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Summary: The Maternal Bond was originally published in the American Journal of Family Law, and is serialized here at DadsRights.org by special arrangement with the author.
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THE MATERNAL BOND
1992 (c) Anne P. Mitchell,
Stanford Law School
Published in: American Journal of Family Law, Volume 9, Number 3, Fall, 1995
Part 2
II. The Women
Traditionally, the force which coerces a woman into choosing between
child and career has been identified as the patriarchal and male-dominated
society. As Kathleen Gerson explains, the theory is that there are ways in
which "social institutions created and controlled by men shape women's
options and thus coerce their behavior. It begins with the assumption that
men as a group dominate women as a group; there may be isolated individual
exceptions to the rule of male dominations, but these anomalies do not
invalidate the general principle. Given this generally indisputable
assumption, the [theory] posits that women's behavior results from male
domination."3
There is a growing body of evidence, however, which suggests that the
above assumption is, in fact, disputable with respect to current times, and
that it is women themselves, both as mothers making choices, and as
feminists advocating policy, who are holding women within the confines of
the maternal bond.
In a day and age where the feminist movement is strong and where
sexual equality is demanded, the area of primary childcare and custody
appears to have been exempted from the feminist insistence on equality and
parity with men. As Jong points out, women don't want the umbilical cord
to be severed. Women don't want to allow men the opportunity to achieve
parity with women in terms of child-rearing and custody.4
One reason for this may be that women currently have a great
advantage in the area of custody, as there exists in the family law system
a very strong bias in favor of awarding custody to mothers over fathers.
This gives a power to women the likes of which they have in very few, if
any, other areas of their lives. In a world where women have been
dominated and suppressed by the male institution at every turn, the ability
to wield absolute power over the man one is divorcing, and to use his own
institution against him by depriving him of free access to his children, is
a great temptation indeed. Even though equality is arguably the ideal of
the feminist movement, it is understandable that women may not want to lose
this very powerful, and rare, upper hand.
This refusal to allow men sexual equality in terms of childrearing and
custody decisions 5 is reinforced by proclaiming the sanctity of the
mother-child bond. The modern dogma which supports and perpetuates the
myth of an exclusively maternal parent-child bond is contributed to by the
works of such noted feminist authors as Nancy Chodorow 6, Susan Contratto,
Carol Gilligan, and Lillian Rubin. As Chodorow admits, the assumption
"apparent in recent feminist literature is that mother and child are an
isolated dyad. Mother and child are seen as both physically and
psychologically apart from the world, existing within a magic (or cursed)
circle."7
One might do well to question the motives of the authors of such
writings. It seems just a tad too convenient that the feminist movement,
now making serious inroads in the fight to convince society that men and
women are equals, has suddenly discovered that this equality does not
extend to men in the area of parenting and custody.
Faye Crosby does question the writings which further this philosophy
in her book, Juggling. Crosby notes that some feminist authors, such as
Chodorow and Rubin, advance a theory of sex-based differences which holds
that women are selfless and other-oriented, the guardians of relations,
while men are viewed as very self-oriented, and not terribly good at
relationships. Crosby refers to this as the "new sexism". As she
describes it, "[t]he new sexism seems as potentially crippling as the old
sexism. If we accept the view that men and women differ in their need to
attach themselves to others and in their skill at relationships, we have
only a tiny distance to go before we decide that mothers make the best
parents. ...And, after all, who do we want raising our children - someone
who is detached and uncaring or someone who is tuned-in, emotionally
available, and sensitive?"8
Interestingly enough, this "new sexism" isn't new at all. It is the
very breed of thinking which put women into maternal bondage in the first
place. And ironically, these are the very bonds which the fledgling
woman's movement first sought to cast off. What is new about it is the
number of women who have jumped on the bandwagon.
Back in the nineteenth century, the industrial revolution caused a
shift in the complexion of American family life. Where before fathers and
older children had been home working their fields or their trade, with
mothers tending to myriad domestic chores, the industrial revolution pushed
them out the door and into production houses. This left mothers at home
with their infants and younger children. At the same time, various
technological advances worked to considerably lighten a mother's domestic
task load. As June Carbone and Margaret Brinig9 explain it, women who
remained in the home during this age of industrial enlightenment found
their domestic contributions recast and redefined. Thus motherhood was
redefined as the nurturing which was necessary to the well-being of infants
and young children.
This redefinition was played out in the courts as well. Carbone and
Brinig explain:
"With the growing maternal involvement in childrearing,
custody presumptions also changed. At the beginning of
the nineteenth century, courts favored fathers over
mothers in custody disputes in the belief that fathers
were in a better position to provide for their
children. As the new ideology celebrated the traits
that only mothers could bring to the young, the
paternal presumption changed in favor of a maternal
one. The courts protected, and thereby encouraged, the
increasing maternal investment in childrearing."
Thus women in the nineteenth and early twentieth century were
relegated to child care, and little more. It is these very limiting
definitions of womanhood which the first twentieth century feminists fought
to change, and which the newer feminists, with their "new sexism", seek to
reinstate.
