Making Babies, Making Families

  

“If you want to consider all sides of the thorniest issues affecting creation
of a parent-child relationship . . . you could read over a hundred books,
essays, and law review articles. Or you could read this book.”
—      .       , The Women’s Review of Books
“Critically sophisticated yet readily accessible.” —Publishers Weekly
“This distinctive and valuable contribution ensures that we protect the
interests of children and other vulnerable people while sustaining the
bonds of intimacy.” —          , author of
Between Vengeance and Forgiveness
“Making Babies, Making Families takes on all the hard questions . . . and
with unflinching clear sight, carefully defined principles, and moral com-
passion creates a compelling basis for answers.”
—           , author of Care and Equality

hanks to new reproductive tech-

T nologies and new ways of form-
ing families, the world of parenting is
new vision of family law that puts
each child’s right to be cared for at
its center, while also taking into ac-
opening up as never before. What count the complex needs of every
defines a legal family? Should there family member.
be any restrictions on buying and
selling eggs and sperm, or hiring Mary Lyndon Shanley is professor of
“surrogate mothers”? How many political science at Vassar College.
parents can a child have? She is author of Feminism, Marriage,
While there’s no going back to and the Law in Victorian England
the traditional family, Mary Lyndon and coeditor of Feminist Interpreta-
Shanley shows us that we don’t have tions and Political Theory and Recon-
to live in moral chaos. She offers a structing Political Theory.
Other Works by Mary Lyndon Shanley
Feminism, Marriage, and the Law in Victorian England
Feminist Interpretations and Political Theory
(edited with Carole Pateman)
Reconstructing Political Theory
(edited with Uma Narayan)
Mary Lyndon Shanley

Making Babies,
Making Families
What Matters Most in an Age of Reproductive
Technologies, Surrogacy, Adoption, and Same-
Sex and Unwed Parents

beacon press Boston

Beacon Press
25 Beacon Street
Boston, Massachusetts 02108-2892
www.beacon.org

Beacon Press books

are published under the auspices of
the Unitarian Universalist Association of Congregations.

© 2001 by Mary Lyndon Shanley

All rights reserved

First electronic reading edition 2002

Composition by Wilsted & Taylor Publishing Services

Library of Congress Cataloging-in-Publication Data

Shanley, Mary Lyndon.
Making babies, making families : what matters most in an age of reproductive technolo-
gies, surrogacy, adoption, and same-sex and unwed parents / Mary Lyndon Shanley.
p. cm.
Includes bibliographical references.
ISBN 0-8070-4415-6
ISBN 0-8070-4408-3 (hardcover : alk. paper)
ISBN 0-8070-4409-1 (pbk.)
1. Family—United States. 2. Family policy—United States. 3. Domestic relations—United
States. 4. Parents—Legal status, laws, etc.—United States. 5. Human reproductive technol-
ogy—Law and legislation—United States. 6. Adoption—Law and legislation—United States.
I. Title.
HQ536 .S4816 2001
306.85´0973—dc21 00-012727
For Fred
and for our children,
Katherine and Anthony
This page intentionally left blank
Contents

Preface ix
Introduction: Reinventing the Family 
. Transracial and Open Adoption:
New Forms of Family Relationships 
. Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs:
Unwed Fathers and the Perpetuation of Patriarchy 
. ‘‘A Child of Our Own’’:
Against a Market in Sperm and Eggs 
. ‘‘Surrogate’’ Motherhood:
The Limits of Contractual Freedom 
. Lesbian Co-Mothers, Sperm Donors, and Fathers:
How Many Parents Can a Child Have? 
Epilogue:
A New Liberal Ethics for Family Law and Policy 
Notes 
Selected Bibliography 
Acknowledgments 
Index 
This page intentionally left blank
 Preface

n the summer of  my family and I traveled to Bogotá, Colom-

I bia, on a trip that was vitally important for all of us. We went to
visit the adoption agencies in which my children had spent the first
weeks of their lives, and to see something of the city and country of
their birth. Kate was then seventeen, Anthony fourteen. Our decision
to make the trip had been set in motion by Kate’s desire to know more
of the circumstances of her birth mother’s decision to place her for
adoption. Anthony, for his part, expressed a desire to learn the hour of
his birth, letting that lacuna in the records we had stand in for all the
other unknown details of his early life story.
The trip we four made together was significant to each of us indi-
vidually, and to our life together as a family. To make the journey
seemed to all of us inevitable and compelling. Returning with our
children to the place we had adopted them, and having the pleasure of
seeing again and talking with the social workers who had interviewed
us and entrusted these children to our care, was a way for Fred and me
to share with our children some aspect of our experiences of years ago.
To be with them as they experienced the complex emotions that ac-
companied their own encounters with their beginnings allowed us to
[x] Preface
understand some emotions of loss and regret that are nearly impossi-
ble for a child to speak to a parent. The opportunity to share these mo-
ments of recognizing the complexity of our family bonds, which en-
compass original families whom we will probably never meet, was a
tremendous gift to me.
My experiences attempting to have children and then adopting led
me to think hard about the nature of the desire to be a parent, and
about the ways in which both procreation and raising a child are part
of many people’s understanding of the good life. We live in a time in
which the ways of bringing children into a family have expanded
greatly. Since the s adoption across racial lines has become more
common (although in the United States it disproportionately involves
the adoption by white parents of black children and children from
Asia and Latin America). So has ‘‘open adoption,’’ in which the birth
parents and the adopting parents meet one another. New reproductive
technologies have made it possible to use eggs, as well as sperm, from
someone else, which, along with in vitro fertilization, has made it pos-
sible for couples to conceive who previously would have been unable
to do so. Single women and lesbians can also now conceive using do-
nated sperm, and single and gay men can use donated eggs that a
woman (called a ‘‘surrogate mother’’) can gestate for them.
The centrality of parenting in my own life’s goals has made me
eager in my work as a political theorist to clarify principles that can
help people to construct families ethically. My first book examined
nineteenth-century reforms of marriage law, and I now wanted to
think about what principles should govern the ways people bring chil-
dren into a family, and competing visions of how we should support
family life. Although sometimes a difficult case has led to the articula-
tion of new legal rules, there has not been much discussion about
whether there are common ethical principles that apply to all the vari-
ous ways of bringing children into a family through adoption or the
use of reproductive technologies. But both new technologies and so-
cial practices have sparked a bevy of difficult and controversial ques-
tions: What defines a parent? Is race relevant to family ties? How many
parents can a child have? Do parents need to be of different sexes? Is it
genetic material alone or the labor of parenting that gives anyone a
claim to legal parenthood?
Preface [ xi ]
In attempting to answer these questions, I have resisted the dichot-
omy between ‘‘tradition’’ and ‘‘individual choice’’ that runs through
many discussions of family policy. That division pits those who argue
that there is a single legitimate form of family, rooted in ‘‘nature’’ or
long-standing traditions of American society, against those who as-
sert that there is no single desirable form of family and that people
should be free to form families however they choose. I insist that it is
possible for law and social policy to promote liberty and choice while
at the same time advancing equality, recognizing and protecting fam-
ily relationships, and providing care to those who need it. How best to
achieve these goals is not self-evident, but I provide examples of ways
of moving toward a society committed to such a vision.
I hope with this book to further the vitally important public dis-
cussion of policies and laws that affect the ways in which people make
babies and make families, topics touching not only the most personal
and private aspects of people’s lives, but values central to public life as
well. Different perspectives and complex narratives characterize every
one of the issues I examine in this book; I make no claim to have the
final word on how we should think about and regulate these practices.
In the chapters that follow, I draw both on my family experiences as
daughter and sister, wife and mother, and on my training as a political
theorist to propose ethical principles to guide family law and policy.
While people such as doctors who work with biotechnology or law-
yers who practice in family court may have particular perspectives on
these issues, every person who reflects about her or his experience of
family life has a vital contribution to make to the discussion. Only by
listening to people with many different kinds of experiences and
points of view—including those who are often marginalized or ig-
nored, such as unwed mothers or people in poverty—can we move to-
ward a widely accepted ethics, both public and private, governing the
ways people make babies and make families. I hope my reflections will
move as many readers as possible to join in the conversation.
This page intentionally left blank
introduction

Reinventing the Family

T he traditional fabric of family law is unraveling. We are living in

an historical moment in which understandings about what con-
stitutes a family, what family members owe one another, and how long
family relationships endure are undergoing rapid transformation.
The title of this book, Making Babies, Making Families, draws atten-
tion to the fact that the seeming stability of family boundaries estab-
lished by the natural tie of heterosexual attraction, coital procreation,
and biologically based family genealogies has been challenged. There
are growing numbers of families in which the adult partners are of the
same sex, children have been created from donated genetic material,
adoptive and birth parents know one another and are both present in
a child’s life, households of ‘‘step-siblings’’ and ‘‘half-siblings’’ create
‘‘blended families,’’ or adults raise children as single parents. To some
people the degree of variation in family forms and the amount of per-
sonal choice in making babies and making families seems to invite lib-
eration and fulfillment; to others it seems to create practical confu-
sion and moral chaos.
The cultural and legal definition of family now under siege has
predominated in the Western world since the sixteenth century. Not
[] Making Babies, Making Families
only was the family considered to be a natural, hierarchical, private
association made up of a heterosexual couple and their biological chil-
dren, but it was ‘‘naturally’’ headed by a male: the husband had au-
thority over his wife, and the father had more authority than the
mother over their children. This tradition assigned men and women
very different roles: men were breadwinners, women were caregivers
and nurturers. In some times and places, the law reflected the assump-
tion that members of a family would be of the same race; some Ameri-
can states prohibited marriage between persons of different races, and
interracial adoption was almost unheard of until the late s.
Starting in the mid-nineteenth century, both legislation and court
decisions began rejecting these premises, positing more equality be-
tween husband and wife, allowing that marriage might be dissolved
by divorce, striking down antimiscegenation laws, creating the means
for legal as well as informal adoption, requiring parents to send their
children to school and inoculate them against certain diseases, and
subjecting families to state scrutiny in cases of suspected neglect or
abuse. But with all of these political modifications of the ‘‘natural’’
family order, no comprehensive new understanding of family rela-
tionships has taken its place. Rather, the old order has been pushed
and pulled into new shapes by a host of economic, technological, and
ideological forces.1
In the decades after World War II, the combination of need pro-
duced by falling real wages and the desire of many women to engage
in paid work changed the middle-class pattern of male breadwin-
ners and female homemakers drastically. The percentage of married
women in the labor force, which had been . percent in , in-
creased to . percent in , and to . percent in . The speed
at which this increase took place is astounding; from  to  there
was a gain of . percentage points, and the number of employed
wives more than doubled.2 Statistics concerning families with chil-
dren were equally striking. In ,  percent of American house-
holds had male breadwinners and full-time female homemakers, re-
gardless of whether children were present. By the s, the figure was
reversed, and more than  percent of married women with children
under the age of eighteen were in the labor force.3
Single-parent families also increased, in part due to divorce, in
Introduction []
part due to a rise in never-married parents. The increase in the divorce
rate was steady from the s (when the first statistics were collected)
until the s. In  the divorce rate was eighteen times higher than
it had been in , and almost two and a half times what it had been
in . In the s, the likelihood of a first marriage ending in di-
vorce was above  percent.4 Single-parent households headed by a
woman were more likely to be poor than were single-parent house-
holds headed by a man, and if the woman was black the chances of
her children living in poverty increased.5 In  changes in the wel-
fare laws allowed states to require recipients of Aid for Families with
Dependent Children (AFDC) ( percent of whom were women) to
take a job after six months and placed a lifetime limit of five years on
receiving welfare benefits, regardless of whether there were children
in the home. Economic and social factors alike made the full-time
stay-at-home mother a statistical minority by the last years of the
twentieth century.
At the same time, ideological pressures were reinforcing the im-
pact of economic change on the family. The women’s movement, fol-
lowed by the gay and lesbian movement, articulated more egalitarian
ideas concerning men’s and women’s roles in society. Feminist theory
asserted that women should be able to assume the responsibilities
of work, professional authority, and political activity previously re-
garded as the prerogatives of men. Feminists also challenged male au-
thority in the household, as women insisted that their voices be heard
in everything from family finances to the division of household labor
to the frequency of sexual relations. While many feminists insisted
that women’s equality was not inconsistent with family stability, the
very idea of equality put in question traditional family models based
on clearly differentiated sex roles and ‘‘separate spheres’’ for men and
women.
Changes in medicine and reproductive technology affected sexual
behavior and family formation in numerous ways. The development
of ‘‘the pill’’ altered sexual behavior both within and outside marriage
by making it easier to avoid unwanted pregnancies and to plan the
timing of children. In vitro fertilization made it possible for some pre-
viously infertile couples to have genetically related children. This and
other reproductive technologies made possible ‘‘collaborative procre-
[] Making Babies, Making Families
ation’’ among people who did not engage in sexual activity with one
another: alternative insemination by donor and ova extraction and
transfer allowed heterosexual couples who could not conceive using
their own genetic material to have children, and was also used by some
single persons and same-sex couples. Through ‘‘contract pregnancy’’
or ‘‘surrogate motherhood,’’ couples or individuals could contract
with a woman to gestate a fetus conceived using alternative insemina-
tion or in vitro fertilization, relinquishing the child after birth.
With these extraordinarily changed possibilities for family forma-
tion, myriad ethical and legal dilemmas have presented themselves to
a baffled society. When genetic parents (those who provide the sperm
and the egg), gestational mother, and social and psychological parents
(those who raise the child) are not the same, who should be declared
the legal parent(s) of a child? Should people other than the legal par-
ents have rights to access or visitation after adoption or after assisted
conception or gestation? Should children (or the adults they become)
have the right to obtain information about their progenitors?
While long-standing practices of informal and formal adoption
have placed children to be brought up by people other than their bio-
logical parents in the United States, the relatively new practices of
formal open adoption and transracial adoption have raised questions
concerning the importance to be given to the genetic tie. Should chil-
dren maintain contact with birth parents on the one hand and with ra-
cial and ethnic groups on the other? States are divided about whether
to allow the law to recognize two sets of parents: the adoptive parents,
who have custody, and the birth parents, who have some visitation
rights. Public opinion and public law are also divided over the desir-
ability of race-matching in adoption. In the United States, federal law
requires that Native American children be placed with Native Amer-
ican parents whenever possible but prohibits the use of race in the
placement of other children, raising all kinds of questions about the
relevance of genetic bonds to our understanding of race as well as of
family formation.
Other issues about the recognition to be given to the genetic tie
concern the question of what parental claims, if any, a man who is not
married to a child’s mother should have. This question has been raised
starkly in cases in which biological fathers have sought to void an
Introduction []
adoption and gain custody after the birth mother, without informing
the father of his paternity, relinquished the child for adoption. In an-
other case, a man who had fathered a child and lived for a while with
the child and her mother, despite the fact that the mother was legally
married to someone else, sought to establish legal paternity so that he
could petition for visitation with the child. In some of these cases
courts held that the biological tie provided grounds to assert legal pa-
ternity, while in other cases courts held that being the biological pro-
genitor of a child did not necessarily create standing to seek legal rec-
ognition of paternity. The general public as well as the courts were
deeply divided over the questions of what resolution was proper, and
why.
The fact that people now plan and agree in advance to make babies
who will not be raised by one or both of their genetic parents has given
rise to other controversies. Should there be an open market in human
sperm and eggs, or should such sales be prohibited or regulated? If
regulated, in what ways and on what grounds? Should the law rec-
ognize contracts for human procreation? What should a court do
if someone changes her or his mind and wants to annul or modify a
contract concerning procreation? For example, does a woman who
agrees to bear a child for someone else but changes her mind during
pregnancy have any right to be named the child’s parent or to get visi-
tation rights? Does it matter whether or not the child was conceived
with her egg? If a child is born with disabilities is the contract affected?
When same-sex couples who had a child together using donated
sperm or eggs (and, in the case of gay men, ‘‘gestational services’’) sep-
arate, does the nonbiological parent have the same right to custody as
the biological or genetic parent? Does a lesbian partner of a biological
mother who has shared all the care of a child they planned for together
have a right to sue for visitation after the couple separates? Does a man
who has donated sperm to a lesbian couple and who is known to their
child as her biological father have a right to seek legal recognition of
his paternity in order to seek visitation when the mothers have de-
cided they do not want the child to see him anymore?
Some people cling to tradition to ward off the uncertainty these
changes have generated. I prefer to try to devise new expectations and
rules grounded in familiar ethical principles. I ally myself with those
[] Making Babies, Making Families
who struggle to devise principles and rules that allow new measures of
equality between men and women in families, new possibilities for
people previously unable to create families, and new protections for
children in all kinds of families. Like some theorists who have worked
to construct rules based on values prior law ignored, and some who
have sought to connect the principle of individual freedom with the
values of intimate association, I suggest changes in the ways we think
about and regulate family life that reflect the tremendous complexity
in the relationships that bring adults and children together in fami-
lies. But accepting change does not mean that ‘‘anything goes.’’ New
practices that allow people previously unable to create families to do
so require that law and social policy pay careful attention to achiev-
ing equality between men and women; protecting family relation-
ships, especially those involving children; and taking care of vulnera-
ble family members.
Dilemmas abound in the efforts to reshape family law in accord
with each of these ideals, and theorists differ in the weight they give to
the principles at stake and in the conclusions they reach.
One strain of thought grows out of that aspect of the liberal tra-
dition that recognizes liberty, consent, and choice as fundamental
values to our political and legal system. These values place the self-
governing individual at the center of social concern, and historically
they have inspired important developments in laws relating to the
family. Prohibitions against interracial marriage were struck down
when the Supreme Court held that marriage is a fundamental right
that the state can abridge only for a compelling interest. The Court
also declared first that married couples and then that individuals have
the right to decide whether or not to use birth control. Once people do
have children, the Court had already decided, they have a right to
make certain decisions about educating their children free from state
interference. Unmarried as well as married fathers have a right to cus-
tody of their children if they have had a significant relationship with
them.
Dealing with current dilemmas, theorists making personal liberty
their highest principle would craft new law allowing people in most
instances to be their own lawmakers—to decide for themselves how to
create families and conduct family life. For example, they argue that
Introduction []
the right to privacy that underlies people’s right to prevent conception
or to end a pregnancy should also guarantee people’s right to use re-
productive technologies without state regulation or restriction. They
favor letting people who engage in collaborative procreation make
their own agreements about allowing the biological or genetic parents
access to the child. In adoption, they would allow birth parents and
adoptive parents to agree to whatever degree of openness or secrecy
they see fit. Similarly, they would allow heterosexual, gay and lesbian,
and single persons to contract for gametes (that is, eggs or sperm) and
gestational services, and to reach their own agreements, before the
child is conceived, about the degree of contact, if any, there will be be-
tween the donor(s), the child, and the custodial parents.
As I explain in the chapters that follow, I have serious reservations
about relying on the principle of individual liberty as the primary or
unqualified foundation of family law. The liberatory potential of the
freedom to make choices in this vital aspect of social life depends on
what choices are available and to whom. In a society already deeply
structured by sex, race, and class, announcing that people have a
‘‘right to reproduce’’ may mean that some people get the right to take
advantage of others’ vulnerabilities. There is, moreover, a danger that
the rhetoric of liberty and choice will result in various aspects of fam-
ily formation being taken over by market mechanisms. Competitive
pricing of gametes, for instance, according to the donor’s characteris-
tics such as academic performance, athletic ability, and racial features
is a deeply troubling move toward the commodification of genetic
material and the children it produces.
My approach is to balance rights of personal choice with concern
for relationship and association as crucial elements of individual and
social well-being. New law, I believe, should insist that people assume
the responsibilities of supporting and caring for family members, par-
ticularly children. The primary relationship of parent and child is one
of stewardship, and stewardship means that parental authority must
be grounded in the assumption of responsibilities that are not subject
to parental will or negotiation alone. Moreover, public policy should
create conditions under which people are best able to make deep com-
mitments of emotional and material support to one another. The as-
sumption of responsibilities should not be left solely to individual vo-
[] Making Babies, Making Families
lition, and the fulfillment of those responsibilities should not depend
solely on individual resources.
One of the difficulties with insisting that intrinsic obligations set
limits on how adults may choose to establish and order their family
life, however, is that society has traditionally assigned the tasks of
caregiving to women, and this has created significant economic and
political inequality between women and men. Since the Industrial
Revolution, the demands of caring for children and a household were
usually met by wives’ unpaid labor or by female servants. Because
caregiving was what women did, and was seen as part of the private
realm, it did not appear as an object of political discussion. It is clear,
however, that women cannot be entirely responsible for the family’s
‘‘home life’’ and also participate meaningfully in the public realm. If
the requirements of care are to be met, men will have to take more di-
rect responsibility for childcare and domestic tasks, as some men have
begun to in the past few decades.6 If men and women are to enjoy
equal liberty, and also are to sustain relationships of care, their roles
within both the family and civil society will have to change, and ex-
tensive new social practices supported by law will be necessary. In
short, liberty must be limited by the demands of equality, relation-
ship, and care.
I try to address many, although not all, of these issues in the chap-
ters that follow by looking at a series of questions involving family
policy and law that have troubled legislatures and courts in recent
years. In Chapter , I show that the controversies that have arisen in the
past several decades over transracial adoption and open adoption re-
flect significant developments in thinking about families and how
they are formed. Unlike earlier adoption practices that tried to make
adoptive families resemble a biologically related family as closely as
possible and made a ‘‘clean break’’ between the family of origin and
the adoptive family, both transracial adoption and open adoption
suggest that adoptive families may have a form of their own that does
not mimic the biological nuclear family. In Chapter , I argue that the
decision to relinquish a child for adoption belongs to biological par-
ents who have provided care to a child, not simply to people related to
the child biologically. Does the fact that the mother and not the father
carries the fetus through pregnancy give the mother greater parental
Introduction []
rights than the father at the time of birth? When couples are married
the law says that the couple’s commitment to one another in marriage
makes them equal partners in parenting. But what about unmarried
parents? Does sexual difference affect their parental rights? Should it
do so? I examine this issue using the controversy over whether an un-
wed father should have the right to veto the mother’s decision to place
their child for adoption. I defend the priority of responsibility and
care over biology for grounding parental rights, and suggest ways in
which men could demonstrate their intention to care for their off-
spring even before the child is born.
Chapters , , and  move from a consideration of adoption, which
involves thinking about parental ties to existing children, to assisted
procreation, in which adults plan in advance of conception to have the
genetic and/or biological parents be different than the social and psy-
chological parents who have legal custody of the child brought into
being. In Chapter , I consider the ideas reflected in the current prac-
tice of using other people’s eggs or sperm to produce a child ‘‘of one’s
own.’’ I focus on two salient features of gamete transfer in the contem-
porary United States: the anonymity of donor and recipient, and the
unregulated market. I argue that doing away with anonymity would
be desirable in gamete transfer as well as in adoption, and that society
should oppose a market in human gametes just as it currently does a
market in children. I continue to examine new procreative services in
Chapter , where I discuss the issues raised by contract pregnancy
(surrogate motherhood). I argue against enforcing pregnancy con-
tracts. I also argue that because of the ways in which race and class, as
well as sexual difference, affect these practices, paying a surrogate for
gestation should be prohibited. Chapter  brings many of these issues
together as I consider lesbian couples’ use of donated genetic material
(gay men must acquire both ova and gestational services) to have chil-
dren. I argue that the biological mother who bears a child after alter-
native insemination should have no greater claims to parental rights
than her lesbian partner. I examine the controversy over whether the
sperm donor, if he is known to and involved with the child, should
have any legal status or rights. These families return us to the question
of how far new family forms should be allowed to depart from the
model of the biologically related family. In the epilogue I argue that
[  ] Making Babies, Making Families
the erosion of the notion that there is only one kind of family does not
entail the end of family values or of ethical reasoning about family
ties. The pluralization of family forms requires us to articulate new
principles to insure the well-being of families and all their members,
principles that must place gender equality and children’s well-being at
their center.
It is clear that we live in a time of transition from a patriarchal fa-
milial and social order to a new order whose values are matters of
debate and whose final contours it is impossible to predict. Living
through a transition and trying to formulate principles to guide fam-
ily policy and law are difficult tasks. The assumption of natural hier-
archy and a male-headed family can no longer serve as a normative
foundation for family law. I find it impossible to lament the demise of
a social and legal order permeated by sexual inequality. I also find it
impossible to embrace a voluntaristic or contractual foundation for
family policy and law. The primary focus of any normative theory of
the family cannot be on adults’ volition, but on children’s needs and
the right of every child to be parented. Law and public policy must
recognize that children have a right to be cared for, and to have specific
persons responsible for their upbringing. They must recognize that
caregiving is an obligation of men and women alike. Law and public
policy must also realize that society has a responsibility to make sure
that adults who are responsible for children have access to the means
and services that will enable them to fulfill their tasks adequately. The
responsibility of meeting children’s need for care is not a private re-
sponsibility alone, but one of society—that is, of government. The di-
lemmas that arise for feminism and law involve the necessity to bal-
ance the demands of liberty, equality, relationship, and care, values
that endure even as people engage in new practices in making babies
and making families.
chapter 1

Transracial and Open Adoption:

New Forms of Family
Relationships

T hinking about adoption is a good place to begin rethinking the

ethics that should guide family formation and the relationships
among family members. The dominant cultural image of family
in the United States is that of a heterosexual couple, their offspring,
and relatives by blood or marriage—aunts, uncles, nieces, nephews,
grandparents and grandchildren. Even now when tradition is giving
way to a variety of family forms, traditional discourse suggests that
family ties are created ‘‘by nature.’’ Adoption complicates this picture
by allowing the severing of family ties given by nature, and the volun-
tary assumption of parental rights and responsibilities for children by
adults who are not their biological parents. Adoption concerns both
ending an existing set of family relationships or potential relation-
ships, and establishing new ones.
Although most people regard adoption as an important way to
make certain that children are well cared for, strong disagreement ex-
ists over two issues: whether children should be placed across ethnic
or racial lines, and whether adoption records should be open and par-
ties to an adoption should be able to know one another’s identities or
even meet. Should a Catholic child be placed only with Catholic par-
[  ] Making Babies, Making Families
ents, a Muslim child only with Muslim parents; should a black child
be placed only with black parents, a Filipino child only with Filipino
parents? Should adoptees have access to their original birth certifi-
cates, and should birth parents be able to know who adopted their
children? Should the infant available for adoption be understood as
an individual who can be moved without constraint from one family
to another, or as someone with ties to persons outside the adoptive
family—genetic kin or a racial group—that deserve some kind of so-
cial and legal recognition?1
Traditional policy and practice have assumed that adoptive fami-
lies should resemble as closely as possible biological families, and that
infants relinquished for adoption (older children are regarded differ-
ently) should be regarded as freestanding individuals with no relevant
links to either their birth parents or the racial, ethnic, or religious
groups to which their birth parents belong. These policies formed
adoptive families to be ‘‘as if ’’ families, that is, families in which chil-
dren to all appearances might have been born to the adoptive parents.
Typically, children were placed with adoptive parents with the same
racial features. Birth records were sealed, and the birth parents disap-
peared from the child’s life. The result was to ratify a family based on
biological ties to both parents as the desirable norm.
Recent pressures from several sources, however, have posed seri-
ous challenges to the ‘‘as if ’’ model of the adoptive family. In trans-
racial adoptions the parents’ and child’s differences in physical ap-
pearance publicly announce that they are not biologically related.
Proponents of transracial adoption argue that an infant awaiting
adoption should be placed without regard to race so that neither the
child nor the adoptive parents will experience discrimination.2 Oppo-
nents of transracial placement insist that being a member of a racial
minority gives the child an interest in being raised by others of that
minority, and gives the group an interest in raising the child.3 The
movements for unsealed adoption records and for open adoption are
another challenge to the tradition of the ‘‘as if ’’ adoptive family. Un-
sealed records make original birth information available to adult
adoptees, and open adoption brings birth parents and adoptive par-
ents into contact, sometimes even before the child is born. Propo-
nents of secrecy in adoption tend to regard the infant as an individual
Transracial and Open Adoption [  ]
and worry that unsealed records and open adoption place too much
emphasis on biological relationships, and may impede the forging of
strong bonds in the adoptive family.4 People who advocate doing away
with secrecy argue that knowledge of the genetic link between biologi-
cal parents and child is part of the identity of each of them and should
not be permanently hidden or inaccessible.5 Those who favor either
transracial adoption or open adoption assert that there is no overrid-
ing need to make all aspects of an adoptive family conform exactly to
those of families formed biologically.
The debates on these topics have for the most part taken place
quite separately. People discussing whether or not adoption records
should be accessible by the adult adoptee have by and large not talked
about ethnic identity and minority group rights. People discussing
whether or not children should be placed for adoption across racial
lines have rarely focused on the issue of sealed records. I bring these
discussions into dialogue with one another because together they illu-
minate the values expressed—and the values excluded—when policy
is based on the presumption that there is only one normative model of
family. The debates over transracial and open adoption are part of a
more general recognition that there are a number of kinds of families
in which parents (or one parent) and child are not genetically related,
including blended families, heterosexual families that use donated
eggs or sperm, and gay and lesbian families. Juxtaposing these discus-
sions also brings to light, and suggests ways to ameliorate, the effects
of gender and racial hierarchy that have marked aspects of adoption
and the use of reproductive technologies alike.
Transracial adoption pits values of integration or assimilation
against multiculturalism, and individuality against racial-ethnic
community.6 Disputes about secrecy, for their part, pit values of pri-
vacy against those of knowledge and freedom of information. All of
these values are fundamental to pluralist democracy in the United
States. The complex moral and policy issues involved in open and
transracial adoption are, in Janet Farrell Smith’s words, ‘‘not resolv-
able without remainder.’’ That is, in situations involving ‘‘a complex
set of conflicting practical demands, each tied to a set of apparently
morally reasonable supports, taking up one of these positions will not
nullify moral demands of the alternatives not taken.’’7 But in the real
[  ] Making Babies, Making Families
world where all of us must act, we cannot avoid judgments and policy
choices that will favor one side or the other: the law will either pro-
hibit or allow the disclosure of identifying information about the par-
ties to an adoption; and the law will either prohibit or allow the place-
ment of children across racial lines.
My own thinking is that both unsealed records and transracial
adoption allow greater room for expression of the values of liberty,
equality, relationship, and care in the functioning of families than did
the older approach. In developing new family policies, it is crucial to
place children at the center of analysis, and to remember that chil-
dren’s need for care requires social policy that supports parents in
their caregiving efforts.8 By challenging the dominance of the norm of
the biological family, transracial adoption and unsealed records rep-
resent an opening for a plurality of forms that I see as necessary for a
more humane family policy. Developing an ethical basis for family
law and policy requires carefully weighing multiple values and inter-
ests, not adhering to a single principle alone; that balancing guides
this discussion of adoption and of the topics that follow.

Traditional Adoption Policy and Practice

While new reproductive technologies have made the separation of
genetic and social parenthood seem like a relatively recent develop-
ment, legal convention, and not biology alone, has always determined
who would enjoy status as a legal parent. As Thomas Hobbes pointed
out, while maternity could be observed at the time of birth, knowl-
edge of paternity depended on the not always reliable word of the
mother. Bastardy laws proclaimed that biological fathers would be
recognized as legal fathers only if they were married to the mother of
their child. Not all women who gave birth were regarded as the legal
mothers of their offspring: slave mothers (along with slave fathers)
did not have parental rights.
The creation of legal adoption in the mid-nineteenth century was
a radical innovation because it dissolved the ‘‘natural’’ (blood) ties
that bound families together and replaced them with ‘‘artificial’’ (le-
gal) ties of kinship.9 In the American understanding of kinship, re-
counted by anthropologist David Schneider, ‘‘family’’ means biologi-
cal parents and their children, and ‘‘[t]he relationship which is ‘real’
Transracial and Open Adoption [  ]
or ‘true’ or ‘blood’ or ‘by birth’ can never be severed, whatever its legal
position. Legal rights may be lost, but the blood relationship cannot
be lost. It is culturally defined as being an objective fact of nature, of
fundamental significance and capable of having profound effects, and
its nature cannot be terminated or changed.’’10 Although children
were sometimes adopted by members of their extended family, the
primary model of formal adoption was ‘‘stranger adoption.’’ Statutes
allowing legal adoption undermined the traditional understanding of
the indestructible and involuntary nature of family bonds by severing
the legal tie between original parents and their offspring and creating
a new legal tie by convention and choice.
Despite the fact that adoptive families were created ‘‘artificially’’
by a legal procedure, however, from the mid-nineteenth to the mid-
twentieth century most adoptive families gave the appearance of hav-
ing resulted from sexual relations between the parents. Parents were of
the age to have borne the child, and of the same race and often the
same religion as the biological parents. The dissolution of the child’s
legal ties to its original parents made it possible for the adoptive family
to simulate a biological family, ‘‘reflecting the deeply embedded no-
tion in the ideology of American kinship that the only ‘real’ relation
is a blood relation and, by extension, the only experience of authentic
identity is bestowed by blood ties.’’11
Adoption law assumed that the family of which the child would
become a member would have a particular configuration. There
would be two (and only two) parents, of different sexes, and of the
same race as the child. The sealing of adoption records reflected the le-
gal assumption that parenthood is an exclusive status that can belong
only to two persons at a time with respect to any one child. Underly-
ing the policy of placing children with adoptive parents of the same
race was the social fact that interracial marriage has been the excep-
tion rather than the rule in the United States (only in  did the Su-
preme Court rule that state prohibitions on interracial marriage vio-
lated the Constitution). Adoption laws and policies were designed to
make adoptive families imitate what was seen as a norm given by
nature.
The creation of an ‘‘as-if ’’ adoptive family incorporated a model
of the individual and social ties consonant with the assumptions of
[  ] Making Babies, Making Families
liberal individualism and liberal political theory. Infant adoption, in
particular, seemed to rest on the notion that at least for a brief period
of time after birth, the child could be regarded as an individual who
could be moved from one family to another and expected to take on
an identity shaped by the roles, status, and obligations that member-
ship in the new family entailed. Legal discourse about adoption fo-
cused on the right of a child to a permanent home, and the obligation
of the state to protect children by placing them with adults who were
financially and emotionally capable of providing care. The intermedi-
ary role performed by the adoption agency, which accepted the child
from the birth parents and then placed her with adoptive parents, re-
flected the fact that for a moment the child was a ward of the state not
bound to any other specific persons, an individual awaiting the cre-
ation of lasting family ties by an adoption decree.
Society dealt with unmarried motherhood differently depending
on the race of the mother. Prior to World War II, adoption was not
common among whites in the United States.12 During the first two de-
cades of the twentieth century, a woman who bore a child outside of
marriage was considered a ‘‘fallen woman,’’ shamefully weak or im-
moral. A child born out of wedlock was stigmatized, labeled ‘‘illegiti-
mate’’ and a ‘‘child of sin,’’ and considered likely to grow up to be a de-
linquent. Society expected the mother to raise the child herself as
punishment for her transgression and as a ‘‘lesson’’ to other women
who might be tempted to engage in illicit (that is unmarried) sex.
In the s, extramarital pregnancy continued to be socially con-
demned, but the advice about what to do changed. An unmarried
white woman was now counseled to hide her pregnancy, give the child
up for adoption, and never see the child again. It was hoped that by
keeping the adoption secret she could ‘‘get on with her life’’ by mar-
rying and eventually bearing ‘‘legitimate’’ children.
In the United States, blacks’ experiences and attitudes toward
adoption have typically been different from whites’. Both during and
after slavery, black children who were orphaned or separated from
their parents were often taken in by other families. There is a long his-
tory of informal adoption in black communities with roots in some
West African cultural practices.13 By contrast, to formally relinquish a
child for adoption because of an unwed pregnancy was rare. Because
Transracial and Open Adoption [  ]
of the rape and sexual exploitation of black women by their white
masters during slavery, black communities have tended not to stigma-
tize black children born out of wedlock.14 Many black infants were
raised by members of their mother’s extended family, often without
being legally adopted. Raising such a child was regarded not only as
caring for an individual child, but as contributing to the well-being of
the black community. Black women who bore children out of wedlock
were labeled by white society as loose or immoral, and they were not
offered the services of maternity homes and adoption agencies to help
them in their pregnancies and with the placement of their children. In
addition, many black families could not meet some of the criteria
agencies used (for example, stipulating family income or number of
bedrooms in the house) to select adoptive homes.
After World War II, the stigma and embarrassment about sexual
or reproductive inadequacy still haunted infertile couples, while the
stigma attached to out of wedlock pregnancy for the white mother
became more complex. Some social workers (influenced by psycho-
analytic theory and by the scarcity of newborn white infants to adopt)
began to shift their view of the unwed mother from someone mor-
ally deficient and incorrigible to someone caught in the throes of a
psychological conflict that led her (unconsciously) to seek to bear a
child.15 By and large the stigma that had been attached to white chil-
dren born out of wedlock disappeared, and they began to be regarded
as innocent and desirable. This acceptance did not extend to the black
mother or infant, however.
Public and private agencies and government policies viewed both black and
white women as breeders, but with a major and consequential distinction.
The former were viewed as socially unproductive breeders, constrainable
only by punitive, legal sanctions. . . . White unwed mothers in contrast were
viewed as socially productive breeders whose babies, unfortunately con-
ceived out of wedlock, could offer infertile couples their only chance to con-
struct proper families.16
Race significantly influenced the status of birth mothers and the esti-
mation of their mothering capabilities.
These factors contributed to a change in adoption practices meant
to make it easier both to relinquish and to adopt white infants. During
the s many jurisdictions began to seal adoption records, making
[  ] Making Babies, Making Families
it impossible for anyone to discover the identity of the biological par-
ents of an adopted child.17 E. Wayne Carp has argued that what he calls
the move from confidentiality (records closed to all but ‘‘the parties of
interest,’’ i.e. birth parents, adoptive parents, and child) to secrecy
(records inaccessible to everyone except by a court order) was in re-
sponse to a complex set of factors, including the adoptive parents’ fear
that the birth parents might reappear, unwed mothers’ desire to avoid
social condemnation, and social workers’ efforts to ‘‘increase their
own influence and power, and bolster social work professionalism.’’18
Adoptive parents pushed for secrecy to avoid the stigma of infertil-
ity and the possibility that the birth parents might reappear. Unwed
mothers sought secrecy in order to be spared social condemnation.
Seeking to avoid an investigation of their life circumstances and the
six-month wait for a placement that were often standard in state agen-
cies, unwed mothers turned to private, unlicensed adoption agencies
that promised them privacy. As a result, state agencies changed their
procedures and urged legislatures to mandate that adoption records
be sealed.
The sealed records’ concealment of the child’s biological parents
smoothed the way for the construction of an ‘‘as-if ’’ biological family
by adoptive parents ‘‘who, by physical appearance and age could have
conceived the infant.’’19 Various secretive practices developed that
promoted the construction of the ‘‘as if ’’ family. Unwed white preg-
nant women would often leave home, telling friends and neighbors
that they were traveling or visiting relatives, and stay in homes for un-
wed mothers during their pregnancies. Upon the birth of the child,
the birth mother signed a document in which she irrevocably severed
her rights and responsibilities to the child. The adoption agency took
custody of the child and attempted to match the characteristics of the
adoptive and original parents. Statutes and court decisions ‘‘used tests
of adoptive parental fitness, and strict eligibility standards to make the
artificial family approximate the legal ideal of a proper natural one in
age, race, affection, and legal authority.’’20 When the adoption became
final, usually after a probationary period of six months to a year, the
court sealed the original birth certificate and adoption records and
entered into the public record a new birth certificate, which contained
only the names of the adoptive parents. The sealed records could be
Transracial and Open Adoption [  ]
opened only by court order after a showing of ‘‘good cause.’’ (In some
states, a petitioner could establish good cause by demonstrating med-
ical necessity; in others, a strongly felt psychological need to discover
one’s genetic identity came to constitute cause.) The general exclusion
of single persons and of gay and lesbian couples from the pool of
adoptive parents also made the adoptive family resemble a biological
family.
These practices in both U.S. and international adoptions have be-
come known as the ‘‘clean break’’ approach to adoption, in which the
integration of a child into an adoptive family ‘‘is premised on the
complete severance of ties with the biological family.’’ In an inter-
country adoption, the clean break model also involves the child’s as-
sumption of a new ‘‘national identity—as ‘Swedish’ or ‘American’
rather than ‘South Korean,’ ‘Colombian,’ or ‘Chinese.’ ’’21 Paradoxi-
cally, as Barbara Yngvesson notes, the clean break model, which incor-
porates an individualistic view of the child who can be moved from
one family to another across all kinds of cultural and geopolitical
lines, also implies that the ties between child and birth parent are so
strong that unless the child becomes ‘‘parentless’’ (for example by be-
ing legally abandoned), new ties cannot be created.22
Many factors, both sociological and ideological, have in recent
years challenged the idea that an adoptive family has to simulate a bio-
logical family, or that an infant voluntarily relinquished for adoption
is a ‘‘parentless’’ child. One consequence of the relatively low number
of white babies available for adoption, due in part to contraception
and abortion, and in part to the decreasing stigmatization of unwed
motherhood, has been the increasing openness of many people’s ef-
forts to find healthy infants through ads or public notices seeking
women interested in placing their babies for adoption. Single persons
and gay and lesbian couples have found ways to adopt children. Some
people have adopted across racial lines, making the constructed na-
ture of at least some adoptive families readily visible. Some people
have entered into open adoptions, in which members of both the fam-
ily of origin and the adoptive family are known to everyone involved.
The variety of new forms of families being created through open
and transracial adoptions, then, has thrown into question the tradi-
tional assumptions about adoption. In the case of nonsecret or open
[  ] Making Babies, Making Families
adoption, the birth parents’ and the child’s right to know one an-
other’s identities is at issue; in transracial adoption, both the child’s
right to a particular cultural identity and the group’s right to raise ‘‘its
own’’ are at issue. I bring the policy debates over secrecy vs. nonse-
crecy and same-race vs. transracial adoption together here because
both raise the question of whether or to what extent the law should
treat an infant available for adoption as an autonomous individual in
need of a family, or as an individual in part defined by relationships to
persons or groups beyond the adoptive family.
The ‘‘As If ’’ Adoptive Family:
Nonsecrecy and Open Adoption
Both open adoption and transracial adoption challenge the notion
that adoptive families should mirror the nuclear family composed of
a heterosexual couple and their biological offspring. David Schneider
has pointed out how strongly the possibility of having biological off-
spring a couple could raise together influenced the American under-
standings both of ‘‘family’’ and of legitimate sexual relations.
Sexual intercourse between persons who are not married is fornication and
improper; between persons who are married but not to each other is adultery
and is wrong; between blood relatives is incest and is prohibited; between per-
sons of the same sex is homosexuality and is wrong; with animals is sodomy
and is prohibited; with one’s self is masturbation and wrong; and with parts
of the body other than the genitalia themselves is wrong. All of these are de-
fined as ‘‘unnatural sex acts’’ and are morally, and in some cases, legally,
wrong in American culture.23

Schneider might have noted that intercourse across racial lines was
also prohibited by both cultural and legal rules, on the grounds that it
was ‘‘unnatural’’ and an offense to both custom and morality. Interra-
cial marriage was a crime in some states until the Supreme Court
struck down antimiscegenation statutes in Loving v. Virginia in .
As late as , Florida argued before the Supreme Court that a di-
vorced white woman should be denied custody of her white child be-
cause the mother’s new marriage to a black man would create social
difficulties for the child as she grew up. The Court rebuffed Florida’s
reasoning, saying that ‘‘The question . . . is whether the reality of pri-
Transracial and Open Adoption [  ]
vate biases and the possible injury they might inflict are permissible
considerations for removal of an infant child from the custody of its
natural mother. . . . The Constitution cannot control such prejudices
[against interracial marriage], but neither can it tolerate them.’’24 Even
as the Court rejected any legal validity to the notion that families had
to be racially homogeneous, it acknowledged the power of such an
idea in Americans’ imaginations and social practice.
The primacy of blood ties in many Americans’ understanding of
family deeply affected the practice of secrecy in adoption. Initially,
adoption records were kept confidential in order to protect the pri-
vacy of all parties, particularly the birth mother, from outsiders; con-
fidentiality was not meant to block the exchange of nonidentifying in-
formation among parties to the adoption. Carol Sanger has pointed
out the stigma attached to all birth mothers, married and unmarried
alike, who decided not to raise their children or who were forced by
circumstance or social pressure not to do so.25 The shame attached to
unmarried women bearing children did great harm to individual
women and children and played a large role in the subordination of
women as a group. Women were often ‘‘ruined’’ by an act from which
men might walk away unscathed. Fear of such dire social conse-
quences increased the pressure on women to marry and surrounded
premarital sexual activity with fear and anxiety. The practice of hid-
ing one’s pregnancy and childbirth in order to resume a ‘‘normal’’ life
was the best many women could do in the face of these social pres-
sures, but the toll such secrecy exacted was tremendous.
Open adoption developed in response to the realization of white
birth mothers that ‘‘the agencies needed them, rather than birth
mothers needing the agencies,’’ and it has received considerable sup-
port from the adoptees’ rights movement. This movement is made up
of adult adoptees and others who contend that to be denied access to
knowledge of one’s genetic history may impede the development of a
person’s identity and sense of self-worth. In a typical formulation,
Vermont state senator Richard Sears (Democrat—Bennington), who
was adopted as a child, argued in favor of a proposed statute to open
Vermont’s adoption records that adoptees ‘‘are the only people in the
nation who are denied the basic right of knowing who they are.’’26
[  ] Making Babies, Making Families
Most people take knowledge of their genetic origins for granted;
members of the adoptees’ rights movement maintain that access to
such information is a basic civil and human right.
Notwithstanding the development of the practice of open adop-
tion and pressure from various quarters to abandon sealed records,
not everyone agrees that all adult adoptees should have access to their
adoption records. In their eyes, the right of the birth parents to ano-
nymity is very strong and may override the adoptee’s right to know the
identity of his or her birth parents, particularly if the birth records
were sealed at the time of the adoption. State laws vary quite a bit in
their provisions for disclosure and secrecy.27 Some advocates of se-
crecy worry that if birth parents cannot be guaranteed confidentiality,
some birth mothers will choose to terminate the pregnancy or retain
custody. Even birth parents who might go through with adoption will
face the dilemma of acknowledging the pregnancy and adoption to a
future spouse and children, and some may live in dread of being con-
tacted by the grown child later in life.
It seems to me, however, that except in cases in which knowledge
that she had once borne and relinquished a child would put a woman
in grave danger, the adult adoptee’s right to know his or her specific
history overrides the birth parents’ right to privacy (particularly eigh-
teen years after the birth). The original parents are under no obliga-
tion to meet their offspring, much less develop a social relationship
(although they may do so if they all agree to); indeed, original parents
may get legal protection from attempts at contact that are harassing or
threatening.28 The adoptee does not have a right to an actual social re-
lationship with the original parents; but adult adoptees should not be
deprived of the information they need to construct a coherent story of
origin, an explanation of how they came into the world.
We think of ourselves as temporal beings, as coming out of a past
and being formed by what has gone before us, and of having a connec-
tion with the future. We are shaped by and shape the world through
physical procreation, works of craftsmanship and art, friendships,
material bequests and spiritual legacies, and in many other ways. Our
sense of history and continuity, extending back into the past and for-
ward into the future, is part of what gives meaning to our existence
Transracial and Open Adoption [  ]
and our works. It is this experience of oneself as a being in time that
underpins a person’s right to specific knowledge of his or her origins.
Although some people contend that nonsecrecy and open adop-
tion idealize the blood tie by continuing the contact between birth
parents and child, I think these practices would undercut the blood-
based understanding of family bonds by giving custodial authority to
adoptive parents even though the identity of the birth parents was
known. Unlike the secrecy that implies that new family ties can be
forged only if the original family is rendered invisible and inaccessi-
ble, nonsecrecy and open adoption suggest that a child can have mul-
tiple sources of family identity and multiple mothers and fathers. The
identity of the child is constructed neither exclusively by the original
family nor exclusively by the adoptive family, but by the child’s knowl-
edge of or contact with both of these families.
As Barbara Yngvesson has shown, for a child to occupy space be-
tween two families, however, a radical transformation in the under-
standing of ‘‘family’’ must take place. This is because the traditional
understanding of the family ‘‘as constituted by shared biological heri-
tage, by the ‘mystical commonality’ of mother and child, and as whole
rather than split (it excludes difference, it is complete in itself)—is
fundamental to the tension surrounding the place, and lack of place,
of the birth mother in the adoptive family.’’ The practice of secrecy,
Yngvesson notes, reflects the belief that the adoptive family could
mirror the unity and inevitability of the biological family only if the
birth mother were rendered invisible. ‘‘Only by outlawing her (split-
ting her off) through various forms of legal and social closure—sealed
records, rewritten birth certificates, the silences that meet revelations
that one is a birth mother or that one is a child with ‘two mothers’—
can the adoptive family become a family, ‘as if ’ it were biological, and
the adoptive mother become ‘real.’ ’’29 For the adoptive mother to be-
come ‘‘real’’ the birth mother had to become a nonmother; and for the
birth mother to ‘‘get on with her life’’ she had to leave her pregnancy
and child behind her as if they had never been.
Nonsecrecy, whether achieved by unsealed records or open adop-
tion, recognizes children as distinct individuals yet also acknowledges
the significance to them of how they came to be. The adopted child has
[  ] Making Babies, Making Families
two sets of parents; the birth parents do not need to be obscured for
the other parents (or parent) to assume their role in the child’s life. In
making the identities of birth parents either known or ascertainable at
a later date, nonsecrecy has marked a departure from the traditional
practice of creating an ‘‘as if ’’ family. Yet while nonsecrecy and open
adoption recognize both the child’s individuality and relationship
with the family of origin, discussions of nonsecrecy have rarely ad-
dressed the issue of the child belonging to a distinct group of ori-
gin. That question, however, has sparked a heated controversy about
transracial adoption, a practice that also challenges the ‘‘as if ’’ adop-
tive family.

