Reproduction Reconceived

Family Making and the Limits of Choice after Roe v. Wade

Sara Matthiesen

• Publisher: University of California Press
• Year: 2021
• ISBN:
  9780520970441
• Edition: 1
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

The landmark case Roe v. Wade redefined family: it is now commonplace for Americans to treat having children as a choice. But the historic decision also coincided with widening inequality, an ongoing trend that continues to make choice more myth than reality. In this new and timely history, Matthiesen shows how the effects of incarceration, for-profit healthcare, disease, and poverty have been worsened by state neglect, forcing most to work harder to maintain a family.

1

The Labor of Illegibility

LESBIAN AND SINGLE MOTHERHOOD ACCORDING TO THE LAW

It is important to note one major limitation on our efforts. Because the heterosexual model of conception, family relations, child bearing and child rearing is so prevalent, much of our analysis involved the task of transposing lesbian parenting onto a legal or medical framework for which it is ill-suited.

Report from the Multidisciplinary Study Group on Lesbians Choosing Children, 1983

A family portrait staged by lesbian feminist and civil rights activist Cathy Cade depicts Cade, her lover, Kate, Kate’s son, Guthrie, and their roommate, Pat. Each woman is clad in overalls or coveralls, and Cade and Kate stare down the camera with their arms crossed while Pat casually hugs her knees to her chest. The three women sit apart from one another, each holding her distinct space in the photo, and while Guthrie sits next to his mother, they are not touching. The items that represent each individual’s work are displayed in front of them, including Kate’s tools, Pat’s pottery, Cade’s camera, and Guthrie’s trucks. It is 1973 in Berkeley, California, and the residents of the “Emerson Street Household” have replaced the white, patriarchal, middle-class nuclear family with white, woman-centered, queer kinship, romance, and motherhood, mocking the conventions of family portraiture in the process.¹

Almost two decades later, a lesbian family portrait of a very different sort appeared in the New York Times to provide evidence of the “lesbian baby boom” that, by 1989, mainstream media outlets had declared was in full swing. This time, Kim Klausner and Debra Chasnoff are pictured jointly holding their son, Noah. This arrangement consumes the entirety of the frame, though the viewer gets the vague impression that the family is in their home. Both women lean over Noah dotingly as the baby coos. There is no space between either woman or their child, and there is no question about the lines of intimate attachment, both parental and romantic. To be sure, Klausner, Chasnoff, and Noah are redefining the terms of the nuclear family, but this family portrait attests to the success of their self-recognition. There is no trace of ironic distance that might indicate a political critique of the nuclear, domestic bliss that the photo radiates.²

Figure 1. Photographer Cathy Cade’s lesbian feminist take on family portraiture, Emerson Street Household, Berkeley, 1973. Courtesy of Bancroft Library, University of California, Berkeley.

The distance between the Emerson Street family portrait and the family depicted in the New York Times is only two decades, but these respective photos capture two distinct phases of lesbian motherhood. Still, there is one stubborn, unchanging detail that the camera’s shutter fails to expose: both in 1973 and in 1989, these family portraits depict single mothers. This is not true in the colloquial sense. Kate and Cade were lovers, and Kate’s ex-husband was helping to raise Guthrie. Klausner and Chasnoff clearly understood the decision to have a child and the project of parenting Noah as a joint endeavor that took place in the context of their commitment to one another. But lesbians’ chosen, familial attachments mattered little to the law. When I say that these two family portraits depict single mothers, I am describing the couples’ legal status as such and what that status has meant for their ability to secure sole custody of their children—or not.

Figure 2. Kim Klausner and Debra Chasnoff with their son, Noah. Photo taken for the New York Times in San Francisco, 1989. Courtesy of Terrence McCarthy.

What makes these family portraits of concern legally is the absence of a father-provider or, to be more precise, paternity. As expectations of traditional gender roles loosened, sped along by feminist and gay liberation movements as well as economic changes, mothers who divorced (or were divorced by) their husbands as well as women who bypassed marriage altogether contributed to the growth of single mothers heading families without fathers.³ Lesbians were the most intentional in their desire to raise fatherless children, and often the most wary of the repercussions that such an endeavor might bring. They had good reason to worry. Not all lesbians who left heterosexual marriages were as lucky as Kate. Around the time she and her ex-husband divorced, the likelihood that a judge would deny her custody of Guthrie on the basis of her sexuality was the same as flipping a coin, and even the “lucky” ones routinely traded much of their privacy, sexuality, and child support simply to visit their children.⁴

The immense vulnerability of gay men’s and lesbians’ parental rights that persisted from the late 1960s into the early 1990s profoundly influenced women who pursued motherhood through artificial insemination by donor (AID).⁵ Lesbians who made use of the fertility treatment thoroughly rejected courts’ findings that having a gay parent was not “in the best interests of the child.” But this rejection did not fully alleviate the fear of both the state and individual men that influenced some women’s reproductive decision-making. When these women pursued parenthood, they were clear-eyed about the fact that becoming a lesbian mother was threatening precisely because such a status lacked the supposedly essential characteristic of parental fitness: an acknowledged father-provider. As one woman who wanted anonymity from any potential sperm donor explained, “as a lesbian, as a mother, I didn’t want some man with his wife and little picket fence to come to some judge and say, ‘A lesbian is raising my kid.’ ” ⁶ The fact that women were pursuing motherhood outside of marriage and heterosexual sex made lesbians pursuing AID guilty of trying to bypass not just individual, would-be fathers, but paternity as well. Paternity was of particular interest to the state as a way of ensuring that the care of children remained a private obligation. Lesbians who turned to AID as a way to make a family feared the repercussions of both trespasses. To insulate their parental rights from both donor and the state, lesbian mothers spent the decade and a half between the Emerson Street staged family portrait and the New York Times family photo strategizing how best to thwart the law’s desire to attach a male provider to every child.

