Author: Kimberly Mutcherson


Queering the Family in an Age of Marriage Equality

It was a pleasure to read Katherine Professor Franke’s provocative book, Wedlocked, and an even greater pleasure to be able to engage in this on-line discussion about Professor Professor Franke’s long simmering work. As a lesbian of African descent raising bi-racial children with a Latina co-parent, I came to this book with personal and professional relationships to many of the topics about which Professor Franke writes so eloquently. I left the experience of reading her book with numerous thoughts and questions to which I cannot do justice in a blog post. So, recognizing that I cannot do it all, I’ll use my space to reflect on one piece of Professor Franke’s narrative that resonated strongly with me, which is contemplating how families with children created by lgbt people do or do not radically, or even modestly in some cases, actually queer the idea of family. By this I mean, as I’ll explain in more detail below, just as is true in the context of marriage, being queer and creating a family does not always mean that you have queered the family. In that case, then, I wonder what it means to queer the family in our modern context and, perhaps more importantly, what we gain or lose by couching the narrative of change in the idea of queerness rather than using other language to describe and understand the end of the hegemony of the nuclear family.

My scholarly work exists at the intersection of family law, bioethics, and reproductive justice, with a particular focus on assisted reproduction and how non-coital forms of baby creation can, but don’t always, challenge traditional notions of family and belonging. Consequently, one piece of Professor Franke’s book that deeply resonated with me was her discussion of the ways in which same sex couples engage in a process of queering the family by virtue of how they create families with children. Professor Franke gives 3 such examples, one involving a very open open adoption of an infant by two African-American lesbians who, it appears, have been significantly integrated into the birth family of their child; one involving two white gay men who hired a gestational surrogate with whom they continue to have contact long after their child’s birth (In the interest of full disclosure, like Professor Franke, I am friends with the two men about whom she writes and am thrilled about the family that they were able to create); and another involving a male couple and a female couple who created biological children together and raised those children with the lesbians as primary parents and the men as loved family figures who are not social parents.

Professor Franke offers up these stories to illustrate how gay people, like African Americans (and, of course, these groups are not mutually exclusive), have played with, rejected, and, in some cases, transformed the traditional/nuclear family. She explains, “These three stories are typical of the ‘queerness’ of many families being formed by lesbians and gay men who want children in their lives.” I’m unsure what to make of the quotation marks that she uses around the word queerness, but it is the use of that word that is especially striking to me. I am happy to praise and celebrate the ways in which these families got created with care and deliberation. I also think, though, that it’s critical to recognize the ways in which they might not be all that queer depending on how that word is being deployed. If queer simply means not the nuclear family model of one man, one woman, and their biological children living in a single household, then a huge number of families are queer in this country, which starts to make them seem more mainstream even if not traditional. If we mean something more specific by using the term queer, perhaps requiring parents who identify as lgbt, then all of the families that Professor Franke describes surely qualify, but at that point the designation of queer sweeps in huge numbers of families that are almost identical to traditional family structures save for sex or gender identity. So, what makes two white gay men with financial privilege hiring a surrogate to carry a child for them and maintaining a relationship with that surrogate radically different from a white man and white woman (married or in a serious long-term relationship) making the same decisions? And when I think of the lesbians who are clearly committed to creating a family structure for their daughter that allows her to maintain close ties to her birth mother and her extended family of origin, I read that story not as a queer story per se, or certainly not only a queer story, but as an example of the kinds of extended networks of kin, caring, and community that have so long been a deep part of African American familial traditions extending to those families created by same-sex couples. The story, then, is best told as an intersectional one about how multiple identities shape the families that we create.