Transracial Adoption
The public debate over whether children, particularly black and
Native American children, should be adopted by people of other races
has brought a whole raft of distinct considerations to the question of
whether the ‘‘as if ’’ adoptive family should be the norm. To what ex-
tent should the freedom to adopt or to be adopted be constrained by
the requirement that the race of the child and that of the adoptive par-
ents match? Underlying that question are assumptions about individ-
ualism and group identity. Should children available for adoption be
placed as quickly as possible with a suitable family regardless of race,
or should they be treated as members of a racial group and matched
with parents of that race? And who should have a say concerning
whether or not race should play any part in placing a child: the birth
parents, the adoptive parents, the adoption agency, the child’s racial
community of origin, or, in the case of Native American children,
the tribe?
The controversy over transracial adoption has its roots in both so-
ciological and ideological legacies of the Civil Rights movement. Al-
though both advocates and opponents of transracial adoption oppose
the legacy of racial discrimination and seek greater social opportunity
and justice for people of color, they differ markedly in their judgments
about what strategies are likely to create a society free from the
scourge of racism. Over the past three decades the debate has gone
through a number of phases, which together illuminate these strat-
egies.
Transracial and Open Adoption [  ]
Before the s, there were very few transracial adoptions. Racial
prejudice and segregation meant that interracial families were stig-
matized, even though many American families were of mixed white,
black, Native American, or Hispanic ancestry. The ‘‘normal’’ family,
whether biological or adoptive, was racially homogeneous in appear-
ance. The Civil Rights movement of the s and s, however, led
some whites to adopt black children as a way of manifesting their be-
lief that love could occur across racial lines and as a way of providing
for children otherwise likely to grow up in poverty. By the early s
the Child Welfare League, which had long opposed adoption across
racial lines, reversed its position and endorsed transracial adoption.
By , approximately , black children had been adopted by
white parents, and the number of Native American children adopted
by white parents also increased markedly.30
Adoption of black and Native American children by whites did not
sit well with all advocates of civil rights, however. In , the National
Association of Black Social Workers (NABSW) went on record oppos-
ing transracial adoption. They contended that transracial adoption
was a form of cultural genocide, and that black children could develop
neither ‘‘Black pride and a Black identity’’ nor the practical ‘‘survival
skills’’ necessary to live in a society infused with racism unless they
were raised in black families.31 In  William Merritt reiterated the
NABSW position: ‘‘We view the placement of Black children in white
homes as a hostile act against our community. It is a blatant form of
race and cultural genocide.’’32 In the face of this opposition, adoption
of black children by whites fell off immediately and continued to
decline.
Similarly, in the s, many Native Americans began to see trans-
racial adoption as a threat to the preservation and cultural integrity of
Indian tribes. In states with large Indian populations, studies revealed
that perhaps as many as  to  percent of all Indian children were re-
moved from their homes by the state and placed in adoptive homes,
foster homes, and institutions like the boarding homes run by the Bu-
reau of Indian Affairs; the vast majority of such placements were in
non-Indian homes.33 Indian rights advocates urged Congress to adopt
the Indian Child Welfare Act of  (ICWA), which declared it to be
‘‘the policy of this Nation to protect the best interests of Indian chil-
[  ] Making Babies, Making Families
dren and to promote the stability and security of Indian tribes and
families by the establishment of minimum Federal standards for the
removal of Indian children from their families.’’34 The ICWA stipu-
lated that when an adoption concerned the child of a member of a rec-
ognized Indian tribe, the tribe should have jurisdiction over the adop-
tion; if the matter remained in the hands of the state courts, the court
should first try to place the child with a member of the child’s ex-
tended family, then with a member of the tribe, then with another In-
dian family, and only as a last resort with non-Indians.
This approach of accepting transracial placement only when
placement with parents of the same race proved impossible appealed
to James Bowen; in a  law review article, he recommended that
Congress pass an Afro-American Child Welfare Act modeled on the
ICWA.35 Bowen’s proposed act would have established an Afro-
American Child Welfare Commission to review all cases in which the
removal of black children from their biological parents was contem-
plated, and it required such measures as mandatory appointment of
counsel and state payment of attorney’s fees if the parents were indi-
gent. Bowen also proposed giving subsidies to adults who had infor-
mally adopted children (usually members of the extended family) and
‘‘a procedure to flush out potential non-related same-race adoptive
parents in case no relative comes forward.’’36 Bowen’s suggestions for
recruiting minority adoptive parents and scrutinizing the criteria
used in decisions to remove children from their homes were picked up
by many workers in the field. His proposal that transracial adoption
be prohibited unless no adoptive parents of the same race could be
found for a child was not acted upon, however, and Congress has since
forbidden the use of race in the adoption of non-Indian children.
Federal law thus currently treats the role that race may play in the
placement of Native American and black children very differently.
While the ICWA required that tribal membership be taken into ac-
count in placing Indian children, the Multiethnic Placement Act of
 (MEPA) required adoption agencies to ignore race in foster and
adoptive placement of non-Indian children. Indeed, Congress has
strengthened that prohibition in recent years. In , MEPA stipu-
lated that while adoption agencies receiving federal funds might take
into account the ‘‘racial background of the child and the capacity of
Transracial and Open Adoption [  ]
the . . . adoptive parents to meet the needs of a child of this back-
ground’’ as one of a number of factors in making an adoptive place-
ment, these considerations could not preclude or even greatly delay
permanent placement.37 Despite this tone of compromise, MEPA
offended some activists on both sides of the transracial adoption
controversy. Because it did not require an effort at same-race place-
ment, MEPA failed to satisfy proponents of race-matching; because it
did not prohibit race-matching altogether, it failed to satisfy propo-
nents of race-blind placement. Those opposed to race-matching got
their wish in , when Congress incorporated the Adoption Anti-
Discrimination Bill into the Small Business Job Protection Act. Better
known as the Interethnic Placement Act (IEPA), that law denied fed-
eral funds to any state or private agency that used race as a criterion
for the placement of a child.38 The IEPA explicitly exempted proceed-
ings involving Indian children covered by the ICWA.39
In prohibiting the use of race as a factor in the adoption of non-
Indian children, Congress was responding to the kinds of arguments
put forward in Elizabeth Bartholet’s  article, ‘‘Where Do Black
Children Belong?’’40 That article, which took issue with the practice of
making transracial placements only after attempts at in-race place-
ment had failed, set the terms in which transracial adoption would be
debated throughout the s. The article began with an account of
Bartholet’s experience as she began her quest, as a single, divorced
white woman, to adopt a child: ‘‘When I first walked into the world
of adoption, I was stunned at the dominant role race played. . . . It
was central to many people’s thinking about parenting. And it was a
central organizing principle for the agencies which had been dele-
gated authority to construct adoptive families.’’41 Bartholet, who had
worked in the Civil Rights movement, was disturbed by the role race
played not only in the policies of adoption agencies but also in the atti-
tudes of potential adoptive parents. ‘‘The large majority of the people
actively looking to adopt in this country are white and for the most
part they want white children, at least initially.’’ The shortage of
healthy children to adopt is in reality a shortage of white children and
of infants—there are many older children of color available for adop-
tion. ‘‘The familiar refrain that there are no children available for
adoption is a reflection of the racial policies of many adoption agen-
[  ] Making Babies, Making Families
cies and the racial preferences of many adoptive parents.’’42 There are
many older children available in foster care: ‘‘The proportion of [chil-
dren of color] in foster care is three times greater than in the nation’s
population. . . . More than half of the children waiting for adoption
nationally are children of color, and this population is rapidly increas-
ing in most states.’’43
Bartholet argued that adoption agencies should change their poli-
cies not only to allow white parents to adopt black children, but also
to encourage transracial adoptions by counseling potential adoptive
parents. Many people who might not initially think of adopting a
child of a different race or an older child might be receptive to the idea
if asked to consider doing so. She argued that the preference for same-
race placement violates the principle of antidiscrimination, harms
children waiting to be adopted by delaying their permanent place-
ment (and thereby sometimes preventing it altogether because older
children are harder to place), and harms prospective adoptive parents
by depriving them of the chance to nurture and love a child.
Although Bartholet was mainly concerned with the adoption of
older children in foster care, many of whom had become available for
adoption when the state terminated the parental rights of their par-
ents, she and other opponents of race-matching did not limit their
opposition to such cases. Even when efforts at race-matching would
not delay the placement (for example, of an infant voluntarily relin-
quished at birth), she thought that a preference for racial homogene-
ity in the family was offensive; arguments that families should be ra-
cially homogeneous reflected an ‘‘inappropriate separatist agenda.’’44
Randall Kennedy struck a similar note, contending that ‘‘Racial
matching is a disastrous social policy both in how it affects children
and in what it signals about our current attitudes regarding racial
distinctions.’’ In his eyes, ‘‘Racial matching reinforces racialism. . . .
It buttresses the notion that people of different racial backgrounds
are different in some moral, unbridgeable, permanent sense.’’ Most
important, racial matching in adoption or marriage ‘‘belies the be-
lief that love and understanding are boundless and instead instructs
us that our affections are and should be bounded by the color line
regardless of our efforts.’’45 Hawley Fogg-Davis concurred: a race-
neutral adoption system would ‘‘send a powerful message to all
Transracial and Open Adoption [  ]
Americans that racial ascription should not be a barrier to the inti-
mate association of family life.’’46 Public policy allowing agencies to
restrict placement across racial lines would reflect misguided biolo-
gism and would fail to affirm the human capacity to love beyond racial
boundaries. By contrast, lifting those restrictions would deal a blow to
the model of the ‘‘as if ’’ adoptive family.
Opponents of race-matching put forward various proposals to
guarantee race neutrality in adoption. Bartholet and Kennedy lobbied
during the debates on both the MEPA and IEPA to prohibit any effort
at race-matching when there are qualified adoptive parents of any race
who want to adopt the child. Guaranteeing adoption choice was in
their eyes the way to make sure that the child’s equal protection right
to expeditious permanent placement was not violated. Richard Banks
and Hawley Fogg-Davis went even further, arguing that not only
should adoption agencies be prohibited from race-matching, but that
prospective adoptive parents should not be permitted to signify what
race child they wanted, or what race(s) they wished to exclude from
consideration. Banks proposed that agencies that receive any govern-
ment funding should not be allowed to classify or list children by race,
a practice he called ‘‘facilitative accommodation.’’47 Once agencies
ceased to maintain lists of children ‘‘sorted’’ by race, prospective
adoptive parents would have to consider each child as an individual.
In addition, eliminating the adopter’s choice would compel prospec-
tive parents to envision themselves as members of a multiracial family.
Fogg-Davis similarly supported a prohibition on listing children
by race. For one thing, she considered it inappropriate for an adoption
agency to decide to which racial group any particular child belongs.
Although people in the United States are ‘‘born into racial categories,’’
we must not elide ‘‘the role of agency in the identity development of
individuals living in a social system of racial classification.’’48 Particu-
larly for a mixed-race or a transracially adopted child, racial identity is
not a ‘‘given’’ but is arrived at by what Fogg-Davis termed ‘‘racial navi-
gation.’’ Racial identity is influenced but not determined either by
one’s biological parents or by the groups to which one’s parents be-
long; it is always in part to be negotiated or navigated by the individual
herself or himself.49 In both Banks’s and Fogg-Davis’s view, ‘‘Adoption
is about matching a parent to a child, not a parent to a race.’’50
[  ] Making Babies, Making Families
In these debates, individual rights are pitted against group rights;
a self with a fluid and ‘‘negotiable’’ racial identity is contrasted to a self
with a fixed and inherited racial identity; ideals of integration and the
‘‘melting pot’’ are set against ideals of ethnic nationalism and cultural
difference. Advocates of transracial adoption frame the issue as one of
antidiscrimination, focusing on the rights of the waiting child (or
parents) to equal protection. In Randall Kennedy’s terms, ‘‘There was
a time when forward-looking people would have thought it praise-
worthy for prospective adoptive parents to have said to a state welfare
agency, ‘we are willing to raise a parentless child regardless of the
child’s race.’ ’’ Race-matching, even the version authorized by the
MEPA, by contrast, ‘‘denigrates such people, portraying them as a
mere fallback for parentless children of a different race than they.’’51 It
is telling that Kennedy spoke of a ‘‘parentless’’ child, drawing atten-
tion to the need of the child already in state custody to find a perma-
nent adoptive home. The need to place ‘‘parentless’’ children directs
the attention of those thinking about adoption policy forward from
the present into the future, not back into the past.
Underlying the dispute over race-matching are also differing
views about a person’s links to his or her racial group of origin. As
Twila Perry noted, proponents of transracial adoption tended to ad-
here to a highly individualistic model of liberal theory, while propo-
nents of race-matching, like herself, tended to be more communitar-
ian and group-oriented in outlook.52 The insistence on seeing black
children awaiting adoption strictly as individuals disconnected from
blacks as a group is, as critics of race-blind placement asserted,
double-edged. While the assignment of rights by race can constitute
invidious and unconstitutional discrimination, people in the con-
temporary United States neither perceive nor treat one another as
raceless. Throughout their lives black children’s position in and expe-
rience of society will be linked to the position of blacks in general.
Critics of race-neutral adoption policy argued that federal law dictat-
ing that black children must be placed without regard to race might
perpetuate notions about the inadequacy of black families and black
parenting that are harmful to these children and other blacks.
A policy of nondiscrimination may also divert attention from the
social problems, including racism, that lead so many minority chil-
Transracial and Open Adoption [  ]
dren to be in the adoption and foster care system. When proponents
of race-neutral placement insist that what parentless black children
need is ‘‘not ‘white,’ ‘black,’ ‘yellow,’ ‘brown,’ or ‘red’ parents but lov-
ing parents,’’53 they focus on the individual child rather than the sys-
temic social forces that put birth parents under such strain that they
relinquish the child for adoption. The disproportionate number of
black children awaiting adoption is ‘‘an indicator of a web of racial
disadvantage in American society: the fact that blacks are more likely
to be poor than whites, that poor blacks are more likely than poor
whites to have their parental rights terminated by a court, that white
women who give birth to biracial babies may be motivated by racist
social pressure to surrender their children for adoption.’’ Transracial
adoption may gradually diminish social attitudes that insist upon ra-
cial uniformity in intimate and family relationships. But transracial
adoption does not attack the ‘‘web of racial injustice that makes so
many black children available for adoption in the first place.’’54
Transracial adoption thus poses a dilemma for advocates of racial
equality and nonsubordination. Multiracial families give testimony
to the ability of people to love and take responsibility for one another
across racial lines. First-person accounts of transracial adoptees attest
to their love for their parents, although some suggest that the dynam-
ics of race in this society may create difficulties for parent and child
alike.55 Despite their love for their children, when white parents adopt
children of color, they may reinforce white privilege and a sense of en-
titlement to whatever they desire, and contribute to the denigration of
blacks and Native Americans as parents. While this dilemma cannot
be entirely done away with, certain changes in the discourse and prac-
tice of adoption might undercut some of the dynamics of white privi-
lege. As both transracial adoption and nonsecrecy have begun to un-
dermine the hold of the ‘‘as if ’’ adoptive family (and hence of the
racially homogeneous family) on our social imagination, so they
might also undermine the notion that the child available for adoption
is a ‘‘parentless’’ child. These changes are linked; the virtual disappear-
ance of the family of origin in the construction of the ‘‘as if ’’ adoptive
family suggested that the child available for adoption was unencum-
bered, a person without ties to parents, simply awaiting placement
with new parents to begin a new life. Under the traditional model, the
[  ] Making Babies, Making Families
child was treated as figuratively ‘‘abandoned’’ and so without roots. It
is possible, however, to change practice and discourse so that they do
not suggest that adoption entails a clean break from the original par-
ents, following their abandonment of the child, but instead suggest
that many parent(s) relinquish their children because they can’t give
them the care they need. This change would counteract the disparage-
ment of people, primarily women, who place their children for adop-
tion, and in particular would give dignity and voice to women of
color.

The ‘‘Parentless’’ Child

While there have always been a significant number of adoptions,
whether formal or informal, in which children were placed with fam-
ily members or friends who maintained ties with the original parents,
the traditional model for legal adoption was ‘‘stranger adoption.’’ Un-
der this model, social practice and law made a clean break between the
family of origin and the child, and then placed the now ‘‘parentless’’
child in an adoptive family. In domestic adoptions, the clean break
was facilitated by sealing adoption records. In international adop-
tions, United States law required that in order for a foreign-born child
with two surviving parents to qualify for ‘‘orphan’’ status—which is
necessary for adoption in the United States—the child must be legally
‘‘abandoned’’ by both parents. These measures were designed to pre-
vent kidnapping and involuntary relinquishment, but they also con-
structed the child as ‘‘a kind of open cultural space (little, cute, girl)
which simply needed to be filled with love.’’56 In both domestic and in-
ternational adoptions, the child was often represented as a foundling,
a generic child without traceable roots in a specific past, even though
in most voluntary adoptions the birth parents planned to relinquish
the child, whether to an agency, doctor, or lawyer.
The legal and cultural construction of the child available for adop-
tion as a ‘‘parentless’’ child affected the way people viewed not only the
child, but also the adoptive parents and the original parents. The
adoptive parents were often portrayed as rescuers, while the original
parents were imagined as people who had ‘‘abandoned’’ their child. By
and large, society did not judge those who relinquished a child for
adoption kindly or compassionately. The widely accepted procedure
Transracial and Open Adoption [  ]
of confidentiality and issuance of a new birth certificate ‘‘lock[ed] into
place the notion that relinquishing one’s child need[ed] to be hidden’’
and ‘‘sustain[ed] the view that the separation itself was inherently
bad.’’57
The understanding of the adoptable child as a parentless child and
the practices that contributed to it started to change, however, when
some states began mandating unsealed records and permitting open
adoption. These changes, as Sanger noted, occurred partly in response
to birth mothers’ realization that they controlled ‘‘a desirable com-
modity in short supply’’ and so could ‘‘think through the terms under
which they might be willing to part with it.’’58 This exercise of agency
or decision-making authority by the birth mother or birth parents al-
tered the depiction of the child available for adoption as ‘‘parentless’’
or ‘‘abandoned.’’ In open adoption the birth mother changed from
supplicant to partner in making a decision about the placement of her
child; the terms of adoption, once thought to be absolute, became ne-
gotiable to some extent; the original parents remained a presence in
the life of their child.
With open adoption, even though a definitive transfer of custody
took place, the child and the birth parents did not disappear entirely
from the other’s life. As Barbara Yngvesson and Maureen Mahoney
persuasively contend, the child could be understood as an individual
who, though separated from his or her family of origin and joined
permanently to another family, was also partially constituted by his or
her origins, which did not need to be concealed for the new bonds to
be deep and truly familial. The original parents (often only the birth
mother) could be understood as individuals for whom the fact of hav-
ing begotten the child could not be obliterated.59
In an essay recounting her experience as a birth mother when a
college student, Maureen Sweeney stated that she now wished to ‘‘de-
velop adoption into an empowering option for pregnant women who
feel that they cannot raise the child they are carrying.’’60 Sweeney was
not arguing for open adoption per se, but for the development of a
‘‘new paradigm’’ of adoption based on the experiences and observa-
tions of many people that adoption is not a temporally singular
‘‘event,’’ not something that people experience and then ‘‘get over,’’ but
rather an ongoing reality in the lives of birth parents, adoptive par-
[  ] Making Babies, Making Families
ents, and adoptee. Sweeney’s analysis paid particular attention to the
ways in which society could view birth mothers as taking steps to pro-
vide care for their children, both in relinquishing parental rights and
by their willingness to be known by and accessible to their offspring.
Relinquishing a child for adoption, then, would be seen not as an act
of abandonment (although this is not to deny that some parents do
abandon their children) but as a responsible act for the good of the
child, arising from ‘‘an ethic of care for and responsibility to all those
whose lives are indelibly changed by the adoption experience.’’61 The
birth mother would be seen as taking steps to make sure others would
take care of the child in the future.
The consideration of the birth parents’ concern for the child is
largely absent from arguments on both sides in the transracial adop-
tion debate. Given the terms in which that argument has been framed,
this is understandable. Those who have asserted that adoption agen-
cies should not be able to place children according to race do not want
to allow birth parents to insist on same-race placement. Those who
have favored race-matching do not want to allow anyone, even birth
parents, to select adoptive parents of a different race. Given the focus
on the racial composition of the adoptive family, the disputants rarely
have asked whether the birth parents—in particular the birth mother
—should have a say in where her child is to be placed.
On the few occasions when someone has raised the question of
whether birth parents should have a say about the race of adoptive par-
ents, the answer has almost universally been that they (or she) should
not. For example, Donna J. Goldsmith argued against giving the birth
mother any opportunity to influence the placement of her offspring
under the ICWA: ‘‘The concept that a mother has the right to remove
her child from its extended family and community, thereby depriving
the child of its heritage . . . is foreign to American Indian cultures.’’62
Evelyn Blanchard gave similar testimony before Congress in :
Indian people have two relationship systems. They have a biological rela-
tional system, and they have a clan or band relational system. It is the conver-
gence, if you will, of these two systems in tribal society that creates the fabric
of tribal life. And each of us as an Indian person has a very specific place in the
fabric. Those responsibilities are our rights, individual rights. And even our
mother has no right to deny us those rights.63
Transracial and Open Adoption [  ]
There is, of course, no legally recognized body like a tribe that might
be given authority to place children of other ethnic groups. When
James Bowen faced the question of how the group of origin could have
weight in the placement of black children, he proposed that the law
give ‘‘any blood relative’’ of a child awaiting adoption the right to peti-
tion the court regarding custody of the child and order the court to
give preference to the wishes of the extended family.64
Twila Perry did pay attention to the birth mother, arguing that
race-blind placement could reinforce the subordination of racial mi-
norities, particularly minority women. Responding directly to Bar-
tholet’s ‘‘Where Do Black Children Belong?’’ in an article she pub-
lished just about the time Congress adopted MEPA, Perry explained
that, contrary to Bartholet and MEPA, she preferred placing black
children with black adoptive parents when possible. Her preference
did not stem from concern about the survival of the group, since black
survival is not really threatened by transracial adoption; the psycho-
logical well-being of children adopted by parents of another race,
since many of these children seem to be very well-adjusted as children
and as adults; or the transmission of cultural values, since the acquisi-
tion of a culture is distinct from membership in a particular race.
Rather, Perry objected that the discourse about transracial adoption
did nothing to challenge, and even reinforced, notions of white supe-
riority and black inferiority that help perpetuate social inequality.
Discourse about the benefits to a black child of being adopted by
whites suggested that white women were superior mothers. To say ‘‘we
will place this child without regard to color’’ simply because there is a
white adult or family who wants the child, seems to give whites the
power to decide whether and when to ‘‘disconnect’’ the child from the
black community.65 Indeed, in practice, ‘‘transracial adoption’’ has re-
ferred only to the adoption of black children by white families, not to
a true colorblind system in which all children are assigned to prospec-
tive adoptive parents without regard to race.66 Perry did not propose
such a colorblind system; instead, she advocated attempting to match
parents and child by race first, then turning to transracial placement
if necessary.
Lying behind Perry’s opposition to color-blind adoption was the
realization that all too often society portrays black women as ‘‘inade-
[  ] Making Babies, Making Families
quate to the task of mothering Black children, while white women are
seen as competent to raise children of any race.’’67 Viewing transracial
adoption as a way to help black children can mask the ways in which
the rhetoric, and possibly the practice, can perpetuate the notion that
black women’s bodies, and their offspring, can be appropriated or put
to use by others. Similarly, Dorothy Roberts demonstrated that the
denigration of black motherhood has a long history, stretching from
slavery, to the exclusion of most black women from ‘‘mothers’ pen-
sions’’ in the s and s, to criticism of black matriarchy in the
Moynihan Report, to excoriation of the ‘‘welfare queen’’ in the s.
Roberts warned that the abandonment of race-matching in adoption
could contribute not only to the desirable goal of defying racist as-
sumptions that would limit love by race, but also to the continuation
of ‘‘a system designed to provide childless white couples with babies
and with the type of babies they prefer.’’ While transracial adoption
can and does help specific black children and defies segregationist
practices, ‘‘[i]t does nothing to diminish the devaluation of Black
childbearing.’’68 Required race-matching acknowledges black fami-
lies’ child-rearing abilities, but undercuts efforts to form families
across racial lines.
I am uneasy with arguments both for and against race-matching
that do not make the birth parents’ wishes concerning the race of the
adoptive parents part of the placement decision. Arguments for race-
matching run up against the fact that in other contexts liberal theory
and law abjure the notion of assigning identity or rights by blood.
Painful as it may be for others, when someone changes nationality,
converts to a new religion, or forges a racial identity different from
that of her relatives, a liberal society allows, and should allow, such
self-definition. Indeed, I find it important to the legitimacy of the
ICWA that the parents’ tribal membership, not simply their race, cre-
ates the grounds for transferring jurisdiction to tribal courts. As long
as people can exit from the tribe, the parents’ tribal membership is in
some ways a stand-in for their understanding of their identity. Until
children grow up to decide such matters for themselves, their parents’
declaration of self-understanding and intent may properly be taken as
a proxy for their own. Parents have this authority not because they
‘‘own’’ their children, but because someone must speak for the child,
Transracial and Open Adoption [  ]
and liberty is best protected if parents, not the state or other individu-
als or groups, assume this responsibility. If parents are tribal mem-
bers, it is proper that the tribal courts have jurisdiction in matters con-
cerning custody of their children. What about situations in which
adoption cases involving Native American children are heard by state
courts? I am not convinced that these courts should be bound to place
the child with Native American adoptive parents regardless of the de-
clared wishes of the birth parents (often the birth mother). The child
available for adoption cannot be treated simply as someone so ‘‘em-
bedded’’ in a racial group that the group can claim the child regardless
of the mother’s wishes; I am loath to take away agency and voice from
a woman in difficult circumstances, and I would side with her even in
the face of tribal opposition.69
I also find suggestions that birth parents should not be able to re-
quest same-race placements disturbing. Parents with vibrant ties to a
group may express their hope that their children be placed where they
will have the opportunity to forge similar ties. Richard Banks argued
that because white privilege confers so much power, he finds parental
choice by minority-race parents more acceptable than by white par-
ents.70 Giving choice to black birth parents would undermine racism
regardless of whether they sought same-race or different-race place-
ment: black birth parents’ choice of same-race placement would em-
power blacks as a group, and their choice of transracial placement
would create multiracial families. White birth parents’ choice of
same-race placement, however, would replicate rather than challenge
racial hierarchy, and whites would be unlikely to choose to place their
child with parents of a racial minority group. These considerations
are strong arguments for a racially differentiated policy. But the Equal
Protection Clause of the Constitution prohibits laws that on their face
treat individuals of different races differently. Giving the state the
power to exclude expressions of parental choice by white but not by
black birth parents raises such difficult equal protection issues, and
would in practice do so little to dismantle existing racial hierarchies,
that I reject it.
I propose reframing the issue of where to place the Native Ameri-
can or African-American child from one that pits equal individual
rights (of the adoptive parents or the child) against group rights, to
[  ] Making Babies, Making Families
one that reinserts the birth parents, particularly the birth mother, into
the discussion. The relative invisibility of the birth parents—usually,
in fact, a single mother—in the debates about transracial adoption re-
veals the way in which gender and race combine to marginalize birth
mothers who are members of a racial minority or mothers of biracial
children. One would think that the birth parents, as the concrete link
between the child and the racial group claiming an interest in or juris-
diction over the child’s placement, would be the appropriate persons
to present their understanding of their own and the child’s racial
identity, but neither ICWA nor MEPA gives birth parents much voice.
Unfortunately, the dismissal of the birth mother’s views and wishes
reinforces presumptions about the irrelevance or the irresponsibility
of women who relinquish their children for adoption.
Antiracists’ reservations about transracial adoption by whites
often stemmed not from an objection to mixed-race families them-
selves, but from an awareness of the historical and contemporary
struggles of black women to keep custody of their children, to protect
them from harm, and to raise them to healthy adulthood in a racist
society. Framing the debate on transracial adoption as one involving
the possible conflict between individual and group rights (or between
liberal and communitarian values) does not capture the complex
dynamics of sexual and racial subordination involved in minority
women’s efforts to control their reproductive and family lives.71 Lis-
tening to birth parents’ views concerning the placement of their chil-
dren would make it harder both for individuals of the dominant race
and for a minority group to lay claim to a child by ignoring or defying
the parents’ (or mother’s) wishes.
Listening to birth mothers cannot, of course, unravel the web of
social and economic injustice—including poverty, lack of access to
birth control, and stigmatization of unwed motherhood—that leads
women both in the United States and abroad to relinquish their chil-
dren for adoption. But registering a birth mother’s views at least
makes it harder to regard her simply as the supplier of a resource (ba-
bies) for others (adoptive parents). The child available for adoption
cannot be dealt with simply as an unencumbered individual without
ties to specific others, but must simultaneously be seen as someone
with a unique story of origin. Again, this recognition that a child
Transracial and Open Adoption [  ]
needs to be viewed both as an individual and as a person constituted
by various relationships offers an alternative to the norm of the ‘‘as if ’’
adoptive family and the image of the ‘‘parentless’’ child. Adoption dis-
course and practice that recognize the possibility of a variety of family
forms, and the multiple relationships that shape adoptee, birth par-
ents, and adoptive parents alike, will make life better not only for fam-
ilies touched by adoption but also for other families that do not con-
form to the traditional model of the two-parent heterosexual family
in which the social and biological parents are one and the same.

Reflections on Policy
The debates over nonsecrecy and transracial adoption not only il-
lustrate the philosophical dilemma of whether (or when) to regard
the infant available for adoption as an individual or a person embed-
ded in relationships with others, but also the ways in which tradi-
tional discourses concerning birth mothers and their infants contrib-
ute to the hold of patriarchal norms in law and social policy. Under the
norms that guided traditional ‘‘clean break’’ adoptions, the eclipse of
the birth mother allowed the infant and adoptive parents to build
their relationship as if starting from scratch. Advocates of nonsecrecy
who oppose the sealing of birth records, by contrast, challenge the ‘‘as
if ’’ family. They attest to the fact that a family does not have to shut
out all adults except the legal parents in order to be ‘‘real,’’ stable, and
enduring. In independent open adoptions in which both birth and
adoptive parents choose ‘‘people who are ‘like’ themselves or an ideal-
ized image of who they might be,’’ this matching may ‘‘perpetuate the
notion that a real family is one that mimics biologically based ‘like-
ness,’ ’’ at the same time that the openness works to undermine the
hold of the ‘‘as if ’’ family on people’s imaginations.72 Thus, although
open adoption may encourage nonessentialist thinking that does not
equate motherhood with a biological relationship and in this way
contribute to a pluralization of family forms, it may also encourage
people to try to form a family with people like themselves and in that
way to mirror the biological family.
Many advocates of transracial adoption, for their part, in focusing
on the right of the child awaiting adoption to be placed in a perma-
nent family, draw attention away from the birth parent(s). The birth
[  ] Making Babies, Making Families
parents have relinquished their parental rights, severing their ties to
the child and the child’s ties to a specific family and history. The
adoptable child is generalized, a being innocent and deserving of love;
the child is like all other children, and his or her race is irrelevant. For
opponents of transracial adoption, however, the child’s ties to the
group of origin, and hence his or her race, are relevant. For these advo-
cates of same-race placement, focusing on the group draws attention
away from the birth parent(s).
Brought into dialogue with one another, these discussions of non-
secret and transracial adoption highlight the ways that gender, race,
and class are implicated in adoption policy. All adoptions challenge
the gender norm, which has defined the capacity to bear a child as a
woman’s preeminent characteristic. Adoption says that a woman may
decide not to raise a child she has borne, and a woman who has not
borne a child may decide to be a mother. In severing the connection
between childbearing and childrearing, adoption suggests both that a
woman does not require a male partner in order to become a mother,
and that men as well as women can do the ‘‘hands on’’ work of par-
enting.
Finding ways to acknowledge adoption as a cooperative endeavor
may be particularly difficult when the adoptive families occupy quite
different positions in the social, racial, and economic hierarchies of
their society (including global society in the case of international
adoption) than the birth mothers (or parents) do. As Yngvesson’s re-
flections on the experiences of adoptive families in both the United
States and Sweden suggest, in nonsecret adoptions, when parents are
aware that their child may someday meet his or her birth parent(s),
they must do more than accept the ‘‘motherless’’ child, the abandoned
innocent. They must receive the child in his or her specificity and ac-
knowledge his or her social history. They not only must love their
child, but also make room in their lives for those things that ‘‘belong
to’’ their child, although the extent of such sharing will vary greatly.73
To engage in nonsecret or open adoption should involve not only love
for and acceptance of the child, but acknowledgment of the original
parent(s).
If public policy encouraged soliciting the views of birth parents
and allowing adult adoptees access to their birth records, some of the
Transracial and Open Adoption [  ]
objections to transracial adoption voiced by Twila Perry, Ruth-Arlene
Howe, Dorothy Roberts, and others might be mitigated. A prospective
adopter’s preference for a child of the same race (or of a different race)
is not in and of itself a bad thing; adoptive parents have very different
desires and capabilities, and live in communities with widely differing
social networks and resources. Diverse circumstances seem to warrant
diverse arrangements. What is objectionable is a discourse that ob-
scures the class, gender, and race inequalities that put some parents at
such a dire disadvantage and contribute to their inability to raise their
children. Were the birth parent(s) to have a say in the placement of the
child, to know that the adoptee might contact them when he or she
reached age eighteen, and possibly to exchange letters and photo-
graphs with the adoptive parents during the child’s minority, transra-
cial placements would be less likely to suggest that (white) adoptive
parents can appropriate the children of women of color when it suits
their purposes.
I would like to see these salutary aspects of independent and open
adoption incorporated into adoptions arranged by agencies, and I fa-
vor agency oversight of adoptions. Agency adoption suggests that pro-
viding physical and psychological nurturance to children is a social
and public responsibility, not simply a matter to be arranged between
individuals. Placing a public agency between the original family and
the adoptive family reflects the notion that the original parent(s) en-
trust the child to the public (to the state as parens patriae), and that
the public (in the form of the agency and its rules) accepts responsibil-
ity for the welfare of the child. Another family then assumes specific
responsibility for the child. The practices of independent adoption,
particularly some of the advertising, focus on the satisfaction of
adults’ desires along with the child’s interests; agency adoption intro-
duces explicit attention to the public interest in, and responsibility
for, children. Developing policies to guide agency adoptions requires
us to articulate what principles we think should govern the formation
of families in which the social and biological parents are different peo-
ple. The public discussion of family policy, as well as the symbolic
value of the community assuming responsibility for children, are
strong reasons to favor agency adoption.
As adoption practice moves toward greater ‘‘openness,’’ and the
[  ] Making Babies, Making Families
exchange of specific information about the adopted child, general
awareness of the coercive effects of some situations in which a woman
may ‘‘choose’’ to relinquish her child for adoption will probably in-
crease. One kind of coercion stems from social customs and mores
that make bearing a child out of wedlock a cause of stigma and ‘‘social
death’’ for a woman. Another stems from economic conditions that
put some people in circumstances where they cannot provide a child
with food, clothing, and shelter (much less adequate education).
There can be no greater indictment of structurally produced inequali-
ties than that they cause some people to have to give up their children.
The suggestion by some members of Congress during the debates on
the  Personal Responsibility Act (welfare reform) that children of
some welfare recipients be removed from their mothers’ custody and
placed in orphanages was an appalling lapse in moral reasoning and
an abdication of social responsibility for children.74
Transforming the model of the ‘‘as if ’’ adoptive family created by
the incorporation of the ‘‘parentless’’ child entails seismic shifts in the
ways we view both women and children. The birth mother remains
knowable; the child is treated both as an individual and as someone
with ties to people outside the adoptive family. Keeping these two as-
pects of the child’s identity in mind emphasizes the fact that the child
is no one’s possession. ‘‘There is a deep and profound sense that we do
not own our children. All children can escape the confines of what we
would make of them.’’75 That parenthood is not a proprietary relation-
ship is true of all families, but is easier to see when two sets of parents
must cooperate (even if only in the moments of relinquishing and as-
suming custody) to provide for a child’s needs.
By challenging the construction of the ‘‘as if ’’ adoptive family, and
raising questions about whether the child (particularly the infant)
available for adoption should be considered ‘‘parentless’’ or ‘‘aban-
doned,’’ nonsecret and transracial adoption make apparent what dis-
course and public policy should recognize, that not every child has
two, and only two, ‘‘parents.’’ Nonsecret and transracial adoption
make it clear that parenthood and race are not strictly biological or
naturally given categories, and they make the constructed nature of
the adoptive family evident. Similarly, open adoption undermines the
stereotype of the irresponsible birth mother.
Transracial and Open Adoption [  ]
The undermining of the traditional patriarchal family suggests
the possibility of a new era of greater sexual equality both within the
family and the larger society. As the following chapters show, however,
it is difficult both to understand what equality requires, and to get
people to enact the measures necessary to achieve equality. Equality
between men and women in family life requires attention both to the
fact that women (and not men) bear children, and to the social con-
text in which procreation and caregiving take place. Race and class
profoundly affect people’s opportunities for family life. This discus-
sion of adoption policy reminds us that the responsibility to ensure
both that all children are cared for, and that all adults have an equal
opportunity to form and to raise families, is not one that falls on indi-
viduals alone, but on society as a whole in enacting policy and law.
chapter 2

Fathers’ Rights, Mothers’

Wrongs, and Children’s Needs:
Unwed Fathers and the
Perpetuation of Patriarchy

n the early s, the cases of ‘‘Baby Jessica’’ and ‘‘Baby Richard,’’
I young children who had been placed at birth with families who
hoped to adopt them, but whose biological fathers subsequently chal-
lenged the adoptions, riveted national attention. Pictures of the chil-
dren playing happily with their adoptive parents, and weeping when
they were separated from the only family they had known, disturbed
everyone who saw them, although not everyone agreed about what
the courts should have decided.
The case of ‘‘Baby Jessica’’ pitted the biological parents, Cara
Clausen and Daniel Schmidt of Iowa, against the adoptive parents,
Roberta and Jan DeBoer of Michigan.1 When Jessica was born, Cara
Clausen was unmarried, and she gave her irrevocable consent to the
child’s adoption two days after the birth. The man she named as
the child’s father on the birth certificate did the same. Within weeks,
however, Clausen regretted her decision, and she informed Daniel
Schmidt, not the man whose name appeared on the birth certificate,
that he was the baby’s father. Schmidt responded by filing a petition to
establish paternity and initiating legal action to block the adoption.
Schmidt contended that a biological father has a right to custody of his
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
child unless it is shown that he is ‘‘unfit’’ to be a parent. After some two
years of litigation, Michigan declared it did not have jurisdiction in
the matter. Iowa then proceeded to enforce its decree that Schmidt’s
parental rights had never properly been terminated and the child had
to be returned to his physical custody.
In the case of ‘‘Baby Richard,’’ Daniella Janikova became pregnant
by Otakar Kirchner in June  and began living with him in his
Chicago apartment that fall.2 In January , Kirchner traveled to
Czechoslovakia (where both he and Janikova were born and had lived
as children) for two weeks to vacation and to visit his ill grandmother.
While he was away, Janikova received a phone call from Kirchner’s
aunt saying that he had married a woman in Czechoslovakia. Dis-
traught, Janikova moved out of the apartment, entered a shelter for
battered women for several weeks, and then moved to her uncle’s
house in the suburbs. Upon Kirchner’s return, he contacted Janikova
at her uncle’s house and asked her to return to live with him, but she
refused. On March , , Janikova gave birth to Baby Richard in a
suburban hospital rather than in the one she and Kirchner had previ-
ously contacted in the city. On March , the same day that Janikova
executed her consent to the adoption, Kirchner contacted her uncle,
who told him, on her instructions, that the baby had died three days
after birth. Kirchner claimed that although Janikova and her relatives
repeatedly told him the baby was dead, he did not believe them and at-
tempted to establish contact with the mother and ascertain the where-
abouts of his son.
Fifty-seven days after the child’s birth, on Mother’s Day, Janikova
told Kirchner that the baby had been placed for adoption. He imme-
diately filed an appearance contesting the baby’s adoption. The trial
court applied Illinois law and ruled that Kirchner was an unfit parent
because he had not shown a reasonable degree of interest in the child
within the first thirty days of the child’s life, and the appellate court
affirmed, holding that his efforts were insufficient because he did not
contact a lawyer or any state agency.3 Kirchner again appealed, and
the Illinois Supreme Court reversed on June , , holding that
given Janikova’s efforts to deceive Kirchner about the baby, the actions
he took were sufficient to establish his claim, and the child was to be
placed in his custody.4 By then, Richard was three years old and had
[  ] Making Babies, Making Families
been living with the couple who hoped to adopt him since shortly af-
ter his birth.
Much of the public discussion centered around the question of
what weight should be given in such cases to the child’s emotional at-
tachment to his or her ‘‘psychological parents.’’ When a young child
has formed strong bonds with the adults caring for him, should he re-
main in their custody even if others (usually birth parents) have a
valid legal claim? Many child psychologists believe that the harm in-
flicted on a child such as Baby Richard or Baby Jessica by removing
him or her from the care of the psychological parents should override
any other considerations in making decisions about custody. Others
have pointed out, however, that if courts always grant custody to psy-
chological parents, adults will be tempted to keep a child in their care
as long as possible regardless of the initial legal merits of their case, so
that the passage of time will give them a claim as de facto parents. To
protect a child from the trauma of being removed from the adults
to whom he has become attached, the state must devise procedures to
prevent the possibility of such delays.
At present, legal thinking is quite unsettled.5 Many courts apply
the traditional rule that in deciding whether an unwed father has pa-
rental rights they must consider the ‘‘best interest’’ of the child in
making any decision about custody. Supporters of biological fathers’
rights, by contrast, argue that when the biological mother does not
wish to retain custody, the biological father’s claim automatically
takes precedence over that of a ‘‘stranger’’ who hopes to adopt.6 Pro-
ponents of an unwed mother’s right to decide to place her child for
adoption, for their part, have argued that since it is the woman who
carries and gives birth to the baby, the decision should be hers to
make, without interference by the father. According to this view, nei-
ther the biological mother nor the state has an obligation to seek the
biological father’s consent to the adoption decision, or even to inform
him of his paternity.7 The debate among advocates of these perspec-
tives raises the difficult issue of what, indeed, should be the grounding
of anyone’s claim to parental rights. Resolving this question is of prac-
tical importance; the less clear the law, the greater the number of dis-
putes and the longer it will take to resolve them.
In my view, the ‘‘best interest,’’ ‘‘fathers’ rights,’’ and ‘‘maternal
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
autonomy’’ standards are all unsatisfactory for resolving custodial
claims of unwed biological parents. I am persuaded by considerations
advanced by advocates in both the maternal and paternal rights camps
that the best interest standard is not appropriate for cases in which
newborns are surrendered by their mothers for adoption. It is unsuit-
able in part because that standard does not adequately recognize the
claims of biological paternity, and in part because it is difficult to guard
against the biases of individual judges about what a child’s best interest
might be (a suburban two-parent middle-class family, for instance). A
fathers’ rights policy grounded in the gender-neutral principle that
unwed fathers should have the same rights as unwed mothers in adop-
tion decisions does not sufficiently acknowledge the asymmetry cre-
ated by men’s and women’s different biological roles in procreation,
particularly women’s experience of pregnancy. Nor does it take suffi-
cient account of the sex-based inequality inherent in contemporary
economic and social structures. By contrast, many arguments in favor
of the mother’s right to decide on the custody of her child expose the
ways in which gender-neutral rules applied to situations of social and
economic inequality in practice perpetuate male privilege. These in-
sights might suggest that one good way to compensate for the present
social and economic inequalities would be to give women decision-
making authority about reproductive matters until present social and
economic inequalities based on sex diminish. This policy, however,
would run the risk of reinforcing the gender stereotype that only
women, not men, are the natural and proper nurturers of children.
Law and social policy in the area of parental rights must walk a very
fine line between treating men and women identically on the one
hand, thereby encouraging a false gender-neutrality, and treating men
and women differently and thereby reinforcing gender stereotypes on
the other.
Thinking about what gives someone the right to participate in the
decision to place a child for adoption involves thinking about what
makes anyone a ‘‘parent.’’ Genetic or biological relationship alone is
not adequate grounding for legal parenthood. Determining what
weight to give biological and genetic ties is important not only in cases
involving claims of unwed fathers and mothers when they disagree
over the decision to place their child for adoption, but also when sur-
[  ] Making Babies, Making Families
rogate mothers or known sperm donors seek parental rights (as I dis-
cuss in Chapters  and ).
Any practice giving an unwed parent a say as to whether her or his
child should be placed for adoption must recognize the importance of
biological ties; the child’s need for and right to emotional and physical
care; women’s and men’s right to equal treatment; and adoptees’ right
to information about their biological parents and genetic origins. In
the case of a newborn, these considerations suggest that in order to
have any claim, the biological father must take concrete steps to dem-
onstrate his commitment to the child before the biological mother re-
linquishes the child for adoption. In reaching their decision, courts
must have the authority to judge both his efforts to take responsibility
for the child and the mother’s objections to his claim. Developing
practices and policies that reflect these factors again requires balanc-
ing respect for the autonomy that allows individuals to act and to cre-
ate new families and new family forms, and recognition of the web of
sexual, biological, and social relationships that link the original par-
ents to one another and each of them to the child.
In this chapter I continue to explore the question of what kinds of
family relationships the law should recognize and protect by examin-
ing the issues raised when an unwed biological father tries to veto the
unwed mother’s adoption decision. As long as biological parents do
not live together and jointly raise their offspring—whether because
they never married, or have divorced or separated—some of them will
argue about custody. Some disagreements could be resolved more
quickly if the law were clearer about when, and why, an unwed biologi-
cal father has a right to step in and preclude an adoption initiated by
the biological mother or the state. To be effective and persuasive, the
principles in these instances should be consonant with those used to
decide other kinds of disputes about who has parental status. Were the
law clearer, resolution would come more quickly, and we might avoid
tragedies like those of Baby Jessica and Baby Richard in the future.

