## 1. Why The Family is Subject to Principles of Justice




Feminists argue that the so-called private realms of family, sex and
reproduction must be part of the political realm and thus subject to
principles of justice for three distinct reasons:


1. Families are not "natural" orderings, but social
institutions backed up by laws. For example, marriage is a social
institution. Therefore, the state cannot choose not to intervene in
families: the only question is how it should intervene and on what
basis.
2. The state has a critical interest in the development of future
citizens.
3. The division of labor in traditional families constrains women's
opportunities and freedoms in the wider society.




Let us consider each of these three arguments in turn.


### 1.1 The family is a political institution




Traditional views of the family often treat it as a pre-political or
as a non-political institution. The family is viewed as
*pre-political* by those that hold that its basis lies in
certain facts of biology and psychology. The family is viewed as
*non-political* by those who hold that the circumstances of
politics -- scarcity, conflict of interests and power -- do
not obtain in the family. Both of these assumptions are problematic and
have been subject to feminist criticism.


#### 1.1.1 Why the family is not pre-political




For many traditional theorists of the family, nature itself
necessitates the division of tasks within the family. Women naturally
want to have and raise children; men by nature do not (Rousseau 1762).
There is thus a physiologically grounded basis of gender difference:
women's predominant role in childrearing and domestic labor is their
biological destiny.




Feminists have given three responses to this argument.



*Social constructivists* deny that there are any essential
differences between male and female bodies or psychologies that
explain women's position in the family (Haslanger 2000). Social
constructivists have explored the ways in which culture and society
have shaped even the most ostensibly natural differences between men
and women. They argue that many of the differences between men and
women alleged to be the source of gender inequality should instead be
viewed as the outcome of that inequality. For example, they claim
that we cannot understand sex-based differentials of height and
physical strength without considering the influence of diet, division
of labor, and physical training. Feminist historians and
anthropologists have sought to demonstrate the significant roles that
culture, religion and social class have played in shaping women's
lives (Scott 1988).



*Difference feminists* accept that there are essential
biological or psychological differences between men and women. But they
seek to challenge the normative and social implications of these
differences. Even if women are by nature more nurturing than men, or
more concerned with their relationships with others, the effects of
these differences depend on how we value them (Gilligan 1982,
Noddings 1986). If nurturing were a more valued activity, for example,
then we might arrange the work world so that women (and men) could
spend more time with their children. Or, we might pay women (and men)
for their household labor and work in raising children. Difference
feminists seek to celebrate and revalue those characteristics
traditionally associated with women. On their view, there is no
necessary problem with a sex-based division of labor, provided it is
voluntary and that male and female roles are appropriately valued. This
difference perspective is perhaps best summed up by the words of the
familiar quip: women who want to be equal with men lack ambition.




The *anti-subordination* feminist perspective aims to dislodge
questions about biological and psychological difference from the center
of debates about the family and reproduction. A narrow focus on men and
women's "difference" versus their "equality"
obscures what is at stake in treating people as equals. Even if there
are some natural differences between men and women, the crucial point is that these differences
do not justify social structures that leave women vulnerable to
poverty, unequal pay for equal work, and domestic violence.
*Whatever* the facts about women's biology or psychology, such
differences do not entail women's social subordination (MacKinnon
1989, Rhode 1989). Biology does not explain coverture -- the
eighteenth century doctrine that assigned a wife's property and rights
wholly to her husband -- contemporary divorce law, child custody
laws, or laws governing women's reproduction. Nothing in our nature
dictates the structure of work and school hours that make it extremely
difficult for *anyone* to combine work and raising children.
Even if nature is part of the causal story of gender differences, it
cannot by itself explain -- or more importantly justify -- the
extent of the social inequality between men and women.


#### 1.1.2 Why the family is not non-political




The fact that law already has permeated the family -- as in the
doctrine of coverture -- is an important insight of contemporary
feminism. Families have always been shaped by law -- by coercion,
as well as by social convention. For example, state laws in the United States
regulate who can marry, who has parental rights, who can divorce and on
what terms, and who can inherit property. Almost all countries have
laws that prevent gay couples from marrying and in many places from
adopting children; in other countries daughters cannot inherit property
at all with devastating consequences for their well-being. The family
has, in fact, always been heavily regulated by the state, often in ways
detrimental to women's equality (Fineman 1995).




