1 Phillipe Rushton, J., “Altruism and Society: A Social Learning Perspective,” 92 Ethics 425, 425 (1982).CrossRefGoogle Scholar

2 Although “mother” is a gendered term, relational theorists have used it to describe any person to whom an infant is primarily bonded; to the extent that Goldstein is referring to bonding during gestation, the mother would be female.Google Scholar

3 410 U.S. 113 (1973), 93 S. Ct. 705, 35 L. Ed. 2d 147.Google Scholar

4 This phrase is actually from Nancy Chodorow's The Reproduction of Mothering 63 (Berkeley: University of California Press, 1978) (“Chodorow, Reproduction”).Google Scholar

5 Chodorow, id. at 65, calls this “the social relations of feeding.”.Google Scholar

6 As Goldstein makes clear, this would not affect the rights of either against a third party who harms the fetus.Google Scholar

7 I intend here to scrutinize Goldstein's argument, not to argue with its result.Google Scholar

8 Or in current academic jargon,” listening to what the fetus does not say.”.Google Scholar

9 Goldstein in chap. 3 n.29, at 159; this note gives an account of the relevant conflicts within the field.Google Scholar

10 E.g., Frederick Crews, Skeptical Engagements (New York, 1986).Google Scholar

11 Stephen, J. Morse, “Crazy Behavior, Morals, and Science: An Analysis of Mental Health Law,” 51 S. Cál. L Rev., 527, 611 (1978).Google Scholar

12 Morse has made this point-that what experts have to offer instead of theories may be detailed accounts of behavior, or “thick description.”“Failed Explanations and Criminal Responsibility: Experts and the Unconscious,” 68 Va. L. Rev. 971, 1045, 1059–83 (1982).Google Scholar

13 Stangely enough, Goldstein makes no reference to Joseph Goldstein et al., Beyond the Best Interests of the Child (New York, 1973), the premier instance of a work which successfully put forward a family law doctrine (custody to go to the psychological parent) founded on object relations theory. (Beyond the Best Interests itself makes little reference beyond two discreet footnotes to its origins in the work of relational theorists, far less than Goldstein's book.) The career of the psychological parent concept in custody law, however, shows how capriciously family law changes: the rule that the psychological parent gets custody has been shunted aside in many districts in favor of a preference for joint custody, on rather dubious grounds. See Fineman, Martha, “Dominant Discourse: Professional Language and Legal Change in Child Custody Decisionmaking,” 101 Harv. L. Rev. 727 (1988). Recently a new rule granting custody to the “primary caretaker parent” has cropped up in some jurisdictions; the primary caretaker is identified by quotidian criteria (clothing, feeding, nursing, arranging social gatherings) which exclude psychological factors completely, although the underlying assumption may be that the psychological relationship grows out of the physical one; see Neely, Richard, “The Primary Caretaker Parent Rule: Child Custody and the Dynamics of Greed,” 21 Trial 18 (1985).Google Scholar

14 Griswold v. Connecticut, 381 U.S. 479 (1965).Google Scholar

15 Eisenstadt v. Baird, 405 U.S. 438 (1972).Google Scholar

16 See Brown, Wendy, “Reproductive Freedom and the Right to Privacy: A Paradox for Feminists,” in Irene Diamond, ed., Families, Politics, and Public Policy: A Feminist Dialogue on Women and the State (New York, 1983).Google Scholar

17 To make things more confusing, what Goldstein actually suggests here is that it is Roe's privacy doctrine that works to protect the “relational field,” although without attributing intent to do so. Elsewhere he suggests that the Court in Roe “tacitly recognized and accepted this privileged status and the centrality of biological motherhood to procreation” and that “the integrated and whole view of motherhood … may be imputed to the Court” (at 65, 66).Google Scholar

18 On this point Goldstein cites inter dia Nancy Chodorow's essay “Toward a Relational Individualism: The Mediation of Self Through Psychoanalysis,” in Thomas C. Heller et al., eds., Reconstructing Individualism: Autonomy, Individwality, and the Self in Westem Thought (Stanford, Cal., 1986). This volume, which defines individualism in the West as “contingent and paradoxical,” addresses challenges to the “fundamental and once seemingly necessary propositions about the unity and autonomy of human individuals” which need to be “rethought in the wake of the severe criticisms which have been directed against” them (at 2, 3).Google Scholar