Historical Background
Despite the stigma that long attended unwed motherhood that I
looked at in the last chapter, for a long time unwed mothers, and not
fathers, were regarded by the law as the only legally recognized or cus-
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
todial parent of their children. This was true of the common law (law
growing out of judges’ decisions) and statutory law (laws passed by
legislatures) well into the twentieth century. Gradually, both some
statutory changes and developments in constitutional law gave unwed
fathers some parental rights. Several Supreme Court cases in the latter
half of the twentieth century addressed the question of whether the
law should recognize greater rights for unwed fathers, and in doing so
opened up the question of what makes anyone a legal parent.
The common law, which largely regulated legal aspects of family
relationships in America well into the nineteenth century, was pro-
foundly patriarchal; legal definitions of who is a father and the extent
of paternal responsibilities governed not only a man’s relationships
with his children but also with women both inside and outside his
family. Under the common law a man had complete custodial author-
ity over any children born of his wife, even if they were sired by an-
other man, yet he had no legal relationship at all to children he sired
out of wedlock. The child of his wife took his surname, the nonmari-
tal child did not. The marital child had a right to financial support
from him, the nonmarital child did not. The marital child had the
right to inherit from him if he died without a will, the nonmarital
child did not.8
The husband’s authority over the marital child was an extension of
his authority over his wife. Under the common law doctrine of co-
verture, a wife’s legal agency was subsumed in that of her husband
during marriage. A wife could not enter into contracts, sue or be sued,
or engage in other legal transactions without being joined by her hus-
band. He owned outright her moveable property and had control of
(although he could not alienate) her real estate. Torts she committed
in his presence were chargeable to him, not to her. A married woman
also had no right to refuse her husband sexually; marital rape was not
recognized as an offense. So complete was the husband’s custodial au-
thority that during his lifetime he had the power to convey his paren-
tal rights to a third person without the mother’s consent, and he could
name someone other than the mother to be the child’s guardian after
his death.9
Thus, under the common law, a man’s legal relationship to his
offspring was governed by his relationship to their mother. If the
[  ] Making Babies, Making Families
woman was his wife, a child was ‘‘his,’’ so much so that he exercised ex-
clusive custodial authority. If the mother was not his wife, however,
the child was ‘‘fillius nulli,’’ the child of no one. Obviously, these rules
affected both lineage and property. They allowed a man to lay claim to
legitimate heirs (for without marriage, who would know for certain
who the father of a child might be?) and to avoid squandering his es-
tate supporting other children. While the father was shielded from
financial responsibility for his ‘‘spurious’’ offspring, a woman who
bore children outside of marriage was ‘‘ruined’’; unmarried mothers’
desperate attempts at suicide and infanticide dot the pages of social
histories and nineteenth-century novels. To keep children off public
support, Poor Laws assigned mothers financial responsibility for their
offspring and gave them custodial rights as long as they could support
them. A woman’s responsibility for her nonmarital children punished
her for sex outside of marriage and pushed women to join themselves
to men through marriage.
It is no wonder that women’s rights advocates from the mid-
nineteenth century on protested against the patriarchal assumptions
and the sexual double-standard implicit in this configuration of rules
governing marital and nonmarital progeny. During the nineteenth
century, in part due to women’s rights advocacy, legislatures began to
replace common law rules with statutes that granted wives equal cus-
todial rights with their husbands. By the early twentieth century,
judges deciding divorce cases began to prefer mothers as custodians of
marital children of ‘‘tender years’’ (usually under seven or ten years of
age).10 Eventually the standard of the ‘‘best interest of the child’’—
which did not automatically prefer either spouse and which pur-
ported to recognize the needs of the child as paramount—replaced
any presumption explicitly favoring the custodial claim of either mar-
ried parent when they divorced.
With respect to nonmarital children the law changed more slowly,
and the impetus came mainly from children’s rights advocates who
wanted to get rid of the legal disabilities of ‘‘illegitimacy,’’ such as the
inability to collect survivors’ benefits, receive child support, and in-
herit from the father.11 The Civil Rights movement also spurred re-
formers to get rid of all legal disabilities based on birth, not only those
of race. Thus the common law protections of fathers against the
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
claims of nonmarital children and their mothers have been largely
dissolved, and paternal responsibility for children born outside mar-
riage established. But getting rid of the common law disabilities
suffered by ‘‘illegitimate’’ children was not the same thing as granting
unwed fathers the right to custody of their children. Impetus to recog-
nize such a right stemmed from the reconsideration of gender roles
sparked by women’s changing participation in the paid labor force
and by the intellectual ferment of the women’s movement. Some ad-
vocates of unwed biological fathers’ rights asserted, however, that the
ability to raise one’s biological child is a fundamental good, and that
even though this interest was not recognized by the common law, it is
protected by the United States Constitution.
Those who argue that under the Constitution men and women
must have equal rights to claim custody of their nonmarital offspring,
and so to have a say in the decision to place a child for adoption, look
to a series of decisions handed down by the United States Supreme
Court since : Stanley v. Illinois, Quilloin v. Wolcott, Caban v. Mo-
hammed, Lehr v. Robertson, and Michael H. v. Gerald D.12 These deci-
sions have established that at least in instances when an unmarried bi-
ological father has established a relationship with his child by an
unmarried woman, the father’s right to continue the relationship may
be constitutionally protected. Although these decisions do not by any
means resolve all the dilemmas surrounding the custody of infants
born to unmarried biological parents, they provide a useful starting
point for thinking about them.
The Court first considered the custodial rights of unmarried bio-
logical fathers in  in Stanley v. Illinois. Mr. Stanley had lived with
his three biological children and their mother, to whom he was not
married, intermittently for eighteen years. When the mother died, Il-
linois declared the children wards of the state and placed them with
court-appointed guardians. This was done without a hearing as to
Stanley’s fitness as a parent. Stanley protested, arguing that Illinois
law denied him equal protection of the laws, since neither unwed
mothers, nor married fathers or mothers, could be deprived of cus-
tody of their children unless they were shown to be unfit. Illinois ar-
gued that Stanley’s fitness or unfitness was irrelevant, because an un-
wed father was not a ‘‘parent’’ whose existing relationship with his
[  ] Making Babies, Making Families
children must be considered; an unwed father was presumed unfit be-
cause he had not married the mother. The Supreme Court rejected Il-
linois’ argument, stating that ‘‘[t]he private interest here, that of a
man in the children he has sired and raised, undeniably warrants def-
erence and, absent a powerful countervailing interest, protection.’’13
Failure to provide a hearing on parental fitness for an unwed father vi-
olated both the due process and the equal protection clauses of the
Fourteenth Amendment.
In cases after Stanley the Court drew distinctions between biologi-
cal fathers who, like Stanley, had been involved in raising their biolog-
ical children, and those who had not assumed day-to-day practical re-
sponsibility for them. In Quilloin, Leon Quilloin sought to prevent
the adoption of his eleven-year-old biological child by the child’s step-
father, Mr. Wolcott. The Court upheld a Georgia statute that stipu-
lated that a biological mother alone could consent to the adoption of
her child; the consent of the unwed biological father was required
only if he had legitimated the child by marrying the mother or estab-
lishing legal paternity. The Court said that no due process violation
occurred if the contact between the biological father and child had
been only sporadic. The Court said that if the biological father had
never sought custody and the adoption gave legal recognition to the
actual living situation of the child, there was no constitutional re-
quirement that the state obtain the biological father’s consent to the
adoption.
The next year, hearkening back to Stanley, the Court said in Caban
that a New York statute that required unwed biological mothers, but
not biological fathers, to consent to the adoption of their children was
unconstitutional when an unwed biological father’s relationship to
his child was ‘‘fully comparable’’ to that of the mother. The case arose
when the mother’s new husband, Mr. Caban, sought to adopt her chil-
dren. Like Stanley, Caban had previously lived with the children and
their mother for several years. He argued that the law which required
only the biological mother’s consent to adoption violated the equal
protection clause. Caban also claimed that biological fathers had a due
process right or liberty interest ‘‘to maintain a parental relationship
with their children absent a finding they are unfit as parents.’’14 New
York argued that the distinction between biological mother and bio-
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
logical father was justified because of the fundamental difference be-
tween the maternal and paternal relationship. The Supreme Court
agreed with Caban, holding that ‘‘maternal and paternal roles are not
invariably different in importance,’’ but it explicitly declined to offer
an opinion about whether a distinction such as New York had made
would be valid with regard to newborn adoptions.15
Lehr v. Robertson also concerned a biological father’s effort to
block the adoption of his child by her stepfather, but, unlike Mr. Stan-
ley and Mr. Caban, and like Mr. Quilloin, Jonathan Lehr had had al-
most no contact with his biological daughter, Jessica. Lehr claimed,
however, that he had a liberty interest in an actual or potential rela-
tionship with Jessica, and that the state’s failure to provide him notice
of her pending adoption violated due process. He also asserted that
the gender-based New York statute violated equal protection because
it required the consent of the biological mother, but not the biological
father, for an adoption. Holding that Lehr had not made sufficient
contact with the child to establish a paternal right, the Supreme Court
declared that an unwed biological father’s rights are a function of the
actual responsibilities he shoulders. The majority held that the bio-
logical connection alone is not sufficient to guarantee an unwed father
a voice in the adoption decision, although it affords him an opportu-
nity to be heard: the ‘‘biological connection . . . offers the natural fa-
ther an opportunity that no other male possesses to develop a rela-
tionship with his offspring. If he grasps that opportunity and accepts
some measure of responsibility for the child’s future, he may enjoy the
blessings of the parent-child relationship.’’ But if he fails to grasp the
opportunity, ‘‘the Equal Protection Clause does not prevent a State
from according the two parents different legal rights.’’16
The rule of thumb that the Supreme Court seemed to be devel-
oping in these cases, namely, that an unwed biological father who had
established a substantial relationship with his child had a constitu-
tionally protected interest in maintaining that relationship, was side-
lined in a subsequent decision about an unwed biological father’s
rights. In Michael H. v. Gerald D. the Court found that a California
statute creating an irrebuttable presumption that a woman’s husband
was the father of a child she bore (that is, the husband would be the le-
gal father no matter what facts could be presented to show that he was
[  ] Making Babies, Making Families
not the biological father, unless both the putative father and the hus-
band’s wife requested a blood test to rebut the presumption of the
husband’s paternity) was constitutional. A biological father, Michael
H., who had lived intermittently with his biological daughter and her
mother even though the mother was married to and sometimes lived
with her husband as well, argued that he had a right to a hearing to es-
tablish his paternity (and, if successful, seek visitation) when the hus-
band and wife sought to cut off his contact with the child.
Reflecting the unsettled nature of our society’s current thinking
about biology, nurture, and parenthood, the case produced no fewer
than five opinions from a deeply fractured Court. The Justices dis-
agreed not only over the specific question of the protection to be given
to Michael and Victoria, the daughter, but also over the approach that
the Court should take in order to answer this question. The plurality
decision, written by Justice Scalia and joined in full only by Chief Jus-
tice Rehnquist, rejected Michael’s claim. Justice Scalia contended both
that the state had an interest in preserving the ‘‘unitary family,’’ and
that neither Michael nor his genetic daughter had a constitutionally
protected liberty interest in maintaining their relationship. He argued
that the proper method for discerning what interests are protected by
the Constitution was to look at ‘‘the most specific level at which a rele-
vant tradition protecting, or denying protection to, the asserted right
can be identified.’’17 Justice O’Connor and Kennedy agreed with Jus-
tice Scalia’s conclusion but not his reasoning.18 In a concurring opin-
ion, Justice Stevens asserted, without much apparent basis, that Mi-
chael could have obtained visitation rights as an ‘‘other person having
an interest in the welfare of the child,’’ and so did not need further
protection.19 Two dissenting opinions supported Michael’s right to a
hearing but used quite different grounds to do so. Justice White,
joined by Justice Brennan, reiterated the view he expressed in Lehr
that biology itself creates a presumptive parental right.20 Justice Bren-
nan, joined by Justices Marshall and Blackmun, argued that the com-
bination of biology and nurture establishes the liberty interest Mi-
chael claimed.21 Justice Brennan suggested that once a relationship
between father and child exists, the mother cannot then exclude an
otherwise fit father from being heard with respect to his paternal
rights. His opinion left open the question of to what extent Michael’s
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
situation was like or unlike that of an unmarried biological father of a
child born to an unmarried woman.
These decisions do not tell us whether under the Constitution an
unwed biological father has a right to veto the adoption of a newborn
even if he has had no opportunity to establish the kind of relationship
and provide the kind of care that the Court has declared protects pa-
rental rights. And when the Court refused to hear an appeal in the
Baby Richard case it declined an opportunity to resolve the issue. The
unsettled nature of constitutional doctrine concerning an unwed fa-
ther’s rights when the mother wishes to place the child for adoption is
reflected in the great variety of state laws governing paternal con-
sent.22 Advocates of fathers’ rights insist that unwed biological fathers
do have such a constitutional right, and that when the biological
mother has decided to relinquish her parental rights, a biological fa-
ther, unless shown to be ‘‘unfit,’’ is entitled to assume custody of his
offspring. Advocates of mothers’ rights, on the other hand, assert that,
having been pregnant with the child, the mother should have the au-
thority to make this decision without interference from anyone, in-
cluding the father. For my part, I argue that this question cannot be
decided without careful attention being paid to the child. The Su-
preme Court was correct to ground parental rights in a combination
of biology and nurture, and whether any individual father should
have the right to veto an adoption will depend on what specific actions
he has taken to provide for the mother and child. Parental rights can-
not be decided without considering the complex web of relationships
involved in procreative activity, relationships involving mother, fa-
ther, and child alike.

Fathers’ Rights versus Mothers’ Rights

In recent years some unwed biological fathers have claimed that,
because of the mother’s lack of cooperation, they have not found any
way to meet the Court’s demand in Lehr that a biological father who
wants to retain his parental rights and ‘‘enjoy the blessings of the
parent-child relationship’’ act to ‘‘grasp the opportunity’’ to develop a
relationship with his offspring by assuming some ‘‘responsibility for
the child’s future.’’23 Should a biological father have the opportunity
to veto an adoption regardless of the wishes of the mother? Should
[  ] Making Babies, Making Families
adoption proceedings not be allowed until the unwed father has been
heard? What considerations should guide us as we try to evaluate such
issues? To answer these questions we need to think about both the ba-
sis of claims for custodial rights and the relative claims of biological
mothers and fathers outside of marriage.
The argument that the biological father must be given custody
when the biological mother chooses not to raise the child is grounded
first of all in the conviction that parenthood is a significant good in the
lives of men as well as women. Fathers might wish to raise their chil-
dren for the same reasons mothers do—sharing intimacy and love,
nurturing a child to adulthood, seeing one’s genetic inheritance sur-
vive into the next generation, and passing on ethnic and religious tra-
ditions. A commitment to gender neutrality led most states to aban-
don an automatic maternal preference if mother and father, married
or unmarried, each sought custody, and the same commitment would
suggest that the law require the consent of both parents, if known, be-
fore the child can be adopted.
A variety of commentators support an unwed father’s right to
veto the adoption of his child on the grounds that fathers have an
interest fully comparable to that of mothers in exercising paren-
tal rights and responsibilities. Claudia Serviss says all parents have
‘‘a constitutionally protected opportunity interest in developing a
parent-child relationship.’’24 John Hamilton argues that all unwed fa-
thers have a right to be notified by the state of the existence of their
offspring and be heard before any adoption can proceed, and that the
state may therefore require the biological mother to identify the bio-
logical father.25 Daniel Zinman insists that the state must not only no-
tify the biological father of the child’s existence, but also place the
child with him while custody is being adjudicated, while Jeffrey Boyd
argues that when the biological mother has relinquished her rights, if
a father steps forward promptly to acknowledge paternity and seek
custody, the state must give him preference unless he is shown to be
unfit.26
Some courts appear receptive to these arguments for a gender-
neutral standard. For example, in deciding In the Matter of Kelsey S.,
the California Supreme Court held unconstitutional a statute that
gave unwed mothers and legally recognized or ‘‘presumed’’ fathers a
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
greater say in pre-adoption proceedings to terminate parental rights
than it gave to unwed biological fathers. The Court declared that the
statute rested on a ‘‘sex-based distinction’’ that bore no relationship to
any legitimate state interest once the child was outside the mother’s
body and she had decided to relinquish custody.27
Deciding what actions by the unwed biological father constitute a
sufficiently prompt or adequate manifestation of his intent to assume
responsibility for the child is extremely difficult. For example, the
various Illinois courts that heard the case of Baby Richard did not
agree that the boy’s biological father took adequate steps to show his
concern after the baby’s birth.28 The difficulty of establishing relevant
standards does not, however, mean that the effort should be aban-
doned.
The presumption of fitness for biological parents also avoids the
dangers of subjective judgment and cultural prejudice that seem un-
avoidable in attempts to determine the child’s best interest.29 Use of
the best interest test in cases of an infant who has lived with no adult
caregiver for any appreciable period of time invites the court to make
judgments about the relative merits of a whole array of ‘‘lifestyle’’ is-
sues that are not subject to scrutiny when an unwed biological father
does not contest a biological mother’s wish to retain custody of her
child. A ‘‘fitness’’ standard applied to unwed biological fathers would
avoid the possibility that an adoption decision might rest on a judge’s
preference that a child be raised in a two-parent household rather
than by a single male, or a judge’s prediction that middle-class profes-
sionals will give a child more ‘‘advantages’’ than a working-class cou-
ple would. One supporter of an unwed father’s right to custody argues
that a best interest determination ‘‘is subject to abuse and may lead to
paternalistic infringement on the parent-child relationship in the
name of the child’s welfare.’’ The traditional preference for rearing a
child in a two-parent home, combined with the long waiting list of
prospective adoptive parents, makes a best interest test ‘‘a no-win situ-
ation for the unwed father of a newborn with whom he has not yet had
the opportunity to develop an emotional tie.’’30 In , the Georgia
Supreme Court explicitly rejected the best interest test in favor of a
fitness standard and held that ‘‘If [the father] has not abandoned his
opportunity interest, the standard which must be used to determine
[  ] Making Babies, Making Families
his rights to legitimate the child is his fitness as a parent to have cus-
tody of the child. If he is fit he must prevail.’’31
The question of whether an unwed biological father shall have a
right to custody of his newborn infant is not simply about a biological
father’s ‘‘fitness,’’ however, or even the actions he has taken to establish
his parental claim. For the unmarried biological father to assume cus-
tody, the biological mother’s expressed wishes concerning any other
placement for the child will of necessity be overridden. Arguments
that a biological father should be able to veto the adoption decision of
the biological mother and assume custody run up against counterar-
guments that the courts should give an unwed biological mother au-
thority to decide who shall take custody of her newborn child. These
counterarguments must be considered before deciding whether an
unwed biological father who is not ‘‘unfit’’ should have custodial
rights.

Arguments for using the ‘‘fitness’’ standard for unwed biological fa-
thers falsely assume that once a mother has surrendered the child for
adoption she has no further relevant wishes with respect to custody.
Defenders of an unwed biological father’s right to veto an adoption
often contrast what they portray as his laudable desire to assume cus-
tody and to care for the child with the mother’s uncaring decision not
to raise the child herself. The image of the ‘‘bad mother,’’ and the as-
sumption that the mother must be indifferent to the child she chooses
not to raise, hover just beneath the surface of these depictions. But the
notion that once a mother decides to relinquish her child for adoption
she can have no further relevant concerns, denigrates both her experi-
ence of pregnancy and the nature of her decision. Women relinquish
their newborns for adoption for many reasons: lack of money or job
prospects, youth or immaturity, feelings of inadequacy or isolation.
While some women may be indifferent to the placement of their chil-
dren, in most cases women agonize over the adoption decision and try
to make certain to do what is best for the baby.32
A woman’s decision to place her child for adoption also does not
mean that she is indifferent about the question of who raises the child.
The argument that an unwed biological father should be preferred
to adoptive parents because they are ‘‘strangers’’ to the child inappro-
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
priately ignores the biological mother’s preference that the child be
adopted through an agency or private placement rather than placed
with a guardian or in the father’s custody. If the mother has had very
little contact with the father beyond the act of intercourse that led
to her pregnancy, for example, the father may be as much a social
‘‘stranger’’ to her and the child as the adoptive parents, and his claim
rests on genetics alone. Contrasting the biological father’s rights to
those of strangers obscures the fact that the fundamental or precipi-
tating disagreement about custody is not between the adoptive par-
ents and the biological father, but between the two biological parents.
And if the mother has known the father over a considerable period of
time, her unwillingness to make him the custodial parent needs to be
examined to see why she feels as she does, just as it would be if the par-
ents were married.
Are there any reasons to weigh the biological mother’s wishes
about who shall (or shall not) take custody of the child more heavily
than those of the biological father? At the time of birth the relation-
ship of biological father and mother to the child is neither biologically
nor socially symmetrical. She has borne the child for nine months, for
which there is no precise male analog; indeed, no one else can perform
functions analogous to those of gestation.33 The biological mother’s
‘‘expectant’’ state has affected both her own physiological experience
and the ways in which others view and interact with her.34 To what ex-
tent should gestation affect the right to make custodial decisions con-
cerning a newborn?
Some theorists argue that the fact that only the woman is engaged
in the physical gestation of the human fetus should make a decisive
difference in the rights given to unwed mothers and fathers in decid-
ing on the custody of their offspring. According to sociologist Barbara
Katz Rothman, parenting is a social relationship and parental rights
are established by caregiving. In her view, the biological difference be-
tween mother and father is crucial and conclusive in establishing their
respective claims for custody of newborns: ‘‘Infants belong to their
mothers at birth because of the unique nurturant relationship that
has existed between them up to that moment. That is, birth mothers
have full parental rights, including rights of custody, of the babies they
bore.’’ By the same token, other persons with a genetic tie to the child
[  ] Making Babies, Making Families
do not have such rights: ‘‘We will not recognize genetic claims to par-
enthood, neither as traditional ‘paternity’ claims nor as genetic ma-
ternity in cases of ovum donation.’’ Rothman would have the gesta-
tional mother’s absolute claim last for six weeks after giving birth, and
so the adoption decision would rest solely in the mother’s hands dur-
ing that period. After six weeks, ‘‘custody would go to the nurturing
parent in case of dispute.’’ Rothman emphasizes that her preference
for the gestational mother rests on her understanding of pregnancy as
‘‘a social as well as a physical relationship,’’ and that ‘‘any mother is en-
gaged in a social interaction with her fetus as the pregnancy pro-
gresses.’’35 Neither the physical interdependence nor the social rela-
tionship between the gestational mother and fetus can be fully shared
by any other adult, no matter how attentive. Actual caregiving, not ge-
netic connection, creates familial bonds and, in this case, Rothman
argues, custodial rights.
Others also have argued that parental rights usually are not sym-
metrical, and that the social or biological bonds (or both) between
mothers and children should give mothers the authority to decide
who should have custody of their offspring. Nancy Erickson argues
that the liberty interest that a parent has ‘‘to control the care, custody,
and upbringing of the child’’ pertains only to the mother (not the fa-
ther) of a newborn because of her role during pregnancy. At birth the
mother is ‘‘not only the ‘primary caretaker parent,’ she is the only
caretaker parent’’ because of her role during pregnancy.36 Thinking
about custody of older children of parents who divorce, Mary Becker
argues that mothers are so frequently the primary caregivers of their
children that it makes sense to adopt an automatic ‘‘maternal defer-
ence’’ standard rather than hold a hearing to try to determine what ar-
rangement would be in the child’s best interest: ‘‘When the parents
cannot agree on a custody outcome, the judge should defer to the
mother’s decision on custody provided that she is fit, using the ‘fitness’
standard applicable when the state is arguing for temporary or perma-
nent separation of parents and children in intact families.’’37 Becker is
not terribly worried that giving primacy to the mother’s wishes might
in some instances permit a woman to deprive a caring father of cus-
tody: ‘‘A maternal deference standard would recognize that mothers,
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
as a group, have greater competence and standing to decide what is
best for their children . . . than judges, fathers, or adversarial ex-
perts. . . . Mothers will sometimes make wrong decisions, but in the
aggregate they are likely to make better decisions than the other possi-
ble decision makers.’’38 Becker’s reasoning applied to custodial deci-
sions affecting newborns suggests that courts should defer to a biolog-
ical mother, both because the woman has provided direct nurture to
the fetus during pregnancy, and because, on average, biological moth-
ers’ decisions are likely to be as good as or better than those of any-
one else.
Martha Fineman, similarly very critical of the best interest stan-
dard, would replace it with a ‘‘primary caregiver’’ standard.39 Fineman
argues that the best interest of the child standard frequently disadvan-
tages mothers by looking to the likely future financial resources of fa-
ther and mother. It would be more appropriate (both in terms of fair-
ness to the parents and of the child’s emotional well-being), Fineman
asserts, to look instead at who has actually given the child physical and
emotional care up to the present. In most, but not all, instances, this
will be the mother. Although Fineman does not discuss custody of
newborns, if courts were to apply the primary caregiver standard to
the kinds of disputes I am discussing, it would suggest that the mother
who has borne and given birth should make the custody decision con-
cerning the infant.
Many arguments for giving an unwed biological father custody of
an infant child whom a biological mother wishes to have adopted not
only ignore the physical and social experiences of pregnancy, but in-
vite no inquiry at all into the conditions under which the woman be-
came pregnant. Just as looking at the biological father’s actions during
the mother’s pregnancy would encourage men to take responsibility
for their sexual acts and their offspring, so attention to the circum-
stances under which conception took place is reasonable to ensure
that the child was not conceived as the result of abusive behavior to-
ward the mother. In trying to determine which parent’s wishes con-
cerning adoption should prevail, it would not be unreasonable for a
court to treat an unmarried biological father who had been in a long-
term relationship with the mother or shared living expenses with her
[  ] Making Babies, Making Families
differently than one who engaged in casual sex or deceived the woman
(perhaps saying he was single when he was in fact married), or coerced
her or willfully ignored the fact that she was under the age of consent.
For all these reasons it seems clear that the existence of a genetic
link alone does not give an unwed father parental rights. But the argu-
ment that a mother should have the exclusive authority to decide to
relinquish her offspring for adoption runs the risk of treating some
men unjustly and of locking both women and men into traditional
gender roles. Barbara Katz Rothman’s contention that gestational
mothers always have exclusive control over custodial decisions for the
child’s first six weeks of life, for example, fails to acknowledge the ways
in which men can either assume or disregard parental responsibility
even for infants. If parental claims are properly grounded in the first
instance in a combination of biological ties and nurture, then a fa-
ther’s genetic link by itself does not give him parental rights. Instead,
the genetic relationship becomes a reason to look to see if he has at-
tempted to assume responsibility for the child, and has done so with-
out interfering with the mother’s well-being. If, and only if, he has
acted accordingly, should a court recognize his claim to custody.

A New Model
If unwed biological fathers should have some custodial claim to
their children but not the extreme claim qualified only by ‘‘fitness,’’
what standards should define the extent of their rights? The law needs
to adopt stringent criteria for assessing the biological father’s inten-
tion to take responsibility for and act as a parent to his child even prior
to birth. Such criteria will require a shift in thinking and mode of ar-
gumentation away from an emphasis on parents as owners to parents
as stewards, from abstract individualism to embodied personhood,
and from parents’ rights to children’s needs.40
Many discussions of the ‘‘rights’’ of biological mothers and fathers
reveal the inherent tension in liberal political theory and legal practice
between protecting individuals and their freedoms and protecting
and fostering those relationships which in fundamental ways consti-
tute every individual.41 The language of parental rights emphasizes
the parent’s status as an autonomous rights-bearer, and invoking indi-
vidual rights has proved useful in minimizing the role of the state in
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
people’s procreative and childrearing decisions. For example, beget-
ting, bearing, and raising children are for many people part of the
good or fulfilling life that the liberal state is obligated to protect.
Courts have recognized the importance of intergenerational ties for
many people and have protected the liberty to procreate and parent a
child not only in custody cases, but also in decisions prohibiting
forced sterilization. And since biological parents have a variety of in-
centives to care for their children to the best of their ability, assigning
custody to them tends to protect children’s interests as well as those of
adults. Giving biological parents custodial authority unless they do
something to forfeit it also sets crucial limits on the exercise of state
power.
Yet in other contexts, such as custody disputes at divorce, use of the
language of parental rights inappropriately focuses on the individual
parent rather than on the relationships that are inherent in being a
‘‘parent.’’ Katharine Bartlett has advocated recasting many legal dis-
putes that involve parents and children in such a way that the language
used does not pit one ‘‘right’’ against another, but emphasizes the view
that parenthood implies deep and sustained human connection and
must be grounded in adult responsibility for children. ‘‘The law
should force parents to state their claims . . . not from the competing,
individual perspectives of either parent or even of the child, but from
the perspective of each parent-child relationship.’’42 Bartlett suggests
that language based more explicitly on open-ended responsibility to-
ward children would capture the nature of the parent-child relation-
ship better than discussions framed in terms of parental rights.
When someone is considered in the role of parent, he or she can-
not be viewed apart from the child that makes him or her a parent; an
‘‘autonomous’’ (in the sense of unfettered or atomistic) individual is
precisely what a parent is not. A ‘‘parental right’’ should not be viewed
as pertaining to an individual per se, but only to an individual-in-
relationship with a dependent child. It is therefore entirely appropri-
ate for the law to require that efforts be made to establish a relation-
ship before a parental right can be recognized.
Asking a court to determine whether a man or woman has made
efforts to establish a parental relationship with a newborn is, however,
fraught with difficulties. Obviously, the biological father has no physi-
[  ] Making Babies, Making Families
cal relationship to the fetus comparable to pregnancy. In addition, in
assessing what kind of relationship mother and father have have es-
tablished with a baby, courts need to minimize their own intrusive-
ness into the parents’ lives and their biases about the best forms of
family life. Indeed, part of the reason that both the paternal fitness test
and the maternal deference standard are attractive is that each pro-
vides a fixed criterion for determining an unwed biological father’s
custodial claim. Unfortunately, however, the efficiency and clarity of
each of these criteria are purchased at the cost of reducing the way the
law talks about family relationships to an assertion of either biological
fathers’ or mothers’ rights.
I propose that an unwed biological father have an opportunity,
through his behavior, to establish his intention to parent his offspring.
This approach seeks to minimize the legal effects of biological asym-
metry without ignoring altogether the relevance of sexual difference. I
assume that an unwed biological mother has demonstrated a parental
relationship with her newborn by virtue of having carried the fetus to
term, even if the pregnancy was unwanted. An unwed biological fa-
ther may be required to show actual involvement with prenatal life if
he wishes to have custody of the child. For example, he may have to
demonstrate that he made efforts to find out whether the woman was
pregnant and to provide her with both financial and emotional sup-
port during her pregnancy. The model or norm of ‘‘parent’’ in this
case, therefore, is established not by the male who awaits the appear-
ance of the child after birth, but by the pregnant woman.43 Moreover,
the legal norm is relationship-based rather than exclusively focused
on individual rights.
Some people might object that equating pregnancy with maternal
care for the fetus is an invalid assumption, especially in cases in which
the mother has taken drugs or engaged in other possibly harmful be-
havior. As Cynthia Daniels has pointed out, the ‘‘image of the preg-
nant drug addict is deeply troubling, representing as it does the para-
dox of a woman simultaneously engaged in the destruction of life
(addiction) and the perpetuation of life (pregnancy).’’44 In such cases
should the mother forfeit her claim to custody or to make the decision
to place the child for adoption?
It is tempting to blame, and to seek to punish, the pregnant drug
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
user or addict when confronted by the needs of children who are
physically or mentally impaired as a result of their exposure to harm-
ful substances during gestation. It is important, however, to ascertain
just what the drug-dependent mother is guilty of, and whether pun-
ishing her or taking away her right to be heard in matters concerning
the custody of her child is an appropriate response to her behav-
ior. What is the degree of a woman’s culpability if, like many drug-
addicted pregnant women, she sought treatment for her addiction,
but was turned away? Even when it can be ascertained that fetal dam-
age was caused by drugs or alcohol the woman took, it does not neces-
sarily follow that she was so indifferent to the well-being of her child
that she should be deprived of her right to be heard with respect to
placing the child for adoption. The care the pregnant woman has
given the fetus through bearing it to term and the harm her actions
have caused it cannot be separated; both involve the biology and
chemistry of gestation, the passage of materials across the placenta
through the bloodstream. To see the pregnant drug-addict as a child
abuser rather than a person who is herself in need of medical treat-
ment is to ignore the inseparability of mother and fetus during
pregnancy.45
The different biological roles of men and women in human repro-
duction make it imperative that law and public policy permit a father
and mother to demonstrate commitment to their child in different
ways. What is crucial is that parental rights be grounded in specific
manifestations of care and demonstrable acts of parental responsi-
bility.
What actions might a court accept as indications that an unwed
biological father had made every effort to act as a parent to the child?
The enormous variation in statutory provisions among the states
concerning what is necessary to establish an unwed father’s right to
consent to adoption shows that this question is not easily answered.
Repeated attempts by the New York State legislature and courts to
define the extent of a biological father’s right to withhold consent to
the adoption of his nonmarital child show how difficult it is to iden-
tify what actions might establish a man’s intention to take responsibil-
ity for his infant offspring. In , in In re Raquel Marie X., the New
York Court of Appeals struck down a statute that stipulated that only
[  ] Making Babies, Making Families
a father who had established a home with the mother for six months
prior to her relinquishment of the child for adoption could veto the
mother’s adoption decision.46 The court said that this provision im-
posed ‘‘an absolute condition . . . only tangentially related to the pa-
rental relationship’’ and allowed a woman who would not live with a
man the power unilaterally to cut off his constitutionally protected
interest in parenting his child.47 It instructed the legislature to find
some other way to gauge a father’s commitment to his unborn child’s
welfare and set forth certain standards that lower courts were to fol-
low in the meantime when judging an unwed father’s parental com-
mitment. ‘‘[T]he father must be willing to assume full custody,’’ the
court declared, ‘‘not merely attempt to prevent the adoption, and he
must promptly manifest parental responsibility both before and after
the child’s birth.’’48 In assessing the father’s demonstration of respon-
sibility, judges should look at such matters as ‘‘public acknowledg-
ment of paternity, payment of pregnancy and birth expenses, steps
taken to establish legal responsibility for the child, and other factors
evincing a commitment to the child.’’49
Courts in New York have used these guidelines in resolving cases
involving unwed fathers’ efforts to block mothers’ adoption decisions
in the years since In re Raquel Marie X., but New York is still without a
statute governing unwed fathers’ rights to consent to adoption of in-
fants under the age of six months. Two different approaches have been
evident in proposed legislation, reflecting a widely shared uncertainty
over what considerations were appropriate in determining the nature
and extent of an unwed biological father’s custodial rights.
One approach was found in bill A , introduced to the Assembly
during the – session, and referred to the Committee on the
Judiciary. The bill listed a number of actions an unwed father of an in-
fant under six months might take to establish his right to consent to
the adoption. The bill would make his consent necessary if he openly
lived with the child or the child’s mother prior to the placement of the
child for adoption; or held himself out to be the father of such child
during such period; or paid or offered to pay a fair and reasonable
sum, consistent with his means, for the medical expenses of preg-
nancy and childbirth; or initiated judicial proceedings to obtain cus-
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
50
tody of the child; or married the child’s mother. Since the father
needs to have taken only one of these actions, and may have initiated
judicial proceedings after the child was born, this bill applies a simple
‘‘fitness’’ test and requires no showing of interest prior to the child’s
birth.
By contrast with the minimal expectations put on unwed fathers
by A , the Family Court Advisory and Rules Committee in its
yearly Report to New York State’s Chief Administrative Judge has re-
peatedly proposed legislation requiring a biological father to have
demonstrated his commitment to his offspring in a number of ways,
and to have done so both prior to and after the birth of the child.51 In
place of the ‘‘or’’s in A , the proposed bill of the Family Court Ad-
visory and Rules Committee uses the conjunctive ‘‘and.’’ This wording
makes it clear that a biological father must have supported the mother
or baby financially, held himself out as the father, and taken steps to
initiate legal proceedings to establish paternity and assume custody of
the child. This bill clearly means to grant the right to consent to an
adoption only to unwed fathers who demonstrate that they have been
and will be actively engaged in the care and upbringing of their off-
spring, and who themselves wish to assume custody; the stipulations
rest on a definition of father as caretaker and nurturer, not simply as
progenitor or source of sperm.
The bill proposed by the Family Court Advisory and Rules Com-
mittee is clearly more consistent with the principles set forth in this
essay than is A , but a fully adequate statute would go further. A
court should be required to hear a mother’s objections to a father’s as-
suming custody of the child, if she has any, both because the birth of a
child has resulted from a web of social interactions and relationships,
and because the mother’s relinquishment of the child for adoption
should be viewed not as an act of abandonment but as an attempt to
provide care for the child. In cases in which the mother objects to the
father’s assumption of custody, a court should listen to the reasons the
mother opposes placing the child in the biological father’s custody.
Because parental rights must be grounded in the provision of care and
the assumption of responsibility, if an unwed mother demonstrated
that her pregnancy was a result of force, coercion, or deception, or that
[  ] Making Babies, Making Families
she had been under the age of consent when intercourse occurred, the
father would be held to be ‘‘unfit.’’
Finally, a statute should provide that a pregnant woman who
wishes to make plans for her child should be able to ascertain early in
the pregnancy whether or not the father will step forward later to op-
pose the adoption. No woman should be required to notify an unwed
father, but the law should provide that she may notify him in writing
of the pregnancy, and the state may preclude him from a veto if he fails
to act soon after receipt of such notification. Similarly, if a father is
found to be entitled to veto an adoption, a mother should be able to
negate her consent to the child’s adoption and be put back in the same
position she was in prior to her consent, that is, as one of two unwed
parents each of whom seeks custody.52
One purpose of spelling out what actions the father needs to take
to establish his claim would be to ascertain as early as possible during
the pregnancy or after birth whether or not he wished custody, so that
infants could be definitively freed for adoption.53 Where the mother
objected to the father assuming custody, a hearing would be necessary.
A hearing would, of course, take more time than assigning custody
based on a rule that any ‘‘fit’’ biological father prevail or that a mother
be able to make the decision to place her child for adoption unim-
peded by the biological father. But a hearing to ascertain whether an
unwed biological father has grasped the opportunity to take responsi-
bility for his newborn would not cause more delay than a best interest
hearing. Such a hearing would be to find out facts about the unwed fa-
ther’s behavior and the mother’s considered opinion concerning cus-
tody, not to try to project what custodial arrangement might be in the
child’s best interest.
These considerations leave unresolved the thorny issue of who, if
anyone, has the responsibility of informing the unwed biological fa-
ther of the mother’s pregnancy, and of what, if any, recourse a father
should have if the mother hides her pregnancy or lies to him about his
paternity. In most circumstances a biological father who wishes to as-
sume custody of his offspring should bear the responsibility of know-
ing of the child’s existence and taking action to assume parental obli-
gations prior to birth. Even if the mother wanted nothing to do with
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
the father, the law might require him to enter his name on a putative
fathers’ registry, thereby demonstrating his commitment to a child by
notifying the state, not simply the mother and his friends and family,
of his intention. This would also make it clear that his purpose is to be-
come the custodial parent of his child, not to reestablish contact with
the mother.
In  the New York Court of Appeals addressed the question of
what effect ignorance of a woman’s pregnancy should have on a bio-
logical father’s right to seek custody after learning of a child’s exis-
tence. Robert O. and Carol A. had been engaged and living together
when Robert moved out and terminated all contact with Carol, who,
unbeknownst to him, was pregnant by him. Carol did not tell Robert
that she was pregnant, apparently because she believed he would think
she was trying to force him to marry her. Carol contacted friends,
Russell K. and his wife, and arranged for them to adopt the baby. The
baby was born on October , , turned over to Russell K. and his
wife when Carol left the hospital, and formally adopted in May .
In January , Robert and Carol reconciled and subsequently mar-
ried; in March, , Carol informed Robert that the baby existed and
had been adopted.
Robert tried to void the adoption by arguing that his constitu-
tional rights had been violated because neither Carol nor the state had
informed him of the child’s existence prior to the adoption proceed-
ings.54 The New York court acknowledged that ‘‘the unwed father of
an infant placed for adoption immediately at birth faces a unique di-
lemma should he desire to establish his parental rights.’’ His opportu-
nity to ‘‘shoulder the responsibility of parenthood may disappear be-
fore he has a chance to grasp it.’’ But although the father, Robert O.,
acted as soon as he knew of the child’s existence, the adoption had
been finalized ten months before. ‘‘Promptness,’’ said the Court, ‘‘is
measured in terms of the child’s life, not by the onset of the father’s
awareness.’’ Robert, having failed to determine in a timely fashion
whether the woman with whom he had lived was pregnant, lost the
right he otherwise would have had to an opportunity to show his
‘‘willingness to be a parent.’’55 (By contrast, in a strikingly misogynis-
tic assertion of the significance of genetic paternity, one defender of
[  ] Making Babies, Making Families
unwed fathers’ rights proposes a jail sentence of up to two years for a
woman who refuses to name the father of an infant she is surrendering
for adoption.56)
The responsibility to know of a child’s existence should fall on the
man who would assume responsibility for raising the child. A biologi-
cal father aware of the mother’s pregnancy should be required to act
prior to birth and soon after he suspects his paternity; a biological fa-
ther who is deliberately kept ignorant might be allowed to step for-
ward for some specified period after birth (probably not less than
eight weeks nor longer than six months). Thereafter the importance
of the baby’s attachment to the adoptive parents would preclude his
advancing a parental claim. Given a child’s need for such a relation-
ship it should also be required that courts hear and decide disputes
concerning infant adoptions expeditiously.
One way of testing the adequacy of these principles would be to see
what light they shed on actual disputes concerning parental rights and
adoption. The cases of Baby Jessica and Baby Richard raised such is-
sues, although both were complicated by the fact that the biological
parents became estranged before the child was born, then reconciled
after the mother had relinquished the child for adoption. Even though
I have been focusing on instances in which the unwed father wishes to
assume custody of the child against the wishes of the mother who
wants the child to be adopted, the principles I suggest can illuminate
(and be illuminated by) these two cases, and also suggest important
issues that go beyond adoption law itself.
Neither side in either Baby Girl Clausen (Baby Jessica) and Baby
Boy Janikova (Baby Richard) grounded its position in the kinds of
principles I have put forward here. The Iowa statute that Daniel
Schmidt invoked to claim that Baby Jessica’s adoption could not be
finalized required the biological father’s consent, but no showing that
he demonstrate his commitment to the child before (or even after)
birth.57 The biological father’s mere opposition to the adoption was a
sufficient basis upon which to grant him custody. The DeBoers, for
their part, based their claim that they should be allowed to adopt
Jessica on the best interest standard.58 Placing the child with the
Schmidts reinforced the notion that a biological tie between man and
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
child automatically creates a custodial claim. On the other hand, a de-
cision favoring the DeBoers would not only have reinforced the best
interest standard but might have been viewed as rewarding them for
prolonging legal proceedings after Schmidt raised his claim.
The principles advanced here would probably have granted a hear-
ing to Daniel Schmidt, but not on the basis of his biological paternity
alone. While his biological tie alone did not guarantee him a hearing,
the facts that Cara Clausen deceived him about his paternity during
her pregnancy, that he acted immediately after learning that he was
Jessica’s biological father, and that he acted within four weeks of her
birth, did provide such grounds. Provided that Cara Clausen did not
present serious objections, he would have been granted custody. Had
Clausen objected, the hearing would not have attempted to determine
whether the child’s ‘‘best interest’’ would be better served by granting
custody to Schmidt or the DeBoers. Instead it would have asked
whether Schmidt’s actions were sufficient to establish a claim to cus-
tody, and whether Clausen’s reasons for objecting were sufficient
grounds for denying Schmidt custody. It seems to me that Schmidt’s
claim probably would have been recognized, and that the likelihood of
a ruling in his favor would have been clearer to the DeBoers and their
lawyer than it was under the law then in effect. That clarity might well
have led them to give up their effort to adopt Jessica early on, avoiding
some additional grief although not the pain of parting with Jessica
and stifling their yearning to be parents.
While the principles I put forward here would, I believe, have sup-
ported Kirchner’s claim to a hearing and probably his claim to cus-
tody, they are very different from those invoked by the Illinois Su-
preme Court. The language which Justice Heiple used in deciding in
Kirchner’s favor showed little regard for the complexity of the circum-
stances that gave rise to the litigation. Justice Heiple remarked that the
adoptive parents would have to live ‘‘with the knowledge that they
wrongfully deprived a father of his child past the child’s third birth-
day.’’ Given that the potential adoptive parents knew that Janikova had
been a resident in a battered women’s shelter and that she and her fam-
ily took extraordinary steps to keep Kirchner from knowing the ba-
by’s whereabouts, it is neither surprising nor ill-intentioned that they
[  ] Making Babies, Making Families
initially tried to retain custody. After the trial court ruled that Kirch-
ner had no parental claim, what else were they to do but continue to
care for the child? Justice Heiple would have done better to have called
for a concerted effort to clarify the law and to reform the procedures
that result in protracted proceedings than to have chastised the adop-
tive parents for having ‘‘brought [their pain] on themselves.’’59
Justice Heiple also referred to Kirchner as the ‘‘real’’ father, rather
than more precisely as the ‘‘biological’’ father, implying that ‘‘real’’ pa-
ternity is genetic. He criticized the lower courts for the ‘‘wrongful
breakup of a natural family.’’ The characterization of Kirchner, Jani-
kova, and their offspring as a ‘‘natural family’’ again assumes that bi-
ology alone creates a family, rather than acknowledging that what we
recognize as a family evolves through social practices and that legally
recognized family rights and obligations are human creations. The
judge’s invocation of a ‘‘natural family,’’ despite the fact that Kirchner
and Janikova were not married and had stopped living together before
the baby was born, seems as ill-founded as Justice Scalia’s assertion
that Carole, Gerald, and Victoria D. constituted a ‘‘unitary family’’
whose existence precluded a paternity hearing for Michael H., despite
the fact that Victoria was not Gerald’s biological offspring and had for
a while lived with and regarded Michael H. as her father.60 Indeed,
both Justice Heiple’s and Justice Scalia’s decisions draw attention to
the ways in which the question of what constitutes a family deserving
state protection is a matter of contestation, not something self-
evident from either ‘‘nature’’ or the ‘‘most specific level’’ of the ‘‘rele-
vant tradition’’ of American life and law.
The principles I advocate here, grounding parental rights not only
in the genetic tie but also in lived relationships of care and responsibil-
ity, suggest that certain revisions in Illinois adoption law would avoid
confusion about whether an unwed biological father’s efforts were ad-
equate to establish his parental claim. Had Illinois required an unwed
father to make efforts to take responsibility for his offspring from the
time he learned of the pregnancy rather than within thirty days of the
child’s birth, it would have been clearer to the prospective adoptive
parents that Kirchner had some basis to demand a hearing, since he
had lived with and supported Janikova during the first seven months
of her pregnancy. A stipulation requiring an unwed father to enter his
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
name on a putative fathers’ registry or otherwise publicly indicate his
desire to assume responsibility for the child would be a gauge of his
desire to take responsibility for the child, not simply (or primarily) to
reestablish a relationship with the mother. A stipulation requiring
courts to listen to any objections the mother might have to the father
receiving custody of the infant might lessen an unwed mother’s reluc-
tance to reveal the identity of her child’s biological father.
Adoption laws should contain incentives for biological mothers to
reveal, and adoptive parents to make every effort to ascertain, the bio-
logical father’s identity so that adoption can be finalized as soon as
possible. Yet the law should also establish a time limit beyond which
a father’s claim will not be heard. As it turned out, Kirchner acted
within sixty days of his baby’s birth and Schmidt acted within four
weeks, so under the stipulations suggested here each would have been
entitled to a hearing. Because pain is inevitable in such cases, law must
make clear the conditions under which a biological parent can veto an
adoption so that biological fathers and mothers, prospective adoptive
parents, and their attorneys can assess realistically each party’s likeli-
hood of prevailing.
When disputed adoption cases drag on, pain to the child is inevi-
table. To separate a child from birth parents brings with it an inevita-
ble psychological toll. Adoption is sometimes the only and the best
course for a child, but that does not eliminate the pain caused by the
realization that one’s earliest human relationship was disrupted and
that one was given away, no matter how lovingly, carefully, and justi-
fiably. But to remove a toddler from the only family he or she has
known causes emotional trauma far beyond this sense of loss, no mat-
ter how loving the new home. To serve the well-being of the child,
when an unwed father claims custody the principles embedded in the
law must be just and the resolution of the conflict must take place
quickly. Cases of disputed custody will also cause suffering to the
adults whose claim is denied. A biological parent who loses custody
will experience the loss of a child and of the intergenerational conti-
nuity that is one of the joys of parenthood. The prospective adoptive
parents who are denied custody will lose not only this particular child,
whom they have come to love, but also suffer the defeat (at least for the
time being) of their yearning to be parents. To avoid as much trauma
[  ] Making Babies, Making Families
and pain as possible to adults and children alike, adoption laws must
embody principles that are as sensitive to the complexity of such situa-
tions as we can make them.

Conclusion
The main lesson to be drawn from cases like Baby Girl Clausen and
Baby Boy Janikova is that it is imperative that states formulate adop-
tion laws that reflect the principle that parental rights are properly
grounded in a combination of biology and the provision of care. Be-
cause such profound and profoundly important human relationships
are at stake, courts should be required to hear and rule on disputed
adoptions in a timely fashion. Another lesson may be that in certain
instances it would make sense to allow some form of legal recogni-
tion that a child may have more than two ‘‘parents’’: genetic parents
(sperm and egg donors), biological parents, stepparents, adoptive par-
ents, social or psychological parents (that is, those who actually raise
the child), and legal guardians. Some such recognition might avoid
cases in which an unwed biological father who has not been reconciled
with or married the biological mother seeks to block an adoption to
which she has consented. Some of these cases seem motivated not so
much by the man’s desire to raise the child as by his fear of losing all
opportunity to know a child he has sired. There may be ways of deal-
ing with this fear short of blocking the adoption. Adoption registries
that allow adopted children and birth parents to contact one another
by mutual consent seem to have been helpful to biological parents,
adoptive parents, and children alike. They allow for the simultaneous
recognition of both biological and psychological or social parenting,
and in doing so undercut the suggestion that something about adop-
tion is shameful or is best kept hidden. Such registries also take into
account the perspective of children who want to know their biological
forebears, without either weakening the legal rights and responsibili-
ties of the social (adoptive) parents or denying the primacy of the
emotional bonds between adoptive parents and children.
Cases like Matter of Robert O. v. Russell K., Baby Girl Clausen, and
Baby Boy Janikova should also lead us to try to think about the cir-
cumstances that might lead an unwed mother to lie about or conceal
the paternity of her child, such as fear of violence or harassment, or
Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs [  ]
shame over an unwanted sexual relationship. Working toward justice
in family relationships requires struggling to eliminate the social con-
ditions that give rise to such fear and shame, and also requires making
sure that all citizens have access to the resources that allow families to
survive and flourish, so that no biological parents will be forced to re-
linquish custody of children they would prefer to raise themselves had
they the economic resources to do so.
This analysis of disputes over paternal custody of nonmarital new-
borns makes it abundantly clear that the language of individual rights,
so central to liberal political theory, and to the due process and equal
protection guarantees of the U.S. Constitution, is not well suited to
dealing with complex issues of parent-child relationships. While no-
tions of maternal or paternal rights are not useless—for example, they
allow us to think about limits to state intervention—they misdirect
our attention to the adult individual. When no attention is paid to the
distinct circumstances of male and female adult individuals who have
a child outside of marriage, faulty analysis is bound to follow. In par-
ticular, the language of a father’s ‘‘right’’ to custody of his infant child
based on his genetic tie obscures the complexity of the lived relation-
ship between parents and between parent and child. Those relation-
ships must be at the center of the analysis of parental claims.
Because being a parent means being in a relationship with a de-
pendent person, a parental ‘‘right’’ cannot properly be conceived of as
something independent of the relationship. An individual can exer-
cise a parental right, but the existence or the nature of the right cannot
be explained by reference to that individual alone. Only by taking ac-
count of the dependency, reciprocity, and responsibility of family re-
lationships; current gender inequality; and the primacy of children’s
needs will we be able to overturn old models of family life and move
toward a world that takes seriously men’s and women’s equality and
children’s right to committed parents and to care.
chapter 3

‘‘A Child of Our Own’’:

Against a Market in Sperm
and Eggs

uring the academic year – an ad appeared for a few

D weeks in the newspaper of the college where I teach: ‘‘Special
Egg Donor Needed—$,’’ said the headline. The text continued,
‘‘We are a loving, infertile couple hoping to find a compassionate
woman to help us have a baby. We’re looking for a healthy, intelligent
college student or college graduate, age –, with blue eyes and
blonde or light brown hair. Compensation $, plus expenses.
Your gift of life would bring great joy. Please contact us through our
representative’’ (an  phone number followed).1 An ad placed in
some other college newspapers offered $, for the eggs of an ath-
letic, five-foot-ten woman who had scored at least  on the Scho-
lastic Aptitude Test.2 Another ad, placed by an agency, that ran almost
every week in my campus newspaper stated, ‘‘Being an Egg Donor is
an Awesome Gift’’ and offered $, plus expenses to any donor who
was ‘‘healthy, age –, a non-smoker, and average weight.’’3 Such
offers are attractive to some of my students, both those who want
altruistically to help others, and those who are concerned about the
financial debt they have incurred from student loans. More than
‘‘A Child of Our Own’’ [  ]
personal considerations, however, should arise in thinking about
whether or how to respond to such ads; ‘‘making babies’’ and ‘‘making
families’’ by buying and selling eggs and sperm raises complex ethical,
social, and legal issues.
The practice of buying and selling (and advertising for) eggs and
sperm reflects and shapes our understanding of our relationship to
our genetic material, the extent to which family bonds are created by
nature and by human will, and the role the market should play in
forming families. This chapter examines the practices that shape the
way people form families with gametes supplied by other people and
asks some of the same kinds of questions that guided my examination
of adoption: Should users of donated genetic material strive to create
a ‘‘match’’ and an ‘‘as if ’’ family? Should they be able to select gametes
on the basis of the race, religion, or other characteristics of the donor?
Should the children created with donated gametes be able to learn the
identity of the donor(s)? Should the sale of eggs and sperm be prohib-
ited, regulated, or left to the open market? Discussing these questions
should help us think about whether and in what ways adoption and
gamete transfer are analogous or dissimilar, and what the implica-
tions are for contract pregnancy or ‘‘surrogate motherhood,’’ which I
consider in the next chapter.
As with many of the issues discussed in this book, one of the first
choices to make is what to call the practice under discussion. In ‘‘ga-
mete transfer,’’ a person uses sperm or eggs from someone else who is
not his or her spouse or life-partner and has no intention of being a le-
gal or social parent to the child created from this genetic material. (A
gamete can be either an egg or a sperm; a gamete is half the genetic ma-
terial needed for human procreation.) This practice is usually called
gamete ‘‘donation,’’ a term that suggests that a gift is being made. Only
rarely, however, do people transfer gametes without receiving money
for them. (Instances of transferring gametes to another as a gift are al-
most always between family members.) Since one of the ethical issues
I want to examine is the buying and selling of eggs and sperm, I will
speak of gamete ‘‘transfer’’ rather than ‘‘donation.’’ With respect to the
person who is the source of the gametes, although ‘‘provider’’ or ‘‘ven-
dor’’ would reflect the fact that he or she is paid, I will refer to this per-
[  ] Making Babies, Making Families
son as the ‘‘donor’’ to avoid possible confusion with the fertility clinic
or sperm bank that is the third-party ‘‘provider’’ and ‘‘vendor’’ of ge-
netic material (and is usually intent on maximizing profits).4
Compared to adoption and contract pregnancy, gamete transfer
has received relatively little attention from courts and legislatures.
Courts have dealt on occasion with what to do with frozen embryos
when the gamete donors disagree, or when they are deceased, but
transferring sperm or eggs for someone else to use to conceive a child
has been largely unregulated.5 Some state legislatures have passed laws
making the husband of a woman who is inseminated with someone
else’s sperm by a doctor the legal father of a child so conceived. But
there has been little attention to the questions that concern me here:
whether someone conceived through the use of third-party gametes
has a right, when an adult, to learn the donor’s identity, and whether
human gametes to be used for procreation should be priced by market
mechanisms. I argue that states should require the release of specific
identifying information about the donor to an adult who was con-
ceived with transferred gametes if that adult requests the information,
and should prohibit differential pricing of human gametes.
Thinking about adoption offers some guidance in thinking about
gamete transfer. Gamete transfer can, like adoption, create a family in
which the child is not genetically related to at least one parent, and ads
soliciting eggs in some ways resemble those placed in newspapers by
couples seeking to adopt children: ‘‘A happily married loving white
couple wishes to share their warmth, laughter and hearts with a new-
born. Will provide endless love and security, with close family ties. Ex-
penses paid.’’6 In important ways, however, gamete transfer is different
from adoption. Only genetic material, not an actual child, is trans-
ferred between adults, and a child conceived through gamete transfer
usually has a genetic relationship with one parent (this is true in both
heterosexual and same-sex couples and for single mothers). That ge-
netic relation, and the fact that one parent bears and gives birth to the
child, may make the child seem more the parents’ ‘‘own’’ than an
adopted child would be.
The implications of the fact that the child is one’s own, and yet was
created with the genetic material of a third party, have not been ad-
equately examined. Rather, practices surrounding gamete transfer
‘‘A Child of Our Own’’ [  ]
such as anonymous donation and market pricing developed incre-
mentally as the technology advanced and demand increased, but they
bear marks of the original procedures and social context in which
they developed.
Initially, only sperm could be transferred, a relatively simple pro-
cedure that doctors began recommending in the s, and one that
could easily be done secretly as well as anonymously. The technology
created no barrier to the formation of ‘‘as if ’’ families; for the most
part, heterosexual couples used insemination to have children that re-
sembled both parents. When egg transfer became possible after the
first successful in vitro fertilization (IVF) in , sperm transfer was
the model, though the far more complicated procedures and scarcity
of donors led to pressure to pay egg donors more than sperm donors.7
In the s, the debates over how to think about gamete donation
were complicated by social change and medical developments. The
women’s movement enabled single women to think about creating
families without husbands.8 And greater openness about same-sex re-
lationships led some lesbian couples to use gamete transfer to have
children. By the end of the twentieth century, therefore, gamete trans-
fer was used to create both traditional-looking heterosexual families
and less conventional-looking lesbian (and with the development of
‘‘surrogacy,’’ gay men’s) families.
But major issues raised by this widening practice remain in politi-
cal, legal, and moral limbo.9 Should we, and if so how should we, now
think about and regulate secrecy, anonymity, and openness in gamete
transfer? Whose interests should be considered in setting such poli-
cies? And what restrictions, if any, should be imposed on the buying
and selling of human genetic material? What practical and ethical
considerations need to be weighed in arriving at any policy?10
Some people question whether it is ever ethical for a single person
or a lesbian or gay couple to use gamete transfer to procreate. While
the issues involved are worthy of discussion, I leave them aside here.
Whether a person should use gamete transfer to become a single par-
ent should be discussed in the larger context of all the ways in which
people become single parents, and the ethics of single-parenting in
general. And whether same-sex couples should use donated gametes
should be discussed in the larger context of other ways in which same-
[  ] Making Babies, Making Families
sex couples come to raise children together, including one partner
gaining custody after divorce and adoption, and the ethics of same-
sex relations. I would only say that I do not think that either single- or
same-sex parenting is in itself immoral, and that I believe that the eth-
ical principles that should govern gamete transfer properly apply to
both heterosexual and homosexual parents.
On the general public policy issues, my conclusions are clear. I call
for an end to both anonymity and open-market buying and selling. As
I explain in detail below, both have developed in ways that do not take
adequate account of the interests of the future child or of society. The
child has an interest in identity formation and not being treated as a
commodity. Society will benefit from keeping family formation as
free from market forces as possible. But before taking up those argu-
ments, it may be helpful to review the medical procedures involved in
gamete transfer.