Nevertheless, some political thinkers argue that law --
particularly, the assignment of rights and obligations -- are
inappropriately applied *within* the family. While families may
appropriately be regulated as a legal entity through marriage and
divorce, these thinkers argue that the day-to-day interactions of
families are based on different principles. Families are based on the
ties of love and affection, not justice. The circumstances of justice
-- conflict of interests, power, and scarcity -- do not
belong in families, at least when they are functioning properly. These
thinkers criticize the idea -- which they associate with bringing
justice into the family -- that the task of washing the dishes
should be allocated on principles of justice (Sandel 1982).




There is something to be said for an ideal of families as
associations beyond justice whose participants think from a sense of
their intertwined lives, of a common good. In Christopher Lasch's
resonant phrase, such families can be a "haven in a heartless
world". But this view of the family is limited in certain crucial
respects. First, many families, rather than based on love and consent
are based on coercion. Real families are often characterized by
disagreements, and in the extreme, by violence. In these families, the
internalization of norms of justice would be an improvement. Second,
even in loving families, women are made vulnerable by the unequal
division of labor in the family, by assumptions about child-rearing and
household responsibilities. While ideal families may go beyond justice
in their relations to their members, it is still appropriate for
*citizens* to reflect on the ways that domestic arrangements
affect social justice and family life. Most of us are simultaneously
members of families and members of a larger polity: there is no reason
why a perspective based on harmonious affection cannot coexist with a
perspective based on standards of justice (Okin 1989). Finally, given
the existence of two complementary but diverse perspectives, there is
no reason to think that citizens will seek to apply principles of
justice to dishwashing.




Justice, however, must govern families not only because real
families are far from ideal. The state also has an interest in
promoting and maintaining just families because of the effects of
families on future citizens and on women's opportunities and real
freedoms.


### 1.2 The family affects the development of future citizens




Almost every person in our society starts life in a family of some
kind. The kind of family one has influences the kind of person one
grows up to be. In families, children first encounter concepts of
right and wrong, as well as role models who shape their sense of what
it is possible for them to do and be. Families are an important school
of moral learning, but too many families teach inequality and
subordination, not principles of justice. Following Mill, feminist
scholars question how children whose first experiences of adult
interaction are unequal altruism, domination and manipulation can
learn and accept the principles of justice they need to be citizens in
a democracy committed to the equal worth of all (Okin 1989).




Plato also recognized the importance of the family for the moral
development of individuals. Families inhibit or promote children's talents and abilities. In Book V of the Republic, Socrates
discovers that when theorists of justice take into account the profound and often unfair effects
of the family on the development of children's potentials , they will be forced to
the conclusion that the family must be abolished. While few feminists
follow Plato in proposing to abolish the family, almost all see the
family as in need of reform.




Families are schools of moral learning, but they are more than that.
Parents play an extremely large role in the lives of their dependent
children. States need to regulate families to insure that all children
are educated, are inoculated against contagious diseases and have
their basic needs met. No state can be indifferent to whether or not
children grow up to be literate, functioning members of its
economy. For this reason, all societies provide some degree of publicly financed education for children. All states also depend, at least in part, on the labor of
caretaking and childrearing, work that is today overwhelmingly done by
women. Given its evident importance, why is domestic labor not given
greater public recognition? Feminists have made a strong case for
taking such care-giving within the family seriously, and for the state
to attend to the justice issues involved in care provision (Kittay
1999). Feminists have also argued that just states must provide care in
a way that ensures that all children -- boys *and* girls,
rich and poor -- have equal opportunities to grow up able to take
part in their society.


### 1.3 The family constrains or enables women's freedoms




Despite the advances prompted by the feminist movement during the last
quarter of the twentieth century, most families are based on an
unequal division of labor. Around the globe, women still do the vast
majority of domestic labor -- not only tending the house, but
also raising and caring for children. Feminist scholars have attacked
traditional approaches to the family that obscure this inequality. For
example, they have criticized the dominant economic approaches to the
family that regard the head of the household as an altruistic agent of
the interests of all the family's members (See Becker 1981 for such
an approach). They have shown that, in poor countries, when
development aid is given to male rather than female heads of
household, less of it goes to care for children (Haddad *et
al*. 1997).