That I’ve opted to focus on what perhaps appears to be such a small part of Professor Franke’s broad and exciting narrative may seem out of place or out of touch, but I am fascinated by this question of how we understand what it means to dismantle dominant family structures and conquer familial hierarchies. I share Professor Franke’s concerns about how some of the legal strategies used in marriage equality litigation may actually have damaged those who create what I tend to describe in my work as outsider or marginalized families, rather than queer families. For me, the important dividing line in how families exist in our world is the distinction between families that can be formed by law and protected by law versus those that are treated as anomalous, or inferior, or even thought to be dangerous by some conservative politicians and policymakers. These outsider families are not necessarily radically upending notions of family and thus may not fall neatly into how some think about what it means to queer family. In fact, they may be much more closely aligned with traditional notions of family in many ways, but they are not granted legal legitimacy because they do not wholly track what has long been deemed the norm.

I am deeply mindful of the critical ways in which outsider families can create impacts beyond the circumstances of the individual family members such as in Moore v. City of East Cleveland in which the Supreme Court struck down a statute that excluded certain non-nuclear family units from living together in the City of East Cleveland (in that case, the offending family consisted of a grandmother, her son, and two grandsons) or consider how same sex couples are pushing some family courts and state legislatures to acknowledge more than a two parent dyad for any one child either through legislation or through case law. These are changes that matter and that make it harder to claim that there is one family structure that rules above all others. But, as we push the boundaries of family, as Professor Franke warns in the context of her history of marriage for freed slaves and for lgbt people in our present world, we should be careful what we wish for. We do not want to reinforce familial hierarchies by forcing people into specific family arrangements in order to warrant recognition (2 parents only), nor do we want to fetishize outsider families such that those who do not fit that model are denigrated for their choices (i.e., the adoptive parents who choose a closed adoption or the birth mother who opts for such an adoption thus perhaps not being queer enough in their choices). In thinking about the ways in which reproductive justice calls for us to respect the right to have a child, not have a child, or parent that child in a safe and healthy environment, the upshot for me is that the reproductive justice paradigm does not demand that outsider families conform to some particular form in order to help dismantle hierarchy. The end goal, or at least one end goal, is to recognize that most orthodoxy about how people choose to wrap themselves in the webs of dependence and intertwinement that family connotes are deeply personal (though not necessarily private) and the job of our laws and policies is to facilitate these personal choices without unjustifiable bias or prejudice. And as the demand for equitable law and policy continues, as Professor Franke makes clear, those demands for protection and acknowledgment can help to de-center marriage in family life, which is almost certainly a good thing for many people.


Promises Are Meant to Be Broken: Thoughts on Martha Ertman’s Love’s Promises


Professor Martha Ertman’s wonderful book, Love’s Promises, pushes readers to reject ingrained beliefs about the separation of love, family, marriage, parents, and children from the world of markets and contracts. She deftly uses her personal story to illustrate her central argument that contracts and deals facilitate the creation of varied family structures and that family law should continue to embrace this trend. I firmly agree with Ertman’s premise that much of family law is explicitly or implicitly based on contracts (legally enforceable) and deals (not legally enforceable). Surely anyone who has ever been in a relationship or raised a child knows that these experiences require agreements about what relationships mean and about what we owe to each other as we create and sever familial ties. Ertman’s book makes a strong case for the value of planning, focus, and deal making when creating families to help guide those families through life and, if necessary, to help dismantle them with minimum acrimony when they fail. I hope that this part of her book resonates deeply with readers who are thinking of creating Ertman like “Plan B” families, as she calls them. Despite my strong agreement with Ertman’s central premises, I left her book with lingering questions, a few concerns, and a desire to hear more about her view of the intertwining of law and family. Read More


Who’s Your Daddy?

Perhaps you, like me, sometimes find yourself wondering, “What ever happened to that delightful actor Jason Patric, star of the beloved 1987 film The Lost Boys?” I have a partial answer to that question. He is a biological father who is fighting to become a legal father to a child he shares with an ex-girlfriend. The story is more interesting than it might initially seem because of the way that Patric’s child was conceived.