19 Chodorow, Repduction 34.Google Scholar

20 Hegel was an early skeptic on the value of rights in intimate relationships, Philosophy of Right secs. 158–64 (Oxford, 1952). A more recent look at the development and use of rights in the family context is Martha Minow, “We, the Family: Constitutional Rights and American Families,” 74 J. Am Hist. 959 (1987), esp. 979–80.CrossRefGoogle Scholar

21 Ferdinand Schoeman,” Rights of Children, Rights of Parents, and the Moral Basis of the Family,” 91 Ethics 6 (1980). Schoeman's article relies on Lon Fuller's work contrasting relationships based on “shared commitment” with those based on “formal legal” ties, finding that increased formality makes relationships more distant and abstract. Stewart Macaulay's work on business relationships (“Nontontractual Relations in Business: A Preliminary Study,” 28 Am. Soc. Rev. 55 (1963)) found that despite the presence of formal legal categories, most businessmen conduct informal relationships within categories of their own construction, which suggests that people may not be as constrained by the presence of a legal relationship as Fuller supposes. Although Macaulay's work cannot necessarily be used to understand behavior within the family, Marjorie Maguire Schultz in “Contractual Ordering of Marriage: A New Model for State Policy,” 70 Cal L. Rev. 204 (1982), explores the same doubts as Schoeman about the effect of public ordering of private relationships (at 241–43) but goes on to develop an argument dismissing them in the rest of the article.Google Scholar

22 This theory of dyadic representation is reminiscent of Bentham's rationale for the father's mastery over the child. The interests of both, Bentham claimed, are “easily reconciled in the person of the father, on account of his natural affection, which leads him much rather to make sacrifices on account of his children, than to avail himself of rights for his own advantage.” Jeremy Bentham, 1 Theory of Legislation 252–53 (1840), quoted in Goldstein, Beyond the Best Interests of the Child 156 n.4 (cited in note 13). Bentham went on to say that despite the father's presumed good will, checks on paternal power were necessary.Google Scholar

23 Not to mention irritation. Nancy Chodorow, Feminism and Psychoanalytic Theory 86 (New Haven, Conn., 1989) (“Chodorow, Feminism”); pp. 85–87 are devoted to a discussion of this literature. Much of this writing exposes fantasies rather than actual behavior (although no less important for that); the difficult subject of mother's physical abuse of children remains largely unexplored, one exception being Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, Boston, 1880–1910 (New York, 1988).Google Scholar

24 It is unclear why it is the biological father who qualifies for office here and not any mate prepared to enter into a caretaking relationship with the infant; this is characteristic of the sketchy way the role of biology is handled throughout.Google Scholar

25 Goldstein also fails to consider the possible detrimental effects of “family privacy” or “family protection” policies, which “risk[s] hiding the conflicts within the family” and enhancing abusive parental authority over children; see Minow, 74 J. Am. Hist. at 981 (cited in note 20).Google Scholar

26 Ruth, H. Bloch, “American Feminine Ideals In Transition: The Rise of the Moral Mother, 1785–1815,” 2 Feminist Stud. 100 (1978). For historical discontinuities in the construct of motherhood see also Elisabeth Badinter, Mother love, Myth and Reality, Motherhood in Modern History (New York, 1981); and Ann Dally, Inventing Motherhood: The Consequences of an Ideal (New York, 1982) (“Dally, Inventing Motherhood”). Note also that many workingclass women were casual or full-time laborers either inside or outside the home and performed their mothering tasks in quite different fashion from that prescribed by the powerful middle-class norm.Google Scholar

27 Quoted in Kathleen McCarthy, Charity and Cultural Philanthropy in Chicago, 1849–1920 at 17–18 (Chicago, 1982).Google Scholar

28 Ann Dally, Inventing Motherhood 97–103, suggests that another influential relational theorist, John Bowlby, was influenced by his war experiences and also by his own upbringing as a member of the British upper class, a group that institutionalized maternal deprivation by shipping their children off to public schools at an early age.Google Scholar

29 Chodorow, Reproduction 73–76 (cited in note 4).Google Scholar

30 Chodorow, Feminism chap. 4 (cited in note 23), points out that a large portion of the work on mothering is written from the child's-eye view, with the child's needs and wants as the baseline for critiques of mothering.Google Scholar