Feminist economists and sociologists have also shown how women's role
in parenting constrains their ability to pursue careers and compete
for demanding jobs (Bergmann 1986, Folbre 1994). Many women
therefore remain economically dependent on their male partners, and
vulnerable to poverty in the event of divorce. In one widely cited
study, ex-husbands' standard of living was found to have risen by 42%
the year after their divorce, while ex-wives' standard of living was
reduced by 78% (Weitzman 1985). This huge discrepancy in income and
wealth results from a number of factors, including the fact that women
who have devoted themselves to raising children usually have lower job
qualifications than their husbands and less work experience.




Women's economic dependency in turn allows them to be subject to
physical, sexual or psychological abuse by their husbands or other male
partners (Gordon, 1988; Global Fund for Women Report, 1992). Women have
an asymmetric ability to exit from marriage; and this gives
husbands/male partners considerably more power and bargaining advantage
within the marriage (Sen 1989).




Defenders of the status quo often argue that if women have less
opportunity than men, this is largely due to their own choices.
Feminists have countered this claim by showing the ways that such
choices are shaped and constrained by forces that are themselves
objectionable and not freely chosen. Some feminists follow Nancy
Chodorow's argument (1978) that the fact that children's primary
nurturers are mothers leads to a sexually differentiated developmental
path for boys and girls. Girls identify with the same-sex nurturing
parent, and feel more connected to others; boys, by identifying with
the absent parent, feel themselves to be more
"individuated". Chodorow argues that mothering is thereby
reproduced across generations by a largely *unconscious*
mechanism that, in turn, perpetuates the inequality of women at home
and at work.




Chodorow's work is controversial, but it is undeniable that girls
and boys grow up facing different expectations of how they will behave.
Children receive strong cultural messages -- from parents, teachers,
peers and the media -- about sex-appropriate traits and behaviors. Girls
are supposed to be nurturing, self-sacrificing, non-aggressive and
attractive; "care" is largely seen as a feminine
characteristic. These traits traditionally contribute to women's
inequality: nurturers are not seen as good leaders. There are few women
CEOs, generals, or political leaders. Girls may also become
disadvantaged by the anticipation of marriage and child-rearing,
insofar as they are less likely than boys to invest in their human
"capital".




A second feminist response stresses the ways that women's choices in
the family interact with unjust social structures *outside* the
family, in particular, with the sex segregated division of labor in
the economy, where women still earn only about 75% of what men earn,
for comparable work. Given women's lower wages, it is rational for
families who must provide their own childcare to choose to withdraw
women from the workforce. Once women withdraw, they find themselves
falling further behind their male counterparts in skill development
and earning power. Child care is an immensely time consuming activity
and those who do it single-handedly are unlikely to be able to pursue
other goods such as education, political office or demanding
careers. The structures of work and family thus form a "cycle of
vulnerability" that conditions the lives and choices of women
(Okin 1989). Even those who do somehow manage to combine work and
family, face serious obstacles including the lack of good quality
subsidized day care; jobs with little flexibility for those who need
to care for a sick child; school schedules that seem to be premised on
having a parent at home; and the expectation that they will continue
to work a "second shift", (Hochschild 1989) assuming the
responsibility for the bulk of household labor. Statistical analysis
shows that motherhood tends to lower a woman's earnings, even if she
does not take any time off from paid work (Folbre 1994). Gender
inequality persists in access to positions in economy and government
where white males are about 40% of population but 95% of senior
managers, 90% of newspaper editors, and 80% of congressional
legislators (Rhode 1997). And although women have made progress in
entering elite positions in the economy and government, there is
evidence that such progress has now stalled (Correll 2004).




Feminists share the view that contemporary families are not only
realms of choice but also realms of constraint. Feminists also agree
that the gender hierarchy in our society is unjust, although they
differ on what they take its sources to be. Some feminists emphasize
the family as the "linchpin" of gender injustice (Okin
1989); while others see the main causes in the structure of work and
opportunity (Bergmann 1986); still others stress sexual domination and
violence (MacKinnon 1989). All of these strands seem important
contributors to gender inequality, and it is doubtful that any one can
be fully reduced to the others. It is therefore important to deepen
our understanding of the interplay of these different sources of
subordination. There is clearly what Okin (1989) termed a "cycle
of vulnerability" through which women's unequal position in the
home interacts with women's unequal position in the workplace. For
example, because women tend to earn less than men, if someone has to
take time off to raise the kids, it makes economic sense for it to be
the female lower earner. Gender also undoubtedly interacts with other
axes of social disadvantage, such as race and class. Indeed, feminist
work on families has increasingly recognized the diverse experiences
of women in families that encompass not only heterosexual two parent
families, but also single women, lesbian and gay families, and
families in poverty. We need to be careful not to lump together
distinct social phenomena. Although I will sometimes refer to
"the family" in this essay, it is crucial to keep in mind
the diversity of family forms and circumstances.