They had their work cut out for them. First and foremost, women had to find a way to get pregnant without the help of a male sexual partner or a physician. While Klausner and Chasnoff could have used the services of the only sperm bank to openly welcome single women and lesbians, most women had a much harder time accessing the most important part of the process—semen.⁷ Fatherless families, much less lesbian mothers, greatly concerned physicians who administered AID through private practice or university medical centers. The treatment was considered appropriate only for married couples—until the fertility industry realized single women were an untapped market in the 1980s. Locked out of institutional routes to pregnancy by physician gatekeeping and hoping to avoid sex with men, lesbians in the women’s health self-help movement became experts in what they called “alternative fertilization.”⁸ Women who built family through this strategy did so by reading medical textbooks, using knowledge of ovulation cycles to increase chances of conception, writing and distributing guides on insemination, and taking on the greatest task of all: procuring semen from willing donors.⁹ And they did so at the same time moralizing about the breakdown of the nuclear family led the ascendant conservative movement to elect Ronald Reagan president in 1980.¹⁰ For lesbian feminist activists, self-insemination and its promise of achieving pregnancy on one’s own terms was an issue of reproductive liberty just as pressing as the right not to have children. And, at least in the early years, they scorned the “patriarchal laws” designed to control their reproductive and sexual practices.¹¹ Authors of the 1979 how-to pamphlet Woman Controlled Conception were not alone in their assumption that any such recognition would only serve to restrict women’s reproductive control, hence the appeal of self-insemination. “The beauty of artificial insemination is that we can do it ourselves, no matter what laws they might pass.” ¹² Alternative fertilization held the promise of freedom from “patriarchal laws,” a chance to create family anew. And yet, lesbians’ do-it-yourself (DIY) practices nevertheless had legal ramifications, and navigating the law made the already labor-intensive project of getting pregnant even more laborious. Specifically, because the law had no logic or framework with which to recognize lesbian motherhood—because lesbian motherhood was illegible to the law—lesbian mothers confronted a form of legal neglect that rendered their families vulnerable to state interference. The same year Cade staged her lesbian feminist triumph over patriarchal family portraiture, the Uniform Law Commission approved the Uniform Parentage Act (UPA). Authors of the UPA hoped it would bring state legislatures in line with a series of Supreme Court decisions that declared distinctions between marital and nonmarital children unconstitutional. Specifically, these cases aimed to abolish the legal category of “illegitimacy.” But as civil rights and feminist attorneys who fought on behalf of the Black, poor female-headed families targeted by such laws learned, doing away with marital status was not sufficient for eradicating the gender and racial discrimination that rendered these families illegitimate.¹³ While the importance of marital status receded, paternity—and its ability to ensure the private care of children by a father-provider rather than the state—remained firmly in place despite the Supreme Court decisions and the UPA’s approval. Indeed, the UPA was one of the main laws through which paternity took the place of marital status, and it was this legal quagmire that lesbians raising fatherless children inherited. What relevance should paternity have in families deliberately constructed without a father? How would race and class mitigate or amplify the state’s interest in establishing paternity? How did the legal illegibility of lesbian families without a male head of household make these mothers vulnerable to discrimination within a legal regime that affirmed paternity as the singular criterion of a legitimate family?

This legal uncertainty meant lesbian mothers and their advocates labored on three related fronts: to get pregnant in spite of institutional barriers to AID treatment, to do so while fearing the removal of any child thus conceived, and to craft legal solutions that might make their families legible—that is, “recognizable” as a family unit deserving of the same rights afforded those the law deemed “legitimate” families. On the third point, attorneys with the Lesbian Rights Project (LRP) ensured that the UPA would have to reckon with lesbian motherhood, and the legal aid organization played a large role in overcoming the legal neglect lesbian families faced. The model law contained a clause that nullified a donor’s paternity to a child conceived through AID as long as semen was provided to a physician for the purposes of insemination. The family law scholar Harry Krause, who crafted this clause, never presumed that it would be used by anyone other than heterosexual, married couples who wished to conceive a child through AID. But in the hands of LRP attorneys, the clause ultimately enabled lesbian, single mothers to overcome their legal neglect. Working within the terms of the clause, however, meant rerouting lesbians to the very institution that had denied them motherhood in the first place: physician-assisted AID.

Such a solution, now seemingly mundane when one considers the fertility industry’s embrace of queers desiring children, was not without costs.¹⁴ Legal structures never intended to legitimate lesbian motherhood did provide protection for some women. But they could not secure the reproductive freedom envisioned by lesbian feminists who hoped that family, built according to the terms desired by each mother-to-be, might become a reality for all women. The UPA’s ability to negate donor paternity offered the lesbian mother who conceived in accordance with the law an invaluable parental right: privacy.¹⁵ This right was granted in exchange for reproductive decision-making authorized by the physician or the clinic. For this reason, it was more accessible to those who could afford fertility treatment or purchase banked sperm and then self-inseminate. But this was not the only way privacy was more readily available to well-resourced lesbians than their less well-off counterparts. Lesbians’ ability to become and remain...