How Gamete Transfer Is Done

Prior to the s, couples who wanted to raise a child but found
they could not conceive might occasionally raise a relative’s child, or
might formally adopt a child. Gradually, some doctors began offering
patients the possibility of artificial insemination when the difficulty
appeared to be with the husband. Artificial insemination (more re-
cently called ‘‘alternative’’ insemination since some people considered
‘‘artificial’’ to be misleading and disparaging) by donor (AID) was
used in cases of sterility or low sperm count, or if the husband were the
carrier of an inheritable disease. In alternative insemination by hus-
band (AIH), several ejaculates from the husband were combined to
offset low sperm count or motility. Alternative insemination was a
simple procedure performed in a doctor’s office. At the most propi-
tious time in the woman’s ovulatory cycle, the doctor collected ejacu-
late from the husband or donor (often waiting in a room down the
hall from the examining room), placed it in a syringe, and injected the
sperm in the woman’s vagina as close to the cervix as possible. It en-
abled many patients to become pregnant.
Since a couple’s use of alternative insemination was usually pri-
vate, creating a family using this procedure required much less social
effort and explanation than adoption. The insemination procedure
‘‘A Child of Our Own’’ [  ]
could be done during a seemingly routine visit to the doctor. While
the later use of transferred eggs required a more complicated medical
procedure of extracting eggs, fertilizing them in a glass petrie dish
(‘‘in vitro’’ means ‘‘in glass’’), and placing the pre-embryo into the
woman’s uterus, apart from the physician only those the couple chose
to tell would know a couple was engaged in infertility treatment.
When a heterosexual couple used AID or egg transfer, there was no
need for a home study and evaluation of their fitness to be parents;
there were no worries that the child might have suffered unknown
physical or psychological difficulties prior to placement; and there was
nearly as much physical resemblance between parents and child as in
unassisted conception.11
Studies of the use of donated gametes to overcome infertility be-
gan appearing in medical journals in the United States in the early
s.12 The doctors selected the donors, who were usually medical
students, other university students, or hospital personnel. Virtually
all doctors paid donors for their semen; usually $ per ejaculate in the
mid-s, with a low of $ and a high of $, rising to approxi-
mately $ by the late s. Doctors might use the same donor re-
peatedly; a research team at the University of Wisconsin reported that
in response to a survey conducted in , many doctors said that they
used a donor for no more than six pregnancies, although . percent
had used a donor for fifteen or more. About  percent of the doctors
kept records on the women they inseminated, but many fewer kept
medical records on sperm donors or on children born after AID.13
Until the s, little screening beyond self-reporting of medical his-
tory was done. After the transmission of AIDS (acquired immunode-
ficiency syndrome) became a risk, semen was tested for the HIV virus
and frozen for future injection.
The fact that most early donors were medical school and univer-
sity students, and that recipients were private patients of doctors
affiliated with teaching hospitals, suggests that the majority of the
participants were white. More recent reports of the incidence of AID
indicate that race-matching is the norm, just as it was in the early
years, that is, recipients use sperm from donors with the same racial
identity as their partner. I have not been able to find any information
on the relative number of members of various racial groups who use
[  ] Making Babies, Making Families
AID. My guess is that recipients are disproportionately white, since
there is a much larger pool of children of color available for adoption
than of white children, and since in many black communities there is
less emphasis on the genetic tie in constituting families.14
Until the s, virtually all AID was used to help married hetero-
sexual couples have a child who resembled as much as possible the bi-
ological child they would have produced. Doctors purchased the se-
men, and couples paid the doctor for the insemination procedure.
Insemination was anonymous; the donor’s identity was neither re-
leased nor obtainable. Sometimes the husband’s sperm was mixed
with the donated sperm so that no one would know for certain which
man’s genes actually produced the child. Often, not even family mem-
bers and friends knew that the pregnancy had resulted from someone
else’s sperm. Occasionally, even the husband did not know his wife
was undergoing alternative insemination.
A variety of concerns made anonymity and secrecy seem appro-
priate, even necessary. The association of manliness with potency, and
the stigma attached to the inability to sire children, made many cou-
ples anxious to keep their use of insemination secret. Some legal and
religious authorities suggested that sperm transfer might constitute
an act of adultery.15 Lawyers were unsure about whether the donor
had any parental rights or responsibilities with respect to the child.16
Parents rarely told their children that they were conceived with do-
nated sperm; many psychologists counseled parents to protect them-
selves and their child from the resentment the child might feel if she
learned that she was ‘‘different’’ from other children.17
The goal of AID was to create a family in which the children ap-
peared to be the biological offspring of the husband and wife. Both the
practice of ‘‘matching’’ the donor and the recipient’s husband in phys-
ical appearance, and the practice of anonymity, supported this goal.
The  survey by the University of Wisconsin researchers found that
the majority of doctors tried to match hair color, skin color, eye color,
and height, and some tried to match religious or ethnic background,
ABO blood type, and educational level.18 Doctors took great care to
make sure that the identities of neither donors nor recipients would be
known, and many gynecologists who delivered babies conceived by
‘‘A Child of Our Own’’ [  ]
AID never knew that their patients had undergone alternative insemi-
nation.
The practices that grew up around AID carried with them compli-
cated messages about what mattered in making babies and making
families. On the one hand, the way AID was carried out suggested that
what really made a man a father could be social, not invariably genetic,
parenting. As the practice of AID grew, many state legislatures and
courts declared that any child conceived within a marriage by donated
sperm was to be considered the legal child of the husband and wife.19
The fact that donors were paid a token amount, were not counseled
about any possible psychological effects of their act, and were permit-
ted or encouraged to sell sperm multiple times all suggested that the
sperm were without particular significance to the man, an attitude
that contrasted markedly with the later concern about an unwed fa-
ther’s right to veto a mother’s decision to place a child for adoption,
discussed in Chapter .20 On the other hand, the way in which the re-
ceiving family was treated suggested that it was significant that they
were conceiving through the use of donated genetic material. In sev-
eral countries (although not in the United States) couples received ex-
tensive counseling before insemination. Doctors tried to match physi-
cal traits, took great care to keep donor and recipient from seeing one
another, and kept all records confidential. When the technology to
freeze sperm (called cryopreservation) developed, both anonymity
and matching were easier to achieve, and there was no need for the do-
nor to be nearby when insemination took place. Cryopreservation
also meant that recipients could choose from among a far greater
number of donors and match characteristics more precisely than they
could when fresh semen was needed.
With the development of in vitro fertilization it became possible
to acquire eggs as well as sperm from a third party, though initially
IVF was used by married women who produced healthy eggs but
could not conceive because their fallopian tubes were blocked. The
first birth from this procedure took place in . In  a woman
gave birth for the first time to a child to whom she bore no genetic re-
lationship after a donor’s eggs were fertilized in a petrie dish and suc-
cessfully implanted in her womb. Thereafter doctors began using IVF
[  ] Making Babies, Making Families
to join the husband’s sperm with donated eggs to enable couples in
which the wife did not produce healthy eggs to create a child. By 
about five thousand egg transfers a year took place in the United
States.21
Egg transfer is a far more complicated procedure than sperm
transfer. Where AIH and AID require only a syringe for introducing
the sperm, egg transfer ‘‘harvests’’ eggs from the donor by aspiration
(suction), fertilizes the eggs in vitro, and either introduces the fertil-
ized egg into the uterus or introduces both egg and sperm into the up-
per end of the fallopian tube (gamete intrafallopian transfer or GIFT).
Some consider ‘‘complete surrogacy’’ (contract pregnancy), which I
discuss in the next chapter, another form of egg transfer, in which a
woman becomes pregnant through AID using her own eggs, and gives
birth to a child whom she turns over to the sperm donor and his wife
or partner. Here I focus on egg transfer to a woman who will carry the
child during pregnancy and be the child’s social and legal mother.
Both donors and recipients in egg transfer undergo medical treat-
ment. A woman who is to donate eggs receives hormone injections to
stimulate ovulation. For three weeks, a donor injects herself with Lu-
pron, which shuts down the ovaries so that no eggs ripen or are re-
leased. Taking this drug often produces menopause-like symptoms:
hot flashes, difficulty with short-term memory, and insomnia. The
donor then switches medication, injecting herself for a week with the
follicle-stimulating hormones Pergonal and Metrodin. These injec-
tions hyperstimulate the ovary and cause the release of an abundance
of eggs, often a dozen or more. Finally, the donor receives an injec-
tion of human chorionic gonadotropin (hCG). About thirty-four to
thirty-six hours after hCG administration, eggs are retrieved either by
laparoscopy or ultrasound.22
In its early years, egg transfer was done using laparoscopy; now
ultrasound is the preferred method. For laparoscopy, the woman is
placed under anesthesia, and the doctor inserts a needle into her ab-
domen just below the navel. Carbon dioxide gas is released into the ab-
dominal cavity, moving the abdominal wall away from the organs.
Then the doctor inserts the laparascope, a small fiberoptic instrument
about a half inch in diameter, into the abdominal cavity in order to
view the ovaries and fallopian tubes. When the laparoscope provides
‘‘A Child of Our Own’’ [  ]
a good view of an ovary, the doctor punctures the egg follicle with a
needle inserted through another small incision, applies suction, and
collects the contents of the follicle in a tube or trap. The ultrasound
procedure requires only local or very light anesthesia. The ultrasound
reveals an image of the egg follicles by waves sent through the bladder.
The doctor can then insert a needle through the vaginal wall to reach
the ovarian follicles using suction to capture the eggs. Once the eggs
are extracted, technicians place them in culture dishes with sperm.
About twenty-four hours later, the eggs are observed for signs of fer-
tilization, and those that appear fertilized are placed in an incubator
for another twenty-four hours. By this time, successfully fertilized
eggs will have divided into two, four, or even eight cells. Usually about
four of these are then placed into the uterus using a small catheter.23
The recipient, for her part, must also undergo hormonal treat-
ment to synchronize her menstrual cycle with that of the donor, al-
though of course she does not experience hyperstimulation of her
ovaries. The recipient often needs additional hormonal injections for
a short period after egg transfer to facilitate the egg’s implantation in
the uterine wall.
Despite the great differences in the procedures for sperm and egg
transfer, by and large the practices surrounding egg transfer followed
the model of sperm transfer: recipients selected donors with charac-
teristics they desired for their children; the identity of donors was kept
secret; fertility centers and doctors served as intermediaries; and do-
nors were paid a fee. The scarcity of egg donors, however, because of
the difficulty of the procedure, led people to begin advertising to find
donors which has meant that egg transfer is both far more costly and
less secret than sperm transfer.
These invasive medical procedures and the high cost of egg trans-
fer sparked renewed attention to the ethical issues gamete transfer
raises. Many of the early discussions of the ethics of sperm transfer
had involved the question of whether being injected with donated
sperm constituted an act of adultery, and whether the genetic father
had any parental rights or responsibilities with respect to the child. By
the s, most medical and legal writers agreed that sperm transfer
was not adulterous and should carry with it no parental rights or re-
sponsibilities. Initial discussions of the ethics of egg transfer by and
[  ] Making Babies, Making Families
large concerned only the medical advisability of placing certain re-
strictions (such as limiting the number of eggs that anyone could
transfer because of the unknown long-term effects of the hormone in-
jections) and the ethics of inducing women to sell their eggs by offer-
ing large sums of money.
In the s, the movement toward open adoption and the use of
AID by some single women and lesbian couples drew attention to ad-
ditional ethical issues in gamete transfer. By the s, some profes-
sionals, in part inspired by the movement for open adoption, were ad-
vising that children of a suitable age be told that they were conceived
through AID but not be given any information concerning the iden-
tity of the donor.24 Moreover, the medical procedures involved made
it more difficult to keep egg transfer secret than sperm transfer. When
some single women and some lesbian couples began to use donated
sperm to have children, they were creating families different from
those produced by early AID. Whereas alternative insemination had
initially been used to create ‘‘as if ’’ families for married heterosexual
couples, lesbian couples could now have one partner undergo alterna-
tive insemination and then raise the child together. A procedure that
many people had characterized as a minor assist to nature when used
to enable heterosexual married couples to have children was por-
trayed as a most unnatural practice when used to enable lesbians or
single women to have children. Some gay men also used donated eggs
and the gestational services of surrogate mothers, but they were few in
number and did not spark the same kind of outrage that lesbians’ pro-
creation without a social father generated.25
It is interesting to speculate whether, had egg transfer developed
before sperm transfer, different images or analogies concerning what
was involved in transferring gametes might have developed. Sperm is
easily removed from the body, ejaculation is pleasurable, and the act
can be repeated without difficulty or harm to the body. Egg transfer,
by contrast, cannot be done alone and unobserved and requires hor-
monal injections and surgery, both of which cause discomfort or
pain. The need to coordinate the menstrual cycles of donor and recip-
ient suggests a cooperative relationship between donor and recipient
even when they do not know one another. Egg transfer cannot be re-
peated frequently because no one knows the long-term effects of hor-
‘‘A Child of Our Own’’ [  ]
monal manipulation or of the ovarian scarring that may occur during
extraction. Weighty cultural values associated with ‘‘motherhood’’
also make egg transfer seem more portentous and troubling than
sperm transfer: since time immemorial men have impregnated
women to whom they are not married and have walked away without
a backward glance; women, by contrast, have been expected to love
and devote themselves to their children, and those who do not are
deemed monstrous.26
At present, in the United States, the tale told by policies and prac-
tices surrounding gamete transfer is one of individuals who are free to
commodify their genetic traits, consulting only their own immediate
interests and values. This is not, however, the only way to conceptual-
ize gamete transfer. A more open and less market-driven practice
would reflect a less atomistic conceptualization of society. Society and
public policy makers need to pay more sophisticated attention to the
child’s psychological experience, to the multiple relationships that
create and sustain any human being, and to the variety of family forms
that foster human intimacy.

An Argument against Anonymity

From the perspective of doctors and patients alike, producing a
successful pregnancy through alternative insemination and a child a
married couple could call their ‘‘own’’ was the happy ending of infer-
tility treatment. Typically, doctors told neither donor nor recipients
one another’s identities.
Even after many states enacted laws stating that a child conceived
by alternative insemination was the legal child of the mother and her
husband, anonymity remained the norm.27 While the donor’s physio-
logical features, intelligence, ethnic background and religious iden-
tity were important to some recipients, knowing the specific identity
of the donor was unimportant, even undesirable. Most professionals
associated with assisted reproduction argued that anonymity should
be the norm, because it freed the donor from any legal responsibility
for the child and any apprehension that the child would seek contact
with him in the future. Also, the receiving couple and their child
would be indistinguishable, or nearly so, from other heterosexual
couples with children. With anonymity the accepted norm in adop-
[  ] Making Babies, Making Families
tion, it seemed all the more the case that gamete transfer, before a
child existed, should be anonymous.
The practice of anonymous donation was also consonant with
those aspects of liberal individualism that embraced equal opportu-
nity and rejected linking legal or political status to accident of birth.
National mythology still pictured the United States as a country pop-
ulated by ‘‘self-made men’’ and people who had cut themselves off
from their past and started life anew through immigration or migra-
tion to the western frontier. The assumption that the identity of the
gamete donor was not terribly significant because the children con-
ceived with donated gametes would become whatever they made of
themselves, drew on these images of self-determination.
The individualistic understanding of the person reflected in the
terms some people used to talk about gamete transfer drew upon,
although it exaggerated, other developments in American family
law. Increasing recognition of the individuality of each member of a
family has been a trend in law and social practice since the mid-
nineteenth century. Beginning in the s, passage of married
women’s property acts in many states recognized that a wife, who pre-
viously had been subsumed in the legal personality of her husband,
who acted for her in legal matters, might hold property in her own
name. Later in the century, child labor laws and compulsory school-
ing limited parents’ ability to control what their children did. Cre-
ation of legal adoption around  allowed the legal bond between
biological parent and child to be severed. In the twentieth century, the
expansion of grounds for divorce suggested that marriage was no
longer to be thought of as an indissoluble bond, that under certain cir-
cumstances individuals might reclaim their single status. In these var-
ious ways, social and political discourse presented the person ‘‘as a po-
tentially free-standing and whole entity (an individual subject or
agent) contained within an abstract impersonal matrix.’’28 Bonds be-
tween family members that people had once thought of as unchange-
able or ‘‘given’’ were now viewed as established by human intention
and will. The inherent tension in American political theory and law
between the individualistic and relational aspects of each person per-
meated the ways people talked about gamete transfer.
When doctors developed the practice of sperm transfer, the ano-
‘‘A Child of Our Own’’ [  ]
nymity that prevailed suggested that there was no intrinsic or essen-
tial relationship between donor and sperm, nor between the person to
be created and his or her genetic progenitor. ‘‘Donation linking a per-
son to a source of genetic endowment does not necessarily link the
person to another person. Indeed, twentieth-century people who talk
of semen ‘donation’ treat it as a substance that will fertilize the mater-
nal egg whether or not its identity is known.’’29 Acceptance of a child
who was a genetic stranger to one of the parents also reflected a belief
in the social construction of the self. Couples using gamete transfer
did not think that the genetic tie would make that spouse or partner
more of a parent than the genetically unrelated parent. ‘‘Nurture’’
would be every bit as important as ‘‘nature’’ in the child’s develop-
ment, and anyone’s claim to be recognized as a parent would rest upon
the commitment to the marriage and to rearing the child.
At the same time, however, secrecy and anonymity suggested that
the identity of the donor involved in begetting the child was impor-
tant; if the genetic tie had no significance whatsoever, it would not
need to be hidden. But what kind of significance might the genetic link
have? One of the problems gamete donors and recipients faced was
that in the past law had given biology too much significance when it
gave genetic fathers claims to legal paternity or held that sperm trans-
fer constituted an act of adultery. I believe that both donors and recip-
ients were right to think that genetic contribution alone, without the
assumption of responsibility for the child, should not give someone a
claim to be regarded as a social or a legal parent.
But many people who used donated sperm or eggs to conceive a
child who was genetically related to one parent attributed a different
kind of significance to their genetic link to the child. Having a child
genetically related to one member of the couple gave a sense of conti-
nuity both to the genetically related parent and to the spouse who
would see his or her partner reflected in their child. The genetic tie
linked the parents not only to their child, but also to the generations
that preceded them and, through the possibility that their child would
have children, to those following them. This was true for both parents
who conceived with the help of AIH, for mothers who conceived
through AID, and for fathers who used donated eggs. The sense of ge-
netic continuity through the generations placed the family in a his-
[  ] Making Babies, Making Families
tory that stretched both forward and backward in time. Parents could
feel that they were passing on a legacy not only through their words
and actions, but also through their bodies.
From the perspective of the child, and the person that child will
become, knowledge of how and from whom one came to be is now be-
ing seen as part of the right to an identity.30 I agree with the view that
someone created with donated genetic material should have the right
to learn (although not be compelled to learn) the identity of the do-
nor, not simply medical facts or DNA profile, upon reaching the age
of majority or some other specified age. The reason for this is not that
genes ‘‘trump’’ social identity; I argued in Chapter  with respect to
unwed fathers that the right to be treated as a legal parent follows from
a genetic relationship only when the genetic parent also assumes re-
sponsibility for the child’s welfare. Rather, the right to learn the iden-
tity of one’s genetic forebear stems from some people’s desire to be
able to connect themselves to human history concretely as embodied
beings, not only abstractly as rational beings or as members of large
social (national, ethnic, religious) groups.31 Children come into the
world through the actions of specific persons, which now can include
both ‘‘intentional’’ parents (those who plan their conception) and ge-
netic donors.
It is important that society as a whole affirm the right to know
one’s origins. Religion, philosophy, and psychoanalysis alike contend
that truth is better than either falsehood or obfuscation, and openness
is better than secrecy (some form of ‘‘the truth shall make you free’’ is
found in each of these fields of thought). Neil Leighton, a social
worker, has argued that children have a right to ‘‘the development of a
sense of self as a lived narrative blending action and memory [and] to
participate in their own histories and their own future.’’ He worries
that ‘‘children who have no identifiable origin, no identifiable human
beginning to their personal narrative may have a sense of alienation in
the world in which they find themselves.’’32 While not all children (or
the adults they become) may experience such feelings, social policy
should place the burden of proof on the person who would seal an
adoption record from the adult adoptee or a medical record from the
person created with donated gametes, not on the person seeking in-
formation about his or her origins.
‘‘A Child of Our Own’’ [  ]
Some who agree that people should know that they were created
by gamete transfer do not agree that they should be guaranteed access
to information concerning the specific identity of the gamete donor.
Some assert that guaranteeing access to such information reflects a so-
cially created need that comes from a patriarchal focus on genetic lin-
eage, and others assert that it reflects a kind of genetic essentialism
that downplays the importance of experience and social factors in the
formation of a person. It should be clear by now that I reject both pa-
triarchalism and genetic essentialism. It is good, however, when social
practices reflect the fact that specific human beings are necessary for
any person to come into existence, that individual actions shape the
larger social whole, and that cultural development is something indi-
viduals participate in rather than something that happens to them.
Law and social practice should foster the understanding that what in-
dividuals do, even on a small scale, has repercussions beyond them-
selves and their intimate associates.33
Arguing that the person created by gamete transfer has a right to
learn the progenitor’s identity upon reaching age eighteen or twenty-
one implies that the gamete donor must be prepared to have his or her
identity revealed. The donor has no responsibility to the child/adult
beyond that; there is certainly no obligation to meet. Another impli-
cation may be that clinics should prohibit multiple donations (say, no
more than three or five).34 Repeated anonymous donation treats the
transfer of genetic material as if it were analogous to giving blood. Yet
the fact that human beings may result from gamete transfer makes it
different in kind and significance from blood donation to donor and
recipient alike, and repeated donation might foster an undesirable
sense of detachment from the procreative potential of one’s body.
Is it possible for people in this culture to accept the distinction be-
tween genetic and social parenthood, and to give each its proper due?
That question (along with what constitutes each person’s ‘‘proper
due’’), can only be answered over time. It seems to me that both dis-
cussions like this one, and people’s actions, contribute to our collec-
tive deliberation. The experience of some lesbian and gay couples who
chose to use known donors has suggested that it is possible to do so
without generating confusion among family members about who are
(or should be) the child’s legal parents. In making collaborative pro-
[  ] Making Babies, Making Families
creation visible and validating the significance of specific family histo-
ries, these families may provide new modes of thinking and suggest
new ways of acting to heterosexual families as well.35

An Argument against Marketing Human Gametes

The mechanism by which gametes are transferred from one per-
son to another in the United States has largely been the market. Ga-
mete ‘‘donation’’ has always been a misnomer in the United States.
Human eggs and sperm have a number of characteristics that made it
possible to treat them as commodities. First, they were separable from
the donor and transferable to another person. Because gametes were
separable from the donor they could be treated as a generalized ‘‘re-
source’’ that could be traded in the market. Control over eggs or
sperm could be transferred from one owner to another—from donor
to doctor or fertility clinic, and from these to the recipient.36 The fact
that once gametes are removed from the donor’s body they can be-
come part of a common store—a sperm or ova bank—from which
others can obtain what they need or want, also tempts us to think of
gametes as commodities. In market transactions, ‘‘an anonymously
produced object becomes part of a store on which others draw.’’37
Marilyn Strathern believes that ‘‘the market analogy has already done
its work: we think so freely of the providing and purchasing of goods
and services that transactions in gametes is already a thought-of act of
commerce.’’38 The practices of the market have so thoroughly shaped
our culture that it is hard to imagine an alternative method by which
to transfer gametes.
It is appropriate that gametes be regarded as the possession of the
donor in the sense that neither the government nor a medical research
facility may commandeer anyone’s body, body part, or genetic mate-
rial without the donor’s informed consent; only the person whose ga-
metes are to be transferred can make that decision. Further, it is ap-
propriate that the transfer of material does not create any conceivable
claim to parental rights or responsibilities on the part of the donor.
I argued in Chapter  that only unwed fathers who assume concrete
responsibility for a child or the child’s mother should have any claim
to be recognized as parents; gamete donors, who have no social or sex-
‘‘A Child of Our Own’’ [  ]
ual relationship with the recipient, clearly should not be regarded as
‘‘parents.’’
The notion that it is acceptable for one person to agree to transfer
his or her genetic material to someone else under appropriate condi-
tions does not, however, mean that the reason this transfer can take
place is that the donor owns that material, or that the gamete is a com-
modity. Unlike adoption, in which existing children have an existing
social tie (albeit sometimes a very brief or nominal one) to their birth
parents, in gamete transfer there can be no social relationship between
donor and gamete, and the donor is not a parent. This has unfortu-
nately led people to treat the gamete as a possession of the person from
whom it is extracted. The marketing of sperm and eggs further sug-
gests that the recipients can be regarded as customers or consumers,
free to exercise consumer choice. ‘‘Those who seek assistance, we are
told, are better thought of not as the disabled seeking alleviation or
the sick seeking remedy—analogies that also come to mind—but as
customers seeking services.’’39 But the notion that people own their
gametes mistakes the nature of their relationship to reproductive ma-
terial.
The liberal ideal of ‘‘self ownership’’ does not mean that we can do
whatever we like with all our body parts, selling off what we don’t need
or want. The law allows people to sell hair, and sometimes blood, but
prohibits the sale of body organs. Even someone willing and able to
live with only one kidney or eye may not sell the other (nor may the
kidney, eye, heart, or liver from a deceased person be sold). The dis-
tinction here is not simply that between renewable and nonrenewable
material, or between material necessary and unnecessary to sustain
life. It also involves a judgment that some parts of the body should not
be for sale either because of their nature, or because economic need
might lead poor people to sell body parts.40 What kind of ‘‘body parts’’
are gametes, and how should we think about the donor’s relationship
to his or her gametes? Donna Dickenson suggests that ‘‘the kind of
ownership which we can be said to possess in relation to our gametes
is conditional: we are not allowed to do anything we like with them,
because they are not unequivocally ours. They are held in common
with past and future generations.’’41
[  ] Making Babies, Making Families
The practice of regarding donors as owners of their gametes has
led to customer ‘‘shopping’’ for gametes and in some cases to the
differential pricing of gametes based on their donors’ characteristics.
Some gamete shoppers compare the considerations that go into their
choice of a donor to those that influence their choice of a spouse; is
he/she tall, good-looking, smart, a baseball fan? One difference, of
course, is that the gamete expresses no choice and is purchased from
someone else, but recipients are free to—indeed encouraged to—ex-
ercise choice. Various social practices already reward certain traits the
person was born with more than others: lighter-skinned people en-
counter less employment discrimination than darker-skinned indi-
viduals; men are paid more than women with comparable education.
It is bad enough that these and other differences which are accidents of
birth generate economic inequality in the labor market; it is far worse
when these traits lead to differential compensation for the donor’s
gametes.
Differential pricing of gametes based on characteristics like the
donor’s height, skin and hair color, athletic or academic achievement,
and musical ability seems to validate the assumption that persons
with such attributes—both donors and as-yet-unborn (indeed, as-
yet-unconceived) children—are ‘‘worth more’’ than others. We need
to think hard about the moral and political consequences of accepting
such a position. We need to think about what a child knows of the ge-
netic material that made her or his existence possible. Knowing that
the genetic material was bought for a higher (or lower) price than that
of some other child is to cast further doubt on the proposition basic to
United States law that all persons are of equal dignity regardless of
their wealth or social status.
Using the market to transfer human gametes draws upon and per-
petuates an overly individualistic understanding of human society
and distorts the liberal commitment to human freedom. An open
market can create undue pressure on potential donors (a student sad-
dled with heavy student loan debt, a woman in poverty); harm chil-
dren who will learn that their relative ‘‘value’’ depends on traits over
which they have no control; and undermine the basic democratic con-
cept of the equal intrinsic worth of all persons.
A person’s relationship to his or her genetic material is better
‘‘A Child of Our Own’’ [  ]
thought of as a kind of stewardship than as ownership. Thinking
about what is involved in gamete transfer should turn us away from
those strands of the liberal tradition that emphasize the individual
and property in the body, and towards those strands that rest on a
deeper understanding of the person rooted in multiple and complex
relationships to family and civil society. If neither anonymity nor an
open market in gametes is desirable, what then should be ‘‘the tale told
by law’’ and public policy with respect to gamete transfer?

Transforming the Practice of Gamete Transfer

To bring gamete transfer into conformity with the ethical princi-
ples that should underlie all of United States family law, policies and
practices should give as much recognition to the relational as to the
individualistic aspects of human procreation and should focus atten-
tion on the potential child. Specifically, we should do away with the
market in human gametes, and we should do away with the sealed (or
nonexistent) records that make it impossible for an individual created
by gamete transfer to identify his or her specific genetic forebear(s).
The experiences of other countries suggest that donors can be per-
suaded to donate without a guarantee of anonymity and without high
payment. Swedish legislation allows the offspring of a donor access to
the donor’s name once the child is sufficiently mature. Canadian and
German reports have recommended that children be given a legal
right to know their origins. In the United Kingdom, law requires all
donor insemination centers to keep identifying information on do-
nors whose gametes are used for conception, and permits their off-
spring, after reaching age eighteen, to request information about their
genetic origins. Although the intent of the law is to provide nonidenti-
fying information in cases of medical necessity, it does not prohibit
the release of identifying information about the donor. New Zealand
and Australia also moved toward greater openness and the right of
children to information about their origin. In New Zealand, argu-
ments for every child’s right to know the identity of his or her genetic
forebears have been joined by arguments that indigenous peoples, in
particular, have a right to their specific heritage.42 Some of these coun-
tries explicitly protect the donor from unwanted contact with the
child/adult, which seems appropriate.
[  ] Making Babies, Making Families
In the early years of AID, the donor’s anonymity was regarded as
central, and only a few voices suggested that the child might have
significant psychological needs or other interest in knowing his or
her origin.43 While secrecy and anonymity still predominate, some
psychologists, counselors, social workers, and others have begun to
urge greater openness, and public policy in some countries has re-
sponded.44
The understanding people have of what it is they are doing in ga-
mete transfer—whether it’s a charitable or profitable act, for in-
stance—naturally affects their behavior as well as others’ understand-
ing of the meaning of the practice. If someone regards gamete transfer
as a market activity akin to selling a product or one’s labor, then sell-
ing it for the highest possible price makes sense. But if someone thinks
about gamete transfer as a way to collaborate in others’ efforts to con-
ceive a child, then other models suggest themselves. Monica Konrad
reports that egg donors she interviewed spoke of what they did as ‘‘do-
nating means or a way of helping others,’’ and chracterizes their ac-
counts as ‘‘narratives of assistance’’ and of ‘‘social efficacy . . . on behalf
of others.’’45 The act of transferring gametes makes donor and recipi-
ent part of a web of social and biological relationships that form part
of the person-to-be’s identity. Both have obligations generated by that
person’s claims to human dignity.
Defenders of the open market in gametes argue that payment to
sperm donors, and high remuneration to egg donors, are necessary to
get men and women to donate sperm and eggs.46 Again, data from
other countries does not bear this out. In France, sperm donors were
initially paid, but when it became possible to freeze sperm (and so the
donors could come to a fertility center at their convenience) they
ceased being paid. The majority of the centers ‘‘maintained a policy
that the semen donation be simply that, a gift for which no payment is
received as is the case for organ donation.’’ In  doctors reported
that ‘‘donations have kept pace with semen demands,’’ although a con-
stant recruitment effort was necessary as demand continually in-
creased.47 Requests for donors appealed to those who understood the
longing for a child, and potential recipients were urged to talk about
donor insemination to increase public acceptance and encourage do-
nations. More recently, England prohibited remuneration of more
‘‘A Child of Our Own’’ [  ]
than  pounds sterling (about  dollars) for egg donors. Some com-
mentors regard this amount as inadequate to recruit a sufficient num-
ber of egg donors and suggest setting a uniform payment (usually
somewhere between  and  pounds sterling, or about  dol-
lars) as remuneration for the inconvenience and discomfort of do-
nating eggs (as distinguished from the eggs themselves), while others
advocate holding fast to unpaid donation.48 England and Canada have
had some success in encouraging ‘‘egg sharing,’’ whereby a woman un-
dergoing IVF using her own eggs donates to someone else any eggs
that were harvested but that she did not use.
The United States is the only western country in which there are
no national restrictions on the marketing of human ova, although the
selling of human organs is prohibited by statute. The question is
whether it would be proper, and possible, to change this. Reimagining
gamete transfer as something other than a market activity will be an
uphill struggle, but not one that is doomed to fail. While the difficul-
ties and risks that are part of egg transfer may make it impossible to
abolish payment altogether, it would be possible to remunerate people
for undergoing the medical procedure at a single set fee, while prohib-
iting differential pricing of gametes.
In a thought-provoking paper, Hawley Fogg-Davis suggests that a
possible basis for establishing gamete transfer on an ethical founda-
tion would be to regard transfer as a form of work or labor, for which
donors could be paid, and then to bring their labor under the jurisdic-
tion of Title VII of the Civil Rights Act of . Because Title VII pro-
hibits discrimination on the basis of race, sex, religion, or national or-
igin, Fogg-Davis believes it could be used to prohibit mention of the
donor’s race in any catalogue or other materials relating to the gamete.
It is both impracticable and immoral, she argues, to ascribe ‘‘race’’ to
gametes, since racial categories are not biological facts but social con-
structions, and the law should prohibit sperm and egg banks from list-
ing the race of donors.49
Although, like Fogg-Davis, I take a constructivist view of race, do
not regard the gamete as a person, and find racism abhorrent, I am not
convinced that recipients should not be allowed to choose donors
based on physical appearance, including racial features. People’s mo-
tives in reproductive decision-making are tremendously complex;
[  ] Making Babies, Making Families
while some white infertile couples may turn to gamete transfer solely
because they do not want to adopt a child of color and create a mixed-
race family, others may turn to gamete transfer because they want to
experience pregnancy and raise a child from birth, and have a child
with a genetic connection with one parent, and a connection to a
particular historical heritage.50 These desires are not illegitimate or
base.51
While there is a danger that some recipients of gamete transfer will
use it to perpetuate white racial privilege, there are also dangers in
treating the act of donating gametes as a form of work falling under
Title VII’s prohibitions on employment discrimination and in treat-
ing the egg or sperm as ‘‘raceless.’’ Bringing gamete transfer under Ti-
tle VII could result in treating egg donation like any other labor mar-
ket activity, and treating genetic material as a ‘‘product,’’ a product
that becomes part of a ‘‘pool’’ of gametes without a specifiable rela-
tionship to their origin.
Fogg-Davis’s fears that gamete transfer may be used to perpetuate
social and economic privilege might be mitigated if the open market
in gametes and anonymity were abolished. While it would be ideal to
make gamete transfer a real ‘‘gift’’ by forbidding all payment, the main
harms of a market system would be avoided if a uniform fee for do-
nating and for receiving gametes was put into effect; affluent recipi-
ents could not bid up the price of gametes from donors with certain
characteristics. Children created by gamete transfer would not bear
the burden of wondering (or knowing) what they ‘‘cost’’ compared to
other children. Abolishing anonymity would remind us that the
child—although unambiguously and irrevocably the child of the re-
cipients, the social parents—has come into being not only because of
the parents’ desire and choice, but also because of the actions of an-
other person. Allowing recipients some choice in the physical and
social characteristics of the donor, along with the provision that the
donor’s name will be disclosed at the request of the grown child,
counteracts the risk that children created with donated genetic mate-
rial will be imagined as the genetic offspring of ‘‘nobody’’ or of
‘‘anybody,’’ rather than of specific individuals.52
The families formed by gamete transfer greatly increase the variety
of families in the United States. Collaborative procreation is used by
‘‘A Child of Our Own’’ [  ]
both heterosexual and homosexual couples, and by some single per-
sons. Some families choose to approximate the appearance of a family
in which genetic parents and social parents are one and the same, oth-
ers do not. Some families choose to keep the parents’ use of gamete
transfer private, others do not. Some families make the donors known
to the children when the children are young, others do not. (Chapter
 discusses some issues that have arisen when lesbian couples have en-
couraged a social relationship between their donor and child.)
Pluralism in family forms is not only unavoidable but desirable.
Respect for families does not mean that all must adhere to the same
form or way of being in the world. Instead, respect for families—and
in particular respect for children and the persons that they will be-
come—requires that family formation not be absorbed by the market
and that gametes not become differentially priced and anonymous
commodities. Creating uniform payments and costs for egg transfer
and for sperm transfer, and guaranteeing every person’s right to a spe-
cific account of origin, are policies that reflect commitment to these
ethical principles.

The practices, regulations, and laws that shape the way in which ga-
mete transfer is carried out in the United States affect not only how we
regulate our conduct, but also the categories and terms we use to char-
acterize what it means to be a ‘‘parent’’ or a ‘‘child.’’ At stake in these
debates are the images and ways of thinking that inform our own and
others’ understanding of what it is to be a member of a family.
Gamete transfer forces us to rethink the ways in which people have
tended to regard families either as inevitable and ‘‘natural’’ or as vol-
untaristic and contractual associations. New reproductive technolo-
gies, along with birth control and abortion, encourage voluntaristic
models of thinking about family relationships because having chil-
dren by buying genetic material or gestational services introduces
choice and contingency into what was long thought to be inevitable.
As anthropologist Marilyn Strathern notes, ‘‘However one looks at it,
procreation can now be thought about as subject to personal prefer-
ence and choice in a way that has never before been conceivable.’’
Where formerly the child was ‘‘regarded as a social being’’ whose birth
‘‘reproduced . . . a set of social relations’’ (the relationship between the
[  ] Making Babies, Making Families
parents themselves and the relationships among the parents and other
kin), ‘‘now the child is literally—and in many cases, of course, joy-
fully—the embodiment of the act of choice.’’ The child embodies ‘‘the
desire of its parents to have a child.’’53
This tension between our social and legal understandings of the
family as a biological creation involving only one woman and one
man who are married to each other and as a conventional or volunta-
ristic entity seems to me unavoidable, but also overly dichotomous.
Neither model alone is persuasive. The traditional model assumes
that there is only one form of family given in nature: it is heterosexual,
with rigidly defined gender roles, and is headed by a male. The volun-
taristic model, for its part, suggests that the rights and obligations of
those engaged in gamete transfer are to be decided strictly by the will
of the parties involved, often through market negotiations.
Any theory of the family worth its salt must view people alter-
nately—even simultaneously—both as individuals and as persons
whose identity is formed through relationship to other people.54 Re-
spect for the moral autonomy of the person is very different from
atomistic individualism.55 Liberal society and law regard every indi-
vidual as having property in the person, that is, as being capable of
self-government and of assuming responsibility for his or her acts, a
notion quite different from having property in the body itself.
Respect for the child (and the person the child will become) sets
limits to the ways in which people can exchange or transfer gametes in
efforts to procreate. Discussions of the ethics of gamete transfer have
overwhelmingly centered around the interests of recipients, donors,
and physicians, with only rare mention of the person-to-be. But that
person must be central to moral reasoning about procreative prac-
tices. Gamete transfer has not existed long enough for many children
and adults created with third-party genetic material to share their
perspectives, although these will be very important to future moral
reasoning. In the present absence of such first-person testimony I
would suggest that respect for the equal worth of human beings pre-
cludes setting different monetary values on genetic material to be used
in procreation. And respect for each individual’s right to establish his
or her own sense of identity requires that society not withhold from
anyone information about his or her origins.56 The deep conceptual
‘‘A Child of Our Own’’ [  ]
transformations necessitated by the creation of families from gamete
transfer are not encompassed by a false dichotomy suggesting that
family bonds are grounded either in ‘‘nature’’ or in ‘‘convention.’’
Rather, these transformations require us to frame an ethic of interper-
sonal and intergenerational responsibility under conditions of un-
precedented choice. It is possible to change both our thinking about
and the policies governing the transfer of human gametes to be used
in procreation, and we should do so for the sake of all those involved.
chapter 4

‘‘Surrogate’’ Motherhood:
The Limits of Contractual
Freedom

T he ‘‘Baby M.’’ case, which riveted the attention of much of the

country in the late s, remains the best-known legal contest
involving ‘‘surrogate motherhood’’ in the United States. For nearly an
entire year, people fiercely debated the question, ‘‘What makes some-
one a parent?’’ and, more particularly, ‘‘Who should be declared the
legal parent of ‘Baby M.’?’’ in newspaper columns and law journals, on
television talk shows, and at gatherings of co-workers and friends.
The facts of the case are heartwrenching.1 Mary Beth Whitehead
agreed to be inseminated with the sperm of William Stern and to give
up any resulting child to him and his wife for a fee of $,. Ms.
Whitehead gave birth to a baby (whom she called Sara and the Sterns
called Melissa) on March , . Three days later she took the baby
home from the hospital and turned her over to the Sterns. Shortly
thereafter, Ms. Whitehead appeared at the Sterns’ house, apparently
distraught, and begged the Sterns to let her take the baby temporar-
ily, promising to return with her later. Fearful that in her state of dis-
tress Ms. Whitehead might harm herself, the Sterns entrusted her
with the baby. The next week, Ms. Whitehead called the Sterns and
told them that she had changed her mind and could not relinquish the
‘‘Surrogate’’ Motherhood [  ]
baby. The Sterns went to Ms. Whitehead’s home accompanied by po-
lice, and while they were talking with relatives in the living room, Ms.
Whitehead passed the baby through a bedroom window to her hus-
band who was waiting outside. The next day the Whiteheads took the
baby with them to Florida, where Ms. Whitehead’s parents lived. Over
the next three months Ms. Whitehead kept moving from one motel to
another with the baby, periodically speaking with Mr. Stern by phone
to tell him that the baby was all right and trying to work out an
agreement.
At the end of July, Florida police invaded the home of Ms.
Whitehead’s mother while Ms. Whitehead was in the hospital with
a kidney infection, took possession of the baby, and turned her over
to New Jersey authorities, who delivered her to the Sterns. Ms.
Whitehead began a custody proceeding in New Jersey courts. On
March , , Judge Harvey R. Sorkow ruled that the contract by
which Ms. Whitehead had agreed to bear the child for the Sterns was
valid, and that Mr. Stern was the legal parent. Immediately after ren-
dering his decision, he called the Sterns into his chambers and issued
an order of adoption making Elizabeth Stern the baby’s legal mother.
Ms. Whitehead appealed. On February , , the New Jersey Su-
preme Court reversed Judge Sorkow’s decision. Chief Justice Wilentz
held that a surrogacy contract that provides payment for a woman to
be impregnated, bear a child, and turn the child over at birth to the
commissioning parties is invalid and unenforceable. Judge Wilentz
ruled that since Ms. Whitehead was the child’s legal mother, Elizabeth
Stern’s adoption of the baby was invalid. The court granted custody to
Mr. Stern but ordered that Ms. Whitehead be allowed visitation with
the child, leaving it to the trial court to work out what kind of visita-
tion would be in the child’s best interest.
Surrogate motherhood contracts like that entered into by Mary
Beth Whitehead and William Stern raise issues that are similar to
and different from those raised both by adoption and by agreements
to buy sperm or eggs.2 In ‘‘complete surrogacy’’ (like that of Ms.
Whitehead) a woman becomes pregnant through alternative insemi-
nation and so has a genetic relationship to the fetus. In ‘‘gestational
surrogacy,’’ doctors transfer an embryo created in vitro into the uterus
of a woman who is not the egg donor but who will carry this genetic
[  ] Making Babies, Making Families
‘‘stranger’’ to term. The major focus of my attention will be on an issue
that affects both forms of surrogacy: a woman’s selling her gestational
services. I argue that while pregnancy agreements should not (and in
reality cannot) be prohibited, women’s biologically based experiences
of pregnancy dictate that such contracts should not be enforceable. I
argue in addition that the only way to avoid replicating current hier-
archies of race and class in the United States is to prohibit payment for
gestational services. I realize that this will substantially reduce the
number of women willing to act as surrogates, but I do not regard this
as a social loss or as an improper restriction on the freedom of either
potential surrogates or potential commissioning parents.
The different viewpoints about whether it is liberatory or oppres-
sive to women to be free to make contracts and to be paid for this use
of their bodies are reflected in arguments over what to call a commis-
sioned pregnancy. Proponents tend to use the term surrogate mother-
hood, while those with reservations resist calling a woman who bears
a child a ‘‘surrogate’’ mother (although some regard her as function-
ing as a ‘‘surrogate wife’’ to a man who commissions the pregnancy).
I review these disputes in some detail. I first set out the considerations
that lead some people to argue that prohibiting surrogacy would vio-
late women’s autonomy, self-determination, and freedom to do with
their bodies as they choose and that it would also infringe on the com-
missioning parties’ ‘‘right to procreate.’’3 I then take up the considera-
tions that make some people, including me, argue that while sur-
rogacy agreements should not be prohibited, they should not be
regarded by society or treated by law as binding and enforceable con-
tracts.4
While contract pregnancy clearly can be viewed from the perspec-
tive of those who commission a pregnancy, I put the woman who
bears the fetus, and the child who will be born, at the center of my
analysis. I do so not only because, as with adoption, I think it is crucial
to listen to the woman who tends to be economically vulnerable and
socially stigmatized, but also because I seek to focus discussion on
three clusters of considerations that extend beyond contract preg-
nancy. The first is the importance we give to human embodiment—
and hence to sexual difference—in our understandings of the ‘‘self ’’
and its freedom; this requires that we pay attention to the pregnant
‘‘Surrogate’’ Motherhood [  ]
body and the child ‘‘of woman born.’’ The second is the tension be-
tween the exercise of individual choice through contract on the one
hand, and the recognition and preservation of noncontractual human
relationships on the other. The third is the importance of taking social
context and social facts into account when deciding what is ethical
and legally permissible.
Many of the issues I have already considered in this book cast light
on the ethical issues involved in surrogacy. The principle that provid-
ing care to and assuming responsibility for a child must be an impor-
tant component in the establishment of parental rights, is central to
my views about surrogacy. Any appeal to individual freedom (or indi-
vidual rights) in family formation must pay attention not just to in-
dividuals per se but also to the role of relationships, including sexual,
biological, and reproductive relationships, in developing every indi-
vidual’s sense of self. And the specific social circumstances in which a
woman experiences her pregnancy are relevant to the ethics of regu-
lating surrogacy.5

‘‘Woman’s Body, Woman’s Right’’:

Considerations in Favor of Pregnancy Contracts
It is no wonder that many feminists have welcomed contract preg-
nancy as a way to demonstrate that childbearing and child rearing are
two quite distinct human functions and that child rearing need not
and should not be assigned exclusively to the woman who bears a
child. A woman’s agreement to bear and then to relinquish custody of
a child offers concrete resistance to the overly close connection that
law and social practice have often made between women’s childbear-
ing capacity and other aspects of their personalities. Motherhood has
often been taken as women’s preeminent, even defining, characteris-
tic, and possession of a womb has often been deemed reason enough
to disqualify women for most activities of public life.6 Separating the
responsibilities of parenthood from gestational activity allows us to
see childbearing as one thing a woman may choose to do, but by no
means as the definition of her social role or legal rights. In a somewhat
parallel fashion, a man who commissions a pregnancy undertakes ‘‘fa-
therhood’’ quite consciously and might be more involved in caring for
the child than men traditionally have been. Marjorie Shultz believes
[  ] Making Babies, Making Families
that contract pregnancy is thus a way to make the assumption of pa-
rental responsibilities more gender-neutral: it can ‘‘soften and offset
gender imbalances that presently permeate the arena of procreation
and parenting.’’7
Just as ‘‘surrogacy’’ emphasizes that not all women who bear chil-
dren (or who have the capacity to bear children) need to be thought of
as mothers, it allows women who cannot bear children to assume the
responsibilities of parenthood. This can also be done through foster
care and adoption, of course, but a contract pregnancy allows a couple
to take responsibility for a child even before conception; in a hetero-
sexual couple it enables at least the man and sometimes the woman to
have a genetic relationship to the child. The ‘‘heightened intentional-
ity’’ of contract pregnancy makes it possible for any number of per-
sons of either sex to commission a pregnancy. While most contracts to
date have involved married couples, there is no technological reason
why anyone, male or female, married or not, could not provide or
purchase sperm and, using artificial insemination, impregnate a ‘‘sur-
rogate’’ to obtain a child by contractual agreement.8
Carmel Shalev regards the gestational mother’s obligation to re-
linquish the child she bore for the commissioning party as an expres-
sion of her freedom to undertake whatever work she chooses. She ar-
gues that ‘‘the refusal to acknowledge the legal validity of surrogacy
agreements implies that women are not competent, by virtue of their
biological sex, to act as rational, moral agents regarding their repro-
ductive activity.’’ Like other defenders of contract pregnancy, Shalev
places great emphasis on the consent which is at the heart of any valid
contract. ‘‘If the purpose is to increase the voluntariness of the deci-
sion, attention should focus on the parties’ negotiations before con-
ception. If conception is intentional and the surrogate mother is an
autonomous agent, . . . why should she not be held responsible for the
consequences of her autonomous reproductive decision?’’9 The same
liberty that in her view should protect a woman from any governmen-
tal effort to prohibit birth control or abortion or to force sterilization
also protects her freedom to agree to carry a child for someone else.
The slogan ‘‘Woman’s body, woman’s right,’’ succinctly captures the
notion that a woman herself—not a husband, not a doctor, not the
state—must make those procreative decisions that affect her.
‘‘Surrogate’’ Motherhood [  ]
Those who see contract pregnancy as an exercise of freedom par-
ticularly emphasize that consent is given prior to conception: ‘‘The
surrogate consciously enters into the agreement and voluntarily con-
sents to give up the child even before she becomes pregnant. Rather
than being unwanted, the pregnancy is actively sought.’’10 Or again, ‘‘If
autonomy is understood as the deliberate exercise of choice with re-
spect to the individual’s reproductive capacity, the point at which the
parties’ intentions should be established is before conception.’’11 De-
fenders of contract pregnancy seek to distinguish it from baby-selling,
arguing that it is not the child or fetus for whom the woman receives
payment, but her gestational services.
But how can one be sure a woman’s agreement is really voluntary,
her consent truly informed? Advocates of contract pregnancy propose
a variety of safeguards to help ensure that pregnancy contracts will be
fair and noncoercive. For example, so that women fully understand
what kind of physical and emotional experiences to expect from preg-
nancy, the law could allow only women who have previously given
birth to contract to bear a child for someone else. All parties to a con-
tract pregnancy could be required to undergo counseling before the
conception, during the pregnancy, and after the birth. To avoid fi-
nancial exploitation of poor or economically vulnerable women, only
those with a certain level of financial resources could be allowed to en-
ter a pregnancy contract.12 The emphasis in all these proposals is on
the combination of reason and will that are involved in consent. ‘‘In
contract law, intent manifested by a promise and subsequent reliance
provides the basis for enforceable agreements. Typically, the mental
element is the pivotal element in determining legal outcomes.’’13 If the
choice is a free one, argues Marjorie Shultz, then ‘‘the principle of
private intention [should] be given substantial deference and legal
force.’’14 Attention should focus on whether conditions under which
the mind can be held to have freely acceded to the bargain pertained
when the contract was made.
Feminist proponents of contract pregnancy argue that those who
would allow a ‘‘surrogate’’ to change her mind about relinquishing
custody fall into the age-old trap of assuming that women are not as
rational as men or that their reason can be overridden by instinct or
sentiment. ‘‘The paternalistic refusal to force the surrogate mother to
[  ] Making Babies, Making Families
keep her word denies the notion of female reproductive agency and
reinforces the traditional perception of women as imprisoned in the
subjectivity of their wombs.’’15 One surrogate mother quoted approv-
ingly by Lori Andrews insisted that ‘‘a contract is a contract. . . . It’s
dangerous to say that we are ruled by our hormones, rather than our
brains. You don’t have a right to damage other people’s lives [i.e., those
of the expectant couple deprived of a child when a surrogate reneges]
because of your hormones.’’ Robin Bergstrom, a legislative aide in the
New York State Senate, remarked in the same vein, ‘‘I truly can’t un-
derstand the feminists who are now arguing against women’s rights
[i.e., to prohibit payment to surrogates and to make pregnancy con-
tracts revocable]. . . . Women’s rights have been cut back in the past
based on male perceptions that women are incompetent to make deci-
sions, but this time women will be putting it on themselves.’’16
It is important to notice that these arguments about a woman’s
free consent to bear a child assume, implicitly or explicitly, that the
‘‘work’’ of pregnancy is analogous to other kinds of human labor.
What distinguishes legal rules that allow a surrogate to change her
mind from the kind of state interference in women’s contractual ca-
pacity implicated in much protective labor legislation? In the early
twentieth century many feminists supported legislation to protect
women from oppressive working conditions, although the U.S. Su-
preme Court had struck down protective labor legislation for men as
a violation of freedom of contract.17 But by the s most advocates
of women’s rights had come to argue that women should not receive
protections unavailable to men. When some states and then the fed-
eral government extended rights to maternity leave to women—by
definition unavailable to men—many feminists advocated gender-
neutral parental leave policies instead.18 Many argued that even when
work involved substances that might cause fetal damage, pregnant
women should not be barred from such jobs. If, after appropriate
medical and psychological counseling, a woman freely consents to a
pregnancy contract, then allowing her later to renege on her agree-
ment and keep custody of the child she bears—or to share custody
with its biological father—smacks of the legal paternalism that many
feminists have long opposed. Is it not antithetical to all that feminists
have worked for, ask proponents, to argue that women’s reproductive
‘‘Surrogate’’ Motherhood [  ]
experience should be the grounds for allowing the law to treat their
contracts concerning pregnancy as less binding than other contracts;
does it not suggest that women are less bound than others by their
freely given words?
Defenders of contract pregnancy assume not only that gestation of
a fetus is work that is analogous to other forms of wage labor, but also
that selling one’s labor for a wage is a manifestation of individual free-
dom. From this perspective, prohibiting a woman from receiving pay-
ment for her services bearing a child denies her the full and effective
proprietorship of her body. One ethicist argues that surrogacy is a
service that is ‘‘simply an extension . . . of baby-sitting and other
child-care arrangements which are very widely practiced’’ and that
it is ‘‘irrational’’ to allow payment for the latter services and not
for pregnancy.19 Shalev similarly believes that ‘‘the transaction un-
der consideration is . . . for the sale of reproductive services. . . . A
childless couple is regarded as purchasing the reproductive labor of a
birth mother.’’ Banning the sale of procreative services will ‘‘reactivate
and reinforce the state’s power to define what constitutes legitimate
and illegitimate reproduction,’’ while allowing payment will ‘‘recog-
nize a woman’s legal authority to make decisions regarding the exer-
cise of her reproductive capacity.’’20
The consequence of prohibiting pregnancy contracts or banning
payment for gestational services is suggested by the question of the
surrogate who asked, ‘‘ ‘Why am I exploited if I am paid, but not if I
am not paid?’ ’’21 When the state forbids payment for contract preg-
nancy, it treats reproductive activity as it has traditionally treated
women’s domestic labor—as unpaid, noneconomic acts of love and
nurturing, rather than as work and a real economic contribution to
family life. Even Margaret Radin, who opposes pregnancy contracts,
acknowledges that prohibiting paid pregnancy creates a ‘‘double
bind.’’ Contract pregnancy could ‘‘enable a needy group—poor
women—to improve their relatively powerless, oppressed condition,
an improvement that would be beneficial to personhood.’’22 To forbid
people to labor or be paid for using their bodies as they choose when
no harm is done to others seems extraordinarily hard for a liberal pol-
ity to justify, a point which proponents of the decriminalization of
prostitution emphasize.23 Proponents of contract pregnancy empha-
[  ] Making Babies, Making Families
size the value of allowing individuals to determine their activities and
life courses as they choose. When the contract between the gestational
mother and the commissioning parents reflects the procreative inten-
tions of both parties, enforcement of the contract is the only way both
to give force to the desire and commitment of those who seek to raise
a child and to recognize the autonomy of the gestational mother.
Although I deeply value self-determination, I believe that preg-
nancy contracts should not be enforceable. I would not, however, pro-
hibit ‘‘gift surrogacy’’ in which only payment of medical and living ex-
penses would be allowed. Such surrogacy agreements could be treated
like pre-adoption agreements that leave the birth mother free to de-
cide not to relinquish custody at birth. I am ambivalent about whether
any further payment should ever be permitted.24 On the one hand, it
seems odd to forbid compensation in recognition of the discomforts
of pregnancy and the pain of giving birth in a freely entered agree-
ment. On the other hand, the possibilities that allowing payment will
lead some women to enter pregnancy contracts solely out of economic
necessity, and will reinscribe racial and class privilege, are so great that
banning payment is justified in the contemporary United States.

‘‘Our Bodies, Our Selves’’:

Considerations against Irrevocable Contracts
The most perplexing problem in treating pregnancy contracts like
other employment contracts is that the ‘‘product’’ is another human
being who did not exist at the time the agreement was struck. As we
have seen, most advocates of contract pregnancy insist that the pay-
ment the gestational mother receives is not for the child, but for gesta-
tional services.25 This distinction, however, seems hard to sustain
when the fetus develops from the gestational mother’s ovum. In such
cases, the woman is contributing more than the labor of her womb;
she is also selling her genetic material, and it becomes difficult to see
how the exchange escapes the charge of baby-selling. In addition, as
Margaret Radin has pointed out, selling an ovum along with gesta-
tional services entails pricing all of a woman’s personal attributes—
race, height, hair color, intelligence, artistic ability—as well as repro-
ductive capacity, and in a society in which women’s bodies are already
‘‘Surrogate’’ Motherhood [  ]
highly commodified by advertisers, pornographers, and promoters of
prostitution, it seems especially damaging to commodify a woman’s
physical attributes.26
In ‘‘gestational surrogacy,’’ when the childbearing woman has no
genetic relationship with the fetus, the assertion that the commission-
ing couple is purchasing only gestational services is stronger than it is
in ‘‘complete surrogacy,’’ in which the intentional father’s sperm is in-
troduced into the surrogate’s womb to fertilize her egg. The incidence
of gestational surrogacy has risen markedly in the past decade. By 
there had been some eighty known cases in the United States in which
an embryo had been introduced into another woman’s womb after
having been fertilized in vitro.27 The practice of gestational surrogacy
increased from about  percent of contract pregnancies in  to over
 percent in .28 It appears that some couples turned to gestational
surrogates because, though the wife produced eggs, she could not
carry a pregnancy to term, or because the couple perceived (correctly)
that a gestational surrogate would have a harder time winning a dis-
pute about custody or visitation than would a complete surrogate.
The attitude that the genetic tie, more than the experience of rela-
tionship, creates a parental right was reflected in the decision of Judge
Richard N. Parslow in the California case in which Anna Johnson bore
a child conceived by in vitro fertilization from the ovum and sperm of
Crispina and Mark Calvert. While pregnant, Ms. Johnson sued to have
her contract declared invalid and to retain custody of the child after
birth. Judge Parslow awarded custody to the genetic parents and com-
mented that the contract was binding: ‘‘I see no problem with some-
one getting paid for her pain and suffering. . . . They [gestational
mothers] are not selling a baby; they are selling pain and suffering.’’29
To Judge Parslow the contract appeared to be an agreement about
work, and his remarks raise the question of how the ‘‘pain and suffer-
ing’’ of pregnancy are analogous to the physical and psychological de-
mands of other kinds of labor.
Arguments for contract pregnancy depend, it seems to me, on a
strong analogy between the ‘‘work’’ of pregnancy and other forms of
wage labor. The analogy seems to rest on two main considerations:
pregnancy involves the body, culminating in the extraordinary physi-
[  ] Making Babies, Making Families
cal exertion of ‘‘labor’’ and giving birth; and pregnancy ends with the
appearance of something new in the world, a tangible ‘‘product’’ of
gestational work.
What seems to distinguish human gestation from other kinds of
productive work, however, are the ways in which it involves both a
woman’s physical and psychological being, and the distinction be-
tween the human being that results from a pregnancy and other kinds
of products. The basic issue is the separability of the mother’s body
and the fetus. The more we can see the two as separate the easier it is
to regard the child, once born, as a ‘‘product’’ of a woman’s body.30 But
the experience of pregnancy as described by women seeking to under-
stand their connection to the being growing within them suggests
that mother and fetus are not yet, or are not in every way, distinct enti-
ties. Neither are they the same being. In her  poem about abortion,
‘‘The Mother,’’ Gwendolyn Brooks cries out against the inability of
language to express the relationship between mother and fetus: ‘‘you
are dead. / Or rather, or instead, / You were never made. / But that too,
I am afraid, / Is faulty: oh, what shall I say, how is the truth to be
said?’’31 In her analysis of ‘‘The Mother,’’ Barbara Johnson notes that
‘‘the poem continues to struggle to clarify the relation between ‘I’ [the
woman] and ‘you’ [the fetus], but in the end [the language of the]
poem can no more distinguish between ‘I’ and ‘you’ than it can come
up with a proper definition of life.’’32 Like Brooks, Adrienne Rich testi-
fies to her experience of the fluidity of the boundary between self and
other during pregnancy. ‘‘In early pregnancy, the stirring of the foetus
felt like ghostly tremors of my own body, later like the movements of a
being imprisoned within me; but both sensations were my sensations,
contributing to my own sense of physical and psychic space.’’33 Iris
Young points out that while for observers pregnancy may appear to be
‘‘a time of waiting and watching, when nothing happens,’’ for the
pregnant subject ‘‘pregnancy has a temporality of movement, growth
and change. . . . The pregnant woman experiences herself as a source
and participant in a creative process. Though she does not plan and di-
rect it, neither does it merely wash over her; rather, she is this process,
this change.’’34 Mother and fetus are at one and the same time distinct
and interrelated entities, and this fundamental fact of human em-
‘‘Surrogate’’ Motherhood [  ]
bodiment means that to speak of the ‘‘freedom’’ of the mother as re-
siding in her intention as an ‘‘autonomous’’ agent misunderstands
both the relationship between woman and child and of the woman to
her ongoing self.
The interrelatedness of mother and fetus makes it difficult to spec-
ify exactly what gestational labor entails. Unlike other work, gesta-
tional labor is not consciously controlled; the bodily labor of preg-
nancy goes on continuously, even while the pregnant woman is asleep.
Whether the ‘‘work’’ is done badly or well is only marginally within
the mother’s control; she can refrain from smoking, drinking, and us-
ing drugs, eat properly, and get an appropriate amount of exercise, but
whether the fetus grows to term, has a safe birth, and is free of genetic
abnormalities are otherwise largely beyond her control.
In her critique of contract pregnancy, Carole Pateman argues that
while all wage labor involves selling some aspect of oneself to some de-
gree, the alienation involved in selling gestational services is so ex-
treme as to make it illegitimate. The problem, she says, is that the
‘‘logic of contract as exhibited in ‘surrogate’ motherhood’’ sweeps
away ‘‘any intrinsic relation between the female owner, her body and
reproductive capacities. It ignores the fact that the work of pregnancy
involves women’s emotional, physical and sexual experiences and un-
derstandings of themselves as women. It objectifies women’s bodies
and their reproductive labor in a manner and to a degree that are
wholly unacceptable.’’35
Elizabeth Anderson echoes this point when she argues that any
form of paid pregnancy involves ‘‘an invasion of the market into a new
sphere of conduct, that of specifically women’s labor—that is, the la-
bor of carrying children to term in pregnancy.’’ In her view, ‘‘[t]reat-
ing women’s labor as just another kind of commercial production
process violates the precious emotional ties which the mother may
rightly and properly establish with her ‘product,’ the child.’’ When a
woman is required ‘‘to repress whatever parental love she feels for the
child, these [economic] norms convert women’s labor into a form of
alienated labor.’’ The forfeiture of self involved in contract pregnancy
is an extreme instance of the alienation involved in many labor con-
tracts. Market norms may be legitimate and useful in their proper
[  ] Making Babies, Making Families
sphere, but when ‘‘applied to the ways we treat and understand
women’s reproductive labor, women are reduced . . . to objects of
use.’’36
The distinction between complete surrogacy and gestational sur-
rogacy pushes this argument about what is entailed in the ‘‘labor’’ of
gestation, and whether the existence of a genetic tie between fetus and
woman should make any difference to whether the law enforces preg-
nancy contracts. In some people’s eyes the existence of a genetic tie
significantly alters the relationship between pregnant woman and fe-
tus. Heléna Ragoné reports that some women who agree to be gesta-
tional surrogates say that they would refuse to be complete surrogates.
These women say that they would feel as if they were giving up their
own child if the child were conceived with their egg, but that they do
not feel related to a child to whom they have no genetic relationship.37
Judge Parslow distinguished the case before him in Johnson v. Calvert
from the Baby M. case by pointing out that Anna Johnson, unlike
Mary Beth Whitehead, had no genetic relationship to the child she
carried.
Countering the implications of the testimony of gestational sur-
rogates who have refused to be complete surrogates, however, are
studies that show that many women consider the gestational tie to be
as central as the genetic tie to their sense of themselves as a ‘‘parent.’’
Mary Mahowald reports on two studies in which both women and
men said that gestation was significant when asked whether they
would choose to have the mother (either themselves or their partner)
of their child be the gestational or the genetic mother, although
women gave more importance to gestation than did men.38 Each
man in one of the studies was asked whether he would prefer both
himself and his partner to be genetically related to their child, with-
out the woman being pregnant or giving birth, or would prefer that
only he be genetically related to a child conceived through IVF to
whom his partner gave birth. Interestingly, almost  percent of the
men chose having a child with a genetic relationship to both partners
but gestated and birthed by another woman, while just under  per-
cent of the women chose this. Clearly women saw gestational and ge-
netic ties as equally valuable to parenthood, while men emphasized
the genetic tie.
‘‘Surrogate’’ Motherhood [  ]
If gestation is at least as important in establishing parenthood as
the genetic tie, in Johnson v. Calvert the claim of the gestational
mother, Anna Johnson, should have been regarded as equal to that of
either one of the Calverts. Judge Parslow’s characterization of Anna
Johnson as doing nothing more than ‘‘selling pain and suffering’’ paid
too little attention to the claims generated by the activity of gestation.
The California Supreme Court, for its part, regarded both gestation
and genetics as grounds for legal motherhood. It held that ‘‘two
women have each presented acceptable proof of maternity,’’ one by
gestation and the other by genetics. The Court held that when the
woman with the genetic tie is not the woman giving birth, ‘‘she who
intended to bring about the birth of a child that she intended to raise
as her own’’ has a claim to custody as the ‘‘natural’’ mother.39 I would
give greater weight to gestation and require a hearing.40
When trying to determine what public policy with respect to sur-
rogacy should be, it is important to take into account that payment for
gestational service does not occur in some gender- and race-neutral
environment. Rather, in our society many of our institutions and in-
teractions are shaped by relationships of unbalanced power between
women and men, and between black women and white men and
women. To talk about the freedom of the self-possessing individual to
do what she will with her own body while ignoring these imbalances
flies in the face of lived experience. I think it is possible (barely) to
imagine conditions in which it would be legitimate for a woman to re-
ceive payment for bearing a child to whom she had no genetic rela-
tionship, provided always that she retained the power to assert custo-
dial rights before or at birth. At a minimum, such conditions would
include an economy free from wage labor undertaken in order to sur-
vive; rough economic equality between men and women and between
people of color and whites; a culture in which the ‘‘ideology of moth-
erhood,’’ which asserts that childbearing is women’s natural and pre-
eminent calling, did not contribute to some women deriving their
sense of self-worth from being pregnant; a society free from the ob-
jectification and commodification of women’s sexuality; and a poli-
tics uninfluenced by gender and racial hierarchies. Descriptions of
contract pregnancy that depict the practice as nothing more than
womb rental in a supposedly neutral market fail to take account of the
[  ] Making Babies, Making Families
profoundly gendered nature of the transaction. Contract pregnancy
can as appropriately be described as enabling economically secure
men and women to purchase economically vulnerable women’s pro-
creative labor and custodial rights as allowing women the freedom to
sell procreative labor. And in this context contracts should be unen-
forceable and payment beyond expenses should be prohibited.
This argument that a person should be released from an agree-
ment that she could fulfill rests on a judgment that the person’s self or
sense of self may change in such a significant way that enforcing the
contract would do violence to that self. The fact that many people
think that the freedom to choose at one point in time does not capture
what is most important about human freedoms in a liberal society is
reflected in prevalent attitudes towards divorce. Prior to the mid-
nineteenth century, divorce on any ground other than a wife’s adul-
tery was impossible in most states. Yet many states now permit ‘‘no
fault’’ divorce, which entails releasing people upon their request from
the promise to be husband or wife ‘‘until death do us part.’’ States will
not enforce a promise to live intimately with another person for life,
nor prohibit the formation of a new relationship through remarriage.
Divorce law reflects in part society’s determination that the law can-
not permit people to be bound to a promise when they and their rela-
tionship have fundamentally changed. Not to allow a woman to re-
voke her consent during pregnancy or at birth seems to ignore the
possibility of a somewhat analogous change that simultaneously af-
fects the self as an individual and as a person-in-relationship.
These considerations lead me to think that pregnancy contracts
should be unenforceable. To assume that only irrationality or mind-
less flightiness would induce a woman to change her mind about re-
linquishing a baby she has borne through months of pregnancy ig-
nores the months she has spent in relationship with a developing
human being. It is this relationship that may change her, and it is this
relationship that is severed if a pregnancy contract is enforceable. De-
fenders of pregnancy contracts argue eloquently, and with much
truth, that intentional parents have also been in relationship with
their child-to-be, imagining the role the child will play in their lives,
planning for its care, and loving it as it develops in utero. Marjorie
Shultz argues that it is the relationship between intentional parents
‘‘Surrogate’’ Motherhood [  ]
and fetus that must be protected by enforcing reproductive contracts.
‘‘To ignore the significance of deliberation, purpose and expecta-
tion—the capacity to envision and shape the future through inten-
tional choice—is to disregard one of the most distinctive traits that
makes us human. It is to disregard crucial differences in moral mean-
ing and responsibility. To disregard such intention with reference to
so intimate and significant an activity as procreation and child-
rearing is deeply shocking.’’ When a surrogate reneges on her promise
to relinquish custody, it is wrong ‘‘to say to a disappointed parent, ‘go
get another child.’ ’’ Such a judgment ‘‘offends our belief in the
uniqueness of each individual. It inappropriately treats the miracle
and complexity of particular individual lives as fungible. By contrast,
surrogacy and other reproductive arrangements transfer the life and
parental responsibility for a particular unique child.’’ Hence, argues
Shultz, ‘‘Although it may seem counter-intuitive, the extraordinary
remedy, specific performance of agreements about parenthood, in
some sense confirms core values about the uniqueness of life.’’41
The claims on behalf of both the intentional parents and those of
the gestational mother rest, then, on assertions about the relationship
between parent and fetus. Defenders of contract pregnancy are deeply
disturbed by the prospect that allowing a gestational mother to void
her contractual agreement ‘‘expresses the idea that the biological ex-
perience of motherhood ‘trumps’ all other considerations. . . . [I]t ex-
alts a woman’s experience of pregnancy and childbirth over her for-
mation of emotional, intellectual and interpersonal decisions and
expectations, as well as over others’ reliance on the commitments she
has earlier made.’’42 Yet even Shultz’s eloquent plea and my own com-
mitment to gender-neutral law do not persuade me that promises to
relinquish custody should be enforced against the wishes of the gesta-
tional mother. Her later judgment based on her experience of the
pregnancy does ‘‘trump,’’ and what it trumps is her own earlier prom-
ise, upon which the intentional parents’ claim to sole custody de-
pends. It trumps because enforcement of a pregnancy contract against
the gestational mother’s wishes, whether or not she also has a genetic
tie to the child, would constitute a legal refusal to recognize the reality
of the woman and fetus as beings-in-relationship, which the law
should protect as it does many other personal relationships. Yet the
[  ] Making Babies, Making Families
biological father or the commissioning couple also have parental
claims. The claims of those denied custody might be recognized by
granting and enforcing visitation rights, although if this proved dis-
ruptive courts might cut off visitation.43
I find my thoughts on the importance of the actual embodied rela-
tionships of gestational mother and fetus to be akin (with certain sig-
nificant exceptions) to those of Robert Goldstein, who argues in
Mother-love and Abortion that most discussions of abortion, whether
put forward by regulationists or pro-choice advocates, err in regard-
ing pregnant woman and fetus as distinct individuals with competing
rights.44 As he points out, ‘‘rights talk’’ in this context emphasizes
what Ferdinand Schoeman refers to as ‘‘the appropriateness of seeing
other persons as separate and autonomous agents,’’ whereas ‘‘the rela-
tionship between parent and infant [or fetus] involves an awareness of
a kind of union between people. . . . We share our selves with those
with whom we are intimate.’’45 A correct approach, says Goldstein,
would not ‘‘define personhood as if it were a solitary achievement of
the fetus and its DNA that precedes rather than presupposes partici-
pation in the primary community of woman and fetus.’’ With regard
to abortion, respect for this ‘‘primary community’’ requires that the
law recognize the pregnant woman as the person who must make deci-
sions about the dyad she and the fetus constitute; she must be ac-
corded ‘‘a privileged position as dyadic representative that is superior
to that of other would-be dyadic participants,’’ such as the biological
father, the state, or potential adoptive parents. In Goldstein’s analysis,
the privacy and autonomy that the Roe v. Wade decision protects,
then, ‘‘belongs not only to the woman as an individual but also to the
dyadic, indeed symbiotic, unit of woman and fetus. This dyad consti-
tutes the relevant community for understanding the abortion deci-
sion.’’46 In the case of surrogacy, the embodied relationship of the ges-
tational mother (who may or may not be the genetic mother) is
stronger than that between the commissioning parent(s) and fetus, or
her own ‘‘intentional self ’’ and the fetus prior to conception. In Ken-
neth Karst’s expressive phrase, a critically important aspect of the
right of ‘‘privacy’’ is not to isolate people from one another, but to pro-
tect and foster what he calls ‘‘the freedom of intimate association.’’47 A
legal rule enforcing a pregnancy contract would reinforce notions of
‘‘Surrogate’’ Motherhood [  ]
human separateness and insularity rather than recognizing that the
development of individuality and autonomy takes place through sus-
tained and intimate human relationship.

Putting It in Context:
Gender, Race, and Class and the Ethics of Surrogacy
The issues that arise in contract pregnancy overlap with those that
arise in adoption and gamete donation. As in adoption, the child is
transferred from the gestational mother to people who will be the
child’s legal and social parents, but, unlike adoption, the child has a
genetic tie to the prospective father and perhaps the prospective
mother. As in other forms of gamete donation, the prospective par-
ents purchase an egg from the surrogate in complete surrogacy, and
the child has a genetic relationship with the other parent. Unlike ga-
mete donation, the prospective parents also purchase gestational ser-
vices.48 These characteristics of surrogacy mean that this practice can
be regulated neither exactly like adoption, nor exactly like gamete
transfer, but that all these practices need to be shaped in accordance
with the same ethical concerns.
Like those who purchase eggs, prospective parents who turn to
complete surrogacy to obtain both an egg and gestational services en-
gage in ‘‘matching’’ the characteristics of the donor and themselves.
Intentional parents usually look for a surrogate with the same racial
features, physical build, and hair color as the intentional mother. As
with other kinds of gamete donation, people sometimes choose sur-
rogacy because having a child genetically related to one of the social
parents is important to them for a variety of reasons. Sometimes,
again like some instances of gamete donation, white parents turn to
surrogacy to avoid adopting (or being asked to adopt) a child of a
different race. As I argued in Chapter , some of the reasons people
turn to gamete donation or surrogacy are far better than others: par-
ents, doctors, and counselors alike need to think hard about what they
are doing and about the implications of their actions not only for a
particular couple, gestational mother, and child, but for the shaping
of widely held social values. There is a strong case to be made for en-
couraging people to adopt existing children, and while that goal
should not preclude surrogacy, it should make policy-makers reflect
[  ] Making Babies, Making Families
very hard on the values that are both reflected in and shaped by how
we approach surrogacy.
I suggested above that balancing the values of liberty, relationship,
equality, and care could be met if pregnancy contracts were allowed,
but unenforceable. Both the intentional parents and the woman will-
ing to gestate a fetus would have the liberty to make an agreement, but
legislatures and courts would not regard freedom of contract as the
only value at stake in surrogacy agreements. Equally important would
be the recognition of the many relationships between multiple adults
and the child-to-be: the initiative of the intentional parents, the con-
tribution of gamete(s), and the activity of gestation. Both the inten-
tional parents, if they contribute to the pregnant woman’s welfare
during pregnancy, and the pregnant woman herself, provide care to
the child. Acknowledgment of the importance of both genetic donors
and gestational mothers to the future child requires the recognition of
sexual difference in achieving equality.
All the adults involved in contract pregnancy have a responsibility
to make available to the person being created by their actions full in-
formation about the identity of the egg donor and the gestational
mother (who will be the same person in complete surrogacy). The
reasons for this duty are the same as those discussed with respect to
gamete donation. It is important that persons upon reaching adult-
hood be able to learn the name of as well as other social facts about the
woman who gave them birth, whether or not she is also the egg donor.
Regulations affecting surrogacy must reflect the judgment that gesta-
tion is one of the activities that gives rise to parental rights, as are ge-
netic ties, intention, and caregiving. The significance of gestation is
clear if one considers the perspective of the future child, who owes his
or her existence not only to genetic donors but also to the woman who
carried the fetus as it developed.
Public policy could hold that when a surrogate changes her mind
about relinquishing custody of the child during pregnancy or very
soon after birth, there would be a hearing to decide on custody. Were
this public policy, intentional parents would have very strong incen-
tives to make certain that the gestational mother had been thoroughly
counseled about her action and was acting voluntarily and with a
great deal of self-knowledge. Miscalculation or self-deception on the
‘‘Surrogate’’ Motherhood [  ]
part of the intentional parents would subject them to stressful and
costly legal proceedings, might in addition cost them the money they
had spent supporting the gestational mother, and might subject them
to the tremendous emotional pain of losing sole custody of the child.49
The policy of nonenforceable contracts would not, however, be
adequate to guard against exploitation and adverse consequences in
all cases. Thinking about gestational surrogacy shows how deeply
threatening the possible commodification of women’s bodies is to the
freedom of all women, but, in this society, particularly to women of
color. In a society where employment opportunity is as stratified by
race as it is in the United States, it is not irrational to think that black
and hispanic women would often agree to be gestational surrogates
for a lower fee than would white women. Because our society tends to
regard both genetics and race as natural and essential components of
personal identity, in cases in which the gestational mother and the
child share no genes and are of different races, the temptation to re-
gard the child as a ‘‘product’’ wholly separate and distinct from the
pregnant woman will be very strong. In such cases the temptation to
view the agreement to bear a child as a binding employment contract
will be particularly great. The separability of the gametes from the do-
nors’ bodies makes them appear like commodities, and the resulting
child like a product produced with those raw materials. If the gesta-
tional surrogate and the intentional parents have different racial fea-
tures, in a society in which race is such a strong social marker, the ten-
dency to view the (white) child as utterly distinct from the (black)
mother will be great, as indeed it will be if a black child is born to a
white woman.50
The danger that racial difference will compound the difficulty of
getting legislatures and judges to recognize the importance of the rela-
tionship between pregnant woman and fetus to any custody dispute
was evident in Judge Parslow’s decision in Calvert v. Johnson, when he
distinguished the Calvert case from the Baby M. case by pointing out
that Anna Johnson, unlike Mary Beth Whitehead, had no genetic rela-
tionship to her child. Judge Parslow did not mention race in his deci-
sion, but because the media described Anna Johnson as black, Cris-
pina Calvert as Filipina, and Mark Calvert as Caucasian, the case
raised the fear that Anna Johnson would be the first of many black
[  ] Making Babies, Making Families
women who would bear white or mixed-race children with whom
courts would assume they had no relationship worthy of legal recog-
nition.51 Commenting on the Calvert case, Jeremy Rifkin and Andrew
Kimbrell worried that

Minority women increasingly will be sought to serve as ‘‘mother machines’’

for embryos of middle and upper-class clients. It’s a new, virulent form of ra-
cial and class discrimination. Within a decade, thousands of poor and mi-
nority women will likely be used as a ‘‘breeder class’’ for those who can afford
$, to $, to avoid the inconvenience and danger of pregnancy.52

These concerns resonate with those Twila Perry and others raised with
respect to both domestic and intercountry transracial adoption. I ar-
gued in chapter  that the risk of treating poor women of color as re-
sources for children for more affluent women might be reduced in
adoption by doing away with closed records, so that all the adults in-
volved would have a direct reminder of their responsibility to the
child and to the adult that child will become. What I have said about
the error of (and the social harm stemming from) turning gamete do-
nation and gestational services into market transactions supports my
conclusion that when the gestational mother changes her mind about
relinquishing the child to the intentional parents, the care she has
provided to the fetus and her relationship to the newborn child entitle
her to a custody hearing.
Prohibiting anonymous donation and refusing to enforce preg-
nancy contracts without first holding a custody hearing could be
sufficient to prevent exploitation in cases of complete surrogacy. In a
society like the United States in which race plays a significant role in
shaping personal identity and distributing social power, however,
nonenforceability might be insufficient in cases of gestational surro-
gacy. A poor woman who has borne a child for a couple of a different
race would be more likely to be regarded as providing nothing more
than gestational labor than would a woman who also shared a genetic
connection with the fetus. She would also be less likely to seek custody
herself because she would face all the stigma and difficulty attending a
multiracial family. To guard against exploitation in gestational surro-
gacy it would be necessary to get rid of the monetary inducement to
bear the child, making surrogacy a ‘‘gift’’ relationship.
‘‘Surrogate’’ Motherhood [  ]
I want to argue against regarding gestation as just another employ-
ment opportunity for women, just as I did against regarding human
sperm and eggs as commodities. The incursion of the language, im-
ages, and practices of the market into both of these aspects of procre-
ative activity poses a tremendous threat to respect for both adults and
for the children who come into being as a result of these activities. Ac-
ceptance of the market as the way to regulate procreative activity mis-
understands or ignores the multiple ways in which the relationships
that form an intrinsic part of human life impose limits on what people
can legitimately choose to do with their bodies and their genetic ma-
terial.
None of these considerations means that it is wrong for a woman
to agree to bear a child for someone else or to decide to relinquish a
child for adoption. Law should not force a woman to retain physical
custody of her child once it is born. In adoption, a birth mother may
decide that placing the child in someone else’s care may be best for her,
for the child, and for the new custodial parent(s). But the ethics of
adoption and ‘‘gift’’ pregnancy must be distinguished from those of
contract pregnancy regarded as just another form of female employ-
ment. Even though birth mothers in adoption may mourn for chil-
dren they entrust to others to care for and raise, they have made their
decision to separate from an existing human being, not from a poten-
tial one. Their actions, which may bring relief as well as (or as much
as) sorrow, are not the consequence of an agreement that ignores or
dismisses the relevance of the experience of pregnancy and of the hu-
man and embodied relationship between woman and fetus to our un-
derstanding of human freedom and choice. The implications of what
it means for human beings to be embodied creatures are as relevant to
both complete and gestational surrogacy as they are to adoption. Hu-
man embodiment affects what both woman and child are due in a so-
ciety that recognizes the reality of human relationship and interde-
pendence even as it cherishes and promotes human freedom and
choice.
chapter 5

Lesbian Co-Mothers,
Sperm Donors, and Fathers:
How Many Parents
Can a Child Have?

O ne dramatic change in the ways in which people choose to live

and to define themselves as a family has been lesbian and gay
partners’ use of third-party gametes (and, in the case of gay men, a
surrogate mother) to have children together. These families challenge
both the notion of family as beginning with a heterosexual couple,
and the notion that every child has two (and only two) parents to both
of whom the child is biologically related.
Some lesbian couples are raising children born to one of the part-
ners during a previous marriage, while others use alternative insemi-
nation and have children who have two female parents and a male
sperm donor. To date, obtaining legal recognition of the parental sta-
tus of the nonbiological mother in lesbian families has only occasion-
ally been successful. To some extent, the nonbiological mother in a
lesbian family formed after a previous marriage is in the same posi-
tion as other stepparents, except that she is legally barred from mar-
rying her partner. In families in which the lesbian couple uses alterna-
tive insemination, the lack of legal recognition of same-sex marriage
makes securing parental rights for the nonbiological parent much
more difficult than it is for heterosexual married couples. But even
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
among those who support legal recognition for lesbian families, and
protection for the relationship between lesbian co-mothers and their
children, there is no consensus about the proper grounding of paren-
tal rights for the nonbiological parent. Nor is there agreement about
whether known sperm donors of the children of lesbian partners
should have any kind of parental or quasi-parental rights.
In this chapter I look at different ways to ground the parental
rights of nonbiological parents in lesbian couples that have used alter-
native insemination, and ask whether or not a sperm donor who is
known to and involved in the life of his genetic offspring should have
any right to visitation or other legal status. (This analysis can apply to
gay men, with added attention to the ethical concerns involved in us-
ing a surrogate mother, discussed in Chapter .) Both questions in-
volve aspects of the question, ‘‘What gives someone the right to be rec-
ognized as a legal parent?’’
Two prominent cases in which courts considered the parental sta-
tus of lesbian co-mothers, Alison D. v. Virginia M.1 and Thomas S. v.
Robin Y.,2 provide concrete examples of the kinds of issues that arise
under current law, and of the very different views of both judges and
scholars about the proper grounding of legal parenthood. A reading
of these cases is valuable in two ways. These cases push hard against
traditional definitions of the family, show the difficulties of modeling
legal rules to govern homosexual family relationships on those that
govern heterosexual families, and suggest ways of framing appropri-
ate rules and practices. And in raising the question of whom the law
should recognize as a legal parent, the controversies in Alison D. and
Thomas S. are relevant not only to lesbian families but to a wide vari-
ety of families in contemporary America.
Because the implications of these cases are far-reaching and con-
tested, I review the decisions themselves, examine scholarly comment
on the proposed rationales for assigning legal parenthood in these
cases, and then offer my own reflections on the grounding of legal par-
enthood. Current law has not yet found an adequate way to ground
the parental rights of adults in various situations who are raising chil-
dren to whom they are not genetically related. A child-centered ap-
proach to family policy requires that the law protect relationships that
are fundamental to a child’s sense of self and well-being, including the
[  ] Making Babies, Making Families
parental status of a lesbian nonbiological mother. It is the recognition
of a child’s right to a permanent, nurturing relationship, more than of
an adult’s right to parent a child, that is the proper grounding of the
parental status of biological and nonbiological parents alike.

Case Histories:
Alison D. v. Virginia M. and Thomas S. v. Robin Y.
The issue in Alison D. v. Virginia M. was whether a lesbian co-
mother had standing to seek visitation rights with a child after she and
the child’s biological mother separated. Alison D. and Virginia M. be-
gan living together in , and in March  decided to have a child.
They agreed that Virginia would use alternative insemination to be-
come pregnant and that they would share all the responsibilities of
child rearing. In July  Virginia gave birth to a baby boy, A.D.M., to
whom they gave Alison’s last name as his middle name and Virginia’s
last name as his last name. Alison shared in all birthing expenses and
after birth continued to support him financially. During the first two
years of A.D.M.’s life she and Virginia shared child rearing equally. In
November , when A.D.M. was a bit over two years old, Alison and
Virginia ended their relationship and Alison moved out of their
jointly owned home. They agreed that Alison would continue to pay
half of the mortgage and major household expenses and that she
would visit with A.D.M. several times a week. This arrangement con-
tinued for three years, at which time Virginia bought out Alison’s in-
terest in the mortgage and then began to restrict Alison’s visits with
A.D.M. Alison moved to Ireland to pursue career opportunities, but
she continued to try to keep in touch with A.D.M. Virginia, however,
terminated all contact between Alison and A.D.M. and began re-
turning all the gifts and letters Alison sent to him. Alison then sued
for visitation; Virginia was found to be a fit parent, and the issue be-
fore the court was whether Alison had standing to seek visitation.
The trial court, the Appellate Division, and the Court of Appeals
of New York State (the state’s highest court) all agreed that Alison did
not have standing to seek visitation under Domestic Relations Law
§. The relevant statute declared that ‘‘either parent may apply to the
Supreme Court . . . and [the court] may award the natural guardian-
ship, charge and custody of such child to either parent . . . as the case
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
may require.’’ The judges of the Court of Appeals found in a divided
decision that Alison was ‘‘not a ‘parent’ within the meaning of section
,’’ because ‘‘although [she] apparently nurtured a close and loving
relationship with the child,’’ she was neither A.D.M.’s biological
mother, nor his legal mother by adoption.3 The court noted that New
York had not adopted language similar to that of Oregon, whose law
declared that ‘‘any person including but not limited to a foster parent,
parent, stepparent, grandparent . . . who has established emotional
ties creating a parent-child relationship with a child’’ may seek ‘‘visi-
tation or other right of custody.’’4 Because New York had not created
such an expansive category, the courts construed ‘‘parent’’ to refer
only to biological or adoptive parents.
The only dissenter to this opinion was Judge Judith Kaye, who ar-
gued that the court had the authority to define ‘‘parent’’ as it saw fit,
since the term was not defined in the statute. The proper course for
the Court of Appeals, said Judge Kaye, was to send the case back to the
trial court to determine whether Alison ‘‘stands in loco parentis to
A.D.M. and, if so, whether it is in the child’s best interest to allow her
the visitation rights she claims.’’5
For those who want to secure legal recognition of gay and lesbian
family relationships and protection for children of gay and lesbian
families, Alison D. was a severe disappointment. Here was a couple
who planned together to have a child, lived together with the child for
two years, and shared responsibility for and care of the child until the
child was over five years old. A.D.M. had a strong attachment to Alison
and called her Mom and her parents Grammy and Granddad.6 Even
among Alison D.’s supporters, however, views differed about what ex-
actly should have grounded or justified a decision to give Alison
standing to seek visitation. I will return to those differences shortly.
Where Alison D. concerned a dispute between mothers, Thomas S.
v. Robin Y. concerned lesbian parents who were united in their opposi-
tion to a sperm donor’s efforts to establish parental rights over a child
conceived with his sperm, and their determination to maintain what
they saw as the integrity of their family against disruption by a man
they portrayed in court papers as an ‘‘outsider.’’
The mothers, Robin Y. and Sandra R., met in  and established
a monogamous lesbian relationship. Early in their relationship, they
[  ] Making Babies, Making Families
decided to have children and chose Jack K. to be the sperm donor.
Robin, Sandra, and Jack agreed that Jack would not have parental
rights or obligations and that Jack would allow himself to be known to
the child if she ever asked about her biological origin. Sandra under-
went alternative insemination with Jack’s sperm, and Cade R.-Y. was
born in May . Sandra and Robin then decided that Robin should
bear a child. They enlisted Thomas S., like Jack a gay man, to be the
sperm donor. Again, all three adults agreed that any resulting child
would be raised by Robin and Sandra as co-parents; that Thomas
would have no parental rights or obligations; and that he would make
himself known as the biological father if the child asked about his or
her biological origins. Robin was successfully inseminated, and Ry
was born in November . Like Cade, she was given Sandra’s and
Robin’s last names.
In early  Cade, who was almost five, began to ask about her bi-
ological origins. Sandra and Robin contacted Jack and Thomas and
asked whether they would meet the children. Both agreed, and San-
dra, Robin, Cade, and Ry traveled from New York to San Francisco to
meet both men. The meeting was by all accounts successful and pleas-
ant for everyone. Subsequently, Jack developed a drinking problem
and no longer gave much attention to Cade. Sandra and Robin asked
Thomas to treat both Cade and Ry equally, and he agreed. Between
 and , Thomas visited with Robin, Sandra, and the girls sev-
eral times a year.
Initially, all contacts between Thomas and the girls were at the dis-
cretion of their mothers, and this seemed to cause no difficulty. In late
 or early , however, Thomas asked that Ry visit him and his bi-
ological relatives in California by themselves, without Robin and San-
dra. Robin and Sandra felt that Thomas’s request to have the girl visit
him and meet his biological family undermined the understanding
that the two women were equally mothers to both girls, and that the
girls were fully sisters, regardless of their biological relationship. The
mothers also worried that were Robin to die, Thomas or his biological
family might seek custody of Ry. They refused Thomas’s request to
have the girls visit him without them. Thomas commenced a proceed-
ing for an order of filiation (that is, a legal determination that he was
Ry’s father) and visitation rights.
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
Judge Kaufmann of the Family Court in New York County denied
Thomas’s petition for an order of filiation, and said that were it
granted, he would deny Thomas’s application for visitation. In mak-
ing his ruling, Judge Kaufmann invoked the doctrine of equitable es-
toppel, which says that a person may not ask for enforcement of a legal
right where his or her action or inaction has led someone else to act in
a way that could be held against them if the right were now to be en-
forced. Thomas’s actions, Judge Kaufmann held, had consistently in-
dicated that he had no intention of seeking recognition as Ry’s father,
and so the mothers had allowed a relationship to develop between
him and Ry.7 Having acted as he did, leading the mothers to encour-
age his relationship with Ry, trusting that he would not seek recogni-
tion of legal paternity, he could not now request an order of filiation
based in part on the existence of that relationship. The Appellate
Court reversed in a -to- decision. The majority ruled that Robin
could not seek ‘‘to deny [Thomas’s] right to legal recognition of [his
parental] relationship.’’ The Court granted filiation, and sent the
case back to Family Court for a hearing on visitation. The dissenting
justices, however, agreed with Judge Kaufmann’s decision denying
Thomas’s petition on the grounds that equitable estoppel of Thomas’s
action would serve ‘‘the best interests of this child.’’8
Robin announced her intention to appeal, and the New York
Court of Appeals said no order of filiation should be granted until the
appeal process was completed. Thomas, stating that his health was de-
teriorating (he had AIDS), declined to oppose the appeal.9 This ended
the litigation without his being granted an order of filiation. Nonethe-
less, the Appellate Division ruling stands as the declared law of New
York. Litigation concerning Ry’s legal parents ceased, but the issues
raised by the case were scarcely resolved.

Proposed Rationales for Assigning Legal

Parenthood in Alison D. and Thomas S.
I find four major positions arising from statutes, court decisions,
and legal commentators concerning the question of what should give
someone a claim to be recognized as a legal parent. For some people,
the actual genetic link between adult and offspring is fundamental;
this position would make it reasonable to give parental rights to a bio-
[  ] Making Babies, Making Families
logical lesbian mother, while denying them to her partner, and to
allow gamete donors to seek legal recognition of their parenthood.
Others believe that people should be able to use contract or indica-
tions of intent to control what is done with their genetic material; this
position would make it possible for a caregiver who was genetically
unrelated to a child to assume parental status by agreement or con-
tract. Others think that adults who perform the social and psychologi-
cal functions of parents should be given parental rights; this position
would recognize the parental claims of nonbiological caregivers like
lesbian co-mothers. A fourth group would focus not on adults but on
the child, trying to determine the child’s best interest, what meets a
child’s needs, or to what kind of care a child has a right; such a view-
point tries to adopt the perspective articulated by or attributable to
the child. Each of these perspectives appeared in the various judicial
decisions and scholarly discussions about Alison D. and Thomas S. In
my view, the child-centered rationale is the most persuasive of the
four. Placing the child at the center of analysis would lead us to better
thinking about all parent-child relationships.

Genetic Grounding of Parental Status

In both Alison D. and Thomas S. the courts laid heavy emphasis on
the presence or absence of a genetic tie between adults and child. As
we have seen, at the present time granting parental status to persons
other than the genetic parents requires explanation and justification;
the burden of proof rests on anyone who would ground parental
rights in something other than the genetic tie.
One of the best-known proponents of this position is law profes-
sor John Robertson, who has taken the position that being the source
of genetic material used in procreation should give people parental
rights unless they explicitly give them up. In his eyes, the right to con-
trol what happens to one’s genetic material is part of what it means to
be a self-possessing individual: ‘‘Although the bundle of property
rights attached to one’s ownership of an embryo may be more circum-
scribed than for other things, it is an ownership or property interest
nonetheless. . . . [T]he persons who provide the egg and sperm have
the strongest claim to ownership of the embryo.’’10
Several of the judicial opinions in both Alison D. and Thomas S. re-
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
flected the view that the law should regard the egg and sperm donors
as the legal parents of a child. The majority of the Court of Appeals re-
lied on a biologically based understanding of the parent-child rela-
tionship when it said that Alison did not have standing as a parent and
so was not entitled to a hearing concerning visitation with A.D.M.
The court did not pay attention to Alison’s and Virginia’s joint deci-
sion to procure sperm and inseminate Virginia, nor to Alison’s part in
child rearing or her years acting as a parent to A.D.M. The only rele-
vant fact, the court contended, was that Virginia was A.D.M.’s genetic
and gestational mother and therefore a parent, while Alison, a genetic
and ‘‘biological stranger’’ to him, was not.
The dispute in Alison D. was between lesbian ex-partners, while
Thomas S. v. Robin Y. pitted a biological mother in an intact lesbian re-
lationship against a sperm donor seeking an order of filiation. Thom-
as’s brief relied on genetic arguments and spoke of Robin’s position as
analogous to that of an unwed mother. His brief stated that nothing
stood in the way of declaring him to be Ry’s father because ‘‘a known
donor of a child conceived by an unmarried woman as the result of ar-
tificial insemination is the legal father of the child.’’11 An order of es-
toppel such as Robin was seeking, he argued, can defeat a claim of pa-
ternity only when the mother is married and the paternity order
would make the child ‘‘illegitimate.’’ The Appellate Court followed
Thomas’s lead. It rejected the trial court’s assertion that the case in-
volved a threat to an ‘‘established family unit.’’ Instead the court
treated the case as analogous to disputes concerning visitation be-
tween an unwed father and an unwed mother.12 Like the Court of Ap-
peals decision in Alison D., it held that while a genetic parent has a
prima facie claim to be declared the legal parent, a person who as-
sumes a parental role in the absence of a genetic tie does not.