Whether families are the primary cause, or a contributing cause
along with other social structures and culturally generated
expectations, feminists point to the ways that families are
*part* of a system that reproduces women's social and economic
inequality. Families cannot be viewed apart from that system or in
isolation from it. Nor can they be assumed to be just: too many of them
are not. The issue, for feminists, is not whether the state can
intervene in the family and reproduction but how, and to what ends.


## 2. How should family structures be evaluated?




How should parenting and household responsibilities be distributed?
Who should have a right to household earnings? Who has the right to
form a family? To have a child? What defines a parent? How many parents
can a child have? How many children can a parent have? Answering these
already complex questions is additionally complicated by the existence
of new technologies that make possible multiple ways of becoming a
parent. Below, I examine two main values that feminists have argued
should guide the families we make: individual choice and equality.


### 2.1 Choice based evaluations




The traditional family has seen many changes in the last fifty
years. In the decades following WW II increasing numbers of women
entered the labor force. Divorce rates increased dramatically: the
divorce rate in the 1980s was almost two and a half times what it had
been in 1940. The development of the birth control pill has made it
easier for women to avoid unwanted pregnancies and to plan when to have
children. There are a growing number of single parent families, gay
families, and extended families. By 1989, 25% of children were living
in single parent households, many of which were poor, prompting a sense
that the family was in crisis (Minow 1997). Economic, technological
and social factors have together made the full time-stay at home
housewife and mother with a working husband a statistical minority.




Laws governing families have also changed. Modern laws are more
likely to view men and women as equals, who can be subjected to the
authority of each other only with their own consent. In almost all
developed nations, legal restrictions on marriage, divorce and abortion
were relaxed in a relatively short time, between the mid 1960s and the
mid-1980s (Glendon 1987). In *Loving v Virginia*, for example,
the US Supreme Court struck down state laws preventing people from
different races from marrying; *Roe v Wade* legalized abortion.
Of course, many of these changes have been contested and there remain
serious constraints on women's reproductive choices. Nor can gay people
usually marry, although laws and norms have been evolving in favor of gay marriage (see, most recently: Hollingsworth v. Perry; United States v. Windsor). The family has
increasingly evolved from a hierarchical institution based on a fixed
status to a set of relationships between individuals based on contract.
Indeed, many people now view marriage not as an unalterable condition,
but as a contract whose terms can be altered and negotiated by the
parties involved.




How far should the contract idea of marriage be taken? Some
feminists have proposed extending the contract model to allow any and
all consenting adults to marry and to freely choose the terms of their
association. These feminists would abolish state-defined marriage
altogether and replace it with individual contracts drawn up by each
couple wanting to marry (Fineman 1995, Weitzman 1985). Indeed,
contracts would allow not only gay couples to marry but would also
allow plural marriages, as in the case of polygamy.




Contract or choice based feminists would allow individuals
themselves to determine what kinds of families they want to create.
Thus, they would allow people to make their own agreements about
procreation without state restriction. These arrangements could include
not only rights to abortion and contraception, but also rights to
contract away parental bonds and to sell and buy gametes and
reproductive labor. Thus, choice feminists would allow gay or infertile
couples or single persons to contract for sperm or eggs or gestational
services before a child is conceived on terms that they alone
decide.




On the contract view, the traditionalist's sense that there is a
"crisis" surrounding the family is unwarranted. What is in
crisis is the nuclear, heterosexual marital unit. But this unit was
never good for women (Coontz 1992). Advocates of contract marriage
argue that extending the role of choice in reproduction and in the
families we make will empower women. For example, contracting can help
spur new forms of family, enabling gay couples and single women and
men to have children. Gay families have traditionally been more
egalitarian in the division of domestic labor then heterosexual
families, and less likely to reproduce mothering along gender
lines. Others argue that allowing women to sell their reproductive
services would empower women and improve their welfare by unleashing a
new source of economic power (Shalev 1989).