Carbone and Brinig's work demonstrates that the new feminism, along with
contemporary divorce law trends such as the institution of "no-fault
divorce", have conspired to set women back to an age where they are only
free to be whatever they want so long as they can do it within the confines
of maternal bondage. According to Carbone and Brinig the new feminist
ideals operate to "encourage women to choose both to stay within the labor
force and to value childrearing above career pursuits."10 [Emphasis
added].
The maternal custody preference, and the exalted status accorded the
maternal bond in general, are factors which can coerce today's "liberated"
women into becoming or remaining fully responsible for raising the children
of our society.
By championing these mothercare ideals, women themselves, including
certain members of the feminist elite, are in fact helping to force into
maternal bondage those mothers who might genuinely prefer to be the
noncustodial parent, or to release a child for adoption, but for the strong
stigma attached to such decisions. A stigma which is perpetuated not only
by the maternal preference, but by that feminist literature which casts
mothers as the repository of all that is nurturing, and the fathers to whom
these mothers might wish to relinquish custody as the antithesis of that
ideal.
Another area of feminist thrust which has contributed to the incidence
of women being coerced into primary caretaker status is the push for a
greater maternal subsidy.11 Rather than encouraging and helping women to
become self-sufficient and autonomous, the current feminist catechism
teaches that women must be financially kept by men, and absent a man, by
the state as a patriarchal substitute. This keeping comes in the form of
spousal support, child support, and welfare. This is not to say that there
are not women who are needy, there are. But consider these words from a
collection of feminist writings which is, ironically enough, titled
America's Working Women: "One way of looking at [the incidence of women on
welfare] might be this: welfare could be the salary women receive for
raising children."12
For women who haven't been coopted into the welfare system, there is
the "salary" of child and spousal support. Brinig and Carbone, for
example, support a fault-based theory of spousal support which has the man
subsidizing the woman regardless of who is "at fault", excepting perhaps
those situations where the woman earns more than the man. Where the man is
at fault "the award to the woman should maintain the standard of living she
enjoyed during the marriage even if it is a hardship on him." Where she is
at fault, she must be compensated for lost career opportunities. Where
neither party is at fault, Brinig and Carbone come to the inexplicable
conclusion that the woman should be subsidized so as to "encourage her self
sufficiency".
Child support awards are designed, in theory, to underwrite the cost
of raising a child, and to allow the child to share in their father's
income and lifestyle.13 Nearly all states14 now have statutory
formulas which give the custodial mother15 a specific percentage of the
father's income, often at least 17% of his gross income for one child, and
25% of his income for two or more. While it is true that collection of
support is a problem, nobody has suggested that the formula amounts are
artificially inflated to compensate for non-payment, nor indeed that there
is any nexus at all between the percentage of child support awards which
are not kept current, and the formula driven award amounts.
Aggressive feminist lobbying has no doubt played a part in the new
awareness in our Federal and state legislatures as to the plight of the
single mother. Hence the new and "improved" child support formulas, and
modern theories of spousal support. However, by trying to throw money at
the problem they are encouraging the single mother to stay subordinated to
the maternal bond, rather than helping her to truly make a place for
herself in the world, and to be autonomous and self-supporting.
One feminist author, Herma Hill Kay, admits of the problems inherent
in a system of maternal subsidy. Kay argues that women will be unable to
achieve true societal and economic equality so long as they have to
continue making choices which are "economically disabling for women,
thereby perpetuating their traditional financial dependence upon men and
contributing to their inequality with men at divorce."16 Kay further
argues that one of the fundamental reasons that there is ongoing inequality
between the sexes is that women are still relegated to the status of
primary caretaker, and that this can be remedied by encouraging a sharing
of childcare responsibilities between men and women, and by perpetuating
that balance of responsibility beyond divorce through the use of joint
custody.
Brinig and Carbone criticize Kay for suggesting that "the appropriate
response to women's dependence on their husbands' incomes is less, not
more, financial support upon divorce. In order to dismantle the gendered
division of labor within the family, Kay argues that the marital bargain,
at least the traditional one that exchanges male support for female
services, should not be enforceable. Her analysis further implies that
compensation for lost career opportunities, at least for modern women who
make choices that are "economically disabling," should also be limited. In
states that preclude consideration of fault, lost career opportunities are
emerging as the primary basis for spousal support. Compensation for those
lost opportunities, however, sanctions the very choices of which Kay so
strongly disapproves: namely, decisions by modern women to forego
substantial career opportunities in order to contribute to the care of
their children or their husband's careers. Kay issues no call for a
reduction in divorce awards, but such a call is unnecessary. Her
endorsement, albeit qualified, of the present divorce system, which Lenore
Weitzman depicts as a system of transitional awards that falls far short of
compensating the career sacrifices modern women are continuing to make, has
much the same effect. Kay's central premise is that in order to achieve
equality, men and women need to make the same choices. Women need to join
men in the pursuit of careers; men need to join women in caring for their
children."