31 Carol Sanger suggested this analogy.Google Scholar

32 Alice Balint, “Love for the Mother and Mother Love,” in Michael Balint, ed., Primary Love and Psycho-analytic Technique 100 (New York, 1965), speaks of father right “as a limitation on archaic maternal right”; Dorothy Dinnerstein suggests that the model of paternal authority is acceptable as “a sanctuary from maternal authority,”The Meraid and the Minotaur 176 (New York, 1976). Thanks to Carol Weisbrod for this cite.Google Scholar

33 Chodorow, Reproduction 83; Feminism chap. 4. Statistics on spousal abuse show that almost half of violent incidents are directed at pregnant women. At least one feminist writer sees America's diet craze as a direct assault on the rounded maternal body; see Bordo, Susan,” Reading the Slender Body,” in Mary Jacobus et al., eds., Body/Politics: Women and the Discourse of Science (New York, 1990).Google Scholar

34 Chodorow, Reproduction 78–79, esp. n. 4.Google Scholar

35 See Radin, Margaret,” Market Inalienability,” 100 Harv. L. Rev. 1849 (1987). Outrage over the attempt to commercialize parental love was directed at both sides in the “Baby M” case.Google Scholar

36 One law professor's six-year-old son was shocked to discover that his long-time baby sitter got paid for taking care of him, asking “Doesn't she love me!” As a good mother as well as law professor, she explained that of course his sitter loved him, but that she gave up the chance to earn money at a job because she chose to take care of him-opportunity costs.Google Scholar

37 Many communitarian proposals put forward from the liberal side today cross traditional theoretical boundaries by incorporating liberal precepts, advocating polite or warm ongoing interaction with others bounded by principles of autonomy like a ban on violence or privacy safeguards (see, e.g., one proposal for cooperative housing reported in the New York Times, 27 Sept. 1990, sec. C at 1). The problem here is that the product of such a merger does not fit well into existing legal categories.Google Scholar

38 There is an extensive literature on gift relations, starting with Marcel Mauss's seminal work The Gift (trans. London, 1954). Other influential works have been Richard Titmuss, The Gift Relationship: From Human Blood to Social Policy (New York, 1971); and Lewis Hyde, The Gift: The Imagination and the Erotic Life of Property (New York, 1979) (“Hyde, The Gift”).Google Scholar

39 Hyde, The Gift 107–8, points out that “to labor with gifts” is still seen as ”‘a school thing, a skirt thing, a church thing’” (quoting from Saul Bellow, Humboldt's Gift). His point is that while the injustice to women workers must be addressed,” we must not convert all gift labors into market work lest we wake one day to see that universal market in which all our actions earn a wage and all our goods and services bear a price.”.Google Scholar

40 See Gordon, Linda, Woman's Body, Woman's Right: A Social History of Birth Control in America (Harmondsworth, Eng., 1977); and James C. Mohr, Abortion in America (New York, 1978). Diverse factors from micro to macro influencing those lobbying for regulation included the American Medical Association's desire to establish professional supremacy over health policy and eliminate competition from “irregulars” like midwives; fears that, in the context of the rising levels of immigration, abortion permitted Anglo-Americans to commit “race suicide”; concerns about an available labor force; as well as moral concerns about the status of marriage and the family. One problem with the regulation of reproduction is that psychological theory is lost in a crowd of competing social, moral, demographic, political, and economic factors that influence abortion policy; one Reagan administration official expressly opposed funding for abortions in Third World countries on the grounds that underdeveloped areas needed expanding pools of consumers to fuel the growth of market economies.Google Scholar

41 Quoted in Wendy Kaminer, Women Volunteering: The Pleasure, Pain, and Politics of Unpaid Work from 1830 to the Present 42 (New York, 1984) (“Kaminer, Women Volunteering”).Google Scholar

42 There is a literature on the importance of voluntary associations in American life which suggests that, in addition to providing individual fulfillment, groups act to protect individuals from the state and also to supply substantive moral content to public life, a role the liberal state theoretically eschews; and that for these reasons group activities deserve a high degree of deference. See, e.g., Frederick Mark Gedicks,” Toward a Constitutional Jurisprudence of Religious Group Rights,” 1989 Wis. L. Rev. 99.Google Scholar

