Abstract
How does the law define parenthood? Is there a way to legally define parenting while also promoting gender equality and equity? Why did genes become more important than relationships in defining and protecting parental rights? These are the fundamental questions Professor of Law Jennifer Hendricks explores in her fascinating book Essentially a Mother: A Feminist Approach to the Law of Pregnancy and Motherhood, which weaves complex case law, policy analysis, legal and feminist theory, and personal lived experience in beautifully written, highly readable, and at times even humorous prose. Grounded in a compassionate and clear-sighted relational feminist perspective, Hendricks traces nearly a century of key court cases about parental rights to show how we arrived at a modern legal system that prioritizes genes in cases involving issues of pregnancy, custody, citizenship, child welfare, surrogacy, and abortion access.
Starting with what have come to be known as the “unwed father cases,” Hendricks shows how the “biology-plus-relationship” test—the requirement that a person must have a genetic link with and a relationship to a child—was once the guiding framework for establishing parental rights. It was an important improvement over assuming that a father was the man married to a child’s mother, as the U.S. legal system historically did. Yet because there is no paternal analog to gestation, courts looked for some common ground between biological motherhood and biological fatherhood—and they found it in genes. As courts shifted to a definition of parenting rooted in genetic essentialism, the legal system chipped away at the “biology-plus-relationship” test, ignoring the central importance of care in the parent-child relationship and reflecting the law’s tendency to prioritize individual autonomy and ownership over caregiving and connection.
As Hendricks smartly shows, in a futile effort to promote gender neutrality in parenting rights, undermining the “biology-plus-relationship” test led to legally defining parenthood in the narrowest possible way through genes and diminishing gestation as a social and emotional relationship specifically, and caretaking as an activity generally. Substituting genes for marriage as the basis for paternal rights reinforces the legal system’s tendency to place little value on men’s caretaking relationships. It also created a family law system in which being a genetic father can be sufficient to claim and exercise full parental rights, even when it intrudes on mothers’ rights, such as in cases of rapists who impregnate victims and have partial or full parental rights to the children that result from their crimes.
This shift from relationships to genes as the basis of parenting rights also has serious implications for other issues, including surrogacy, mixed-up embryos in fertility clinics, and access to abortion. In the five decades between the Roe and Dobbs decisions, a limited right to abortion was justified as an autonomy right free from government intervention into personal liberty, a right more easily exercised by those with more power, privilege, and resources. As Hendricks compellingly argues, valuing the intimate caretaking relationship formed during gestation necessitates access to abortion as a right, not only to protect women’s access to their own autonomy, but also as protection from invasion of the body against the individual’s will through unwanted pregnancy and the relationship it creates. In claiming that the Constitution does not protect such a right, Dobbs degrades parenthood as genetic definitions do—by failing to recognize how gestation and birth, rather than genes, create a parent, a child, and a parent-child relationship. Treating pregnancy as physically and emotionally inconsequential for becoming a parent—as reflected in the familiar anti-abortion refrain that a pregnant person should just continue the pregnancy and give the baby up for adoption—denies the pregnant person’s full humanity by denying them the right to create voluntarily the social and emotional relationship that will turn the pregnant person into a parent.
By now the American legal system shows no signs of deviating from these deeply entrenched roots of genetic essentialism. Hendricks therefore concludes that policy change is likely our best hope for resurrecting the relationship part of the “biology-plus-relationship” test as a legal basis of parental rights. The book would have benefited from more discussion of what these policy changes might look like and specifically how we might rescue parental rights from the strong hold of genetic essentialism, a narrowly reductive view of parenting that further marginalizes parents already marginalized by gender, class, and racial inequities. Readers coming from a sociological perspective will likely be curious about how legal recognition of care as central to definitions of parenthood could be a basis for establishing the larger socioeconomic and political conditions that best support caregiving relationships.
Essentially a Mother may not have had the space to delve too deeply into these issues, but it certainly raises and starts to answer the important question of how a legal system rooted in care and relational understandings of parenthood might work. It would be one in which relationships were afforded the same legal protection as autonomy, and our connections to one another in a social web of coexistence valued as much as our individuality. Broader legal recognition of care could also pave the path toward better remuneration and more rights for those who provide care (still mostly women and mothers) and guarantee access to basic needs as a fundamental right, including freedom from the life-depriving invasion of poverty and deprivation. As importantly, it might also be the basis for rights-based claims to not provide care, as in the case of abortion access, which, as Hendricks argues, is just as much an issue of the right to not become a mother as it is one of personhood and bodily autonomy.
Ultimately, Hendricks shows how although care is central to most family relationships, the law belies this when it reinforces narrow genetic definitions of parenting. Case by case, Hendricks brilliantly identifies and picks apart a pathology at the heart of American law: the strong tendency to protect an androcentric ideal of freedom over promoting and protecting our mutual obligations to one another. Of all the reasons I recommend Essentially a Mother to a sociological readership, the main one is because it is among the very best books I’ve read that lay out a legal and humane rationale for why moving away from essentialist understandings of parenting is fundamental for recognizing how that mutuality is rooted not in genes or marriage, but in meaningful connection and care.