Intentional or Contractual Grounding of Parental Status

Reflecting a different perspective, one that emphasizes intention
rather than genetics, Marjorie Shultz has proposed that when more
than two persons plan for the conception of a child, the law ‘‘should
recognize the importance and legitimacy of individual efforts to proj-
ect intentions and decisions into the future.’’ Spurred primarily byher
dissatisfaction with the uncertainty surrounding the legal status of
[  ] Making Babies, Making Families
‘‘surrogate motherhood’’ contracts, Shultz argues that when procre-
ative agreements are ‘‘deliberate, explicit and bargained for, where
they are the catalyst for reliance and expectations, as they are in tech-
nologically assisted reproductive arrangements, they should be hon-
ored.’’13 Enforcing such contracts would ‘‘enhance individual free-
dom, fulfillment and responsibility.’’ For one thing, respect for
individual autonomy and sense of self would enable people planning
collaborative procreation to decide themselves what to do with their
sperm or ova. For another, individuals planning collaborative procre-
ation are already assuming some responsibility for the child even
prior to conception. Nonbiological lesbian co-mothers can assume
financial responsibility for procuring sperm, the insemination proce-
dure, and prenatal care. Furthermore, because contractual provisions
can reflect whatever division of labor and household responsibilities
the parties choose, such contracts might encourage greater flexibility
of gender roles than statutory provisions have traditionally done.
Although often used to support parental status for nongenetic
parents like Alison D. or Sandra R., as well as to bolster the parental
claims of commissioning parents in surrogacy arrangements, inten-
tion-based theories of parental rights are related to genetic-based the-
ories because they both assume that individuals should be able to
control the use of their genetic material. Someone with a right of own-
ership or control can alienate or transfer that right to another; positive
agreement among persons who collaborate in procreative activity
should determine whom the law recognizes as a legal parent. John
Robertson argued that ‘‘preconception rearing intentions should
count as much as or more than biologic connection’’ in establishing
legal parenthood; he saw ‘‘compelling reasons for recognizing the pre-
conception intentions of the parties as the presumptive arbiter of
rearing rights and duties, as long as the welfare of the offspring will
not be severely damaged by honoring these intentions.’’14
Certainly many supporters of Alison D. and of the custodial rights
of nonbiological co-mothers in general argue that they should be rec-
ognized as parents because they planned their partner’s pregnancy,
supported her through the pregnancy, and cared for the child after
birth. Robertson found that the human relationships recounted in
Alison D. ‘‘directly challenge the importance of bloodline in deter-
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
mining parenting relations.’’ And Robertson thought that Alison’s in-
terest in maintaining her relationship with A.D.M. might be worth
protecting, even though she is not a biological parent, as it would be in
the case of adoptive parents.15
Enforceable contracts could settle disputes between known sperm
donors and lesbian co-mothers as well as disputes between co-moth-
ers. Contracts could stipulate in advance the extent of involvement of
a known sperm donor. A donor could renounce any parental rights
and agree to assume a limited role in the child’s life. A contract could
preclude both his seeking more extensive rights and the mothers’ ex-
cluding him altogether from the child’s life. If the parties later dis-
agreed, the pre-conception contract would settle their dispute. As
Robertson put it, ‘‘if the parties who have contracted to rear are ade-
quate child rearers, their preconception agreement should trump the
claims of donors or surrogates who later insist on a different rearing
role than they had agreed upon.’’16
Interestingly, despite the sizable scholarly literature arguing that
intent or contract should provide the basis upon which to settle dis-
putes over parental status, none of the court decisions in either Alison
D. or Thomas S. looked to the pre-conception understandings of the
parties to resolve their conflicting claims. Instead, those who argued
against equating genetic and legal parenthood either looked to see
who had acted as functional parents, or they invoked the best interest
of the child.

Functional Grounding of Parental Status

A number of legal theorists insist that persons’ actions, not simply
their stated intentions, should establish the right to be recognized as
the legal parents of a child. This position supports arguments that if
the gestational mother in a surrogacy arrangement changes her mind
about relinquishing the child, she should not be bound by her pre-
conception contract. The surrogate’s action in carrying the fetus to
term creates a right to be heard in a custody dispute with the people
who commissioned the pregnancy. It also supports parental status for
lesbian co-mothers who plan for and take care of a child, and for gay
men who jointly raise a child. A functional theory of parental rights
based on the existence of a social and psychological relationship lies
[  ] Making Babies, Making Families
behind the proposal that in divorce proceedings custody should be
determined by the amount of time each parent spent physically caring
for or being with the child, and awarded to this ‘‘primary caretaker,’’
rather than being equally divided, or decided by the parents, or judi-
cially determined according to the child’s future ‘‘best interest.’’17
In her dissent in Alison D., Judge Kaye’s view that the trial court
should find Alison to be a ‘‘parent’’ rested on her understanding of
theories of functional parenting. Judge Kaye cited Katharine Bartlett’s
argument that the law should grant certain rights to people who can
demonstrate that they have actually assumed a parental role and dis-
charged parental responsibilities over a significant period of time.18 To
claim such rights, people who are neither biological nor adoptive par-
ents would have to demonstrate that they have had physical custody of
the child for at least six months; that their motive for seeking parental
status is ‘‘genuine care and concern for the child,’’ and if the child is
old enough to express herself that this is also the perception of the
child; and that the relationship with the child began with the consent
of the child’s legal parent or under court order.19 In a similar vein,
Nancy Polikoff has proposed ‘‘expanding the definition of parent-
hood to include anyone who maintains a functional parental relation-
ship with a child when a legally recognized parent created that rela-
tionship with the intent that the relationship be parental in nature.’’20
The gestational mother is to be considered a parent unless shown to be
unfit, and another person can be recognized as a parent if he or she has
assumed care for the child with the consent of the gestational mother.
Nancy Polikoff contended that Alison and Virginia were ‘‘like divorc-
ing parents.’’ Alison should have had standing to be heard in court and
probably should have been granted visitation because she performed
the functions of a parent with the consent of the legally recognized
parent. Courts should preserve the bonds of parenthood when a fam-
ily dissolves because they ‘‘consider it critical to a child’s well-being to
protect the child from the traumatic and painful loss of a parent.’’21
These criteria for recognizing someone as a ‘‘functional parent’’
would give parental status to Sandra, Robin’s partner, since Sandra
planned for Ry’s conception and took care of her since her birth, all
with Robin’s consent. Even some commentators who felt that Thom-
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
as’s genetic relationship to Ry, combined with the social ties he had es-
tablished with her, entitled him to seek visitation, found Thomas’s
effort to portray himself and Robin as Ry’s (only) two ‘‘parents’’ trou-
bling. Thomas’s effort to make his situation analogous to that of an
unwed father seeking visitation was an ‘‘offhand, even cynical, dis-
missal of gay/lesbian concerns’’ and of Sandra’s role in both Robin’s
and Ry’s lives.22 The notion of ‘‘functional parent’’ would make it clear
that Sandra could not be excluded from membership in Ry’s legal
family, nor could Robin be denied recognition as Cade’s co-mother.
There was considerable disagreement, however, over the question
of whether Thomas himself had any claim to be considered as some
kind of ‘‘functional parent.’’ The Appellate Court, while relying
mainly on Thomas’s genetic relationship with Ry in granting him
standing to seek an order of filiation, mentioned that Thomas also had
established some social relationship with Ry. ‘‘[T]he nature, duration
and constancy’’ of Thomas’s relationship with Ry during the six years
prior to his petition demonstrate his ‘‘interest and concern for his
child.’’23 Several commentators argued that Robin and Sandra had
themselves initiated and encouraged Thomas’s relationship with Ry,
and subsequently with Cade, and were wrong to seek to cut him off
and sever an existing bond.24 Even those who were sympathetic to
Thomas were not certain, however, that he should be designated Ry’s
legal ‘‘parent’’ with all its attendant rights and responsibilities. Some
proposed a new category called ‘‘limited parenthood’’ to deal with sit-
uations such as Thomas’s, a proposal I discuss later, in the last section.

Child-Centered Groundings of Parental Status

The ‘‘best interest of the child’’ standard is a well-established and
frequently invoked element of family law. Judges frequently justify
placing the child in the custody of one or another parent or with
someone else by saying that it is in the ‘‘best interest of the child.’’ The
strength of the best interest standard is that it places the child at the
center of the analysis and allows (indeed invites) a particularized rul-
ing in the light of the specific facts of a given child’s situation. It distin-
guishes the grievances adults have with one another from their re-
spective abilities to provide for and nurture a child. The best interest
[  ] Making Babies, Making Families
standard directs attention not to adults’ self-ownership, intent, or ac-
tion, but to how best to provide a particular child with physical suste-
nance and psychological nurture.
Given the long history of courts invoking the best interest stan-
dard for settling disputes over child custody, placement, and visita-
tion, it is not surprising that in her dissenting opinion in Alison D.,
Judge Kaye used the best interest of the child standard to argue that Al-
ison D. should be given standing to argue her case for visitation. Judge
Kaye cited precedent that held that ‘‘the best interest of the child has
always been regarded as superior to the right of parental custody,’’ re-
flecting the principle that ‘‘a child is a person, and not a subperson
over whom the parent has an absolute possessory interest.’’25 She as-
serted that the majority’s refusal to exercise the power to define ‘‘par-
ent’’ in applying the New York Social Service statute ‘‘close[d] the
door on all consideration of the child’s best interest in visitation pro-
ceedings’’ unless the person seeking visitation is a biological parent.
She argued that the case should be returned to the trial court with in-
structions that the court begin to develop some more inclusive defi-
nition of ‘‘parent’’ in order to prevent situations in which a considera-
tion of the child’s best interest would be ruled out altogether.26
Whereas Judge Kaye thought that recognizing Alison D. as a par-
ent was in the child’s best interest, the dissenters from the Appeals
Court ruling that Thomas, as a genetic father, had a right to a hearing,
said that Ry’s best interest would be served by rejecting Thomas’s
claim. They focused their analysis on the consequences that would
stem from ‘‘a dramatic abrogation’’ of Ry’s understanding of her fam-
ily: ‘‘While the child has always known that petitioner is her biological
progenitor, it had consistently been demonstrated by petitioner him-
self that this factor did not confer upon him any authority or power
over her life, that it did not mean that Sandra R. was less her mother
than Robin Y., and that it did not mean that her sister was not her full
sister.’’ The order of filiation, the dissent believed, would lead to fur-
ther litigation concerning visitation and possibly custody, if not by
Thomas then by his parents or other relatives. Even if no other legal
action transpired, ‘‘the constant, frightening potential for it is a bur-
den that the child . . . should not have to bear.’’27
Like Judge Kaye, the dissenters on the Appeals Court hearing
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
Thomas S. said that ‘‘[i]f the child’s best interests are to be the touch-
stone of the analysis, the attempts by both parties to argue the equities
of their own respective personal positions are not germane.’’28 Rather,
the relevant consideration was what configuration of parental rights
and responsibilities would be best for Ry. They concluded that the
emotional repercussions of giving Thomas legal status as Ry’s father
would not be in her best interest.
While sympathetic to looking at a child’s best interest when adju-
dicating family disputes, Barbara Woodhouse has observed that the
ideal can fall short of its promise. It does so either because judges’ own
beliefs and prejudices influence their assessment of a child’s needs and
wants, or because children are voiceless and powerless in defining
their needs. Woodhouse would replace or supplement the best inter-
est standard with what she calls ‘‘a generist perspective.’’ That perspec-
tive ‘‘affirm[s] the centrality of children to family and society’’ and
‘‘define[s] parenting as the meeting of children’s needs.’’ The term is
meant to evoke words ‘‘like ‘generation’ and ‘regeneration,’ ‘genius’
(guardian spirit), ‘genus’ (ours is homo as in homo sapiens), and ‘gen-
erous’ (willing to share, unselfish).’’ Generism would view parent-
hood ‘‘as stewardship, not ownership’’ and would value ‘‘highly con-
crete service’’ to meeting children’s needs.29 Woodhouse’s generist
theory rejected not only genetic and intentional models of parental
rights, but also functionalist approaches that assume that adults can
‘‘earn’’ the right to custody of children. Woodhouse’s generist ap-
proach did not confer parental status on the basis of genetic tie, inten-
tion, or the performance of certain actions, but started with a consid-
eration of children’s needs, and bestowed parental status on those
who could—and should—fulfill those needs.
In the dispute between Alison and Virginia, Woodhouse saw little
ambiguity in assessing whether A.D.M. had regarded Alison as his
parent. Unlike the trial court, Woodhouse believed that the biological
connection between Virginia and A.D.M. gave Virginia no superior
custodial claim if Alison provided emotional, physical, and financial
prenatal care to Virginia (which was in effect to provide support to
A.D.M. as well). From A.D.M.’s perspective, the two mothers who held
and cuddled him after birth gave similar care (even if Virginia breast-
fed A.D.M., this did not make her so much more involved with his care
[  ] Making Babies, Making Families
as to justify excluding Alison). Woodhouse sharply criticized the legal
approach that suggested that Virginia might bar Alison from future
contact with A.D.M. She insisted that ‘‘Our focus on individual rights
and dyadic relationships masks the fact that children need us to care
not only for them but for one another. A truly child-centered family
law recognizes and sustains the child’s network of care.’’30 While
Woodhouse would not expect Virginia and Alison to reunite, she
would regard them as having a mutual responsibility to protect the
network of A.D.M.’s relationships, including his relationship with
each of his mothers.
The same emphasis on sustaining ‘‘the child’s network of care’’
that led Woodhouse to support Alison D.’s claim led her to reject
Thomas’s: ‘‘To Ry, Thomas S. is an outsider attacking her family, refus-
ing to give it respect, and seeking to force her to spend time with him
and his biological relatives, who are all complete strangers to her.’’
Woodhouse remarked that Judge Kaufmann’s decision was unusual,
and correct, in taking Ry’s perceptions as the proper starting point for
assessing the adults’ claims. ‘‘[T]he child’s network of care . . . and not
traditional parents’ rights, is the reason for protecting a functioning
unitary family from destructive intrusion and for seeking ways to
minimize conflict and stress when families do separate.’’31 Similarly,
Woodhouse applauded the dissenters on the Appeals Court who
looked at Ry’s understanding of her family in rejecting Thomas’s re-
quest for an order of filiation.

Reflections on the Groundings of Legal Parenthood

One of the disturbing aspects of the controlling decisions in both
Alison D. and Thomas S. was, as Kate Harrison said, that they ‘‘read
down the role of the non-biological mother, to a point where she is not
even the functional equivalent of one member of the heterosexual
couple.’’ Rather than stand in a privileged position as a member of a
parenting couple, she stood as an outsider, ‘‘[akin to] child care work-
ers, baby-sitters, and housekeepers,’’ a dismissal both of her status and
of the integrity of the family unit of which she was a part.32
There is, of course, a sense in which the genetic tie should be rele-
vant to the establishment of legal parenthood: the custody of a child is
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
not up for grabs at birth. Notions of self-ownership and of each per-
son’s right to control the disposition of something so central to one’s
sense of self as genetic material should prohibit the government or
anyone else from appropriating a person’s ova, sperm, or offspring
without carefully constructed and rigorously enforced procedures,
including the consent of the genetic donor. Where heterosexual cou-
ples living together are concerned, absent a strong showing of cause or
voluntary relinquishment, it is proper to presume that the biological
parents are the custodial parents. But society is not well-served by re-
garding an individual’s relationship to his or her genetic material as a
proprietary one, or by elevating the genetic tie alone over the actual
assumption of responsibility for a child’s welfare and daily care as the
foundation for establishing legal parenthood.
I find the claims of the nonbiological mother to be grounded in
the child’s need for and right to her care, an approach that moves the
legal focus away from the entitlement of adults to own or claim cus-
tody of a child. In asking what a child needs and who fulfills those
needs, this approach pays less attention to adults’ claims than it does
to a child’s present and future well-being.
This approach is similar to but not the same thing as the tradi-
tional ‘‘best interest of the child’’ standard. That standard ran the dan-
ger of opening the door to judgments based on cultural preferences or
prejudices, favoring the party with greater financial resources (usually
men), and inviting repeated visits to court. And such lack of finality
often had detrimental effects on a child. Thus, while the best interest
standard focused on the child as the most relevant person in any cus-
tody dispute, the term itself exaggerated the degree to which a court
can know what is going to be most conducive to a child’s future well-
being.
Adopting the perspective of the child and protecting a child’s rela-
tionships, however, is a child-centered approach that avoids the pit-
falls of the traditional best interest standard. For example, Barbara
Woodhouse’s call for recognizing the importance of the ‘‘network of
care’’ and maintaining the involvement of various significant parent
figures in a child’s life places ‘‘children, not adults, firmly at the center
and take[s] as its central values not adult individualism, possession
[  ] Making Babies, Making Families
and autonomy, as embodied in parental rights, nor even the dyadic in-
timacy of parent/child relationships,’’ but a child’s multiple relation-
ships.33 Made an integral component of or substituted for the best
interest test, respecting networks of care would both validate relation-
ship rights based on care and leave room for different degrees of con-
nectedness between a child and the adults in her life. Had both Alison
and Virginia wanted custody of A.D.M., their dispute should have
been decided by a court as if they were married parents, and the non-
custodial parent would have been awarded visitation. As it happened,
Alison agreed that Virginia should have physical custody, but she ap-
propriately expected to remain an important part of A.D.M.’s life.
A more difficult problem to resolve is the proper relationship of a
third party—the sperm donor—to a lesbian family with children. Or
rather it is difficult to resolve the proper place of a known sperm do-
nor, since a donor whose identity is unknown until the child reaches
adulthood is not in a position to make familial claims. The problem
arises when the known donor seeks greater involvement with a child
than one or both of the co-mothers wish. How people think about the
role the known donor may take in the life of a child depends in part on
how our discourse and the language we use characterize gamete trans-
fer: is the sperm donor the seller of a product, the forever-unknown
source of genetic material, a friend of the family, a father, or some-
thing else? And on what basis and for what reasons should society
make that decision?
One answer is clear from previous chapters: in these cases the ge-
netic tie alone is not the basis on which to establish legal parenthood.
That theory not only overvalues the genetic connection but negates
the possibility of legal parenthood for the nonbiological co-mother
who may be deeply involved in the child’s life, and may indeed be the
primary caregiver. The genetic tie deserves some recognition, how-
ever, particularly from the perspective of the person who may some-
day wish to know the identity of the gamete provider.
Grounding parental rights in the intent of all three collaborating
adults in cases of third-party transfer of genetic material has more
promise than genetic entitlement. In ‘‘collaborative procreation,’’
when the genetic progenitors and the adults raising the child are not
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
(all) the same people, scholars like John Robertson and Marjorie
Shultz have argued that we should look not to genetic link but to the
intentions of those involved to decide disputes over custody. Lesbians
and sperm donors have described the kinds of considerations that en-
tered into their decisions to engage in (or not to engage in) collabora-
tive procreation.34 An intention-based theory of parental rights can
lead to a recognition of the parental status of both co-mothers and
may involve additional caring adults in a child’s life. It also can satisfy
the desire of many people to know their biological and genetic origins.
But grounding parental rights in intention alone has drawbacks.
When parties to an intentional arrangement come into conflict and
dispute the terms of access to a child, the provisions of the original
agreement may not suit the present circumstances of the child. And
the ensuing dispute will inevitably be harmful to a child old enough
to be aware of it. This was clear in the litigation over Thomas’s claim
of filiation. For the first three years of her life, Ry did not think of her-
self as having a known father. Thereafter, she began a social relation-
ship with Thomas whom she regarded as an adult who cared for her,
her mothers, and her sister. Prior to the litigation she understood the
complexity and unconventionality of her family; she had two mothers
and a sister, who were ‘‘family’’ despite the asymmetry of their ge-
netic ties to one another, and she knew that she had a biological fa-
ther whom she had been encouraged to regard as someone more than
a ‘‘stranger.’’ But once litigation commenced, she came to regard
Thomas as a threat, and the inability of the three adults to reach an
agreement on terms of visitation ruptured the bonds of affection.
Adding functional theory that would grant full parental rights to
the co-mothers (who are the social and psychological parents) would
reinforce the adults’ agreement by giving weight to those who are ful-
filling the child’s need for care. In order for an agreement to establish
some kind of ongoing involvement by the gamete donor or surrogate
mother, a functional approach would require that person to engage
in some practical caregiving under agreement with the co-mothers.
Combining intention-based and functional theories reduces some of
the concerns about grounding donors’ rights in agreement alone. The
danger of functional theory alone, as discussed earlier, is the possibil-
[  ] Making Babies, Making Families
ity of widening legal entitlements of access to a child to anyone who
has been in some caring relationship with her.35
Grounding legal recognition of parent-child relations can focus
either on adults (the source of the genetic material, the gestational
mother, the people expressing their intent, the caregivers) or the child
(the person who may wish someday to have access to the identity of
the gamete or gestation provider, the person in need of care). I think
the focus should be on the child. But adopting the child’s perspective
does not in itself answer the question of whether some new legal status
should be devised for a known and involved sperm donor (or an egg
donor or a gestational mother). Some commentators argue that a
rigid distinction between legal parents on the one hand and nonpar-
ents on the other perpetuates overly rigid and dichotomous cate-
gories. In their view, the law should be changed to accommodate those
who have a relationship to a child somewhere between that of ‘‘parent’’
and ‘‘stranger.’’ Some have made the case for the creation of a legal cat-
egory of ‘‘limited father’’ for sperm donors who are known to and in-
volved in the lives of their offspring.36 Advocates of some legal recog-
nition for ‘‘limited fathers’’ identified a conjunction of factors, all or
some of which might be necessary for someone to claim such status,
including genetic tie, repeated contact between the adult and child
and mutual acknowledgment of the nature of their relationship, and a
pre-conception agreement among co-mothers and limited father that
he will assume that role. In other words, most defenders of the legal
recognition of limited fatherhood drew on a mixture of genetic, in-
tentional, and functional understandings of parenthood.
Advocating this approach, Kate Harrison insists that all-or-noth-
ing grants of parental rights ‘‘fail to grasp the mid-point reality of a
limited father’s position.’’ She points out that if such a category had
been available to Thomas, his painful dispute might have been
avoided by having ‘‘both the validity and the limitations of his claim’’
recognized.37 She argues further that denying Thomas and other in-
volved sperm donors any standing to seek visitation would under-
mine ‘‘the most radical aspect of many lesbian and gay families: that
children do have ongoing relationships with multiple ‘parents,’ some
biologically related and some not, who live both inside and beyond
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
their household, with differing levels of responsibility for them and
different types of relationships with them.’’ Instead of reinscribing the
model of the two-parent nuclear family against efforts to reconfigure
and expand responsibility for child-rearing, ‘‘[m]any lesbian families
have been successfully constructed around men who have agreed to,
and are acting as, limited fathers.’’38
Harrison contended that Judge Kaufmann’s reliance on Ry’s un-
derstanding of who was a parent ‘‘drew a line around the adults who
were directly involved in her day-to-day care, [excluding] anyone in a
noncustodial parental position, including someone who was acting as
a ‘limited father.’ ’’ In fact, the decision ‘‘sets a high performance
threshold for someone trying to establish they are a functional parent,
almost assuring that only daily caregivers, living with the child, will
qualify.’’39 Instead of following this approach, says Harrison, if both
the co-mothers and the sperm donor agree that he should play a role
in the child’s life, the law should guarantee him continuing access to
the child [through the creation of a new status] by creating a ‘‘limited
parent’’ status.40
The value of a new legal category of limited parenthood is that it
would expand the number of adults who could claim some right of ac-
cess to and be assigned some responsibility toward a child (and might
be granted to some surrogate mothers and egg donors as well as some
sperm donors). And acceptance of limited parent status could legiti-
mate diverse family forms and undermine the hegemony of the dy-
adic, heterosexual couple and their children as the normative (be-
cause ‘‘natural’’) model of family. It might also lead more women to
use known rather than anonymous sperm donors. Women often
choose anonymous donors out of fear that genetic fathers will seek le-
gal recognition of their parental rights. If such disruption were pre-
cluded by law, it would be desirable from the child’s perspective that
the identity of the genetic father be knowable, whether such knowl-
edge led to a social relationship or not. As I have said, the value of this
knowledge is its importance to constructing one’s sense of self and
one’s place in a family’s and community’s history.
Despite these desirable effects, basing a sperm donor’s connection
to a child on a contractual or quasi-contractual basis gives me pause.
[  ] Making Babies, Making Families
On the one hand, introducing the practice and language of contract
into procreative relationships may suggest that children, or the ge-
netic materials that make their existence possible, are objects of trade.
On the other hand, formalizing the agreement between the mothers
and the sperm donor can clarify the relationship among them all and
prevent later misunderstanding and litigation. It is hard to see what
could ground collaborative procreation other than explicit agreement
among all adults involved, and a pre-conception agreement may be
the mechanism by which to establish someone’s willingness to be a
known sperm donor and a ‘‘limited’’ father.
Imagining all the various configurations to which adults collabo-
rating to procreate might agree alerts us to the fact that pre-
conception parenting contracts may rest on ‘‘a concept of the child
fulfilling the needs and desires of parents rather than on the parents
fulfilling the needs and desires of the child.’’41 A theory of parental
rights must begin not with adults but with children, and not with voli-
tion but with need. While we may use mechanisms of consent or
agreement, or look at what the adults have in fact done (or not done)
to care for the child as evidence that they have assumed or relin-
quished parental rights and responsibilities, law and language must
make it clear that the needs of the child, not adults’ acts of will, create
those rights and responsibilities. Even some function-based theories
of parental rights, while a huge step forward from the proprietary
models of genetic-based and some intention-based theories, continue
to focus on adult volition and activity both on the part of the adults
who relinquish or decide to share authority and on the part of those
who assume parental responsibilities. This being said, however, an
adult who functions as a child’s parent establishes to some degree
what that child needs; thenceforth the child needs that relationship.
An adult’s willingness to meet a child’s need for social and psychologi-
cal parenting, a willingness manifested in word and deed, is the
proper justification for accepting pre-conception agreements.
There is a further tension between protecting the child’s relation-
ships with adults other than primary caregivers and achieving stabil-
ity by protecting the authority of the primary caregivers and the au-
tonomy of the family unit they have created. Thinking about limited
parenthood raises the question of how exclusive the exercise of paren-
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
tal rights and responsibilities should be. On the one hand, it is not al-
ways in a child’s interest to maintain active ties with adults outside the
household. A child needs stability, and this need justifies parental au-
thority and autonomy (and could block the interference by a ‘‘limited
parent’’ just as it can block a noncustodial parent after divorce). On
the other hand, adults have an obligation to adjust or enable their
children to maintain ties with people who have acted as parentlike
figures.42 As Woodhouse noted, the bestowal of legal parenthood
means ‘‘not only the right to give children our love but the power to
give and withhold children’s love from others. Parental autonomy be-
comes the freedom to deploy and redeploy children . . . as enhance-
ments to shifting adult relationships.’’43 Adults who cut others off
from access to a child not for the child’s well-being but for their own
perceived interest, shift consideration from the child’s need to the
adult’s volition. Had Thomas not threatened the stability of Ry’s fam-
ily as he did, I believe that Woodhouse’s principle would have placed
an obligation on Robin and Sandra to allow him to continue to have
contact with Ry even if doing so had become inconvenient or finan-
cially burdensome.
One lesbian mother, Martha Gaines, whose children have strong
social ties to the men from whose sperm they were conceived objected
to the term ‘‘limited father’’ to refer to these men because she felt it did
not convey the signficance of their relationship to her children.

I find it difficult to embrace the term ‘‘limited father.’’ In what way are [my
children’s] fathers ‘‘limited’’? True, they don’t have daily contact—but that
doesn’t seem necessary to the definition of fatherhood. Is a father who has di-
vorced the mother of their children a limited father if the mother moves out
of town with the kids so that the family can make ends meet financially? I
don’t think we would allow him to be called that. Is a father who from neces-
sity works in another city from his wife and children but is with them on
weekends a limited father? Neither he nor his wife would accept that.
I guess what doesn’t sit well with me is the (for me) negative connotation
of the word ‘‘limited,’’ which, in a sense, reinforces the dyadic notion of par-
enthood. The father must be ‘‘limited’’ because there are already two parents.
But I don’t think of our Dads as ‘‘limited’’—I think of them as extraordinary
men who serve as powerful role models for our kids of generosity of spirit and
financial generosity. They are available as a resource on everything from
homework, to visits to the Museum of Natural History, to video arcades.
[  ] Making Babies, Making Families
They teach them about art and culture, they take them on trips, they come to
soccer games and swim meets, they accompany the kids to father/daughter
and father/son events. They are especially empowered in a sense, because they
know these kids but don’t spend so much time with them that they stop no-
ticing things like I think one sometimes does as a parent when the important
stuff becomes camouflaged by the quotidian morass. Does this make sense?44
Clearly the complex relationships in her family make sense to
Gaines. The mothers and sperm donors have created a ‘‘network of
care’’ (which includes the adults’ siblings and parents) that the co-
mothers feel sustains their children, but which gives these men no
legal status. Gaines also recognizes that under current law the pre-
conception contract that the three adults signed ‘‘is not worth the
paper it is written on.’’ Nor, she notes, would she want it to be, since it
declared that the fathers would have ‘‘no rights and responsibilities’’
toward the children. Gaines’s objection to the term ‘‘limited parent’’ is
not that it would give men like the genetic fathers of her children too
much recognition but too little (although she would not have them be
custodial parents). The dispute over what to call the known and in-
volved sperm donor reflects the deeper issues of the extent to which
such a man should be involved in the life of the children, and of
whether he or the child should be guaranteed some right to visitation.
The dispute grows out of the effort to bring socially unprecedented
and hence unnamed relationships into legal discourse. It shows how
much sharing of experiences, discussing, thinking, and theorizing re-
mains to be done by those concerned with making family law respond
to current practices and meet children’s needs.
Providing children with stability and care is among the most
pressing needs of contemporary American society. The primary
source (although not the only one) of such stability and care is a
child’s family. It is clear, however, that law today is inadequate to the
task of identifying who should be regarded as a child’s ‘‘parents’’ in
various nontraditional family situations. Law is also grappling with
the question of whether adults besides the legal parents should be
given some rights of access to or visitation with a child in some postdi-
vorce blended families, families formed by open adoption, and fami-
lies formed by gamete donation or gestational services. The issues
posed by disputes over who is a legal parent in some cases involving
Lesbian Co-Mothers, Sperm Donors, and Fathers [  ]
lesbian mothers have implications for a wide range of heterosexual as
well as homosexual families, single as well as multiparent families; ad-
dressing them may lead to greater justice for all parents and children.
In prodding us to recognize the centrality of caregiving to both family
and social life, thinking about these issues may also enrich not only
family law but liberal political theory as well.
epilogue

A New Liberal Ethics

for Family Law and Policy

A s the preceding chapters have discussed, debates about ‘‘family

values’’ in the United States today tend to reflect one or another
of two major approaches. Some people argue that the only legitimate
family is that which is rooted in ‘‘nature’’ or the ‘‘longstanding tradi-
tions’’ of society, and that individuals behave ethically only when they
conform to that model. Others argue that there is no single normative
model of family, and that law should recognize many kinds of rela-
tionships as worthy of the protections and responsibilities offered to
legally recognized families. The former of these two competing vi-
sions is ‘‘grounded in longing for the stability traditionally associated
with a two-parent heterosexual family,’’ while the latter is ‘‘based on a
recognition of the many changes in family form and structure.’’1 This
book is an effort to find an ethical grounding for a pluralistic vision of
family that suffers from neither the male-centered and heterosexual
norms of the traditional model nor the overly individualistic and vol-
untaristic norms of some proponents of diversity.
In my effort to develop principles that could guide thinking about
new family forms, I have looked at a variety of controversies in con-
temporary debates about family law and policy, including adoption,
Epilogue [  ]
gamete donation, and contract pregnancy. My work on ethics and
family policy is motivated by my belief that the assertion that there
is a single normative form of family given in nature or tradition is
contradicted by voluminous anthropological and historical evidence
and is socially harmful. This puts me at odds with those who insist
that ‘‘family values’’ properly understood means that only a married
heterosexual couple and their biological or adopted children should
be supported by public policy and recognized by law as ‘‘family.’’ I
am also at odds, however, with many of those who would ground
new ways of establishing family relationships in people’s right to
make whatever agreements about family and procreative life that they
choose. I have therefore looked for other principles, language, and im-
ages to guide policy in an age in which not all committed couples are
heterosexual, not all marriages will be for life, not all families will have
two (or only two) parents, and increasing numbers of children will
not be the genetic offspring of the parents who raise them. Modes of
reasoning and public discourse shape the collective understanding of
what constitutes a family and family relationships, influence people’s
expectations and behavior, and shape the legal rules and public poli-
cies that affect family formation and family life.
I have suggested that instead of invoking as absolute values either
nature or tradition on the one hand, or choice or contract on the
other, policy-makers and citizens should consider a cluster of values in
regulating family formation and family life: liberty, equality, relation-
ship, and care.
Two of these values, liberty and equality, have been fundamental
to the traditional liberal political theory that has permeated our polit-
ical culture from the Declaration of Independence and the Constitu-
tion to the present day, theory that has focused on the moral auton-
omy and political agency of every individual. ‘‘Liberal’’ in this sense
does not mean the opposite of conservative, but rather the opposite of
aristocratic or hierarchical.
Two other values, relationship and care, reflect the increasing con-
cern of political and social theorists for connections among human
beings, both between adults in marriage and among family members
(particularly parents and children). These theorists understand that
no individual exists apart from relationships with others, and that hu-
[  ] Making Babies, Making Families
man beings are invariably both the recipients and givers of care.2
While attention to relationships is sometimes contrasted with liberal
individualism, I have argued that a respect for relationship is integral
to liberal theory properly understood, and integral to a new liberal
ethics for family law.
Respect for liberty means that society must allow individuals as
much freedom as possible in making choices about how to live. The
great range of human diversity means that some adults will choose to
live alone, others to marry, others to live together but not to marry;
some will choose to have or raise children, some will not; some will
raise children with a partner; some will do so alone, some will do so
with another adult such as a child’s grandparent or aunt. A pluralistic
liberal state must allow individuals the freedom to form a wide variety
of families.
Despite my respect for freedom and diversity, however, I also insist
that the choices people may exercise are not unlimited. In particular, I
reject contractual language and imagery that is frequently used to de-
fend people’s right to form diverse kinds of families. For example, the
model underlying proposals for a market in human eggs and sperm or
for pregnancy contracts—the model of a self-possessing individual
linked to others only by private agreement—fails to do justice to the
complex interdependencies involved in family relations and child
rearing. Reliance on private ordering in these matters wrongly inter-
prets freedom as the ability to determine and pursue one’s individual
goals without interference from government or other individuals,
and wrongly interprets obligation as arising only from specific acts of
the will.3 In reality, family formation always involves obligations cre-
ated by spousal or parental relationship. In particular, the obligations
of parents to support and nurture their children are not subject to ne-
gotiation or choice, although society as a whole may debate how some
rights of children will be met—for example, rights to education and
health care.
I believe that equality, particularly sexual equality, is a value of
fundamental importance to any ethics of family formation and family
life. Despite the advances prompted by the feminist movement of the
last quarter of the twentieth century, much thinking about family life
remains permeated by assumptions about proper gender roles that all
Epilogue [  ]
too often leave women—and the children for whom they may be re-
sponsible—economically vulnerable, and limit the freedom of men
and women alike. John Stuart Mill pointed out over a century ago that
the decision to marry for many, many women could scarcely be called
‘‘free.’’ Given women’s low wages, scarcity of jobs, and lack of opportu-
nity for higher or even secondary education, the choice to marry was
for women of his day a ‘‘Hobson’s choice,’’ that or nothing.4 Women
today have more choices, but many cannot raise children without the
help of a second wage-earner. The fact that many women may deeply
love their husbands does not eliminate the fact that marriage may be
an economic necessity for some of them.
The concern for equality is not, then, simply a concern that
women be able to support themselves and their children if their part-
ner leaves them or dies. It cannot be met by insuring equal civic rights,
equal access to jobs outside the home, and equal pay for equal work,
although it entails all of these. It also means that in multiparent fami-
lies the parents share the responsibility for domestic tasks and the
physical and psychological nurture of children. This does not imply
some uniform or mathematically precise division of time spent on
various tasks; people’s particular talents, preferences, and strengths
should be reflected in their activities. But the current gender-based
structure of economic opportunity in the world of waged labor, and
the gender-based division of labor in families, are so pervasive that
real sexual equality in family life is elusive.
Adequate attention to the practical measures necessary to achieve
equality is too often missing even from proposals to strengthen fami-
lies in desirable ways. For example, a recent booklet, A Call to Civil So-
ciety, authored by a group of well-known academics, public officials,
journalists, and other public intellectuals of various political affilia-
tions and published by the Institute for American Values, strongly ad-
vanced an ambitious agenda of pro-family policies. The authors ad-
vocated greater economic and civic involvement for women, greater
‘‘hands on’’ involvement with their children for men, and stronger
public supports for families and children than we have at present.5
How will this be achieved? The authors of A Call to Civil Society pro-
pose that the federal government ameliorate the pressures put on
families by workplace demands by giving tax credits to parents who
[  ] Making Babies, Making Families
stay home to take care of young children. They also call upon busi-
nesses to expand opportunities for flexible working hours, job shar-
ing, tele-working and career breaks. These measures would ‘‘permit
parents to spend more time with their children,’’ an admirable and
necessary goal in my view. Workplace demands keep far too many
adults from spending enough time with their children, and it is ap-
propriate that government policy and business practices alike support
family-friendly policies.
But in this context ‘‘parents’’ is misleading in its gender neutrality.
Given the employment and wage structure in the United States, far
more mothers than fathers will leave the workplace to take care of chil-
dren. While tax credits that can be applied to education and job-
training will decrease the economic disadvantage experienced by par-
ents who leave the paid labor force, the authors fail to address the per-
sistence of occupational segregation and differential wages for ‘‘male’’
and ‘‘female’’ occupations. Occupational segregation and differential
wages often dictate that it is the woman in a heterosexual couple who
leaves her job to care for a child or an infirm parent, regardless of what
she or the couple might prefer or otherwise choose. At no point do the
authors call upon the employers in large companies to provide on-site
childcare so that mothers who wish to continue in the paid labor force
can do so.6 At no point do they suggest that fathers have an obliga-
tion—not only to their wives but also to their children—to take con-
crete action to work toward greater sexual equality in their own fami-
lies and in the larger society. At no point do the authors suggest that
occupational segregation, low wages, and lack of medical and pension
benefits create vulnerability for women in both family and public life.
The concern to acknowledge the important claims of interdepen-
dency and community must not drive out concern to create greater
gender equality.
Those who worry that the unity of the home and family are at risk
must not remain blind to the fact that a certain kind of family unity is
purchased at the cost not only of women’s economic vulnerability, but
is also premised on a gendered division of labor that can lead to the
diminution of the human capacities of both women and men. The an-
cient Greeks certainly thought that the greatest human activities (and
those activities that were specifically ‘‘human’’) took place in the pub-
Epilogue [  ]
7
lic realm, an attitude that they bequeathed to liberal theorists. Insis-
tence that the tasks of the private realm—of caregiving, nurture, so-
cialization of the young, support of the elderly—are important to the
full development of human capacities is a new departure in the tradi-
tion of Western political thought. But a full human life for both
women and men must include activities both of intimacy and care,
and of citizenship.
Empathy and nurture are important human capacities that enrich
individual lives, and the division of the capacities for public and pri-
vate action between men and women stunts the relationships possible
among human beings. The best, richest, fullest relationships among
adults are those grounded in equality. The sex-based division of labor
confines or limits the sharing and intimacy possible between adult
partners as well as stunting the caring capacities of men and the civic
capacities of women.
The gendered division of labor also affects children. It is not sim-
ply that at divorce many mothers will be economically vulnerable
while many fathers will lack extensive caregiving experience; it is also
that even in intact families children will not be able to relate as fully to
either parent when parents’ roles and capacities are limited by gender
rather than defined by their individual capacities and inclination. Nor
will children have before them models of adults able to assume the re-
sponsibilities and enjoy the rewards of both public and private, civic
and domestic life.
Family law and policy must go beyond an extension of traditional
liberal values of liberty and equality to include the values of relation-
ship and care, since relationship is the basis of family life. The rela-
tionships in families are not transient or superficial, but play a major
role in making family members who they are. This is certainly true of
children, who are shaped by their interactions with their parents, but
it is also true of spouses and partners. Family relationships are not
something one can enter into or exit from unaffected, because as fam-
ily members we are each ‘‘embedded in a network of relationships
with others that is the very basis for our sense of our individuality and
our capacity for meaningful choice.’’8 Moreover, because our identi-
ties are shaped by the attachments we form, ‘‘obligation may arise not
simply through consent, but from shared experience in relationship
[  ] Making Babies, Making Families
9
with another.’’ The course of these relationships, and the obligations
they generate, are not completely subject to individual control.
The importance of intimate relationships both to every individu-
al’s sense of self, and the obligations and responsibilities that arise
from these relationships even without explicit agreement, make the
maintenance and protection of relationship a proper concern of fam-
ily policy and law. The right to familial privacy, for example, is not
grounded simply in an individual’s right to be left alone, but in the
need of family members for a zone of intimacy in which they can es-
tablish those deep bonds that are formative of the self. To protect this
zone of intimacy in children’s relationships with their psychological
and social parents while at the same time protecting the right of adults
not raised by their biological parents to know their full history if they
choose, requires measures to clarify the rights of birth parents and of
known and involved genetic donors. My desire to encourage respect
for the importance of various relationships to an individual’s sense of
self leads me to advocate the right of people, upon reaching adult-
hood, to discover the identity of their birth parents and genetic pro-
genitors, without this entailing any right to have a social relationship
with them.
Care is at the core of what family members owe one another, and
generally of what they wish to provide one another. The parental obli-
gation to provide care to their children is the most stringent of these
obligations, because children cannot take care of themselves. But
there is also an obligation and desire to care for spouses and domestic
partners, the sick or disabled, and elderly parents and other family
members.10
The desire to give care and obligations of care are generated by
family relationships. Even if family situations change, the obligations
to care may endure. For example, in custody disputes courts must
attempt to find ways to recognize and preserve a number of rela-
tionships each of which may have importance to adult and child alike.
In divorce proceedings, courts may issue visitation orders that limit
the parents’ freedom to move out of the state, even to take a better
job.
The obligation to provide care to children falls both on custodial
Epilogue [  ]
parents and on society at large. This means that government has a re-
sponsibility to create the conditions and provide the services that
allow children and families to thrive. Children have a right not only to
food, shelter, and education; but also to the services that would allow
the parents to continue caring for them. Even people who care deeply
about families sometimes place less responsibility than I would on so-
ciety as a whole to make certain that families are supported, not rup-
tured because of remediable need. For example, the authors of A Call
to Civil Society urge local governments, social work professionals, and
faith communities ‘‘to strengthen and expand the institution of adop-
tion, including transracial adoption’’ in order ‘‘to ensure that more
children will grow up with two married parents.’’ In supporting adop-
tion, and transracial adoption, this recommendation echoes my call
to recognize diverse ways of creating families and to care for existing
children. But supporting adoption on the grounds that married two-
parent families are better than single-mother families is not fully con-
sonant with the values I advance here. For one thing, some proposals
to induce people to form two-parent families are not sufficiently at-
tentive to gender equality. Social scientists like William Julius Wilson
have demonstrated the link between men’s economic opportunity
and their willingness to marry. These scholars have urged that jobs be
created in impoverished neighborhoods to decrease the incidence of
single-parenthood. I support the creation of such jobs, but not the ra-
tionale that the goal of employment is simply to create male bread-
winners.11 Efforts to make sure that every family has a wage-earning
male ignore the fact that this solution by itself does not challenge the
occupational segregation and lower wage scales for women that give
men disproportionate power in both the family and the public
spheres.
In addition, supporting the adoption of children of single mothers
by two-parent families gives too little recognition to the ethical prin-
ciple that family relationships are to be sustained when possible. That
principle places an obligation on all members of society to make cer-
tain that it will not be necessary to remove a child from the custody of
a parent solely because of poverty, or because two-parent households
have more resources that enable them to raise children.
[  ] Making Babies, Making Families
Government policies that treat two-parent families preferentially
by withholding benefits from single parents or their children would
create unjustifiable inequalities among children and, in effect, punish
them for the actions of their parents, failing to acknowledge the extent
of public responsibility for children’s well-being. For example, pro-
posals to deny access to subsidized housing for single parents or to
bar their children from programs like Head Start would deprive chil-
dren of care they need. It is a collective, societal, and therefore govern-
mental responsibility to make sure that members of the community,
particularly children, do not lack access to basic housing, food, and
health care.12
The ethical principles I have put forward in this book—respect for
a diversity of family forms; commitment to sexual equality; recogni-
tion of the personal and social responsibility to sustain viable fami-
lies; and acknowledgment of the responsibilities generated by family
relationships, particularly the protection and nurture of children—
are principles that should underlie public policy and law regarding all
families, however formed. These values apply equally, for example, to
legal conflicts involving postdivorce blended families, single-parent
families, and ‘‘skipped-generation’’ families. Moreover, these values
should guide the formation of public policies intended to strengthen
families in crucial ways beyond the confines of family law.
Discussion of the ways in which these values should be reflected in
family law and public policy must involve all members of society, not
only lawyers, academics, and public officials. For all members of soci-
ety to decide what principles should inform family policy requires a
broad democratization of political and legal decision-making. The
quest for a just family policy needs the voices of people from every
perspective on gender, race, religion, national origin, class, and sexual
orientation. Only by listening to a broad spectrum of voices in this di-
verse society will policy makers be able to formulate laws and policies
that encourage liberty while sustaining relationship, and that advance
equality while promoting care.
People’s expectations and behavior are both reflected in, and
shaped by, legal rules and public policies. Given the vast changes in
ideology, changes in family structures, and developments in repro-
ductive technologies in recent years, no single model of family life
Epilogue [  ]
seems likely to replace the common-law paradigm of the unitary, dy-
adic, heterosexual, patriarchal family. There can be no more impor-
tant task, however, than reformulating the concepts and terms in
which the various ‘‘tales told by law’’ influence our experience of fam-
ily life. Vibrant and enduring family relationships are indispensable
to our well-being as individuals, and as members of civil society.
 Notes

Introduction
. Part of the reluctance to recognize a wider variety of family forms may
stem from concerns about the stability of the American state, which
many people have viewed as rooted in a particular kind of family. Con-
cerns about changes in understandings of the nature and functions of
families may reflect deep-seated fears about the continued viability of
American culture itself. See Alice Hearst, ‘‘Constructing the Natural
Family: American Identity and Family Law,’’ unpublished manuscript,
Smith College, Northampton, Mass., .
. Rose M. Rubin and Bobye J. Riney, Working Wives in Dual-Earner Fami-
lies (Westport: Praeger, ), . See also Kingsley Davis, ‘‘Wives and
Work: A Theory of the Sex-Role Revolution and Its Consequences,’’ in
Feminism, Children, and the New Families, ed. Sanford M. Dornbusch
and Myra H. Strober (New York: Guilford Press, ), –.
. Judith Stacey, ‘‘Backward toward the Postmodern Family: Reflections on
Gender, Kinship, and Class in the Silicon Valley, in Rethinking the Family:
Some Feminist Questions, rev. ed., ed. Barrie Thorne and Marilyn Yalom
(Boston: Northeastern University Press, ), –, .
. Kingsley Davis, ‘‘Wives and Work: A Theory of the Sex-Role Revolution
and Its Consequences,’’ in Feminism, Children, and the New Families, ed.
Sanford M. Dornbusch and Myra H. Strober (New York: Guilford Press,
), –.
Notes to Pages – [  ]
. Myra H. Strober and Sanford M. Dornbusch, ‘‘Public Policy Alterna-
tives,’’ in Feminism, Children, and the New Families, ed. Sanford M.
Dornbusch and Myra H. Strober (New York: Guilford Press, ), .
. Nancy Dowd, Redefining Fatherhood (New York: New York University
Press, ); Suzanne Braun Levine, Father Courage: What Happens
When Men Put Family First (New York: Harcourt, ).