43 Ben and Jerry's has acknowledged this kinship by establishing a grass-roots activist of-the-month award,” One Thousand Pints of Lite,” recently delivered to Gray Panther Maggie Kuhn.Google Scholar

44 See Sara M. Evans & Harry C. Boyte, Free Spaces: The Sources of Democratic Change in America (New York, 1986), esp. 17–18 & chap. 6.Google Scholar

45 See id., at 85–87.Google Scholar

46 A more conservative strain of benevolent and charity work which made little or no effort to expand the functions of government existed side by side with its more progressive twin throughout the 19th century.Google Scholar

47 In fact, Republican administrations moved to dismantle organizations like VISTA and Head Start when they became too successful in enlisting popular participation or discontent—exactly the kind of voluntary activity the grassroots left has in mind. See Kaminer, Women Volunteering 14; Lucie E. White,” The Meanings of Participation in Project Head Start: The Interplay of Race, Gender, and Bureaucracy in a Day Care Program” (unpublished paper presented at “Women and the Welfare State” conference, Madison, Wis., June 1989).Google Scholar

48 Kaminer, Women Volunteering 2.Google Scholar

49 The group whose career aspirations caused them to distance themselves so thoroughly from volunteer service was composed largely of white, middle-class feminists; as one black feminist said,” The right to work wasn't a relevant issue to us. We had always been working.” In fact, the level of service volunteering in the black women's community has been and remains very high. Id. at 7–8.Google Scholar

50 Another hollow commonality between left- and right-wing family policy is that both express a preference for a deregulated family zone with an exception for violence, which they define very differently. Conservatives tend toward the regulation of abortion, which they class as violence against children, while many take a more cautious approach to the regulation of child and spousal abuse as an unnecessary challenge to paternal authority. Liberals are likely to switch these positions.Google Scholar

51 In fact, such pro-choice Republicans as William Weld, 1990 Republican candidate for governor of Massachusetts, are beginning to develop family privacy arguments against state intervention in reproduction.Google Scholar

52 Carl, E. Schneider, “Moral Discourse and the Transformation of American Family Law,” 83 Mich L. Rev. 1803 (1985); id.,” The Next Step: Definition, Generalization, and Theory in American Family Law,” 18 U. Mich. J.L. Reform 1039 (1985).Google Scholar

53 Clifford Geercz, Local Knowledge: Further Essays in Interpretive Anthropology 217 (1983), cited in Carol Weisbrod,” On the Expressive Functions of Family Law,” 22 U.C. Davis L. Rev. 991, 1006 (1989).Google Scholar

54 Schneider, , 83 Mich L. Rev. at 1808.Google Scholar

55 Lee, E. Teitelbaum, “Moral Discourse and Family Law,” 84 Mich L. Rev. 430, 434 (1985).Google Scholar

56 Id. at 434–35.Google Scholar

57 See Blackstone, William, 1 Commentaries on the Laws of England (Chicago, 1979).CrossRefGoogle Scholar

58 Nancy Fraser has elaborated a “politics of need interpretation” in “Talking About Needs: Interpretive Contests as Political Conflicts in Welfare-State Societies,” 99 Ethics 291 (1989). But moving out of the realm of policy and into that of adjudication means forcing “needs”—a category with little legal clout-into a liberal rights skin, where it doesn't easily fit.CrossRefGoogle Scholar

59 In America religious thought has traditionally been the source for much of the thinking about duties, certainly an easier job in the 19th century with its common (although not universal) moral language. Religion is unlikely to play the same role today: there is nothing like a common Christian cultural consensus, and even the mainline Protestant churches have themselves abdicated notions of duty in favor of an a la carte or voluntarist approach to questions of doctrine and teachings; see Wade Clark Roof & William McKinney, American Mainline Religion: Its Changing Shape and Future (New Brunswick, N.J., 1987).Google Scholar

60 See Elizabeth, B. Clark, “Religion, Rights, and Difference in the Early Woman's Rights Movement,” 3 Wis. Women's L.J. 29, 50–51 (1987).Google Scholar

61 Thanks for Martha Minow's comments here.Google Scholar