The child in the middle of this custody dispute is named Gus and his mother, Danielle Schreiber, is Patric’s ex-girlfriend. According to published reports, Patric and Schreiber were not in a relationship when Gus was conceived or born. Patric donated his sperm to Schreiber, in the same way that thousands of men donate or sell sperm each year for infertility treatments for women to whom they have no connection. Schreiber conceived in a doctor’s office. If the two were a married couple and the pregnancy resulted from fertility treatment using the husband’s sperm, there would be no problem with Patric’s claim that he is both a genetic and legal father. But that was not the case here, and their accounts of their post-birth expectations are, unsurprisingly, very different.

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What It Means to Talk about Reproductive Justice

In my first post, I offered a truncated discussion of reproductive justice (RJ) in which I strongly asserted that RJ is not solely, or even primarily, about abortion. I then went on to write a blog post about abortion, so I forgive you if you think that I was being deceptive. Perhaps in that post I could have directed you to check out the schedule for a conference that I’ve been organizing at my law school called, Beyond Roe: Reproductive Justice in a Changing World, which will take place on October 11. That schedule, while certainly not ignoring abortion, also considers issues of faith and reproduction, choices in childbirth, assisted reproduction and women’s equality, access to contraception and more, which illustrates my point about how wide a shadow the RJ umbrella casts. In this post, to further illustrate my point, I am going to write about examples of reproductive regulation, some more overt than others, that fall squarely within the rubric of RJ and offer some ideas about how a justice lens helps illuminate critical issues and lead us toward resolution.

As I wrote previously, reproductive justice (RJ) is about the right to have children, to not have children, and to parent children in safe and healthy environments, which means that its reach is expansive. That expansive reach is absolutely necessary in the world of reproductive hierarchies in which we all reside. I use the term reproductive hierarchies to reflect the reality that individual decisions about reproduction are subject to varying levels of approbation or disapproval as expressed through public policy and law. While our system creates benefits for many of those who procreate and finds ways to encourage their procreation and support their parenting, for instance by giving tax breaks for child care and education costs, there are many others whose choices about whether and how to bear and beget are less accepted. For instance, an undocumented immigrant who gives birth to a child on American soil may get accused by many of giving birth to a so-called “anchor baby”— a pejorative term used to refer to certain children born in the United States to non-citizen parents. Young women who give birth while still in high school or college are subject to various penalties, including being asked to leave their schools or being forced to leave because of a lack of support for young parents. There are those who strongly believe that people who are LGBT should not procreate or parent and many state laws either do not protect LGBT people from discrimination in access to the tools of assisted reproduction or deny stability to families created by same sex couples. Even in the absence of pregnancy, women are subject to strictures that can be significantly limiting economically and professionally based on concerns about risks to a potential fetus. Breastfeeding mothers who work outside of the home have to contend with employers who provide inadequate or no time or unacceptable space in which to pump breast milk during the day, thus making it harder or impossible for women to effectuate a choice to breastfeed. Individuals living with intellectual disabilities, especially women, are at risk for non-consensual sterilizations sometimes without adequate procedures in place to protect their reproductive interests.

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Coming out of the Abortion Closet

It is a pleasure to spend a month blogging on Concurring Opinions, and I am looking forward to some wonderful exchanges over the next four weeks. This is my first extensive blogging experience and because we have only a short time together, I thought it prudent to jump in with both feet by offering an early confession. Here it is: I am loyal reader of the New York Times Vows column, which chronicles the love stories of newly married couples. This confession may seem off topic, but I assure you that it is relevant to my work as a scholar and teacher focused on family law, health law, and bioethics with a significant interest in reproductive justice issues. If you read the words reproductive justice and immediately thought, “That’s just a fancy way of talking about abortion,” your understanding of reproductive justice is too narrow. Reproductive justice (RJ) refers to a movement founded by women of color activists who wanted to work within a movement that focused on the right to have children, to not have children, and to parent children in safe and healthy environments. The framework’s roots are in the human right to make fundamental personal decisions related to procreation, family formation, and parenting. Importantly, the RJ framework explicitly recognizes a societal and governmental obligation to support individual decision making and create the conditions that allow individuals to implement their core life decisions, including decisions about how, when, and with whom to become pregnant or give birth to a child. During my time as a blogger on this site, I am going to focus primarily on RJ issues, which run the gamut from childbirth decision making, to forced sterilizations, to restrictive abortion regulation.