1. Transracial and Open Adoption

. Readers familiar with debates in political theory will recognize that this
examination of adoption engages aspects of the dispute between liberals
and communitarians, particularly the contrast Michael Sandel draws be-
tween the ‘‘unencumbered individual’’ and the ‘‘embedded self.’’ See
Sandel, Liberalism and the Limits of Liberal Justice (Cambridge: Cam-
bridge University Press, ), and Democracy’s Discontent (Cambridge,
Mass.: Harvard University Press, ).
. Elizabeth Bartholet, ‘‘Where Do Black Children Belong? The Politics of
Race Matching in Adoption,’’ University of Pennsylvania Law Review 
(); Randall Kennedy, ‘‘Orphans of Separatism: The Painful Politics of
Transracial Adoption,’’ The American Prospect  (Spring ): –;
Richard Banks, ‘‘The Color of Desire: Fulfilling Adoptive Parents’ Racial
Preferences Through Discriminatory State Action,’’ Yale Law Journal 
(); Hawley Fogg-Davis, ‘‘Choosing Children: A Proposal for Race-
Neutral Adoption Policy,’’ unpublished paper, University of Wisconsin,
Madison ().
. Twila L. Perry, ‘‘The Transracial Adoption Controversy: An Analysis of
Discourse and Subordination,’’ New York University Review of Law & So-
cial Change  (–): –; Ruth-Arlene W. Howe, ‘‘A Review of
Family Bonds,’’ Golden Gate University Law Review  (): –,
and ‘‘Transracial Adoption (TRA): Old Prejudices and Discrimination
Float under a New Halo,’’ Boston University Public Interest Law Journal ,
no.  (Winter ): –; James S. Bowen, ‘‘Cultural Convergences
and Divergences: The Nexus between Putative Afro-American Family
Values and the Best Interest of the Child,’’ Journal of Family Law , no. 
(–): –.
. A. D. Kraft et al., ‘‘Some Theoretical Considerations on Confidential
Adoptions. Part III: The Adopted Child,’’ Child and Adolescent Social
Work Journal  (Fall ): –. Jerome Smith reviews some of the lit-
erature in which reservations about open adoption are expressed in The
Realities of Adoption (Lanham, Maryland: Madison Books, ), –.
. A. Baran and R. Pannor, ‘‘Open Adoption,’’ in The Psychology of Adop-
tion, ed. D. M. Brodzinsky and M. Schechter (New York: Oxford Uni-
versity Press, ); Jeanne Lindsey, Open Adoption: A Caring Option
[  ] Notes to Pages –
(Buena Vista, Calif.: Morning Glory Press, ); Katharine Bartlett, ‘‘Re-
thinking Parenthood as an Exclusive Status: The Need for Legal Alterna-
tives when the Premise of the Nuclear Family Has Failed,’’ Virginia Law
Review , no. : –; Barbara Yngvesson, ‘‘Negotiating Mother-
hood: Identity and Difference in ‘Open’ Adoptions,’’ Law & Society Re-
view , no.  (): –.
. Janet Farrell Smith, ‘‘Analyzing Ethical Conflict in the Transracial Adop-
tion Debate: Three Conflicts Involving Community,’’ Hypatia , no. 
(Spring ): –.
. Smith, ‘‘Analyzing Ethical Conflict in the Transracial Adoption Debate,’’
.
. Barbara Woodhouse has developed a child-centered analysis in many of
her writings on family law; see ‘‘Hatching the Egg: A Child-Centered Per-
spective on Parents’ Rights,’’ Cardozo Law Review  (): , and
‘‘ ‘Out of Children’s Needs, Children’s Rights’: The Child’s Voice in De-
fining the Family,’’ Brigham Young University Journal of Public Law 
(): . Hillary Rodham, ‘‘Children Under the Law,’’ Harvard Educa-
tional Review , no.  (November ): –, took a child-centered
approach to constitutional issues involving children, schools, and fam-
ilies.
. Michael Grossberg, Governing the Hearth: Law and the Family in
Nineteenth-Century America (Chapel Hill: University of North Carolina
Press, ), –. On the history of adoption law in the United States,
see Jamil S. Zainaldin, ‘‘The Emergence of a Modern American Family
Law: Child Custody, Adoption, and the Courts, –,’’ Northwestern
University Law Review  (): –; and Stephen B. Presser, ‘‘The
Historic Background of the American Law of Adoption,’’ Journal of Fam-
ily Law  (): –.
. David M. Schneider, American Kinship: A Cultural Account (Chicago:
University of Chicago Press, ), .
. Barbara Yngvesson and Maureen Mahoney, ‘‘ ‘As One Should, Ought and
Wants to Be’: Belonging and Authenticity in Identity Narratives,’’ Theory,
Culture and Society , no.  (December ), . On the ways in which
U.S. culture emphasizes blood ties see Dorothy E. Roberts, ‘‘The Genetic
Tie,’’ University of Chicago Law Review  (): –, and Schneider,
American Kinship.
. Rickie Solinger, Wake Up Little Susie: Single Pregnancy and Race before
Roe v. Wade (New York: Routledge, ).
. Andrew Billingsley, Climbing Jacob’s Ladder: The Enduring Legacy of
African-American Families (New York: Simon and Schuster, ); Patri-
cia Hill Collins, Black Feminist Thought (Boston: Unwin Hyman, );
Jaqueline Jones, Labor of Love, Labor of Sorrow (New York: Vintage
Notes to Pages – [  ]
Books, ); Herbert Guttman, The Black Family in Slavery and Freedom
– (New York: Pantheon, ); Carol Stack, All Our Kin (New
York: Harper and Row, ).
. Joyce Ladner observed that most blacks considered a child born out of
wedlock to have a right to live in the community without stigmatization.
Joyce Ladner, Tomorrow’s Tomorrow: The Black Woman (Garden City,
N.Y.: Doubleday, ) cited in Twila Perry, ‘‘Transracial and Interna-
tional Adoption: Mothers, Hierarchy, Race, and Feminist Legal Theory,’’
Yale Journal of Law and Feminism  (): .
. On the causes of the change in attitudes toward unwed (white) mothers
see E. Wayne Carp, Family Matters: Secrecy and Disclosure in the History
of Adoption (Cambridge, Mass.: Harvard University Press, ), and Sol-
inger, Wake Up Little Susie.
. Solinger, Wake Up Little Susie, .
. See Joan Heifetz Hollinger, ‘‘Aftermath of Adoption: Legal and Social
Consequences,’’ chap.  in Adoption Law and Practice, vol. , ed. Joan
Heifetz Hollinger (New York: Matthew Bender, ), suppl. .
. Carp, Family Matters, , –, and see generally chapter , –.
Carp viewed the unwed mothers’ demand for privacy as the prime reason
for the trend toward secrecy, but it seems more likely that it was pressure
from adoptive parents—the ones paying the agencies—that led to
greater secrecy.
. S. Katz, quoted in Ruth-Arlene Howe, ‘‘Adoption Practice, Issues, and
Laws, –,’’ Family Law Quarterly  (): .
. Grossberg, Governing the Hearth, .
. Barbara Yngvesson, ‘‘Un Niño de Cualquier Color: Race and Nation in
Intercountry Adoption,’’ in Jane Jenson and Boaventura de Sousa Santos,
eds., Globalizing Institutions: Case Studies in Regulation and Innovation
(Aldershot: Ashgate Press, ). On the notion of a ‘‘clean break’’ in in-
tercountry adoption see William Duncan, ‘‘Regulating Intercountry
Adoption—an International Perspective,’’ in Andrew Bainham and Da-
vid S. Pearl, eds., Frontiers of Family Law (London: John Wiley, ).
The Hague Convention on Protection of Children and Co-operation
in Respect of Intercountry Adoption speaks both of a child’s right to the
preservation of its identity (Article ) and favors adoptions that sever
the tie between adoptee and birth parents (Articles  and ).
. Yngvesson, ‘‘Un Niño de Cualquier Color,’’ .
. Schneider, American Kinship, .
. Palmore v. Sidoti,  U.S.  ().
. Carol Sanger, ‘‘Separating from Children,’’ Columbia Law Review , no.
 (March ): –.
. Quoted in Yngvesson and Mahoney, ‘‘ ‘As One Should, Ought, and Wants
[  ] Notes to Pages –
to Be,’ ’’ . The bill passed by the Vermont legislature in May  pro-
vided for unsealing adoption records on a case-by-case basis, a more lim-
ited measure than Sears and others had sought.
. States have taken various approaches to the question of making identi-
fying and non-identifying information available to adult adoptees. Most
permit the release of non-identifying background information about
birth parents if the adoptee requests it. Several have a ‘‘mutual consent
registry’’ whereby both birth parent(s) and adoptee must consent to the
release of identifying information. Some have ‘‘search and consent’’ pro-
cedures, whereby if an adult adoptee requests her birth record, the state
must search for the birth parents and request their consent to release the
record. If the birth parents cannot be found, or withhold their consent,
the adoptee can petition the court to release the record on a showing of
good cause. See Peter Swisher, Anthony Miller, and Jana Singer, Family
Law: Cases, Materials, and Problems (Matthew Bender, ), –.
My thanks to Milton C. Regan, Jr., for this reference.
Naomi Cahn and Jana Singer, ‘‘Adoption, Identity, and the Constitu-
tion: The Case for Opening Closed Records,’’ University of Pennsylvania
Journal of Constitutional Law  (December ): –, make a strong
case for not opening all adoption records retroactively but requiring the
state to conduct a confidential search for the birth parents and to request
their consent to the release of identifying information.
. A Tennessee statute reflects the kind of approach I am advocating. It
states that an adult adoptee over the age of  may obtain identifying
information about her birth parent(s) upon request. Birth parents,
however, may register to prevent contact by the adoptee, and an adop-
tee who despite this contacts the birth parent(s) may be subject to le-
gal liability. The statute was upheld against a constitutional challenge
in Doe v. Sundquist,  F.d  (th Cir.), cert. denied,  S. Ct. 
(). My thanks to Milton C. Regan, Jr., for this information and ref-
erence.
. Yngvesson, ‘‘Negotiating Motherhood,’’ .
. Smith, ‘‘Analyzing Ethical Conflict in the Transracial Adoption Debate,’’
.
. National Association of Black Social Workers, position paper, April ,
quoted in Elizabeth Bartholet, Family Bonds: Adoption and the Politics of
Parenting (Boston: Houghton Mifflin Company, ).
James Bowen described survival skills as ‘‘abilities to ignore racial in-
sults, to decipher the appropriateness of fighting back or submission, to
emphasize black strength, beauty and worth as a countermeasure to the
denigration of Blacks in America.’’ Bowen, ‘‘Cultural Convergences and
Notes to Pages – [  ]
Divergences,’’ . Eloquent testimony to the difficulties white parents
face in transmitting survival skills to black children came from white as
well as black parents. For example, J. Douglas Bates writes of the errors
and oversights he and his wife committed in raising their two black
daughters in Gift Children: A Story of Race, Family, and Adoption in a Di-
vided America (New York: Ticknor & Fields, ).
. Testimony before the Senate Committee on Labor and Human Re-
sources, th Cong. st Sess., June , , quoted in Perry, ‘‘The Transra-
cial Adoption Controversy,’’ .
. Witness after witness at congressional hearings on the ICWA testified
that Native American children placed away from Native American fami-
lies were frequently placed in a series of foster homes or institutions and
did not find permanent homes. Moreover, those children raised without
any knowledge of or exposure to Native American culture seemed to fare
less well psychologically than those who were raised with an appreciation
of Native American culture. Hearings at –, quoted in Alice Hearst,
‘‘The Indian Child Welfare Act,’’ unpublished paper, Smith College,
Northampton, Mass. (), –.
.  U.S.C.A. sec. . For testimony before Congress see Indian Child
Welfare Act: Hearings on S.  Before the Senate Select Comm. on Indian
Affairs, th Cong., st Sess. (); Indian Child Welfare Program: Hear-
ings Before the Subcomm. on Indian Affairs of the Senate Comm. on Inte-
rior and Insular Affairs, rd Cong., d Sess. ().
. James S. Bowen, ‘‘Cultural Convergences and Divergences: The Nexus
between Putative Afro-American Family Values and the Best Interests of
the Child,’’ Journal of Family Law  (–): –, esp. –.
. Bowen, ‘‘Cultural Convergences and Divergences,’’ , .
.  U.S.C.A. §a (West ).
.  U.S.C.A. §b () sec. .
. Martha Minow explains the difference as stemming from Congress’s per-
ception that the ‘‘extraordinarily frequent wrenching of Indian children
from Indian parents, and the cultural insensitivity of child welfare agen-
cies removing those children,’’ made Indian children a special case. The
differences also stem from the residence of many Indians on reservations,
the distinct constitutional status of Indian tribes, and the existence of
tribal courts that may make decisions regarding the custody of Indian
children. Martha Minow, Not Only for Myself: Identity, Politics, and the
Law (New York: The New Press, ), .
. Bartholet, ‘‘Where Do Black Children Belong?,’’ .
. Bartholet, ‘‘Where Do Black Children Belong?,’’ –.
. Bartholet, ‘‘Where Do Black Children Belong?,’’ .
[  ] Notes to Pages –
. Judith K. McKenzie, ‘‘Adoption of Children with Special Needs,’’  Future
of Children  (), –.
. Bartholet, ‘‘Where Do Black Children Belong?,’’ .
. Randall Kennedy, ‘‘Orphans of Separatism: The Painful Politics of Trans-
racial Adoption,’’ The American Prospect  (Spring ): –; see also
Kennedy, ‘‘How Are We Doing with Loving?: Race, Law, and Intermar-
riage,’’ Boston University Law Review  (October ): –.
. Hawley Fogg-Davis, ‘‘Choosing Children: A Proposal for Race-Neutral
Adoption Policy,’’ unpublished paper, University of Wisconsin, Madison,
, –.
. R. Richard Banks, ‘‘The Color of Desire: Fulfilling Adoptive Parents’ Ra-
cial Preferences Through Discriminatory State Action,’’ Yale Law Journal
 (): .
. Hawley Fogg-Davis, The Ethics of Transracial Adoption (Ithaca: Cornell
University Press, forthcoming).
. The contrast between this view of racial navigation and racial self-
definition and the view of racial identity and group membership under-
lying the ICWA is striking. Under the ICWA, if one of a child’s parents is
a tribal member, and the child fits the criteria for membership in that
tribe, the tribe has jurisdiction in all custody matters concerning the
child, or any state court must try to place the child with a tribal member
or another Indian family. In the case of Indian children, racial identity is
relevant to adoptive placement, and that racial identity is transmitted by
blood or tribal membership.
. Banks, ‘‘The Color of Desire,’’ .
. Kennedy, ‘‘Orphans of Separatism,’’ .
. Perry, ‘‘The Transracial Adoption Controversy,’’ –, –.
. Kennedy, ‘‘Orphans of Separatism,’’ .
. Fogg-Davis, ‘‘Choosing Children,’’ unpublished paper, , .
. Rita J. Simon and Rhonda M. Roorda, In Their Own Voices: Transracial
Adoptees Tell Their Stories (New York: Columbia University Press, ).
. Yngvesson, ‘‘Un Niño de Cualquier Color,’’ 
. Sanger, ‘‘Separating from Children,’’ .
. Sanger, ‘‘Separating from Children,’’ .
. Yngvesson, ‘‘Negotiating Motherhood’’; Yngvesson and Mahoney, ‘‘As
One Should, Ought, and Wants to Be.’’ Adam Pertman, Adoption Nation:
How the Adoption Revolution Is Transforming America (New York: Basic
Books, ), advocates open adoption, drawing on social science data;
interviews with birth parents, adoptive parents, and adoptees; and his
own experience as an adoptive parent.
. Maureen A. Sweeney, ‘‘Between Sorrow and Happy Endings: A New Par-
Notes to Pages – [  ]
adigm of Adoption,’’ Yale Journal of Law and Feminism , no.  (Spring
): –, .
. Sweeney, ‘‘Between Sorrow and Happy Endings,’’ .
. Donna Goldsmith, ‘‘Individual vs. Collective Rights: The Indian Child
Welfare Act,’’ Harvard Women’s Law Journal  (), .
. To Amend the Indian Child Welfare Act: Hearings on S.  Before the Sen-
ate Select Comm. On Indian Affairs, th Cong., d Sess. , , –
(Statement of Evelyn Blanchard).
. ‘‘If the Afro-American child’s extended family shall establish a different
order of preference [than that drawn up by the court] by resolution, the
agency or court effecting the placement shall follow such order. . . .
Where appropriate, the preference of the Afro-American child or parent
shall be considered.’’ Bowen, ‘‘Cultural Convergences and Divergences,’’
.
. Perry ‘‘The Transracial Adoption Controversy,’’ .
. Perry, ‘‘The Transracial Adoption Controversy,’’ .
. Twila Perry, ‘‘Transracial and International Adoption: Mothers, Hier-
archy, Race, and Feminist Legal Theory,’’ Yale Journal of Law and Femi-
nism  (), .
. Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the
Meaning of Liberty (New York: Pantheon, ), .
. I do not think that obliterating the voice of the mother is necessary to de-
fend tribes from unjustifiable incursions by state courts. It is important
to liberal society that people be able to change affiliations, such as reli-
gious affiliation. Although he may not share these particular views, my
thinking about respecting both liberal principles and cultural pluralism
is indebted to Will Kymlicka, Liberalism, Community and Culture, esp.
–.
. Banks, ‘‘The Color of Desire,’’ –.
. For some accounts of these efforts see Roberts, Killing the Black Body; An-
gela Y. Davis, Women, Race and Class (New York: Vintage, ); Peggy
Cooper Davis, Neglected Stories: The Constitution and Family Values
(New York: Hill and Wang, ); Harriet Jacobs, Incidents in the Life of a
Slave Girl, Written by Herself, ed. Jean Fagan Yellin (Cambridge: Harvard
University Press, ); Elizabeth V. Spelman, Fruits of Sorrow: Framing
Our Attention to Suffering, chap.  (Boston: Beacon Press, ).
. Yngvesson and Mahoney, ‘‘ ‘As One Should, Ought and Wants to Be,’ ’’ .
. Yngvesson, ‘‘Negotiating Motherhood’’; ‘‘Un Niño de Cualquier Color’’;
Yngvesson and Mahoney, ‘‘ ‘As One Should, Ought and Wants to Be.’ ’’
. Mona Harrington, Care and Equality (New York: Knopf, ); Eva Feder
Kittay, Love’s Labor (New York: Routledge, ).
[  ] Notes to Pages –
. Drucilla Cornell, ‘‘Reimagining Adoption and Family Law,’’ in Mother
Troubles: Rethinking Contemporary Maternal Dilemmas, ed. Julia E. Han-
igsberg and Sara Ruddick (Boston: Beacon Press, ).

2. Fathers’ Rights, Mothers’ Wrongs, and Children’s Needs

. In the Interest of B. G. C., Supreme Court of Iowa, No. /–, –,
September , , and In the Matter of Baby Girl Clausen, Michigan
Court of Appeals, No. , March , .
. In re Doe (Baby Boy Janikova),  N. E.d  (Ill. App. Ct. ) and In
re Doe (Baby Boy Janikova),  N. E.d  (Ill.), cert. denied, 
U.S.L. W.  (U.S. Nov. , ) (No. –), and cert. denied, 
U.S.L. W.  (U.S. Nov. , ) (No. –).
. See In re Doe (Baby Boy Janikova),  N. E.d ,  (Ill. App. Ct. ).
. See Baby Boy Janikova,  N. E.d at .
. An excellent review of current laws and of the proposed Uniform Adop-
tion Act is found in Joan Heifetz Hollinger, ‘‘Adoption and Aspiration:
The Uniform Adoption Act, the DeBoer-Schmidt Case, and the Ameri-
can Quest for the Ideal Family,’’ Duke Journal of Gender Law and Policy ,
(): –. A summary of the different statutory provisions in all fifty
states regarding who must give consent to an adoption and under what
conditions is found in Adoption Laws: Answers to the Most-Asked Ques-
tions (Rockville, MD: National Adoption Information Clearinghouse,
n.d.).
. For example, see Jeffrey S. Boyd, ‘‘The Unwed Father’s Custody Claim in
California: When Does the Parental Preference Doctrine Apply?’’ Pep-
perdine Law Review  (): –; John R. Hamilton, ‘‘The Unwed
Father and the Right to Know of His Child’s Existence,’’ Kentucky Law
Journal  (–): –; Jennifer J. Raab, ‘‘Lehr v. Robertson: Un-
wed Fathers and Adoption—How Much Process Is Due?’’ Harvard
Women’s Law Journal  (): –; Claudia Serviss, ‘‘Lehr v. Robert-
son’s ‘Grasp the Opportunity’: For California’s Natural Fathers, Custody
May Be Beyond Their Grasp,’’ Western State University Law Review 
(): –; Daniel C. Zinman, ‘‘Father Knows Best: The Unwed Fa-
ther’s Right to Raise his Infant Surrendered for Adoption,’’ Fordham Law
Review  (April ): –. Wolfgang Hirczy argues that the law
should insist that the paternity of every child be established at birth, a
necessary prerequisite for an unwed father’s assertion of paternal rights;
see ‘‘The Politics of Illegitimacy: A Cross-National Comparison,’’ paper
presented at the Annual Meeting of the American Political Science Asso-
ciation, Chicago, Illinois, September –, .
. Mary Becker, ‘‘The Rights of Unwed Parents: Feminist Approaches,’’ So-
cial Service Review  (December ): –; Nancy S. Erickson, ‘‘The
Notes to Pages – [  ]
Feminist Dilemma over Unwed Parents’ Custody Rights: The Mother’s
Rights Must Take Priority,’’ Journal of Law and Inequality  (): –
; Nancy S. Erickson, ‘‘Neither Abortion nor Adoption: Women with-
out Options,’’ paper presented at the American Association of Law
Schools (AALS), San Francisco, January , , p.  n. ; Barbara Katz
Rothman, Recreating Motherhood: Ideology and Technology in a Patriar-
chal Society (New York: Norton, ).
. Becker, ‘‘The Rights of Unwed Parents: Feminist Approaches,’’ .
. William Blackstone, Commentaries on the Laws of England, th ed. (),
ed. Berkowitz and Throne (), vol. , . On coverture in general see
Mary Lyndon Shanley, Feminism, Marriage and the Law in Victorian En-
gland (Princeton: Princeton University Press, ). Hendrik Hartog,
Man and Wife in America: A History (Cambridge: Harvard University
Press, ). On custody laws in the early United States, see Michael
Grossberg, Governing the Hearth: Law and the Family in Nineteenth-
Century America (Chapel Hill: University of North Carolina, ).
. Also important was the rise in both social and judicial attention to child-
hood and its particular needs. See Jamil S. Zainaldin, ‘‘The Emergence of
a Modern American Family Law: Child Custody, Adoption, and the
Courts, –,’’ Northwestern University Law Review  (): –
, and Grossberg, Governing the Hearth.
. Weber v. Aetna Casualty & Surety Co.,  U.S.  (); Gomez v. Perez,
 U.S.  (); and Trimble v. Gordon,  U.S.  ().
. Stanley v. Illinois,  U.S.  (); Quilloin v. Walcott,  U.S. 
(); Caban v. Mohammed,  U.S.  (); Lehr v. Robertson, 
U.S.  (); Michael H. v. Gerald D.,  U.S.  ( ).
. Stanley v. Illinois,  U.S.  (), at .
. Caban v. Mohammed,  U.S  (), at .
.  U.S.  at , n. .
. Lehr v. Robertson,  U.S.  (), at .
. Michael H. v. Gerald D.,  U.S.  ().
. Id., at  (O’Connor, J., concurring in part), at – n. .
. Id., at  (Stevens, J., concurring in the judgment).
. Id., at – (White, J., dissenting).
. Id., at – (Brennan, J., dissenting).
. See National Adoption Information Clearinghouse, Adoption Laws: An-
swers to the Most-Asked Questions; Joan H. Hollinger, ‘‘Consent to Adop-
tion,’’ in Adoption Law and Practice, ed. Joan H. Hollinger, (New York:
Matthew Bender, , Suppl. ), vol. , app. I-A.
. Lehr v. Robertson,  U.S. , at .
. Serviss, ‘‘Lehr v. Robertson’s ‘Grasp the Opportunity,’ ’’ .
. See Hamilton, ‘‘The Unwed Father,’’ –, –.
[  ] Notes to Pages –
. See Zinman, ‘‘Father Knows Best,’’ –, and Boyd, ‘‘Unwed Father’s
Claim in California,’’ –.
.  P.d ,  (Cal. ).
. See In re Doe (Baby Boy Janikova),  N. E.d , – (Ill.), cert de-
nied,  U.S. L. W.  (U.S. Nov. , ) (No. –), and cert. denied,
 U.S.L. W.  (U.S. Nov. , ) (No. –); In re Doe (Baby Boy
Janikova),  N. E. d , – (Ill. Ct. App. ).
. Katharine T. Bartlett, ‘‘Re-Expressing Parenthood,’’ Yale Law Journal 
(): –, .
. ‘‘Recent Developments: Family Law—Unwed Fathers’ Rights—New
York Court of Appeals Mandates Veto Power over Newborn’s Adoption
for Unwed Father Who Demonstrates Parental Responsibility,’’ Harvard
Law Review  (): , .
. In re Baby Girl Eason,  Ga.  at ,  S. E. d , at  (),
quoted in Zinman, –.
. Maureen A. Sweeney, ‘‘Between Sorrow and Happy Endings: A New Par-
adigm of Adoption,’’ Yale Journal of Law and Feminism (Spring ):
–; Erickson, ‘‘The Feminist Dilemma over Unwed Parents’ Cus-
tody Rights,’’  n. , and ,  n. ; Susan Wadia-Ells, ed., The
Adoption Reader: Birth Mothers, Adoptive Mothers, and Adopted Daugh-
ters Tell Their Stories (Seattle: Seal Press, ).
. The Supreme Court has recognized the significance of this asymmetry
between mother and father during pregnancy by holding that a wife is
not required to obtain her husband’s consent or to notify him before get-
ting an abortion. Planned Parenthood of Central Missouri v. Danforth, 
U.S.  () and Planned Parenthood of Southeastern Pennsylvania v.
Casey,  U.S.  ().
. On the social construction of the experience of pregnancy and childbirth
see Emily Martin, The Woman in the Body: A Cultural Analysis of Repro-
duction (Boston: Beacon Press, ), and Barbara Katz Rothman, In La-
bor (New York: Norton, ).
. Rothman, Recreating Motherhood, , , and .
. Erickson, ‘‘The Feminist Dilemma over Unwed Parents’ Custody Rights,’’
–.
. Becker, ‘‘Maternal Feelings: Myth, Taboo, and Child Custody,’’ .
. Ibid.
. Martha Albertson Fineman, The Illusion of Equality: The Rhetoric and
Reality of Divorce Reform (Chicago: University of Chicago Press, ).
. In ‘‘Adoption and Aspiration,’’ Hollinger thoroughly and sensitively dis-
cusses the sections of the Uniform Adoption Act that reflect standards
similar to those I suggest here.
. Virginia Held, Feminist Morality: Transforming Culture, Society, and Poli-
Notes to Pages – [  ]
tics (Chicago: University of Chicago Press, ); Jennifer Nedelsky,
‘‘Reconceiving Autonomy,’’ Yale Journal of Law and Feminism  (),
and ‘‘Law, Boundaries, and the Bounded Self,’’ Representations 
(): –; Sara Ruddick, Maternal Thinking (Boston: Beacon Press,
); and Joan C. Tronto, Moral Boundaries (New York: Routledge,
).
Issues involving children raise in a particularly acute manner the
tension between protecting people as individuals and protecting family
associations or family ties; see Kenneth L. Karst, ‘‘The Freedom of Inti-
mate Association,’’ Yale Law Journal  (): –.
. Bartlett, ‘‘Re-Expressing Parenthood,’’ .
. See Eisenstein, The Female Body and the Law (Berkeley: University of
California Press, ), –.
. Cynthia R. Daniels, At Women’s Expense: State Power and the Politics of
Fetal Rights (Cambridge: Harvard University Press, ), . See also Pa-
tricia Boling, ed., Expecting Trouble: Surrogacy, Fetal Abuse and New Re-
productive Technologies (Boulder: Westview, ), and Privacy and the
Politics of Intimate Life (Ithaca: Cornell University Press, ).
. Note, ‘‘Rethinking Motherhood: Feminist Theory and State Regulation
of Pregnancy,’’ Harvard Law Review  (), , –; Iris M.
Young, ‘‘Punishment, Treatment, Empowerment: Three Approaches to
Policy for Pregnant Addicts,’’ Feminist Studies  (): –; Shelley
Burtt, ‘‘Reproductive Responsibilities: Rethinking the Fetal Rights De-
bate,’’ Policy Studies  (): –.
. In Matter of Raquel Marie X.,  NY d  ().
. In Matter of Raquel Marie X.,  NY d  (), at .
. ‘‘Recent Developments: Family Law—Unwed Fathers’ Rights,’’ Harvard
Law Review  (): .
. In Matter of Raquel Marie X.,  NY d  (), at .
. New York State Legislature, Assembly, A , January , , intro-
duced by Member of the Assembly Lopez and referred to the Committee
on the Judiciary. Mr. Lopez had supported such legislation since at least
.
.  Report of the Family Court Advisory and Rules Committee to the Chief
Administrative Judge of the Courts of the State of New York (December
), –.
. Nancy Erickson, ‘‘Proposal for a Model Law on Unwed Fathers’ Adoption
Rights,’’ unpublished paper, Brooklyn, N.Y., n.d. [].
. Timely placement of all children is one of the goals of the federal Adop-
tion and Safe Families Act of ; Pub. L. No. –,  Stat.  ().
States need to develop legislation to implement this legislation and expe-
dite permanency planning for children in foster care. This underscores
[  ] Notes to Pages –
‘‘the importance of clarifying the rights of biological parents at the earli-
est possible point in children’s lives. . . . Whether a child has truly been
abandoned or whether there is, in fact, a biological parent with an inter-
est in the child must, therefore, be clarified as early as possible.’’  Re-
port of the Family Court Advisory and Rules Committee, .
. Robert O. v. Russell K.,  N. E. d  (N.Y. ).
. Robert O. v. Russell K.,  N. E. d  (N.Y. ), at –.
. Hamilton, ‘‘Note: The Unwed Father and the Right to Know of His
Child’s Existence,’’  n. .
. See Iowa Code Ann. §A. (West ).
. See B.G.C.,  N. W. d, at .
. Baby Boy Janikova,  N. E. d, at  (supplemental opinion on denial
of rehearing).
. See Michael H. v. Gerald D.,  U.S. ,  ().

3. ‘‘A Child of Our Own’’

. The Miscellany News (newspaper of Vassar College), vol. , no.  (De-
cember , ), p. . The same ad appeared in The Michigan Daily on
October , , p. A, and undoubtedly in other college newspapers.
. New York Times, Metropolitan ed., March , , p. A.
. The Miscellany News (newspaper of Vassar College), vol. , no. 
(March , ), p. .
. ‘‘In most cases of sperm ‘donation’ and some cases of egg ‘donation,’ the
term ‘vendor’ more accurately describes the gamete provider.’’ Mary B.
Mahowald, ‘‘Genes, Clones, and Gender Equality,’’ DePaul Journal of
Health Care Law  (Spring/Summer ): –, n. .
. A good discussion of gamete donation, frozen embryos, and relevant
court cases is found in Christine Overall, Ethics and Human Reproduc-
tion (Boston: Allen & Unwin, ) and Human Reproduction: Principles,
Practices, Policies (Toronto: Oxford University Press, ), chap. , ‘‘Fro-
zen Embryos and ‘Fathers’ Rights’: Parenthood and Decision-making in
the Cryopreservation of Embryos,’’ –.
. Poughkeepsie Journal, September , , p. D.
. See Gina Kolata, ‘‘Price Soars for Eggs, Setting Off a Debate on a Clinic’s
Ethics,’’ New York Times, February , , p. A. The article reports that
in contrast to the ready availability of sperm, eggs are in short supply and
recipients must sometimes wait up to a year for donor eggs. To increase
the number of donations, one infertility clinic now pays $, for one
month’s ‘‘harvest’’ of eggs, twenty times the amount paid ten years before
when the practice began.
. See Melissa Ludtke, On Our Own: Unmarried Motherhood in America
(Berkeley and Los Angeles: University of California Press, ), for a dis-
Notes to Pages – [  ]
cussion of unmarried motherhood since , whether resulting from
divorce, unintentional out-of-wedlock birth, or intentional (either
through sexual intercourse or sperm donation) single motherhood.
. A thorough review of the legal issues involved in gamete transfer is found
in Joan Heifetz Hollinger, ‘‘From Coitus to Commerce: Legal and Social
Consequences of Noncoital Reproduction,’’ University of Michigan Jour-
nal of Law Reform  (Summer ): –.
. When biomedical technology made it possible to fertilize an egg outside
of the human body, ‘‘a potentially new legal and social entity had come
into the world in the form of the human embryo in the very early stages
of development, alive but outside the parental body. How to think it [the
nature of the embryo outside the body], that is, imagine it and make it
real, became a matter for debate.’’ Marilyn Strathern, Reproducing the Fu-
ture: Essays on Anthropology, Kinship and the New Reproductive Technolo-
gies (New York: Routledge, ), .
. When same-sex couples use AID, if the nonbiological parent wants to se-
cure parental rights through second-parent adoption, a home study must
be done.
. Frances I. Seymour and Alfred Koerner, ‘‘Artificial Insemination: Present
Status in the United States as Shown by a Recent Survey,’’ Journal of the
American Medical Association (June , ): –, reported that at
least , pregnancies had been achieved by alternative insemination,
two-thirds of them using the husband’s sperm. This figure was sharply
criticized as unsubstantiated and probably far too high by Clair E. Fol-
some, ‘‘The Status of Artificial Insemination,’’ American Journal of
Obstetrics and Gynecology , no.  (June ): –. Martin Curie-
Cohen, Lesleigh Luttrell, and Sander Shapiro, ‘‘Current Practice of Arti-
ficial Insemination by Donor in the United States,’’ New England Journal
of Medicine , no.  (March , ): –, review early literature
and describe the practices surrounding use of donor sperm.
. Curie-Cohen, Luttrell, and Shapiro, ‘‘Current Practice of Artificial In-
semination’’ (), –.
. See Dorothy E. Roberts, ‘‘The Genetic Tie,’’ University of Chicago Law Re-
view  (): –.
. In , the Report of a Commission Appointed by His Grace the Arch-
bishop of Canterbury recommended that donor insemination be consid-
ered a criminal offense; courts in the United States were uncertain about
whether AID constituted adultery. See Ken Daniels and Karyn Taylor,
‘‘Secrecy and Ownership in Donor Insemination,’’ Politics and the Life
Sciences , no.  (August ): –, .
. See the articles and cases cited in In Re Adoption of Anonymous,  Misc.
d ,  N.Y.S.d  (Surrogates Court of New York, Kings County,
[  ] Notes to Pages –
), in Family Law: Cases and Materials, d ed., ed. Judith Areen (Mine-
ola, N.Y.: The Foundation Press, ), –.
. See both Douglas J. Cusine, ‘‘Legal Aspects of AID,’’ and Christine Man-
uel, Marie Chevret, and Jean-Claude Czyba, ‘‘Handling of Secrecy by
AID Couples,’’ in Human Artificial Insemination and Semen Preservation,
ed. Georges David and Wendel S. Price (New York: Plenum Press, ),
–, –.
. Curie-Cohen, Luttrell, and Shapiro, ‘‘Current Practice of Artificial In-
semination’’ (), .
. In re Adoption of Anonymous,  Misc. d ,  N.Y.S.d  and
the editors’ ‘‘Notes,’’ Family Law: Cases and Materials, d ed., ed. Judith
Areen, –.
. The difference may stem from the fact that the unwed father pitted his
will against an unwed mother, while the sperm donor transferred his
sperm to a married couple, which involved another man. Many people
are hostile to women who procreate without legal ties to a man.
. Rebecca Mead, ‘‘Eggs for Sale,’’ The New Yorker (August , ), –,
.
. The description in this paragraph is drawn from Patricia M. McShane,
‘‘In Vitro Fertilization, GIFT and Related Technologies—Hope in a Test
Tube, in Embryos, Ethics, and Women’s Rights: Exploring the New Repro-
ductive Technologies, ed. Elaine Hoffman Baruch, Amadeo F. D’Adamo,
Jr., and Joni Seager (New York and London: The Haworth Press, ),
–, and Mead, ‘‘Eggs for Sale,’’ .
. McShane, ‘‘In Vitro Fertilization, GIFT and Related Technologies,’’ –
.
. Curie-Cohen, Luttrell, and Shapiro, ‘‘Current Practice of Artificial In-
semination’’ (), .
. My impression is that gay fathers face prejudice (and sometimes vio-
lence) because of their gay relationship, but that gay fathers gain some
sympathy as men raising a child without a woman’s help. Lesbian
mothers, however, provoke the scorn so often directed at women who
forego the company of men. For a powerful fictional rendition of the
fear and violence that women, not necessarily lesbians, who live apart
from men generate, see Toni Morrison, Paradise (New York: Knopf,
).
. Carol Sanger, ‘‘Separating from Children,’’ Columbia Law Review , no.
 (March ): –.
. Hollinger, ‘‘From Coitus to Commerce,’’ reviews many considerations
concerning anonymity and discusses the differences between anonymity
in adoption and in gamete donation.
. Strathern, Reproducing the Future, .
Notes to Pages – [  ]
. Strathern, Reproducing the Future, chap. , ‘‘Partners and Consumers,’’
.
A sense of how complex the question of whether we should attribute
any social significance (and legal rights or responsibilities) to genetic par-
enthood can be gained from reading the on-going debate between John
Eekelaar and Brenda Almond. See, for example, John Eekelaar, ‘‘Parent-
hood, Social Engineering, and Rights,’’ in Constituting Families: A Study
in Governments, ed. E. Morgan and G. Douglas (Stuttgart: Franz Steiner
Verlag, ), and Brenda Almond, ‘‘Family Relationships and Repro-
ductive Technology,’’ in Having and Raising Children, ed. Uma Narayan
and Julia J. Bartkowiak (University Park: Pennsylvania State University
Press, ), originally published in The Family in the Age of Biotechnol-
ogy, ed. Carole Ulanowsky (Avebury: Ashgate Publishing, ).
. The absence of consideration of the child’s perspective in most legal and
medical discussions of AID and egg donation is stunning and deeply
disturbing. A notable exception are the writings of Barbara Bennett
Woodhouse, who argues for child-centered analyses of family law issues.
See ‘‘Out of Children’s Needs, Children’s Rights: The Child’s Voice in De-
fining the Family,’’ Brigham Young University Journal of Public Law 
(), and ‘‘Hatching the Egg: A Child-Centered Perspective on Parents’
Rights,’’ Cardozo Law Review  (), among other articles.
It is possible that an adult who seeks the identity of the donor may
then feel rejected if the donor refuses to meet him or her. But while access
to the information seems to me to be a right of the individual created by
the transferred gamete, I do not see why that right would extend to a face-
to-face meeting or social relationship if the donor objects.
. Patricia Williams speaks of the significance of transgenerational history
in ‘‘On Being the Object of Property,’’ The Alchemy of Race and Rights
(Cambridge, Mass.: Harvard University Press, ).
. Neil Leighton, ‘‘The Family: Whose Construct Is It Anyway?’’ in The
Family in the Age of Biotechnology, ed. Carole Ulanowsky (Avebury: Ash-
gate Publishing, ), –, . Although I agree with Leighton on the
need for a specific narrative of origin, the continuation of this passage
uses misleading language about gamete donation: ‘‘The pretense that the
bioengineered child is the natural child of the pseudo parents presents an
experience of family on unsure ground and undermines the essential at-
tributes of intimate human relationships—those of integrity, trust, and
openness.’’ I also urge openness, but would note that the child is not
‘‘bioengineered,’’ that children conceived by means other than heterosex-
ual intercourse are ‘‘natural,’’ and that to call social parents ‘‘pseudo’’ par-
ents is gravely misguided.
. One of the best contemporary reflections on the relationship between the
[  ] Notes to Pages –
norms of family life and of political life is Barbara Kingsolver’s The Poi-
sonwood Bible (New York: HarperCollins, ).
. The Sperm Bank of California limits donations to ten pregnancies and
encourages donors to permit release of identifying information to an
adult conceived with their sperm if the adult requests it. Susan V. Selig-
son, ‘‘Seeds of Doubt,’’ The Atlantic Monthly , no.  (March ), –.
. An article in People magazine reflected the entry of discussion of repro-
ductive technology and new family forms into mainstream popular cul-
ture. The family of Martha Gaines and Margaret Mooney includes their
son, conceived with the sperm of a gay friend, and their daughter, con-
ceived with sperm donated by a married friend of the family. A ‘‘family
photo’’ in People included Martha and Margaret and their children,
along with the married donor, his wife and their two children. People ,
no.  (May , ), –.
. Barbara Yngvesson discusses the ways in which children available for
adoption appear as ‘‘commodities’’ even when the processes are legal and
respectful to the children as well as the adults. Barbara Yngvesson, ‘‘Un
Niño de Cualquier Color: Race and Nation in Intercountry Adoption,’’ in
Jane Jenson and Boaventura de Sousa Santos, eds., Globalizing Institu-
tions: Case Studies in Regulation and Innovation (Aldershot: Ashgate
Press, ).
. Strathern, Reproducing the Future, .
. Strathern, Reproducing the Future, .
. Strathern, Reproducing the Future, .
. Excellent discussions of the issues raised here are found in Margaret Jane
Radin, ‘‘Market Inalienability,’’ Harvard Law Review , no.  (June
): –, and Christine Overall, Ethics and Human Reproduction
and Human Reproduction.
. Donna Dickenson, Property, Women & Politics: Subjects or Objects? (New
Brunswick, N.J.: Rutgers University Press, ), .
. Daniels and Taylor, ‘‘Secrecy and Ownership in Donor Insemination,’’
; Bartha M. Knoppers and Sonia LeBris, ‘‘Recent Advances in Medi-
cally Assisted Conception: Legal, Ethical, and Social Issues,’’ American
Journal of Law and Medicine , no.  (): –, –, contains
information on most European countries.
On New Zealand, see Ken R. Daniels, ‘‘Assisted Human Reproduc-
tion in New Zealand: The Contribution of Ethics,’’ Eubios Journal of
Asian and International Bioethics  (): –. While I support every
child’s right to specific information about her or his origin, when I dis-
cussed the adoption provisions of the Indian Child Welfare Act in chap-
ter , I argued that basing membership in a group solely on the basis of
blood was unwise. New Zealand’s policy, which responded to the insis-
Notes to Page  [  ]
tence of the Maori for information about genetic heritage, challenges this
view, and further reading and thought are called for to evaluate these po-
sitions.
. George A. Annas, ‘‘Artificial Insemination: Beyond the Best Interests of
the Donor,’’ The Hastings Center Report  (), –; David J. Roy,
‘‘AID: An Overview of Ethical Issues,’’ in Human Artificial Insemination
and Semen Preservation, ed. Georges David and Wendel S. Price (New
York: Plenum Press, ), –.
. Daniels and Taylor, ‘‘Secrecy and Ownership in Donor Insemination,’’
, discuss some psychologists’ arguments against secrecy and ano-
nymity and provide a useful bibliography. Robert D. Nachtigall, ‘‘Se-
crecy: An Unresolved Issue in the Practice of Donor Insemination,’’
American Journal of Obstetrics and Gynecology , no.  (), calls for
research to redress the paucity of information we have about how ano-
nymity and secrecy affect members of families formed by gamete do-
nation.
Philosopher James Lindemann Nelson worries that ‘‘we frustrate, by
our efforts, something [children] have a right to expect’’ when we know-
ingly create a child that will not have a social relationship with one of
its genetic parents. This initial intention by the adults involved gives rise
to different ethical issues than those that arise when children lose con-
tact with a genetic parent because of divorce, death, or abandonment.
Quoted in Seligson, ‘‘Seeds of Doubt,’’ .
George Annas reiterated his early call for an end to anonymous do-
nation (see preceding note) in ‘‘The Shadowlands—Secrets, Lies, and As-
sisted Reproduction,’’ The New England Journal of Medicine , no. 
(September , ): –.
. Monica Konrad, ‘‘Ova Donation and Symbols of Substance: Some Varia-
tions on the Theme of Sex, Gender and the Partible Body,’’ Journal of the
Royal Anthropological Institute , no.  (December ): . Konrad sees
anonymity as an integral part of these narratives of assistance, although
the notion of enabling someone else to parent could, I think, endure
without the condition of anonymity.
. Mark V. Sauer, ‘‘Exploitation or a Woman’s Right?’’ British Medical Jour-
nal , no.  (May , ): . See also Kolata, ‘‘Price Soars for
Eggs,’’ New York Times, February , , p. A.
. Georges David and Jacques Lansac, ‘‘The Organization of the Centers for
the Study and Preservation of Semen in France,’’ in Human Artificial In-
semination and Semen Preservation, ed. Georges David and Wendel S.
Price (New York: Plenum Press, ), –, . See also Dominique Le
Lannou, Bernard Lobel, and Yves Chambon, ‘‘Sperm Banks and Donor
Recruitment in France,’’ and Patrick Huerre, ‘‘Psychological Aspects of
[  ] Notes to Pages –
Semen Donation,’’ in David and Price, eds., Human Artificial Insemina-
tion, –; –. Huerre reported that when donations could not
keep up with the increasing demand, causing some recipients to have to
wait a year for insemination, the centers developed a policy of asking po-
tential recipients to recruit donors (whose semen would not be given to
them, but to others).
. Ian Craft, ‘‘An ‘Inconvenience Allowance’ Would Solve the Egg Short-
age,’’ British Medical Journal , no.  (May , ): , argues in
favor of an ‘‘inconvenience allowance,’’ and Martin H. Johnson, ‘‘The
Culture of Unpaid and Voluntary Egg Donation Should be Strength-
ened,’’ British Medical Journal , no.  (May , ): , argues for
unpaid donation. See also Donna Dickenson, Property, Women & Poli-
tics: Subjects or Objects? (New Brunswick, N.J.: Rutgers University Press,
), for a discussion of the assumptions reflected in England’s laws gov-
erning gamete donation.
. Hawley Fogg-Davis, ‘‘ ‘She Works Hard for the Money?’: Addressing Em-
ployment Discrimination in Paid Egg Donation,’’ paper presented at the
Annual Meeting of the American Political Science Association, Washing-
ton, D.C., September . Fogg-Davis argues against attributing any
race to a gamete in ‘‘Navigating Race in Gamete Donation,’’ unpublished
paper presented at the Young Scholars Program, Cornell University’s
Program in Ethics and Public Life, April , .
. For example, some Jewish recipients might wish to procreate in collabo-
ration with a Jewish donor as a way of affirming the will of the Jewish
people to survive in the wake of the Holocaust, and some Native Ameri-
cans might seek donors from their tribe for similar reasons.
. Anita Allen expresses this view in ‘‘Does a Child Have a Right to a Certain
Identity,’’ in Recht, Gerechtigkeit und der Staat (Law, Justice, and the
State), ed. Mikael M. Karlsson, Ólafur Páll Jónsson, and Eyja Margrét
Brynjarsdóttir (Berlin: Duncker & Humbolt, ).
. There is also a question of whether donors should be able to choose the
recipients, or to specify characteristics (particularly race and religion) of
the recipients. Some donors may wish to contribute genetic material only
to the creation of a child who will be raised with a particular racial or reli-
gious identity; for example, the daughter of Holocaust survivors may
wish to donate eggs only to a Jewish couple. I would not prevent donors
from arranging to donate to a specific couple, or prohibit reproductive
clinics from maintaining lists of donors who would give only to people
with particular characteristics, although it is troubling to attribute racial
or religious identity to a gamete.
. Strathern, Reproducing the Future, , –. Like Strathern, political the-
Notes to Pages – [  ]
orist Michael Sandel and legal theorist Janet Dolgin have observed this
same tension between thinking about family relationships as given ‘‘by
nature’’ and family relationships as the result of choice. And both worry
that legislatures and courts in the United States have leaned too far in the
direction of accepting choice as the basis of family relationships, risking
the loss of norms of natural obligation, mutuality or reciprocity, and per-
manence. Michael Sandel, Liberalism and the Limits of Justice (Cam-
bridge: Cambridge University Press, ) and Democracy’s Discontent
(Cambridge, Mass.: Harvard University Press, ), and Janet L. Dolgin,
Defining the Family: Law, Technology, and Reproduction in an Uneasy Age
(New York: New York University Press, ).
. See John Wallach, ‘‘Liberalism, Communitarians, and the Tasks of Politi-
cal Theory,’’ Political Theory , no.  (November ): –; Milton
C. Regan, Jr., Family Law and the Pursuit of Intimacy (New York: New
York University Press, ).
. See Jennifer Nedelsky, ‘‘Reconceiving Autonomy: Sources, Thoughts and
Possibilities,’’ Yale Journal of Law and Feminism , no . (): –, and
‘‘Law, Boundaries, and the Bounded Self,’’ Representations  (): –
. See Ronald Dworkin’s argument for moral autonomy in Life’s Do-
minion: An Argument about Abortion, Euthanasia, and Individual Free-
dom (New York: Knopf, ). On liberal visions that abjure highly
individualistic understandings of the person, see Nancy L. Rosenblum,
Another Liberalism (Cambridge: Harvard University Press, ), and
Nancy L. Rosenblum, ed., Liberalism and the Moral Life (Cambridge:
Harvard University Press, ).
. There might be exceptions to this general rule if revealing information
might put someone else’s safety in jeopardy.