In contrast to the ideal of families as having an internal nature
beyond justice, some feminists have even proposed using a marriage
contract to determine the domestic division of labor. They argue that
by moving marriage from an implicit status based, patriarchal
arrangement to an explicit contract, women's freedom and equality would
be enhanced (Weitzman 1985). This proposal has been criticized on
several grounds: as inattentive to the background inequalities would
give rise to unequal bargaining power in such a contract (Sen 1989);
as potentially undermining to intimacy and commitment within marriage
(Anderson 1993) and as opening the door to illiberal intrusions into
family life, given the need for states to enforce such contracts
(Elshtain 1990).




Other feminist authors have criticized the very idea of choice as
applied to reproduction and marriage. They argue that practices such
as prostitution, surrogacy or gendered marriages are based on
objectionable views of women -- as bodies, as breeders, or as
domestic helpmates -- and that these views in fact underlie
seemingly freely choices to enter these practices. For example,
Catherine MacKinnon (1989) argues that such choices can as easily be
viewed as based on subordination and domination as on free consent.
And Carole Pateman (1983) similarly questions the choices alleged to
underlie women's decisions to engage in prostitution.




How deep a challenge do these arguments present to the choice based
view of marriage? Proponents of the choice view might plausibly claim
that if men and women could explicitly define the terms of their
relationships, and retain a right of exit when the terms were not
fulfilled, then at least extreme forms of gender domination would be
undercut. They might also stress the ways that their view accommodates
a plurality of understandings of human relationship: allowing for
experimentation, diversity and exit options. It is true that contracts
would allow men and women to contract for traditional gendered
families, but why should we object to such families if they are freely
entered into and express the values of the participants? Behind this
disagreement is an important division over the extent to which a just
society must accommodate different views of family relation. Where does
society draw the line on toleration of hierarchical views of men and
women's roles? When should a view of family form be ruled out of bounds
because it is too inegalitarian?


### 2.2 Equality based evaluations



 Many *egalitarian* arguments agree with much of the choice
based perspective and hold that choice, liberty and privacy are all
important elements of just families and reproductive practices. But
feminists making these arguments question whether a contractual,
choice based approach to these issues adequately captures other values
that are also important. The fact that an arrangement has been chosen
does not make it just. In addition to choice, egalitarian feminists
stress gender equality and the protection of the vulnerable.




Consider the domestic division of labor. Drawing on the above
discussion of labor market segregation, some feminists argue that the
gendered division of labor in the family, even if freely chosen,
operates in the context of a background system of injustice. The fact
that it is freely chosen then (if it is) does not seek to justify it.
Choices are not all that is relevant to moral evaluation for two
reasons. First, because we need to maintain just background social
structures, we must be attentive to choices that would undermine these
structures. If gendered families encourage the subordination and
deference of girls, and produce unequal opportunities for boys and
girls, then a just society must seek to redress those effects. Second,
the understanding of marriage as a choice does not by itself draw
attention to the background social institutions -- institutions which
feminists argue are unjust. It is not enough to allow people to choose
if their choices are unfairly constrained by unequal family and
workplace structures, unequal pay for equal work, and inadequate social and welfare services which
together render so many women vulnerable. Over a century ago, Mill had
pointed out that women's decision to marry could scarcely be called
"free" given women's low wages, and dim employment and
educational prospects. The choice to marry was he said, a Hobson's
choice, that or nothing. Although the situation of women has improved,
marriage remains an economic necessity for many women today as well. We
must attend to the wider context in which choices are made.




Egalitarians supplement and constrain the contract-based perspective
where it renders woman subordinate or especially vulnerable. They might
also point out, with the critics of choice based views, that some
choices are not and cannot be fully informed. Consider, for example, a
contract based view of marriage and child-bearing that holds people
fully responsible for the results of their choices. Contracts in
marriage and childbearing involve potentially long-term contracts, with
implications that are not easily known in advance. Can a woman who has
never been pregnant accurately predict the effects of ceding her
parental rights to a child? Can an eighteen year old woman who agrees
to a traditional gendered division of labor in her marriage know what
she will feel like as a fifty year old woman suddenly left by her
husband?




Feminists differ on whether choices within the family that undermine
gender equality should be respected. They also differ on how to deal
with those choices when it is agreed that they must be redressed. Some
feminists prefer to de-rail such choices *indirectly*, by
creating incentives for people to act so as to maintain just social
structures or by creating external counterweights to individual
actions. Okin (1989) argues, for example, that spouses should be
equally entitled to each other's earnings, that day care should be available to all
families, and that work should be made more flexible. She believes
that reconfiguring outward structures is the most appropriate way to
shape individual choice inside the family. Alternative views give less
room for individual choice within the family. Consider proposals to
legally mandate shared domestic responsibilities. Other feminists
consider such a remedy worse than the malady it is designed to redress
(Elshtain 1990).