Now back to the Vows column. If you are not a loyal Vows reader, you should know that the Vows column is not a run-of-the-mill wedding announcement. Vows is a full-length article written by a Times reporter. The column tends to highlight people who are interesting because of who they are (i.e., famous or related to famous people) or because of the uniqueness of their stories. This weekend’s column focused on Udonis Haslem, a very successful NBA player who is captain of the Miami Heat (there’s your fame), and his new wife, Faith Rein, who is a stay-at-home parent to their two young children. What is striking about the description of the couple’s long path to marriage, they met 14 years before they wed, was that it referenced an abortion that Ms. Rein had while she was a junior and Mr. Haslem was a senior at the University of Florida in Gainesville where they met.

As Maggie Little has written, “To be pregnant is to be inhabited. It is to be occupied. It is to be in a state of physical intimacy of a particularly thorough-going nature.” (Abortion, Intimacy and the Duty to Gestate). To become a parent is to choose to be forever changed often in inestimable ways. As college students, Ms. Rein and Mr. Haslem felt unable to move forward with having a child. Citing their age, their athletic commitments, and the lack of wherewithal to cover the cost of caring for a child, they decided, as a couple, to end that early pregnancy.

The discussion of abortion is just a few paragraphs in a lengthy story that follows the young couple over more than a decade, during which they endured extended periods of separation, the death of his mother, and the birth of their two children. Yet, it is their willingness to discuss abortion that is probably most striking for many readers. In discussing her abortion, Ms. Rein emerges from what Pam Karlan has called the abortion closet. Despite the fact that abortion is a ubiquitous medical procedure that at least 30% of women will experience by the age of 45, many women avoid ever publicly admitting that they have had abortions.

As soon as I read this part of the Vows column, I knew that it would spark letters to the editor and plenty of Internet chatter., a feminist website, posted about the column, sparking many commenters to express disgust that this couple shared such a personal matter in a public forum, and in particular a public forum discussing a wedding celebration. The Vows column is all about sharing a couple’s journey. It’s not a short recounting of where the wedding took place, how many guests attended, and what kind of food they served at the sit down dinner that followed, although it does incorporate that critical information. Rather, it is about how two people decide to share their lives together and overcome challenges and obstacles. It makes sense, then, that this couple chose to talk about abortion in their Vows column. Past Vows columns reflect on military deployments, cancer diagnoses, dying parents, and relationships that started as extra-marital affairs. As Ms. Rein says of her now husband during the time when the couple decided to end her pregnancy, “I found him caring, supportive, nurturing and all over me to be sure I was O.K. I saw another side of him during that difficult time and fell deeply in love. He had a big heart and was the whole package.” For this couple, deciding how to respond to an unplanned pregnancy was a defining moment in their relationship and was therefore worth recounting and sharing as a pivotal part of who they are as a marital unit.

I am unconvinced that those complaining about the talk of abortion in a column about a wedding would take offense if the couple had chosen to speak about a struggle with infertility (a subject that the New York Times chronicles with intense interest), or a miscarriage, or an early pregnancy that they chose to carry to term and then put the child up for adoption. Had they discussed one of these other private matters, I doubt that anyone would be decrying their failure to keep private things private. It is the sense that abortion should be a shameful experience not talked about in polite company that leads to shock and disgust at this couple’s willingness to speak openly about a topic that affects so many and about which it is almost impossible to have conversations that do not degrade into arguments filled with name calling.

I did not plan to start my blogging time here with a story about abortion, a topic that so quickly divides people, but the Vows column, my own reaction to it, and the reaction that I saw beginning to bubble up on the Internet grabbed my attention. I am curious to see what backlash awaits this young couple when they return from their honeymoon. I hope they will receive significant support for their candor about an experience that shaped and strengthened their relationship and that deserves to be out of the closet.