I’d like to start by acknowledging that these two readings were published 30 pages away from each other in the Creighton Law Review, which struck me as noteworthy. The Creighton Law Review is published by the students of the Creighton University of Law, which is a Jesuit institution. Though from intensely different perspectives, both articles have moments of agreement.
I will first discuss the “Feminist Perspective” article by Barbara Katz Rothman. I felt that the piece had a moderately erratic flow from idea to idea, with particular parts appearing to be unsubstantiated. Contrary to most of our readings in this course, this one is not based on any sociological data or ethnographic interviews, and seems to be substantiated on only her own arguments and parallelisms, which places heavy weight her rhetoric to be compellingly persuasive. The most notable unsupported statement was that “Men repeatedly win custody battles at much higher rates than women do.” A study by Braver et. al in Arizona State University found women are more liekly to be awarded primary residential care 68-88% of the time, with fathers receiving custody 8-14% of the time, and equal custody 2-6% of the time (1). In addition to a number of inconsistencies, I am not quite sure who the audience of this piece was supposed to be. She has strongly promoted the perspective of the woman in pregnancies and highlights biblical and modern norms surrounding procreation as marginalizing women.
Rothman begins the passage with a legal anecdote of Baby M, a situation where an inseminated surrogate broke a contract with a couple in an attempt keep the baby, as she had changed her mind during pregnancy. Though she won the lawsuit concerning motherhood, she lost custody to the father (whose sperm had helped to create the child), thus returning matters as the contract originally bound.
Rothman remains fixated in an traditional surrogacy (insemination of the surrogate) as opposed to gestational surrogacy (in vitro fertilization) in order maintain an overarching patriarchal narrative, as the former involves only paternal relation to the child and the latter involves both maternal and paternal relation to the child. Rothman also derides women who are involved with traditionally surrogacy, likening them to underage Catholic girls who lose their child in court to adult fathers. Counter to what I would anticipate from most feminist perspectives, Rothman’s arguments in fact lead her to argue against ART’s more generally.
I found Rothman’s article to be largely reductionist of the role of the mother and surprisingly unclear on her stances on certain issues. In the end, her label on infertility as a disability did not seem to bring her closer to supporting ART’s, but rather to continue to double-down that the child inherently ought to belong more to the gestational mother than anyone else.
This passage did however get me thinking differently on certain topics. For example, what changes would satisfy Rothman’s worldview? Does the historic/religious and modern societal marginalization of women justify additional changes to the legal ownership of a baby by courts law (which are already decided in a ratio of 7:2::mother:father)?
Meilaender identifies himself as a Protestant, who, rather than a Catholic decree-follower, wanted to delve into the texts themselves. Contrary to Rothman’s citationless article, Meilaender’s article is littered with references and quotes. My favorite quotee was David Smith, who agree with Rothman’s distaste for traditional surrogacy, but arrived there using different reasoning. He argues in a tractional surrogacy, one parent (the father) remains truly related to the child compared to the infertile parent (the mother), and offered an alternative via adoption in which both parents would be unrelated. I saw this as a fair double loss where both parties still lost, with respect with the traditional model where both parents are fully related to the child.
Meilaender’s narrative uses these arguments to reject such technologies altogether in favor of a simpler two-person model, thus doing away with the question of parenthood completely. An issue that seems central to Meilaender is the importance of the biblically highlighted sexual embrace that precedes pregnancy. Towards the end, he uses Oliver O’Donovan to feign support for IVF to make a point that would eventually erode what it meant to be a parent and questions whether that power lies with people or with God.
Though the readings were from vastly different angles, they came to a common moment of agreement. Some additional questions that were raised for me were (as usual) the role in this intensely religious-driven ethical rhetorical for the non-Protestant masses. I could completely support this for the internal regulation of the Protestant people who choose to subscribe to it, but it feels inappropriate to have it be the sole foundation of any legal bases.
Should IVF be able to be limited or banned to those of faiths that allow it because the religions of the majority population deem it to be immoral? If no, does a decentralized sect like Protestantism ever allow for politically democratic establishments of majority opinion?
1. Sanford Braver and his colleagues at Arizona State University recently conducted a study to see how the public would judge custody decisions and their perceptions of the legal system regarding custody (Psychology, Public Policy and Law, 2011).
Unit Nine Response:
Ayman, I like how you started your blog post by mentioning that both articles were from the Creighton Law Review. This is something I did not notice at first and it actually helped me connect the two articles even more. For example, the journal probably included both articles because of the similar topics they discussed; but because both articles used different arguments and reasonings, it allows readers to mold their ideas to whichever argument they find more convincing. Personally, I agree with Rothman in her overall view that females aren’t held at a high enough status in society when it comes to circumstances involving surrogacy. The article made out females to be “carriers” of a baby while the man is still in ultimate control. Not only is this apparent objectification of a female, but also a precursor for gender inequality.
One aspect I would have wanted you to talk more about was kinship. Earlier in the semester, we spent some time talking about this subject, so I would have liked to see your connection between this unit and unit one. Overall though, I enjoyed your analysis of the two articles and thought the blog was well-written.
Hi Ayman, hope all is well.
I really liked your blogpost because it wasn’t just a summary of the two articles, but actually also an analysis and critique. I think especially your criticism of the article by Barbara Katz is very well justified. In my opinion it is strange to publish an article in a Law journal without using any citations. Furthermore I think the fact that she made such an unsubstantiated and wrong claim about custody battles for children makes her lose a lot of credibility.
