Friday, November 6, 2015

ASLH Panel Recap: "Contesting Fatherhood"

[Here is Sarah Barringer (Sally) Gordon's recap of another panel at the 2015 annual meeting of the American Society for Legal History, Contesting Fatherhood:  Mediating Institutions and the Legal Regulation of Paternity from the Romantic Period to the Clinton Era.]

Panelists: Danaya Wright, Clarence J. TeSelle Endowed Professor at the University of Florida Levin College of Law; Deborah Dinner, Associate Professor at Emory Law School; Kara Swanson, Professor of Law at Northeastern School of Law.  Chair and comment, Holly Brewer, Burke Chair of American History and Associate Professor at the University of Maryland

Danaya Wright’s “Romanticism and Revolution:  Percy Shelley’s Children and the Origins of Parens Patriae” focused on Shelley’s loss in 1817 of custody of his children from a first marriage.  The father of Shelley’s dead wife sued, claiming that Shelley was an atheist, blasphemer, and adulterer (he deserted this first wife before she died, and took up with another woman).  Lord Eldon, the chancellor who decided the suit and was known to oppose all manner of liberal reforms, extended the traditional concept of parens patriae beyond its grounding in a royal prerogative to those with “reform views” and “vicious” opinions.  In the process, Eldon inaugurated a new pattern of removing children from fathers who might be financially sound but transgressed in other ways – they were homosexual, atheist, sexually promiscuous, or otherwise morally suspect.  In this way, the court expanded parens patriae to normative elements of the household.  This judicial oversight of the domestic sphere was deployed to give the state a mandate to interfere with parental rights, a mandate exercised primarily against fathers.

Deborah Dinner’s “Working Fathers: The Origins and Consequences of Sex Neutral Caregiving Entitlements” examined claims by working fathers in the 1970s that they, too, deserved parental leave.  These “male liberationists,” while never a cohesive group, nonetheless highlighted the tension within feminists’ claims parity.  Traditional maternalist laws “protected” women, reinforcing stereotypes but also providing important limits on what employers could demand of female workers.  Labor feminists argued that such protections should be expanded beyond mothers, to limit work hours and provide over time for all employees.  Other feminists argued instead in favor of formal, legal equality over mandatory protection.  This latter group championed provision of unpaid leave for all parents, and in the process they privileged those who could afford to take time off from work, an “upper class equality.”  And as Americans began to work longer hours with less job security in the mid and late 1970s, responsibility for child rearing shifted firmly inward to the family and away from state protective legislation, a new cultural and psychological.

Kara Swanson’s “Making Fathers in the Clinic: Donor Insemination and Legal Paternity” probed the simple process of insemination and the complex legal world that evolved to “make” fathers of the husbands whose wives were inseminated with a donor’s sperm from the 1940s through the 1970s.  The entire medical process was shrouded in secrecy, but its goal was the production of a legal fatherhood, and decidedly not “adultery by doctor.”  At first doctors described the process as “semi-adoption,” a legal fiction that collapsed under scrutiny by courts.  And one estranged husband in Illinois actually asked that his wife be charged with adultery.  Finally, a model Uniform Parentage Act smoothed the way for husbands of inseminated women.  Nonetheless, the ease of the procedure meant that it traveled outside the strict bounds of heterosexual marriage that mid-century doctors assumed would be eligible.  Especially among same sex couples and in clinics where secrecy and privacy eroded, some sperm donors have been held to paternal obligations.  And in the 21st century, lawyers are now reaching back to the older concept of adoption, as both parents are now “made” in fertility clinics.

Holly Brewer’s comments noted that Shelley was himself a minor peer, and thus a high ranking figure.  The extension of such state power to such a man was itself surprising in the early nineteenth century.  In addition, she urged Dinner to take account of the physical fact of motherhood as she works on the complex debates among feminists and “male liberationists” over equality and parity.  Finally, she noted that physical fathers were “separated” from legal fatherhood in Swanson's clinics, a point that was picked up in questions.  Sophia Lee noted that one might speak as much of “termination” of fatherhood in the clinic (the fatherhood of the donor) as of the “creation” of fathers.  Barbara Welke asked about interracial couples, especially in light of the work of the late Peggy Pascoe.  Other questions asked about whether the contrast in Dinner’s work between cultural change and structural protection might benefit from some investigation of the overlap between the two.  In closing, it is worth noting that Percy Shelley, the subject of Wright’s paper, challenged his own father's authority when he surrendered his claim on the family estate in return for a cash payment after his father criticized the son's public and controversial defense of atheism.

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