While it may well be true that the present divorce system does not
"adequately" compensate a woman for choosing to be unemployed or
underemployed, one needs to ask oneself if our system of divorce should in
fact be subsidizing such choices. As should be obvious by now, the author
believes that the answer to that question must be "no" if ever women are to
achieve true parity. Brinig and Carbone seem to ignore that it was the
right to make these choices, to get out of the nursery, and to be treated
equally in the work force, which was fundamental to the original women's
movement. Given that countless contemporary women have proven that women
are in fact capable of sustaining a career as well as having children, to
define women back into dependency on the very actors who have for
generations oppressed them, namely men and the State, is nothing short of
heresy.
Furthermore, to raise a hue and cry, as Brinig and Carbone do, that
such a reform would lead to a decrease in the instances of divorce is
alarmist and ignores the alternative reality which Kay suggests. If women
knew going into marriage that they would need to be self-sufficient in the
event of divorce, they would be more likely to resist the subordinated
position of being an unemployed or underemployed primary caretaker.
It is likely true, as Kay concludes, that if women were able to make
unfettered choices, such as pursuing a fulltime career, then women would
find themselves able to be self-sufficient, and relying on nobody for
financial support. But before any of this can happen we must stop
enslaving women with their "virtues", and damning them for their choices.
[Continued in Part 3]
2 Victor Fuchs quoting Erica Jong in "Women's Quest for Economic
Equality", Harvard University Press, 1988.
3 "Hard Choices: How Women Decide about Work, Career, and
Motherhood", University of California Press, Berkeley (1985); p.24.
4 Note that this paper does not address the undeniable sexual
difference of childbearing, as pre-birth biological differences have, or
should have, little bearing on post-birth childcare options. As Herma Hill
Kay points out in her work, Equality and Difference: A Perspective on No-
Fault Divorce and Its Aftermath, 56 U.Cinn.Law.Rev. 1, 1987, "by
emphasizing the bright line that separates the unique female tasks of
pregnancy and childbirth from the common male and female responsibility for
childrearing, ...analysis suggests that, when both parents are available,
neither should become the primary nurturing parent."
5 Some men's rights advocates refer to this equality as one where
women are as likely to lose custody as men. The author finds this a rather
negative categorization, and prefers to think of it as both sexes having an
equal right of access to their children.
6 Nancy Chodorow's book, "The Reproduction of Mothering:
Psychoanalysis and the Sociology of Gender", University of California
Press, Berkeley (1978), deals with the theory that women are more nurturing
and other-oriented because women were little girls who were themselves
raised by mothers, mothers who were women, and thus more nurturing and
other-oriented. The flip side of this, she argues, is that little boys do
not receive the same "mothering" from their mothers, and model themselves
on fathers, who as men are generally self-oriented, and not other-oriented
and nurturing. While Chodorow suggests that a way to alleviate this
perceived difference is to have equal parenting by both mothers and
fathers, so that the positive abilities of each parent will thus be
perpetuated in their children (and presumably then generations of boys and
girls to come), her own work perpetuates the vision of a maternal persona
which is the essence of all that is good and nurturing - the repository of
the parent-child bond.
7 "The Fantasy of the Perfect Mother", Nancy Chodorow & Susan
Contratto, 1980. But see Footnote 5.
8 Juggling: The Unexpected Advantages of Balancing Career and Home
for Women and Their Families, Faye J. Crosby, The Free Press, New York
(1991); p.121.
9 "Rethinking Marriage: Feminist Ideology, Economic Change, and
Divorce Reforms", June R. Carbone & Margaret F. Brinig, 65 Tul. L. Rev.
953, May 1991.
10 65 Tul.L.Rev. 953; 959.
11 The "maternal subsidy" is used here to mean any amount of support
which is greater than one-half the actual cost of providing for each child.
This definition carries with it the implicit belief that in a society where
both sexes are viewed equal to and equally responsible for the
responsibilities of parenting, a non-custodial parent of either sex would
not and should not be expected, nor required, to contribute more than one
half of the cost to raise the child.
12 America's Working Women, Baxandall, Gordon & Reverby; Vintage
Press, New York (1976).
13 While all political and feminist rhetoric insists that any amount
of child support awarded above subsistence level is to allow the child to
enjoy in their father's income and lifestyle, a child can only wear so many
pairs of shoes, and eat so much food. Nearly all other "lifestyle" perks
which might occur as the result of the added support will accrue to the
custodial parent, and to anyone else in the custodial household, as well as
to the child.
14 States which have specific statutory criteria for the calculation
of child support awards include: Alabama, Arizona, Arkansas, California,
Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois,
Indiana, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota,
Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New
Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas,
Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming.
(Source: Family Law Quarterly, Volume XXV, Number 4, Winter 1992).
15 While it is true that these state formulas are written in a gender
neutral manner, studies have shown that in those rare instances where
support is ordered of a noncustodial mother, it is often well below the
formula amount.
16 "Equality and Difference: A Perspective on No-Fault Divorce and
its Aftermath", 56 U.Cinn.L.Rev. 1 (1987).