Some feminist scholars explicitly try to combine and balance a
commitment to choice with a commitment to equality. Molly Shanley
(2003) advocates an "equal status" view of marriage that
combines a commitment to the public importance of marriage as an
institution with elements of individual choice that broaden the idea
of who can marry to groups that have been denied such status as a
result of their subordination and stigmatization. Shanley emphasizes
the public's interest in sustaining *just* marriages, as well
as its interest in sustaining certain forms of family relationship in
the face of poverty or illness. Equal status requires attention to the
background in which individual choices are made, especially to issues
of poverty, workplace structure and job market segregation. But it
also attends to the value of intimacy and the role of choices as
enabling or undermining that intimacy.




Choice based arguments and equality arguments differ on the
nature of the marriages they would allow. For example, while a choice
based contractual view favors plural marriages, egalitarian arguments
do not straightforwardly imply a right to legalized polygamy. For
egalitarians, the crucial question would be whether polygamy is
possible without the subordination of women.




There is thus serious disagreement among feminists (and non
feminists!) as to how to balance freedom and equality, and more
specifically values based on freedom of association and freedom of
religion with the value of gender equality. This disagreement has
implications for the scope of legitimate state intervention in family
life. (For further discussion, see Nussbaum 2000.)


### 2.3 The Interests of Children




Although some families cannot or choose not to have children, it is
impossible to think about issues surrounding the family and
reproduction without considering the interests of children. Putting
children into the equation also shows how we need to think very
concretely about the meaning and implications of the values we
endorse.




Consider choice based arguments in favor of contractual families.
Children do not choose to enter their families; moreover, children are,
at least initially, completely dependent on their caretakers. Parents
are rightly taken to have an obligation to care for their children that
does not rest on children's consent or contract. Furthermore, a choice by
parents to participate in a gendered family affects the lives of their
children. The free choices of such parents generate unequal
opportunities for their children, inequalities that children themselves
have not chosen.




Although some thinkers have advocated licensing parents (Mill 1869,
LaFollette 1980), today anyone who can biologically produce a child
can be a parent. (The issue becomes complicated when more than two
people are involved in the production of a child, as we will see
below.) Adoption is highly regulated by law, but once an adoption is
completed, law treats biological and non-biological parents alike with
respect to raising their children. Society gives wide discretion to
all families in rearing children and intervenes only when children
suffer abuse, or where the family falls apart. Earlier courts used a
"best interests" standard to determine custody in such
cases. But this standard has been subjected to powerful criticisms:
reasonable people will differ about what constitutes the
"best" for their child; and the standard is easily
susceptible to biases based on class, race and sexual orientation. Ian
Shapiro (1999) advocates a "basic interest" standard for
legitimizing state intervention. We might think of such basic
interests as defining a line beneath which no child should be allowed
to sink. The question for feminists here is whether gender equality is
a basic interest of children and if so how best to promote it.




Feminists have begun to explore some of the gender issues
surrounding adoption and parental rights; including whether an unwed
father should have veto rights to the mother's decision to place their
child up for adoption; and the roles of gestational as well as genetic
contribution in determining parenthood (Shanley 2001).




When we think of children, we must also think of how they are
produced. Some feminists see women's subordination as fundamentally
caused by their role in reproduction: on this view, only test tube
babies will make possible women's equality (Firestone 1970). But this
seems like an overstatement: it is not the biology of child production
that makes women subordinate but its sociology and economics. Surely,
adoptive mothers are as vulnerable to inegalitarian workplace
structures of gender hierarchy as biological ones. Nonetheless,
bearing a child can have dramatic and negative consequences for women
when it occurs in a context of little social support and rigid job
structures. Researchers have increasingly documented a
"motherhood penalty": women who raise children fall behind
their unmarried counterparts in salary and position. The U.S. Family
and Medical Leave Act was a partial step in the right direction of
compensating parenthood, granting twelve weeks of unpaid leave for a
new parent with all benefits and the right to return to the same or a
comparable job. But it is difficult to enforce, and work culture makes
it hard for those entitled to exercise their right. Men, in particular
are unlikely to take time off following the birth of a child.




It is therefore worthwhile to look into new technologies that make
possible new ways of becoming (or failing to become) a parent. What are
the implications of these technologies for the condition of women? For
children?