Your questions about IVF and protestantism are really good questions. I don’t think IVF should be banned in populations with religions which ban them. Lebanese Shiite Muslims living in a country in which IVF is not allowed by most religious authorities still undergo IVF to have children. It seems that religion is very important to many Muslims around the world, but when it comes to starting and creating a family it suddenly has to take a ‘backseat’. Creating a family becomes more important than the rules set forth by their religious leaders. I think the example of the Lebanese Shiite people can also be used to answer the second part of your question. Islam is also a very decentralized religion and thus does not have set guidelines for IVF throughout all muslim majority countries. IVF which may be banned by religious authorities in Lebanon is legal in Iran. I think the same applies to protestantism. While you may have many religious authorities who can have similar views, there can be discrepancies and I believe it would be near impossible to have a “politically democratic establishment of [a] majority opinion”.
Ayman,
I was also surprised at the angry, rant-like tone of Barbara Rothman’s entry in the Creighton Law Review. I found it interesting that the title of this entry is “The Feminist Perspective” as if her experience is representative of all women in society, but I’ll talk about that in a second. You pointed out that all of these articles were from the same 1991/1992 publication of the Creighton Law Review. I was kind of confused that such an extremist view was represented here, seeing as it is a scholarly publication written by law students wanting to address the current discourse surrounding legislature. I would think that not only would all of these entries be backed by significant evidence (like Meilaender’s was) but would come from a place of neutrality.
Anyway, to address her apparent hatred of all things containing XY chromosomes. When I read this I thought the whole time that this is absolutely not my experience in our society/culture. I don’t feel oppressed by a patriarchy. I thought at first that it was because I lived in a different time–with a different paradigm of thought–but she is writing in the early 1990s. It’s not like she’s writing from the suffrage movement in the 19th century. Maybe we have come a long way in 20 years, but to me the inequity she poses is extreme. As you pointed out her information is either outdated or misinformed. She even talks about a child having half a woman’s genetic material, which just isn’t true if you consider mitochondrial DNA.
I think attempting to answer your question about what changes would need to be made to appease Rothman’s critique of society drives home my point. My first thoughts have to do with giving women longer paid maternity leave, funding organizations like Planned Parenthood and investing more in early-childhood care and education. Of course these would be positive changes in our society, but I don’t think that making these changes would mean dismantling a male-based social hierarchy. In fact, isn’t the argument that giving a woman the power to be able to use their bodies for surrogacy just as compelling? Isn’t a law preventing this practice just another way of limiting a female’s freedom to do what they want with their bodies? I think this promotes a patriarchy just as strongly as the opposite would, perhaps more strongly. Anyway, thanks for the food for thought. See ya tomorrow.
Very well written.
I agree with Hannah that Rothman certainly paints the issue of surrogacy as simply a clash between female and male interests. I do find it problematic that she doesn’t include citations. Most of the evidence she provides is actually based on linguistic discourse. For example, she says that a surrogate mother was described as a mother-in-law rather than the mother of her daughter. She says that this shows how our discourse tends to focus on men. Language is a powerful tool that reveals important insights about our culture, but I do think she should have been more explicit about where her examples came from. Evidence of one person framing surrogacy from a male perspective does not mean she can generalize this to American society. I like how you focused on Smith’s ideas about surrogacy. It’s interesting to me that he brings up the inherent inequality of men and women when one person contributes their gametes but the other doesn’t. This completely goes against Rothman’s view that men enforce their own agenda without considering women.
Ayman,
Great work picking up the fact that these two readings were published one after another in the same Law review journal. That is a really interesting point that is definitely important for us to note as students analyzing these articles.
I liked how you’ve changed up your post this week and really have gone straight for a critique of Rothman’s article. I found this really interesting to read on top of what would simply be a summary. One thing you point out is the fact that Rothman simply does not use substantiated claims in her article, in fact reading it I came across a few passages where I could hear myself think “that can’t be true…?”. Great job actually going through research and finding references that counter her arguments, I think this is really helpful for us as your readers.
Anyways, I really thought your critique of the article worked for me and my understanding.
For the second article, I found it interesting to see the bible interpreted in such different ways in this article, which contrasts from what we’ve seen in class with regard to the roman-catholic perspective. In some sense, the fact that the Catholic church has one doctrine that simply states yes or no decisively to this tricky moral issues seems almost more appealing to me than the ability for the various different levels and angles of interpreting texts in the Protestant circles. What do you think? Do you think the catholic doctrine is just too simplistic?
well done, good food for thought.
Hey Ayman,
I agree that I felt like Rothman could have used some more evidence to back up her claims. I see your point that women generally have custody of the children after a divorce, but Rothman says that men, when they want custody, get it, which is different from custody in general. Not all men want custody of the children and would rather pay child support instead (although as we saw in last weeks’ reading, Contested Lives, that many times child support was not paid).
I do not believe that procedures should be limited for individuals of certain religions that do not support those procedures. As mentioned in the readings, Catholic women disproportionately use IVF, even though it is clearly against Catholic teachings. Banning certain procedures would create an array of issues. How would doctors know if a man or woman was allowed to receive treatment, especially if he or she wanted the treatment despite the rulings of the religion? What if not providing treatment goes against the doctors oath of “Do no harm?” It would be much more reasonable for religious hospitals to outlaw procedures, but that prohibition should not go further than the walls of that hospital. I also see religion as a much more personal issue, and therefore should not play a role in policy making.
-Ben