical data and case law, I argue that nonmarital statuses retain value for non-traditional families. In fact, states must introduce nonmarital statuses open to couples regardless of gender, including adult friends and relatives. To support this argument, I present two analyses.

First, I survey empirical research showing that (1) opposite-sex couples are signing up for nonmarital statuses at increasingly high rates, where available; (2) interest in such laws is growing even among same-sex couples in countries where same-sex marriage has existed for a long time.

Second, I outline the legal and theoretical justifications for extending same-sex nonmarital partnerships to all couples. To this end, I analyze recent strategic litigation in Europe initiated by heterosexual couples who sought access to nonmarital statuses reserved for same-sex couples. The analysis allows me to identify three approaches: a status recognition approach, a utilitarian approach, and a legal-pluralistic approach.

Ultimately, I offer guidance to policymakers in crafting a status that would be suitable for modern couples. Families that do not tick the boxes of the traditional marital family model continue to slip under the radar of law. Resurrecting these laws can fix the problem of their legal invisibility.

Gender Bias in Cross-Allegation Domestic Violence-Parental Alienation Custody Cases: Can States Legislate the Fix?

2022-02-28T19:53:47+00:00

“Parental Alienation Syndrome” (PAS), developed by Dr. Richard Gardner in 1985, posits that a frequent dynamic in child custody disputes involves vengeful mothers falsely convincing their children that they have been sexually abused by their fathers. Although PAS is widely discredited and courts have ruled it inadmissible, new formulations of the theory, such as Parental Alienation (PA), continue to play a dominant role in custody proceedings. Proponents of PA assign the label to a broad range of custody cases in which children favor one parent and reject the other. However, despite the seemingly more gender-neutral framing of PA, empirical research shows that courts use PA to discredit mothers’ allegations of domestic violence and abuse and justify custody switches away from the mother. This Note analyzes the gender bias in family courts’ handling of custody cases involving cross-allegations of domestic violence and PA, and then proposes four legislative provisions aimed at reducing the effects of such bias in custody proceedings.

Reproductive Indeterminacy and Rights Discourse in Frozen Embryo Disputes

2021-09-25T06:41:51+00:00

The lived experience of reproduction is infused with indeterminacy. Judicial rhetoric, in contrast, operates in absolutes. Litigants are perceived in binary terms as fertile or not, trying to procreate or not, pregnant or not, and parents or not – when the reality of their situations is far more complicated. Rights are similarly perceived in binary terms, such that a litigant seeking procreative autonomy may assert either the “right to procreate” or the “right to avoid procreation” – even if neither accurately describes what she wants. Disputes over frozen embryos provide unique insight into this problem, because they involve parties who have experienced months if not years of reproductive indeterminacy and who, at the point of litigation, make opposing rights claims. When a couple disagrees about the disposition of jointly-created frozen embryos and the disagreement is not resolved by contract, most courts apply a balancing test: The interests of the party asserting the “right to procreate” are weighed against the interests of the party asserting the “right to avoid procreation.” Ordinarily, the latter prevails, unless the party wishing to procreate lacks a “reasonable” path to parenthood without the embryos. Whether a “reasonable” path exists often turns on whether the party wishing to use the embryos is perceived as fertile, in which case her claim will likely be denied, or sterile, in which case it may succeed.

This framework misses the complexity, contingency, and uncertainty intrinsic in all reproductive endeavors. The decision to procreate or avoid procreation is rarely singular or stable. People undergoing IVF are rarely either fertile (able to establish a pregnancy) or sterile (permanently unable to establish a pregnancy). They are, instead, infertile, and their infertility has led them to make many decisions over the course of many months and often years about how, when, and whether to proceed with treatment. And if they achieve pregnancy – not to mention parenthood – they will make many more. To describe these individuals, in the context of a frozen embryo dispute, as choosing “to procreate” or “to avoid procreation” trivializes the complexity of their circumstances. Similarly, to assume that a party experiencing infertility has a “reasonable” path to parenthood without the embryos is to ignore the reality that, even if she has the resources (physical, emotional, and financial) to undergo further treatment, there is no guarantee that it will produce gametes, that the gametes will create embryos, that the embryos will lead to pregnancy, or that the pregnancy will result in childbirth. Existing judicial rhetoric, by erasing inherent indeterminacy, offers a disappointingly limited vision of reproductive potential and reproductive rights. This article draws on multiple lines of work, from postmodern feminism to reproductive justice, to argue for a new doctrine in which reproductive rights exist not within a binary system but rather along a multi-dimensional spectrum.