## 3. Reproductive Choice




Historically, men have exercised enormous power over women's bodies
through controlling their sexuality and reproduction.


### 3.1 Abortion




Roe v Wade (1973) granted women the right to terminate an unwanted
pregnancy, based on an implicit fundamental right to privacy. Although
the Supreme Court in its decision did not hold such right was
absolute, and argued that it must be weighted against competing state
interests in maternal safety and the protection of prenatal life, it
protected this right during the first trimester of pregnancy. In the
decades following Roe, its ruling has been weakened, most notably by
requirements of spousal and parental notification and consent, the
enactment of "waiting periods" and restrictions on the use
of public funds. In the wake of continued social controversy as well
as violence and harassment directed at abortion service providers, the
number of doctors who are willing and able to provide such services is
declining. By the mid 1990s, 85% of America's counties had no facility
offering abortions; 2 states had only 1 provider (Rhode 1997). Many
states have moved to criminalize late term abortions. 




Although most feminists endorse some right to abortion, the issue of
abortion cannot easily be reduced to the interests of men versus the
interests of women. Women are represented on both sides of the abortion
issue, as leaders, activists and supporters. Even among feminist
arguments in favor of abortion there are a diversity of views as to the
grounds that serve to justify it.




Some arguments for permitting a right to abortion depend on denying
rights to the fetus. Only persons have rights and fetuses, it is
argued, are not yet persons (Tooley 1972). Yet while many arguments
against abortion depend on the idea that the fetus has a right to life,
not all arguments supporting legal abortion reject that right. Judith
Jarvis Thomson (1971) argued that even if the fetus is a person with a
right to life, there are limits on what the state can compel women who
carry fetuses in their bodies to do. If women have rights over their
own bodies, then they have rights not to have their bodies used by
others against their will. The state has no right to force someone to
donate use of her body to another person, even if that person is in
extreme need. (In Thomson's famous example, a person is hooked up to a
famous violinist, who will die if she withdraws her body's support. While it might be virtuous to remain hooked up, Thomson argues that it is not required by morality.)
Thomson's argument stresses bodily integrity and self-ownership, and
argues that if we accept these premises we can only allow fetuses to
use women's bodies with women's consent. Implicit in Thomson's argument
is also a point about gender equality: since we do not in general
compel people (i.e., women *and* men) to donate use of their
bodies to others even in cases of extreme need, then why do we think we
are justified in only compelling women?




For some feminists Thomson's analogy is not appropriate. They reject
the perspective of thinking of fetus and mother as distinct persons and
emphasize their intertwined relationship. Others worry that the
perspective of abortion as a right having to do with ownership and
control of one's body would make it difficult to question abortions
performed on grounds of sex selection, a practice which is becoming
more common around the world in countries where having girls is
disfavored; or abortions sought on trivial grounds like the timing of a
vacation.




To view abortion only in terms of the freedom of individual choice
or even as a clash of rights neglects a range of other relevant
considerations. These include: the fact that women and only women get
pregnant and bear children, that women earn less than men, that they
are subjected to sexual violence, have little or no access to publicly
provided day care, and that they have less familial or political
decision-making power than men. Abortion is connected to other issues
that need to be considered, especially the effects of unwanted
pregnancies on the lives of women and children (Sherwin 1987).




Feminists who see a range of values at stake in abortion are more
likely to advocate compromise than those who hold single valued
perspectives. Shrage (1994), for example, proposes that given the
diversity of values involved in the abortion controversy
-- including views of life's sanctity (Dworkin 1993) and the
meaning of motherhood (Luker 1984) we seek only conditional access to
abortion -- during the first trimester -- and advocate policies
that help minimize the need for abortion, such as easily available
contraception.


### 3.2 Commercial Surrogacy




It is now possible for individuals or couples to transact for
reproductive services. New technologies now make possible the creation
of children whose genes come from people unrelated to the woman who
gives birth to them or to the people who raise them. For example, a
couple can buy eggs from one woman and then implant those eggs in
another woman. Or they can implant a man's sperm in a woman who will
bear the child. 




Of course, market transactions regarding genetic materials are not
new: men have sold sperm in the United States for decades. But
contemporary law is unsettled on the issue of commercial surrogacy.