4. ‘‘Surrogate’’ Motherhood
. The depiction of events that follows is drawn from the court cases: In re
Baby ‘‘M,’’  N.J. Super. ,  A.d  (Superior Court, Chancery
Division, ); reversed on appeal, In the Matter of Baby M,  A.d 
(N.J. ); and Bonnie Steinbock, ‘‘Surrogate Motherhood as Prenatal
Adoption,’’ in Surrogate Motherhood: Politics and Privacy, ed. Larry Gos-
tin (Bloomington: Indiana University Press, ), –. Excerpts
from the Supreme Court decision are found in Gostin, ed., –.
. Joan Heifetz Hollinger, ‘‘From Coitus to Commerce: Legal and Social
Consequences of Noncoital Reproduction,’’ University of Michigan Jour-
nal of Law Reform  (Summer ): –, provides an excellent dis-
cussion that compares surrogacy to gamete donation and adoption.
Christine Overall, Ethics and Human Reproduction (Boston: Allen & Un-
[  ] Notes to Pages –
win, ) and Human Reproduction: Principles, Practices, Policies (To-
ronto: Oxford University Press, ), discusses both gamete donation
and surrogacy in useful ways.
. On women’s autonomy see Lori Andrews, Between Strangers: Surrogate
Mothers, Expectant Fathers, and Brave New Babies (New York: Harper &
Row, ); Avi Katz, ‘‘Surrogate Motherhood and the Baby-Selling
Laws,’’ Columbia Journal of Law and Social Problems , no.  ();
Note, ‘‘Baby-Sitting Consideration: Surrogate Mother’s Right to ‘Rent
her Womb’ for a Fee,’’ Gonzaga Law Review  (); Carmel Shalev,
Birth Power: The Case for Surrogacy (New Haven: Yale University Press,
); Marjorie Maguire Shultz, ‘‘Reproductive Technology and Intent-
based Parenthood: An Opportunity for Gender Neutrality,’’ Wisconsin
Law Review , no.  (): –.
On commissioning parents’ ‘‘right to procreate’’ see John Lawrence
Hill, ‘‘The Case for Enforcement of the Surrogate Contract,’’ Politics and
the Life Sciences , no.  (): –; John Robertson, ‘‘Procreative
Liberty and the Control of Contraception, Pregnancy and Childbirth,’’
Virginia Law Review  (): –, ‘‘Embryos, Families and Procre-
ative Liberty: The Legal Structures of the New Reproduction,’’ Southern
California Law Review  (): –, and Children of Choice: Free-
dom and the New Reproductive Technologies (Princeton: Princeton Uni-
versity Press, ); and Shalev, Birth Power.
. See, for example, Katharine T. Bartlett, ‘‘Re-Expressing Parenthood,’’ Yale
Law Journal  (): –; Carole Pateman, The Sexual Contract
(Stanford: Stanford University Press, ), ch. ; Barbara Katz Rothman,
Recreating Motherhood: Ideology and Technology in Patriarchal Society
(New York: Norton, ); Susan M. Okin, ‘‘A Critique of Pregnancy
Contracts,’’ Politics and the Life Sciences , no.  (February ): –;
and Martha A. Field, Surrogate Motherhood: The Legal and Human Issues
(Cambridge, Mass.: Harvard University Press, ), and ‘‘The Case
against Enforcement of Surrogacy Contracts,’’ Politics and the Life Sci-
ences , no.  (February ): –.
. On the importance of taking account of social facts see H. N. Hirsch, A
Theory of Liberty: The Constitution and Minorities (New York: Rout-
ledge, ).
. See, e.g., Hoyt v. Florida  U.S.  (), which held that Florida’s auto-
matic exemption of women from jury duty because they might have de-
pendent children at home was not unconstitutionally over-broad. See
generally Deborah L. Rhode, Justice and Gender (Cambridge: Harvard
University Press, ), –.
. Marjorie Maguire Shultz, ‘‘Reproductive Technology and Intention-
Notes to Pages – [  ]
based Parenthood: An Opportunity for Gender Neutrality,’’ Wisconsin
Law Review , no.  (): –, .
. Shultz, ‘‘ReproductiveTechnology and Intention-basedParenthood,’’ .
. Shalev, Birth Power, –, .
. Avi Katz, ‘‘Surrogate Motherhood and the Baby-selling Laws,’’ Columbia
Journal of Law and Social Problems , no.  (): –, .
. Shalev, Birth Power, .
. See, e.g., Andrews, Between Strangers, –; Shalev, Birth Power, ;
and Hill, ‘‘The Case for Enforcement of the Surrogate Contract,’’ –.
In his decision in Orange County (California) Superior Court, Judge
Richard N. Parslow awarded custody to the commissioning parents and
‘‘proposed that all parties to any surrogate agreement undergo psychiat-
ric evaluation, that all agree from the start that the surrogate mother
would have no custody rights, that she have previous experience with
successful childbirth and that a surrogate be used only in cases where the
genetic mother is unable to give birth.’’ New York Times, Metropolitan
ed.,  October , p. A.
. Andrea E. Stumpf, ‘‘Redefining Motherhood: A Legal Matrix for New
Reproductive Technologies,’’ Yale Law Journal , no.  (): –,
.
. Shultz, ‘‘Reproductive Technology and Intention-based Parenthood,’’
.
. Shalev, Birth Power, .
. Quoted in Andrews, Between Strangers, , .
. Kathryn Kish Sklar, ‘‘Why Were Most Politically Active Women Opposed
to the ERA in the s?’’ in Rights of Passage: The Past and Future of the
ERA, ed. Joan Hoff-Wilson (Bloomington: Indiana University Press,
), –.
. Lucinda Finley, ‘‘Transcending Equality Theory: A Way Out of the Ma-
ternity and the Workplace Debate,’’ Columbia University Law Review 
(): –. On the Family and Medical Leave Act, which established
a right to parental leave for both men and women, see Eva Feder Kittay,
Love’s Labor (New York: Routledge, ).
. Lisa Newton, quoted in Andrews, Between Strangers, . Judge Parslow
said that Anna Johnson had served as a ‘‘home’’ for the embryo she car-
ried, ‘‘much as a foster parent stands in for a parent who is not able to care
for a child.’’ New York Times, October , , National ed., p. A.
. Shalev, Birth Power, , .
. Andrews, Between Strangers, .
. Margaret Jane Radin, ‘‘Market Inalienability,’’ Harvard Law Review ,
no.  (June ): –.
[  ] Notes to Pages –
. The debate over whether prostitution should be decriminalized finds
feminists on both sides of the issue, sometimes for reasons akin to those
which divide them with respect to contract pregnancy. See discussions in
Alison Jaggar, ‘‘Prostitution,’’ in The Philosophy of Sex: Contemporary
Readings, ed. A. Soble (Totowa, N.J.: Rowman & Littlefield, ).
. Sharyn L. Roach Anleu, ‘‘Reinforcing Gender Norms: Commercial and
Altruistic Surrogacy,’’ Acta Sociologica  (): –, and Janice G.
Raymond, ‘‘Reproductive Gifts and Gift Giving: The Altruistic Woman,’’
Hastings Center Report (Nov./Dec. ): –, both criticize gift surro-
gacy on the ground that it reinforces gender stereotypes of women as al-
truistic conduits for fulfilling others’ needs. Anleu, but not Raymond,
would allow commercial surrogacy. Uma Narayan, ‘‘Rethinking Parental
Claims in the Light of Surrogacy and Custody,’’ in Having and Raising
Children: Unconventional Families, Hard Choices, and the Social Good,
ed. Uma Narayan and Julia J. Bartkowiak (University Park: Pennsylvania
State University Press, ) would allow both gift and commercial sur-
rogacy but would not enforce pregnancy contracts.
. A few writers propose legalizing commissioned adoption or creating a
market in babies, but they are in a minority, and they arrived at their
views from considering issues other than contract pregnancy. Richard
Posner declares that the objections to the sale of babies for adoption are
unpersuasive. Even the poor might do better in a free baby market than
under present adoption law because people who did not meet adoption
agencies’ requirements might, ‘‘in a free market with low prices, be able
to adopt children, just as poor people are able to buy color television
sets.’’ Economic Analysis of Law, d ed. (Boston: Little Brown, ), –
. See also Elizabeth Landes and Richard A. Posner, ‘‘The Economics of
the Baby Shortage,’’ Journal of Legal Studies  (): ; but see Posner,
‘‘Mischaracterized Views,’’ letter, Judicature , no.  (Nov./Dec. ):
, where he says he ‘‘did not advocate a free market in babies.’’ Cited in
Margaret Jane Radin, ‘‘Market Inalienability,’’ Harvard Law Review ,
no.  (June ): , .
. Radin, ‘‘Market Inalienability,’’ .
. New York Times, August , , Metropolitan ed., p. A.
. Heléna Ragoné, ‘‘Of Likeness and Difference: How Race Is Being Trans-
figured by Gestational Surrogacy,’’ in Ideologies and Technologies of
Motherhood: Race, Class, Sexuality, Nationalism, ed. Heléna Ragoné and
France Winddance Twine (New York and London: Routledge, ), –
, .
. New York Times, October , , National ed., p. A. Judge Parslow
makes a false distinction between gestational mothers who have a genetic
relationship to the fetus they bear and those who do not. The absence of
Notes to Pages – [  ]
a genetic relationship should make no more legal difference to a gesta-
tional mother’s custodial rights than it does to her experience of preg-
nancy. A gestational mother undergoes all the extensive hormonal and
physiological changes of pregnancy, and her social experience as a preg-
nant woman will be the same whether she has a genetic tie to the fetus or
not. From her perspective, the distinction between ‘‘full surrogacy’’ (in
which she donates an ovum) and ‘‘partial surrogacy’’ (in which she bears
no genetic relationship to the fetus) may very well be slight or immate-
rial.
. Iris Marion Young, ‘‘Pregnant Embodiment: Subjectivity and Alien-
ation,’’ in ‘‘Throwing Like a Girl’’ and Other Essays in Feminist Philoso-
phy and Social Theory (Bloomington: Indiana University Press, ),
.
. Gwendolyn Brooks, ‘‘The Mother,’’ Norton Anthology of American Litera-
ture, d ed., vol.  (New York: Norton, ), .
. Barbara Johnson, A World of Difference (Baltimore: Johns Hopkins Uni-
versity Press, ), .
. Adrienne Rich, Of Woman Born: Motherhood as Experience and as Insti-
tution (New York: Norton; Bantam ed., ), .
. Young, ‘‘Throwing Like a Girl,’’ .
. Carole Pateman, The Sexual Contract (Stanford: University of California
Press, ), .
. Elizabeth Anderson, ‘‘Is Women’s Labor a Commodity?’’ Philosophy and
Public Affairs : –, , , , . In recommending the prohibition
of payment under any circumstances, Anderson assumes the existence
and desirability of mother-fetus bonding; I do not assume that such a
bond always develops. When a gestational mother does experience a
strong tie with the child she is carrying, however, law and social practice
should recognize and protect that bond.
. Ragoné, ‘‘Of Likeness and Difference,’’ .
. Both studies are reported in Mary Briody Mahowald, Genes, Women,
Equality (New York: Oxford University Press, ), –. The origi-
nal publications were J. G. Thornton, H. M. McNamara, and I. A. Man-
tague, ‘‘Would You Rather Be a ‘Birth’ or a ‘Genetic’ Mother? If So, How
Much?’’ Journal of Medical Ethics  (): , and Amy J. Ravin, Mary
B. Mahowald, and Carol B. Stocking, ‘‘Genes or Gestation? Attitudes of
Women and Men about Biologic Ties to Children,’’ Journal of Women’s
Health , no.  (): –.
.  Cal. th ;  Pd  () at .
. Narayan, ‘‘Rethinking Parental Claims in the Light of Surrogacy and
Custody,’’ in Having and Raising Children, –, similarly advocates a
custody hearing in such cases.
[  ] Notes to Pages –
. Shultz, ‘‘Reproductive Technology and Intention-based Parenthood,’’
–, .
. Shultz, ‘‘Reproductive Technology and Intention-based Parenthood,’’ .
. Even if one accepts my argument that a woman’s contract to relinquish
all custodial claims should not be enforced against her will, the question
of how to deal with the custodial claims of the commissioning parent(s)
is enormously difficult. One could argue that these claims should be ad-
judicated on a case-by-case basis, but that would not serve the goal of sta-
bilizing the child’s situation as quickly as possible, nor would it give more
weight to an actual physical relationship and nurturance than to inten-
tionality alone. Yet the claims of the commissioning parents are real and
certainly stronger than those of a biological father who ‘‘unintention-
ally’’ becomes a parent through unprotected intercourse (and who can
claim paternal rights and responsibilities in many jurisdictions). Society
might do well to develop forms of acknowledging the existence of ‘‘inten-
tional’’ and biological, as well as nurturing, custodial parents.
On the need to avoid disruption in a family see Karen Czapanskiy,
‘‘Interdependencies, Families, and Children, Santa Clara Law Review 
(): –.
. Robert D. Goldstein, Mother-love and Abortion: A Legal Interpretation
(Berkeley: University of California Press, ). I do not believe all
women experience ‘‘mother-love’’ during pregnancy, and I disagree
strongly with Goldstein’s assumption that ‘‘mother-love’’ must continue
to privilege a mother’s relationship to her child over the father’s after
birth.
. Ferdinand Schoeman. ‘‘Rights of Children, Rights of Parents, and the
Moral Basis of the Family,’’ Ethics , no.  (), .
. Goldstein, Mother-love and Abortion, , , x.
. Kenneth Karst, ‘‘The Freedom of Intimate Association,’’ Yale Law Journal
, no.  (): –.
. When the intended parents are both males, of course, one contributes
sperm and neither carries the fetus.
. Joan Hollinger argues that imposed visitation rights for the noncustodial
genetic parent may be sufficiently disruptive to the child that the law
should hold that pregnancy contracts are enforceable, and that a surro-
gate who changes her mind has no ground on which to claim visitation.
I share Hollinger’s concern that the child not bear the burden of adults’
mistakes. In order to recognize the multiplicity of significant relation-
ships involved, I propose a hearing in cases where a surrogate and the in-
tentional parents disagree about custody. A court might deny visitation
to a blameless genetic parent on the ground that doing so is best for the
child. I would not regard it as an undesirable consequence if these proce-
Notes to Pages – [  ]
dures discouraged surrogacy. Hollinger, ‘‘From Coitus to Commerce,’’
–.
. Dorothy E. Roberts, ‘‘The Genetic Tie,’’ University of Chicago Law Review
 (): –, –, gives several examples of courts denying cus-
tody claims to parents who had different racial features than their child.
Maureen T. Reddy, Crossing the Color Line: Race, Parenting and Culture
(New Brunswick: Rutgers University Press, ), recounts her experi-
ence as a white mother of a biracial child who is regarded by society as
black.
. Anna Johnson, who sometimes described herself as ‘‘African-American’’
and sometimes as mixed black-white (the media referred to her as a black
woman), was impregnated with a pre-embryo created by in vitro fertil-
ization from Mark Calvert’s sperm and Crispina Calvert’s egg. Crispina,
age thirty-four, had lost her uterus to cancer but still had functioning
ovaries. When she was seven and a half months pregnant, Anna Johnson
filed a lawsuit asking for custody on the grounds that the Calverts had ne-
glected her during the pregnancy and failed to make payments, and that
she had developed a bond with the fetus. She told reporters that she
hoped at least to get joint custody and visitation rights. Anita L. Allen,
‘‘The Black Surrogate Mother,’’ Harvard Blackletter Journal  (): –
,  note .
. Jeremy Rifkin and Andrew Kimbrell, ‘‘Put a Stop to Surrogate Parenting
Now,’’ USA Today, August , , p. A, quoted in Allen, ‘‘The Black
Surrogate Mother,’’ .

5. Lesbian Co-Mothers, Sperm Donors, and Fathers

. In the matter of Alison D. v. Virginia M.,  N.Y.d ,  N. E.d , 
N.Y.S.d  ().
. In the Matter of a Proceeding for Paternity Under Article  of the Family
Court Act Thomas S. v. Robin Y.,  Misc. d ,  N.Y.S. d  (April
, ); In re Thomas S. v. Robin Y., Supreme Court, Appellate Division,
 A.D. d ,  N.Y.S. d  (November , ); Matter of Thomas
S. v. Robin Y., Court of Appeals of New York,  N.Y. d ,  N. E. d
,  N.Y.S. d  (July , ).
. Alison D. v. Virginia M., at . For an account of a nonbiological co-
mother’s commitment to remaining a parent to her daughter after she
and the biological co-mother separated, see Toni Tortorilla, ‘‘On a Cre-
ative Edge,’’ in Politics of the Heart: A Lesbian Parenting Anthology, ed.
Sandra Pollack and Jeanne Vaughn (Ithaca, N.Y.: Firebrand Books, ),
–.
. Oregon Rev. Statutes §. [] (, amended ) (), quoted in
Alison D. v. Virginia M., at .
[  ] Notes to Pages –
. Alison D. v. Virginia M., at .
. Jane Levine, David Chambers, and Martha Minow, Brief for Amici Cu-
riae, Eleven Concerned Academics, Court of Appeals, State of New York,
Index No. – (), p. .
. Thomas S. v. Robin Y.,  N.Y.S. d  (Family Court, ).
. Thomas S. v. Robin Y.,  N.Y.S. d  (Appellate Division, ), 
and .
. Thomas S. v. Robin Y.,  N.Y.S. d  (Court of Appeals, ).
. John A. Robertson, Children of Choice: Freedom and the New Reproduc-
tive Technologies (Princeton: Princeton University Press, ), –.
This proprietary view informs Robertson’s understanding of a number
of issues that arise from new reproductive technologies. For example, he
argues that posthumous procreation with frozen sperm, with the off-
spring having rights of inheritance from the sperm donor, is acceptable if
it was clearly the intent of the deceased that someone should use his ge-
netic material for this purpose. He also holds that a person may prohibit
the use of his or her genetic material in procreation; he views the right not
to procreate as a corollary of the right to procreate.
Robertson’s emphasis on an individual’s relationship to his or her ge-
netic material leads him to conflate the work of social reproduction
(which involves the rearing of a child over many years) and biological
procreation (which brings together sperm and egg): ‘‘In a sense, repro-
duction is always genetic. . . . Thus, a woman who has provided the egg
that is carried by another has reproduced, even if she has not gestated and
does not rear resulting offspring’’ (Children of Choice, ). I would say
that she has donated materials used in procreation, not that she has‘‘re-
produced.’’ Barbara Katz Rothman discusses this distinction between
procreative and reproductive activity in Recreating Motherhood: Ideology
and Technology in a Patriarchal Society (New York: Norton, ).
. Brief for Petitioner-Appellant, at , quoted in Fred A. Bernstein, ‘‘This
Child Does Have Two Mothers . . . and a Sperm Donor with Visitation,’’
New York University Review of Law and Social Change  (): –, .
. The issue, said the court, was whether it could ‘‘cut off the parental rights
of a . . . biological father’’ without complying with due process proce-
dures of New York’s Social Services Law; Thomas S. v. Robin Y.,  N.Y.S.
d, at , citing N.Y. Social Service Law, sec. .
. Marjorie Maguire Shultz, ‘‘Reproductive Technology and Intention-
based Parenthood: An Opportunity for Gender Neutrality,’’ Wisconsin
Law Review , no.  (): –, , –.
. Robertson, Children of Choice, , .
. Robertson, Children of Choice, .
. Robertson, Children of Choice, .
Notes to Pages – [  ]
. Martha Albertson Fineman, The Illusion of Equality (Chicago: University
of Chicago Press, ); Katharine Bartlett, ‘‘Re-Expressing Parenthood,’’
Yale Law Journal  ():  and ‘‘Rethinking Parenthood as an Exclu-
sive Status: The Need for Legal Alternatives when the Premise of the Nu-
clear Family Has Failed,’’ Virginia Law Review  (): .
. Alison D. v. Virginia M., Judge Kaye dissenting, at .
. Bartlett, ‘‘Rethinking Parenthood as an Exclusive Status,’’ –.
. Nancy Polikoff, ‘‘This Child Does Have Two Mothers: Redefining Parent-
hood to Meet the Needs of Children in Lesbian-Mother and Other Non-
traditional Families,’’ Georgetown Law Journal  (): .
. Polikoff, ‘‘This Child Does Have Two Mothers,’’ . Massachusetts re-
cently adopted a ‘‘de facto parent’’ rule in a case involving a visitation
claim by a former partner in a same-sex couple, basically reflecting the
‘‘functional’’ approach to parental rights. E.N.O. v. L.M.M.,  Mass.
,  N. E. d  (Mass. ). Thanks to Milton C. Regan, Jr., for
this reference.
. Bernstein, ‘‘This Child Does Have Two Mothers . . . and a Sperm Do-
nor,’’ .
. Thomas S. v. Robin Y.,  N.Y.S. d  (Appellate Division, ), .
. Bernstein, ‘‘This Child Does Have Two Mothers . . . and a Sperm Donor’’;
Brad Sears, ‘‘Winning Arguments/Losing Themselves: The (Dys)func-
tional Approach in Thomas S. v. Robin Y., Harvard Civil Rights-Civil Lib-
erties Law Review  (): –; Kate Harrison, ‘‘Fresh or Frozen:
Lesbian Mothers, Sperm Donors, and Limited Fathers,’’ in Mothers in
Law: Feminist Theory and the Legal Regulation of Motherhood, ed. Martha
A. Fineman and Isabel Karpin (New York: Columbia University Press),
.
. Alison D. v. Virginia M., Judge Kaye dissenting, at , quoting Matter of
Bennett v. Jeffreys,  NYd , .
. Alison D. v. Virginia M., Judge Kaye dissenting.
. Thomas S. v. Robin Y.,  N.Y.S. d  (Appellate Division, ), ,
.
. Thomas S. v. Robin Y.,  N.Y.S. d  (Appellate Division, ), .
. Barbara Bennett Woodhouse, ‘‘Hatching the Egg: A Child-centered Per-
spective on Parents’ Rights,’’ Cardozo Law Review  (May ): ,
–.
. Woodhouse, ‘‘Hatching the Egg,’’ .
. Woodhouse, ‘‘Hatching the Egg,’’ .
. Harrison, ‘‘Fresh or Frozen,’’ .
. Woodhouse, ‘‘Hatching the Egg,’’ .
. See, for example, Philip Gambone, ‘‘The Kid I Already Have: On Consid-
ering Fathering a Child with a Lesbian,’’ in Sister and Brother: Lesbians
[  ] Notes to Pages –
and Gay Men Write About Their Lives Together, ed. Joan Nestle and John
Preston (New York: HarperSanFrancisco, ), –; see also Kate
Hill, ‘‘Mothers by Insemination: Interviews,’’ Sandra Pollack, ‘‘Two
Moms, Two Kids: An Interview,’’ and Carolyn Kott Washburne, ‘‘Happy
Birthday from Your Other Mom,’’ all in Politics of the Heart: A Lesbian
Parenting Anthology, ed. Sandra Pollack and Jeanne Vaughn (Ithaca, N.Y.:
Firebrand Books, ), –, –, and –, respectively.
. See, for example, the difficult issues raised by the dispute in Troxel v.
Granville,  S. Ct.  ().
. Bartlett, ‘‘Rethinking Parenthood as an Exclusive Status’’; Bernstein,
‘‘This Child Does Have Two Mothers . . . and a Sperm Donor’’; Sears,
‘‘Winning Arguments/Losing Themselves’’; Harrison, ‘‘Fresh or Frozen.’’
. Harrison, ‘‘Fresh or Frozen,’’ .
. Harrison, ‘‘Fresh or Frozen,’’ , .
. Harrison, ‘‘Fresh or Frozen,’’ , .
. Katharine Bartlett, Brad Sears, and Fred Bernstein all argue that a child’s
interest in maintaining relationships with important adults justifies cre-
ating nonexclusive parenting status or visitation rights for ‘‘limited’’ par-
ents. The majority on the Court of Appeals that granted Thomas’s right
to petition for an order of filiation made it clear that at most Thomas had
a claim to visitation, not custody; they might have preferred to declare
Thomas a limited parent rather than Ry’s legal ‘‘father,’’ had such a cate-
gory existed.
. Harrison, ‘‘Fresh or Frozen,’’ .
. One of the most thoughtful writers on the tension between the child’s
need to maintain relationships and to have parents whose authority may
properly be exercised to exclude other adults is Karen Czapanskiy, ‘‘Inter-
dependencies, Families, and Children,’’ Santa Clara Law Review 
(): –, and ‘‘Child Support and Visitation: Rethinking the
Connections,’’ Rutgers Law Journal  (Spring ): –.
. Woodhouse, ‘‘Hatching the Egg,’’ .
. Martha Gaines, personal communication, October , .

Epilogue
. Naomi Cahn, ‘‘The Moral Complexities of Family Law,’’ Stanford Law
Review  (November ): –, . Hendrik Hartog noted this
clash in various debates in constitutional law: ‘‘Either family rights be-
came the individualistic, libertarian rights of individuals within a family,
or they were equated with the property rights of a patriarchal head of
household.’’ Hendrik Hartog, ‘‘The Constitution of Aspiration and ‘the
Rights that Belong to Us All,’ ’’ The Journal of American History , no. 
Notes to Pages – [  ]
(December ): . On the tension between individual and family see
also Jean Bethke Elshtain, ‘‘The New Eugenics and Feminist Questions,’’
in Politics and the Human Body, ed. Jean Bethke Elshtain and Timothy J.
Cloyd (Nashville: Vanderbilt University Press, ).
. See, for example, Virginia Held, Feminist Morality: Transforming Culture,
Society, and Politics (Chicago: University of Chicago Press, ), and
Joan Tronto, Moral Boundaries: A Political Argument for an Ethic of Care
(New York: Routledge, ).
. Nancy Hirschmann, Rethinking Obligation: A Feminist Method for Politi-
cal Theory (Ithaca: Cornell University Press, ).
. John Stuart Mill, The Subjection of Women [], ed. Susan Moller Okin
(Indianapolis: Hackett, ).
. A Call to Civil Society: Why Democracy Needs Moral Truth (New York: In-
stitute for American Values, ), signed by many prominent academ-
ics, public intellectuals, community activists, and government officials:
Enola Aird, John Atlas, David Blankenhorn, Don Browning, Senator Dan
Coats, John DiIulio, Jr., Don Eberly, Jean Bethke Elshtain (chair), Francis
Fukuyama, William Galston, Clair Gaudiani, Robert George, Mary Ann
Glendon, Ray Hammond, Sylvia Ann Hewlett, Thomas Kohler, Senator
Joseph Lieberman, Glenn Loury, Richard Mouw, Margaret Steinfels,
Cornel West, Roger Williams, James Q. Wilson, Daniel Yankelovich.
. Anita Garey, Weaving Work and Motherhood (Philadelphia: Temple Uni-
versity Press, ).
. Hannah Arendt eloquently praises the value of leading a public life in
The Human Condition (Chicago: University of Chicago Press, ).
. Milton C. Regan, Jr., Alone Together: Law and the Meanings of Marriage
(New York: Oxford University Press, ), . See also Annete C. Baier,
‘‘The Need for More than Justice,’’ in Science, Morality & Feminist Theory,
ed. Marsha Hanen and Kai Nielsen (), : ‘‘[Individuality] is not
something a person has, and which she then chooses relationships to suit,
but something that develops out of a series of dependencies and interde-
pendencies, and responses to them.’’
. Regan, Jr., Alone Together, .
. On the obligations of care, and on the need to think of the provision of
care as a public responsibility, see Tronto, Moral Boundaries; Mona Har-
rington, Care and Equality (New York: Knopf, ); Eva Feder Kittay,
Love’s Labor (New York: Routledge, ). On care for the disabled, and
the new issues concerning people with disabilities created by reproduc-
tive technologies, see Adrienne Asch and Michelle Fine, ‘‘Shared Dreams:
A Left Perspective on Disability Rights and Reproductive Rights,’’ Radical
America , no.  (): –, and other works by them.
[  ] Notes to Pages –
. William Julius Wilson, The Truly Disadvantaged: The Inner City, the Un-
derclass, and Public Policy (Chicago: University of Chicago Press, ).
. On the obligation of society and government to provide care see Robert
Goodin, Protecting the Vulnerable: A Reanalysis of Our Social Responsibil-
ities (Chicago: University of Chicago Press, ).
 Selected Bibliography

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Asch, Adrienne, and Michelle Fine, eds. Women with Disabilities: Essays in Psy-
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Banks, R. Richard. ‘‘The Color of Desire: Fulfilling Adoptive Parents’ Racial Pref-
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Baran, A., and R. Pannor. ‘‘Open Adoption.’’ In The Psychology of Adoption. Ed-
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Bartholet, Elizabeth. ‘‘Where Do Black Children Belong? The Politics of Race
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–.
[  ] Selected Bibliography
———. Family Bonds: Adoption and the Politics of Parenting. Boston: Houghton
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Bernstein, Fred. ‘‘This Child Does Have Two Mothers . . . and a Sperm Donor
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David, Georges, and Wendel S. Price, eds. Human Artificial Insemination and Se-
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Selected Bibliography [  ]
Davis, Peggy Cooper. Neglected Stories: The Constitution and Family Values. New
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Brunswick, N.J.: Rutgers University Press, .
Dolgin, Janet L. Defining the Family: Law, Technology, and Reproduction in an Un-
easy Age. New York: New York University Press, .
Dowd, Nancy E. Redefining Fatherhood. New York: New York University Press,
.
Elshtain, Jean Bethke, ed. The Family in Political Thought. Amherst: University of
Massachusetts Press, .
——— and Timothy J. Cloyd, eds. Politics and the Human Body. Nashville: Van-
derbilt University Press, .
Erickson, Nancy S.‘‘The Feminist Dilemma Over Unwed Parents’ Custody Rights:
The Mother’s Rights Must Take Priority.’’ Journal of Law and Inequality 
(): –.
Etzioni, Amitai, ed. New Communitarian Thinking: Persons, Virtues, Institutions
and Communities. Charlottesville: University Press of Virginia, .
Field, Martha A. Surrogate Motherhood: The Legal and Human Issues. Cambridge,
Mass.: Harvard University Press, .
Fineman, Martha Albertson. The Illusion of Equality: The Rhetoric and Reality of
Divorce Reform. Chicago: University of Chicago Press, .
——— and Isabel Karpin, eds. Mothers in Law: Feminist Theory and the Legal
Regulation of Motherhood. New York: Columbia University Press, .
Fogg-Davis, Hawley. The Ethics of Transracial Adoption. Ithaca: Cornell Univer-
sity Press, in press.
Galston, William. Liberal Purposes: Goods, Virtues and Diversity in the Liberal
State. Cambridge: Cambridge University Press, .
Glendon, Mary Ann. Rights Talk. New York: Basic Books, .
Goldsmith, Donna. ‘‘Individual vs. Collective Rights: The Indian Child Welfare
Act.’’ Harvard Women’s Law Journal  ().
Goldstein, Leslie Friedman, ed. Feminist Jurisprudence. Lanham, Md: Rowman &
Littlefield, .
Goldstein, Robert D. Mother-love and Abortion: A Legal Interpretation. Berkeley:
University of California Press, .
Goodin, Robert. Protecting the Vulnerable: A Reanalysis of Our Social Responsibili-
ties. Chicago: University of Chicago Press, .
Gostin, Larry, ed. Surrogate Motherhood: Politics and Privacy. Bloomington: Indi-
ana University Press, .
Grossberg, Michael. Governing the Hearth: Law and the Family in Nineteenth-
Century America. Chapel Hill: University of North Carolina Press, .
Hanigsberg, Julia E., and Sara Ruddick, eds. Mother Troubles: Rethinking Contem-
porary Maternal Dilemmas. Boston: Beacon Press, .
[  ] Selected Bibliography
Harrington, Mona. Care and Equality. New York: Knopf, .
Harrison, Kate. ‘‘Fresh or Frozen: Lesbian Mothers, Sperm Donors, and Limited
Fathers.’’ In Mothers in Law: Feminist Theory and the Legal Regulation of
Motherhood. Edited by Martha A. Fineman and Isabel Karpin. New York: Co-
lumbia University Press, .
Hartog, Hendrik. Man and Wife in America: A History. Cambridge: Harvard Uni-
versity Press, .
Hearst, Alice. ‘‘Domesticating Reason: Children, Families, and Good Citizen-
ship.’’ In Governing Childhood. Edited by A. McGillivray. Aldershot: Dart-
mouth Publishing, .
———. ‘‘The Indian Child Welfare Act.’’ Unpublished paper, Smith College,
Northampton, Mass. ().
Held, Virginia. Feminist Morality: Transforming Culture, Society, and Politics. Chi-
cago: University of Chicago Press, .
Hill, John Lawrence. ‘‘The Case for Enforcement of the Surrogate Contract.’’ Poli-
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Hirschmann, Nancy. Rethinking Obligation: A Feminist Method for Political The-
ory. Ithaca: Cornell University Press, .
Hollinger, Joan Heifetz, ed. Adoption Law and Practice. New York: Matthew
Bender, , Suppl. .
———. ‘‘Adoption and Aspiration: The Uniform Adoption Act, the DeBoer-
Schmidt Case, and the American Quest for the Ideal Family.’’ Duke Journal of
Gender and Law Policy  (): –.
———. ‘‘From Coitus to Commerce: Legal and Social Consequences of Nonco-
ital Reproduction.’’ University of Michigan Journal of Law Reform  (Summer
): –.
Howe, Ruth-Arlene. ‘‘Transracial Adoption (TRA): Old Prejudices and Discrimi-
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no.  (Winter ): –.
———. ‘‘Adoption Practice, Issues, and Laws, –.’’ Family Law Quarterly
 ().
Indian Child Welfare Act: Hearings on S.  Before the Senate Select Committee on
Indian Affairs, th Cong., st Sess. (); Indian Child Welfare Program:
Hearings Before the Senate Committee on Interior and Insular Affairs, rd
Cong., nd Sess. ().
Karst, Kenneth. . ‘‘The Freedom of Intimate Association.’’ Yale Law Journal
, no.  (March): –.
Kennedy, Randall. ‘‘Orphans of Separatism: The Painful Politics of Transracial
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———. ‘‘How Are We Doing with Loving?: Race, Law, and Intermarriage,’’ Boston
University Law Review  (October ): –.
Kittay, Eva Feder. Love’s Labor. New York: Routledge, .
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Knoppers, Bartha M., and Sonia Lebris. ‘‘Recent Advances in Medically Assisted
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Lifton, Betty Jean. Journey of the Adopted Self: A Quest for Wholeness. New York:
Basic Books, .
Macedo, Stephen, and Iris Marion Young. NOMOS XLIV: Child, Family, and
State. New York: New York University Press, in press.
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Press, .
Martin, Emily. The Woman in the Body: A Cultural Analysis of Reproduction. Bos-
ton: Beacon Press, .
Michie, Helena, and Naomi Cahn. Confinements: Fertility and Infertility in Con-
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Minow, Martha. ‘‘ ‘Forming under Everything that Grows’: Toward a History of
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———. Not Only for Myself: Identity, Politics, and the Law. New York: The New
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——— and Mary Lyndon Shanley. ‘‘Relational Rights and Responsibilities: Revi-
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): –.
Narayan, Uma, and Julia J. Bartkowiak, eds. Having and Raising Children: Uncon-
ventional Families, Hard Choices, and the Social Good. University Park: Penn-
sylvania State University Press, .
Nedelsky, Jennifer. ‘‘Law, Boundaries, and the Bounded Self.’’ Representations 
(): –.
Okin, Susan Moller. Justice, Gender, and the Family. New York: Basic Books, .
Overall, Christine. Ethics and Human Reproduction. Boston: Allen & Unwin, .
———. Human Reproduction: Principles, Practices, Policies. Toronto: Oxford
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Pateman, Carole. The Sexual Contract. Stanford: Stanford University Press, .
Perry, Twila L. ‘‘The Transracial Adoption Controversy: An Analysis of Discourse
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———. ‘‘Transracial and International Adoption: Mothers, Hierarchy, Race, and
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Pertman, Adam. Adoption Nation: How the Adoption Revolution Is Transforming
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Polikoff, Nancy. ‘‘This Child Does Have Two Mothers: Redefining Parenthood to
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[  ] Selected Bibliography
Raymond, Janice G. ‘‘Reproductive Gifts and Gift Giving: The Altruistic
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Rothman, Barbara Katz. Recreating Motherhood: Ideology and Technology in a Pa-
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Schneider, David M. American Kinship: A Cultural Account. Chicago: University
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Shalev, Carmel. Birth Power: The Case for Surrogacy. New Haven: Yale University
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Shanley, Mary Lyndon. Feminism, Marriage and the Law in Victorian England.
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Solinger, Rickie. Wake Up Little Susie: Single Pregnancy and Race Before Roe v.
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Zainaldin, Jamil S. ‘‘The Emergence of a Modern American Family Law: Child
Custody, Adoption, and the Courts, –.’’ Northwestern University Law
Review  (): –.
 Acknowledgments

M any friends and colleagues have helped me with their knowl-

edge of the issues I discuss in this book. Some shared their aca-
demic or professional expertise, others shared their experiences of one
or another aspect of family life with great openness and generosity.
Many did both. To all of them I am deeply grateful.
Two people have encouraged and sustained this work throughout
its long journey from my first ruminations on ethics and family policy
to publication. Mona Harrington discussed this book with me at
every step of the way. She read the entire manuscript several times,
first in pieces as articles and convention papers, then in its entirety as
a book. There could be no better intellectual companion. At one point
when I nearly abandoned the project due to family illness she refused
to hear of it. That the book exists at all is due to her unflagging confi-
dence and encouragement, her incisive intellect, and her concrete edi-
torial help. Nearly a decade ago over lunch Martha Minow helped me
outline a book on ‘‘the contractual family’’ that I never wrote, but
whose ideas led to the present volume. We subsequently coauthored
an article that developed some of the ideas about individualism and
family relationship that are found here. Most of all, Martha repeatedly
Acknowledgments [  ]
assured me that I did not need a law degree in order to write about law,
while graciously explaining legal points that I didn’t understand.
Naomi Cahn, Fred Chromey, Ann Congleton, Hendrik Hartog,
Joan Hollinger, Milton C. Regan, Jr., Jill Schneiderman, Vicky Spel-
man and Patricia Wallace read and gave me detailed comments on
large portions of the manuscript, a labor for which I am deeply
grateful.
Martha Ackelsberg, Prema Agrawal, Anita Allen, Elizabeth Ben-
nett, Joan Callahan, Diane Churchill, Graciela Di Marco, Stephen Ell-
mann, Nancy Erickson, Hawley Fogg-Davis, Leslie Goldstein, Sarah
Barringer Gordon, Luke Harris, Alice Hearst, Virginia Held, Morris
Kaplan, Mary Fainsod Katzenstein, Walter Keady, Steve Macedo, Nan
Bauer Maglin, Arthur Martin, Kate Meyer, Uma Narayan, Susan
Okin, Carole Pateman, Joan Posner, Dorothy Roberts, Carol Sanger,
Arlene Saxonhouse, Beatriz Schmukler, Joseph Singer, Janet Farrell
Smith, Karen Stolley, Joan Tronto, John Wallach, and Barbara Yngves-
son commented on parts of the book, and I am deeply grateful to each
of them. Diane Blair, who died just before I completed this book, sus-
tained my work with her conviction that ideas do matter in political
life, her generosity of spirit, and her irrepressible wit.
Vassar College has provided a community of scholars and friends
which I value immeasurably. Space does not permit me to mention all
who have enriched my life and thought, but among them are Elizabeth
Arlyck, Ralph Arlyck, Miriam Cohen, Elizabeth Daniels, Janet Gray,
Michael Hanagan, Diane Harriford, Eileen Leonard, Peter Leonard,
Deborah Moore, Daniel Peck, Wilfrid Rumble, Peter Stillman, Blanca
Uribe, and Adelaide Villmoare. My colleagues in the Department of
Political Science are truly without peer, and I value greatly the friend-
ship and intellectual companionship of each of them. Librarians Lu-
cinda Dubinski, Barbara Durniak, Flora Grabowska, Kathleen Kuros-
man, Shirley Maul, and Kappa Waugh have been unfailingly generous
and helpful.
Several former Vassar students who have become friends and col-
leagues have contributed to this work through conversations and
comments on my written work. I am particularly indebted to Martha
Gaines, Kim Glickman, Matthew Kavanagh, and Rachel Simmons,
who commented on drafts of some chapters, and to Camille Carey,
[  ] Making Babies, Making Families
Sara Luther, Susan Reed, and Jodi Sandfort, who shared their insights
about families with me. My Exploring Transfer students, in the most
stimulating classes I have been privileged to teach, contributed greatly
to my understanding of the complexities of family lives. Mark Hoff-
man provided excellent assistance as I prepared the manuscript for
publication.
I enjoyed the hospitality and intellectual companionship of sev-
eral friends while working on this book. Ann Congleton and Frank
Hutchins, and Mona Harrington and Paul Gagnon often opened their
homes to me while I was doing research. Clara Bargellini and Gabriel
Cámara and their family gave richly of their friendship and thoughts
while I wrote parts of this manuscript in Tepoztlán, Mexico.
Deborah Chasman was a superb editor, whose encouragement
and excellent advice helped me first imagine the shape of this book
and later to bring the project to completion. I was very fortunate to
have the benefit of her intellect and skill, and that of her assistants,
Edna Chiang and Julie Hassel.
Irene Bastian provided much-appreciated practical help as well as
friendship.
I have been blessed in my family relationships: Sheppard Shanley
read the entire manuscript, and his constant support and love immea-
surably enrich my life. Nancy Chromey and Tina Chromey have sus-
tained me with their love and friendship not only during this project
but throughout the time we have been family to one another. Doris
and Stanley Osgood have accompanied me in every undertaking of
my life.
My husband, Fred Chromey, has helped me to live fully and think
well for thirty years; I cannot find words to express what those gifts
have meant to me. He and our children, Kate and Anthony, have
greatly deepened my understanding of and appreciation for family
life. Our life together is the source of my greatest joy and satisfaction.
I began work on this book while a Fellow at the Center for Human
Values at Princeton University, and I am grateful to Amy Gutmann,
Director of the Center, and my colleagues there, Kristen Monroe and
Daniel Batson, for their support and encouragement. I am indebted to
the members of the  Mellon Faculty Center at Vassar College who
helped me think about contract pregnancy, and to members of the
Acknowledgments [  ]
Women’s Studies Program at Smith College who invited me and Kath-
leen Sands to lead an intensive two-day faculty seminar about our
work in . A fellowship from the National Endowment for the Hu-
manities in – provided invaluable time for research.
Chapter  is a revised and expanded version of ‘‘Toward New Un-
derstandings of Adoption: Individuals and Relationships in Trans-
racial and Open Adoption,’’ delivered as the NOMOS lecture at the
Annual Meeting of the American Society for Legal and Political Phi-
losophy,  (forthcoming in NOMOS : Child, Family and State,
ed. Stephen Macedo and Iris Marion Young, New York University
Press). Portions of Chapter  originally appeared in ‘‘Fathers’ Rights,
Mothers’ Wrongs?’’ in Hypatia , no.  (Winter ): – and in
‘‘Unwed Fathers’ Rights, Adoption, and Sex Equality: Gender-
neutrality and the Perpetuation of Patriarchy,’’ Columbia Law Review
, no.  (Winter ): –. Parts of Chapter  were published in
‘‘ ‘Surrogate Motherhood’ and Women’s Freedom: A Critique of Con-
tracts for Human Reproduction,’’ Signs: Journal of Women in Culture
and Society , no.  (Spring ). I first developed some of the ideas
in Chapter  in ‘‘Lesbian Families: Dilemmas in Grounding Legal Rec-
ognition of Parenthood,’’ in Julia E. Hanigsberg and Sara Ruddick,
eds., Mother Troubles: Rethinking Contemporary Maternal Dilemmas
(Boston: Beacon Press, ), –.
I am indebted to every one of these individuals, institutions, and
publications. Needless to say, none of them bears responsibility for
any mistakes I may have made despite their best efforts to save me
from error.
 Index

abortion, ,  Adoption Anti-Discrimination Bill, 

adoptees’ rights movement, and non- adoption records, sealed: history of,
secrecy, – –, ; and ‘‘parentless’’ child,
adoption: birth fathers’ rights in,  . See also secrecy
(see also parental rights); com- adoption records, unsealed: debate
pared with gamete transfer, ; over, –; reasons for, –, 
considering birth parents’ wishes Afro-American Child Welfare Act, 
in, –; debate about transra- Alison D. v. Virginia M., , –,
cial and open, –; factors , –, , , –, 
impacting traditional assump- alternative insemination by donor
tions about, –; impact on tra- (AID), –. See also sperm
ditional family image, ; donors
nonsecrecy and open, –, – alternative insemination by husband
; ‘‘parentless’’ child construc- (AIH), 
tion, –, ; traditional policy Anderson, Elizabeth, 
and practice of, , –, ; Andrews, Lori, 
transracial, –, –. See also anonymity issue, in gamete transfer,
open adoption; transracial , , –, –, . See also
adoption secrecy
adoption agencies: developing poli- ‘‘as if ’’ families: adoptive families as,
cies to guide, ; racial policies of, –, –, –, , ; and
–; traditional role of,  gamete transfer, , 
Index [  ]
‘‘Baby Jessica’’ case, –, – mining legal parenthood, –
‘‘Baby M.’’ case, –,  , –, –, 
‘‘Baby Richard’’ case, –, , , , child’s best interest standard, , ,
– , –
Banks, Richard, ,  Child Welfare League, 
Bartholet, Elizabeth, –, ,  Civil Rights Act, Title VII of, –
Bartlett, Katharine, ,  Civil Rights movement, , , 
bastardy laws,  class hierarchies: impact of adoption
Becker, Mary, – policy on, –; and surrogate
Bergstrom, Robin,  motherhood, , 
birth mothers/birth parents: black, Clausen, Cara, , 
treatment of, –, –; chang- clean break model, of adoption, , 
ing roles of, –; considering common law, on family relation-
views of, about transracial adop- ships, –
tion, –; custodial rights of, contract-based theory, of parental
– (see also parental rights); rights, –, –
desire for secrecy, , ; early contractual pregnancy. See surrogate
treatment of, –; stigma motherhood
against, , ; white, demand for, cryopreservation, 
. See also fathers, unwed; moth-
ers, unwed Daniels, Cynthia, 
Blackmun, Justice,  DeBoer, Roberta and Dan, , –
blacks: birth mothers, treatment of, Dickenson, Donna, 
–; devaluation of parenting divorce law, , 
capabilities of, , –; opposi- divorce rate, 
tion to transracial adoption, –
, –. See also racial and eth- egg transfer, , –. See also
nic minorities gamete transfer
Blanchard, Evelyn,  equality, as family value, , , ,
Bowen, James, ,  –
Boyd, Jeffrey,  Erickson, Nancy, 
Brennan, Justice,  ethnic minorities. See racial and eth-
Brooks, Gwendolyn,  nic minorities; transracial
adoption
Caban v. Mohammed, –
California Supreme Court, –,  Family Court Advisory and Rules
Call to Civil Society, A, –,  Committee, 
Calvert, Crispina and Mark, ,  family forms: ‘‘as if ’’ family, –,
care, as family value, , , –, –, –; diversity of, , ,
– , ; impact of adoption on,
Carp, E. Wayne,  ; impact of gamete transfer on,
child-centered approach, for deter- –, –; in open adoption,
[  ] Index
–, , , ; rapid transfor- gay and lesbian families: and adop-
mation of, –; traditional cul- tion, , ; and gamete transfer,
tural view of, , –, ; values –, , . See also lesbian co-
for regulation of, – mothers
family-friendly policies, – gender inequality: and ethics of fam-
family law: adoption, –, ; cur- ily formation, –, ; in
rent dilemmas in reshaping, – family law and tradition, –, –
; divorce, ; ethical basis for, ; impact of adoption policy on,
; historical background of, –, ; impact of contract pregnancy
–, ; preference for two- on, –; and parental rights
parent families, –; values issue, , –; and stigma for
for formation of, –,  birth mothers, ; and surrogate
fathers, unwed: assessing demon- motherhood, –, –;
strated commitment of, –; and women’s movement, ; and
custody cases involving, –, workplace protections, 
–, –; ‘‘fitness’’ standard generist perspective, for determining
for, , –, ; and gender- parental rights, 
inequality issue, , –; and genetic origins: adoptees’ right to
ignorance of pregnancy, –; know, –; and gamete transfer
and recognition of genetic tie, – anonymity, –, 
, –; rights of, vs. mothers’ genetic tie: in contract pregnancy, ,
rights, –. See also parental –; and legal parenthood, –
rights; paternity; sperm donors , –, –, –
Fineman, Martha,  gestational surrogacy, –, .
Fogg-Davis, Hawley, , , – See also surrogate motherhood
functional theory, of parental rights, Goldsmith, Donna J., 
–, – Goldstein, Robert, 
group identity vs. individualism, in
Gaines, Martha, – transracial adoption, , –,
gamete transfer: advertising for, – , 
, ; anonymity issue in, , ,
–, –, ; compared with Hamilton, John, 
adoption, ; definition of, – Harrison, Kate, , –
; egg transfer, , –; ethical Heiple, Justice, –
issues involved in, –; market Hobbes, Thomas, 
pricing issue in, , –, – Howe, Ruth-Arlene, 
; and plurality of family form,
–, –; public policy Indian Child Welfare Act of 
issues for, –; regulation of, in (ICWA), –, , , , 
other countries, , –; sperm individualism vs. group identity, in
transfer, –; transforming transracial adoption, , –,
practice of, – 
Index [  ]
individual liberty: in family law, –, –. See also gay and lesbian
– families; parental rights
infertility, stigma of, , ,  liberty, as family value, –, , ,
In re Raquel Marie X., – 
Institute for American Values,  limited parent status, for sperm
intention-based theory, of parental donors, –
rights, –, – Loving v. Virginia, 
Interethnic Placement Act (IEPA), 
interracial marriage, legal and cul- Mahoney, Maureen, 
tural rules against, , , – Mahowald, Mary, 
In the Matter of Kelsey S., – market pricing, in gamete transfer, ,
in vitro fertilization (IVF), , , – , , –, –
. See also gamete transfer Marshall, Justice, 
maternal deference standard, –,
Janikova, Daniella, –, – 
Johnson, Anna, , , ,  Merritt, William, 
Johnson, Barbara,  Michael H. v. Gerald D., –, 
Johnson v. Calvert, , , – Mill, John Stuart, 
‘‘Mother, The’’ (Brooks), 
Karst, Kenneth,  mothers, unwed: as custodial parents,
Kaufmann, Judge, , ,  –; drug addicted, –;
Kaye, Judith, , ,  early treatment of, –, ;
Kennedy, Justice,  rights of, vs. fathers’ rights, –
Kennedy, Randall, , ,  , –. See also birth mothers;
Kimbrell, Andrew,  parental rights; surrogate moth-
Kirchner, Otakar, , – erhood
Konrad, Monica,  Moynihan Report, 
Multiethnic Placement Act of 
Lehr v. Robertson, ,  (MEPA), –, , 
Leighton, Neil, 
lesbian co-mothers, parental rights National Association of Black Social
of, , –; and absence of Workers, 
genetic tie, –, –, – Native Americans, and transracial
; Alison D. v. Virginia M. case, adoption, , –, , –
–; child-centered under- New York Court of Appeals, , 
standing of, –, –, ; nonsecrecy: and adoption, –; in
and functional-based theory, contract pregnancy, . See also
–, –, ; and adoption records, unsealed; open
intention-based theory, –, adoption
–, –; and limited par-
ent status for sperm donors, – O’Connor, Justice, 
; Thomas S. v. Robin Y. case, open adoption, , ; as challenge to
[  ] Index
‘‘as if ’’ family, –; and chang- ‘‘parentless’’ child, in adoption, –
ing role of birth parents, –; , 
debate about, –; development Parslow, Richard N., , , , 
of, –; impact on anonymity Pateman, Carole, 
in gamete transfer, ; as solution paternity: and bastardy laws, ; and
to custody battles,  common law, –. See also
fathers, unwed; parental rights
parental rights, ; assessing father’s Perry, Twila, , , , 
demonstrated commitment, – Personal Responsibility Act (),
; ‘‘Baby Jessica’’ and ‘‘Baby 
Richard’’ cases, –, –; Polikoff, Nancy, 
based on genetic tie, –, –, primary caregiver standard, 
–, –, –; and
child’s best interest standard, , Quilloin v. Wolcott, 
, , –, –; in contract
pregnancy,  (see also surrogate race: and gamete transfer, –, –
motherhood); and father ‘‘fit- ; impact on treatment of
ness’’ standard, , –, ; and unwed mothers, –, , –;
fathers’ ignorance of pregnancy, interracial marriage, , , –
–; fathers’ rights vs. moth- race-matching, , ; considering
ers’ rights, –; functional birth parents’ wishes regarding,
theory of, –, –; and –; in gamete transfer, –;
gender-inequality, , –, – opposition to, –; proponents
; generist theory of, ; histori- of, –
cal background of, –, –; racial and ethnic minorities: in adop-
for homosexual families, – tion/foster care system, –,
(see also lesbian co-mothers); as –; empowering birth parents
individual-in-relationship, – of, –; opposition to transra-
, ; intention-based theory of, cial adoption, , , –, –
–, ; issues involved in, . See also transracial adoption
–; limited parent status, racial identity, impact of adoption
–; maternal deference stan- on, –
dard, –, ; mother’s objec- racial inequality: and adoption, ,
tions to father’s custody, –, –, –; and surrogate
–; new model for, –; motherhood, , –, –
New York State legislature and . See also slavery
courts on, –; primary care- Radin, Margaret, , 
giver standard, ; proposed Ragoné, Heléna, 
rationales for determining, – Rehnquist, Chief Justice, 
; vs. state power, –; relationship: as family value, , , ,
Supreme Court decisions on, – –, –; as standard for
, – parental rights, –, 
Index [  ]
reproductive technologies, –, , , sperm transfer, –. See also
–. See also gamete transfer gamete transfer
Rich, Adrienne,  Stanley v. Illinois, –
Rifkin, Jeremy,  state power, vs. parental rights, –
Roberts, Dorothy, ,  Stern, William, –
Robertson, John, , –,  Stevens, Justice, 
Roe v. Wade,  stranger adoption, , 
Rothman, Barbara Katz, –, Strathern, Marilyn, , 
 Supreme Court decisions, on paren-
tal rights, –, –
Sanger, Carol, ,  surrogate motherhood, , ; as anal-
Scalia, Justice, ,  ogous to wage labor, , –,
Schmidt, Daniel, –, –,  –; ‘‘Baby M.’’ case, –;
Schneider, David, ,  considerations against, –;
Schoeman, Robert,  considering relationship of
sealed records. See adoption records, mother and fetus in, –, –
sealed , ; defenders of, –;
secrecy: and adoption, –, , , defined, –; gender, race,
; birth parents’ right to, ; in and class issues in, –, –
gamete transfer, , , –, ; gestational surrogacy, –
–, . See also adoption , ; gestational vs. genetic
records ties in, , –; impact on gen-
Serviss, Claudia,  der roles, –; issues involved
sexual relations, traditional view of, in, –; as legal binding con-
 tract, –, –; legal safe-
Shalev, Carmel, ,  guards for, ; unenforceable
Shultz, Marjorie, –, , – contracts in, –, –
, –,  Sweeney, Maureen, 
single-parent families, –; and adop-
tion, ; and gamete transfer, – Thomas S. v. Robin Y., , –,
, ,  , –, –, , , –
slavery, slave families; and informal , 
adoption in black communities, transracial adoption, , –; con-
–; lack of parental rights for, sidering birth parents’ wishes in,
. See also racial inequality –, ; debate about, –;
Smith, Janet Farrell,  and denigration of black parent-
Sorkow, Harvey R.,  ing, , –; federal legislation
sperm donors, of children of lesbian on, –; history of, –; indi-
partners, , , –, ; lim- vidualism vs. group identity in,
ited parent status for, –; , –, –; minority oppo-
parental claims of, , , . sition to, –; proponents of,
See also lesbian co-mothers –
[  ] Index
unsealed records. See adoption rec- Wilson, William Julius, 
ords, unsealed women: implications of contract
unwed mothers. See birth mothers; pregnancy for, –; married,
mothers, unwed in labor force, ; subordination
of, . See also gender inequality
Woodhouse, Barbara, –, , 
White, Justice, 
Whitehead, Mary Beth, –,  Yngvesson, Barbara, , , , 
white privilege, and transracial adop- Young, Iris, 
tion, , 
Wilentz, Chief Justice,  Zinman, Daniel, 