The so-called Baby M case is perhaps the best-known case involving
"surrogate motherhood", although the use of the term in
this case is, arguably, misleading. 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 $10,000. After giving birth to
a child and turning that child over to the Sterns, Whitehead became
distraught. A conflict ensued over parental rights, and a New Jersey
court initially gave full custody to the Sterns and discounted the fact
that Whitehead was the child's genetic and gestational mother. On
appeal, the decision was overturned and the surrogacy contract was
invalidated. The court granted custody to the Sterns but ordered that
Whitehead be granted visitation rights.




Feminists are divided on the issue of commercial surrogacy. Those
who support surrogate motherhood often stress the increase in freedom
it brings. Surrogate contracts allow women to have additional choices
over their reproduction. Carmel Shalev (1989) goes further, arguing
that prohibiting such contracts fails to give due respect to the
choices women do make. If a woman freely enters into a contract to
produce a child, it is paternalistic and demeaning to prevent her
choice.




Defenders of commercial surrogacy also carefully distinguish it from
baby selling: children are not sold as commodities, but rather women's
reproductive services are for sale. Since we allow men to sell their
sperm, why should women be prevented from participating in an analogous
transaction? Finally, defenders point out that commercial surrogacy
offers new ways for gays and lesbians and single people to become
parents.




Critics of commercial surrogacy likewise offer a diversity of
objections. Perhaps the most common objection is based on the claim
that gestational labor is different from other types of labor. Margaret
Jane Radin (1988) and Carole Pateman (1983) stress the ways that the
labor of bearing a child is more intimately bound up with a woman's
identity than other types of labor. Contract pregnancy involves an
alienation of aspects of the self so extreme as to make it an
illegitimate practice. Selling sperm is not analogous: the work of
pregnancy is long-term, complex and involves an emotional and physical
bonding between mother and fetus. (See also Rich 1976 for a
brilliant phenomenology of pregnancy.)




Elizabeth Anderson (1990) echoes this objection, but adds that
surrogacy contracts also alienate a woman from her love for the child
and frequently involve exploitation, as surrogate sellers have less
wealth and are more emotionally vulnerable than buyers. Other
objections stress the weakening of the link between parent and child,
and the special vulnerability of children.




Satz (1992) argues that there are limits to the objections based on an
intimate connection between reproductive labor and our selves. Writers
are intimately bound up with their writing, but they also want to be
paid for their novels. Further, if the link between mother and
fetus/reproductive labor is so strong, how can abortion be justified?
Instead, Satz's argument stresses the background context of commercial
surrogacy: the gender inequality in modern society. Commercial
surrogacy allows women's labor to be used and controlled by others,
and reinforces stereotypes about women. For example, pregnancy
contracts give buyers substantial control rights over women's bodies:
rights to determine what the women eat, drink and do. They also may
deepen stereotypes: that women are baby-machines. Finally, the race
and class dimensions of such markets also need to be considered. In
another well known case involving commercial surrogacy, a judge
referred to the African American women who gave birth to a child with
genes from a white father and a Philippina mother as the baby's
"wet-nurse" and refused to grant her any visitation rights
to see the child.


Interestingly, practices such as in vitro fertilization, commercial
surrogacy and egg and gamete markets are largely unregulated. There
are also huge for profit agencies involved in these ways of making a
baby. By contrast, adoption is highly regulated: prospective parents
have to submit to intrusive interviews and home visits. It is worth
reflecting on this differential treatment, especially since many
reproductive technologies also involve vulnerable third parties (Spar
2006).


## 4. Concluding thoughts




Feminist writing on the family and reproduction is rich and
multifaceted. By forcing mainstream political philosophy to take into
account the importance of the family for social justice, feminists have
changed the field. At the same time, our efforts remain very much a
work in progress, much as are our current social practices of making
families and babies. In conclusion, I will mention two areas that need
more attention:




(1) The claim that the family is not private is not the same as the
claim that there is no value to having a concept of privacy, nor does
it entail that there is no way to draw a useful distinction between the
private and public realms. How much public structuring of private
choices is permissible to foster gender justice? How do we balance
claims of gender injustice with other moral considerations like freedom
of religion and freedom of association?




(2) With notable exceptions, too few feminist philosophers have
offered specific policy proposals for changes in domestic arrangements,
or for policies designed to counteract those arrangements. We need more
attention to creative family related policies that might lessen the
hold of centuries of gender hierarchy. We also need good cross-country
comparisons, which draw on some of the alternative policies that have
been tried in other countries, including policies designed to re-shape
labor markets, reform divorce law and provide safety nets for poor
families and their children.