Mothers in Law: Feminist Theory and the Legal Regulation of Motherhood.

• Author: Lhamon, Catherine E.

Edited by Martha Albertson Fineman(*) and Isabel Karpin.(**) New York: Columbia University Press, 1995. Pp. xiii, 398. $65.00 (hbk.); $16.50 (pbk.).

Until Martha Fineman and Isabel Karpin published their collection of essays, feminist scholars in law had largely ignored motherhood as a topic for discussion. To be sure, feminist scholars in other disciplines had embraced motherhood as a rich theoretical construct.(1) By contrast, however, to the extent that feminist legal scholars had confronted motherhood, they had done so largely as a biological problematic: Should women's reproductive capacity gamer women treatment that is different from or the same as men's?(2)

This focus on motherhood merely as an indicator of biological difference stems from feminist lawyers' strategic efforts to obtain equality for women in the late 1970s and 1980s: Feminist lawyers fought for and won judicial recognition of sex equality by styling women as the same as men.(3) But women's capacity for motherhood, because it signals difference, challenges this effort to prove sameness. Feminist legal theorists consequently divided for a period over the problem of sameness and difference.(4)

More recently, however, feminist legal scholars have begun to look beyond the equal treatment debate; they have begun to describe differences among women themselves and so to theorize about these differences rather than dwelling exclusively on equity with men.(5) This newest "intersectional" focus in feminist legal theory examines women not as essential and univocal, but as differently classed, raced, and sexualized.(6) According to this view, the various systems of subordination previously identified by separate feminist, critical race, and critical legal studies theories in fact intersect to subordinate women, as well as people of color, poor people, and lesbians and gay men in a particularly debilitating manner.(7)

The newfound variousness within the feminist rubric now offers feminist legal scholars the opportunity to confront motherhood less inhibited by concern that motherhood--and, more specifically, the biological difference that motherhood represents--undermines feminist legal goals. Martha Fineman and Isabel Karpin's collection of essays accepts the challenge,(8) eschewing merely biological discussions of reproductive capacity in favor of attention to motherhood as one form of women's social plurality. As a result, the essays document and define a new diversity and complexity of feminist goals. In the process of offering theories of motherhood, prescriptions for mothering practice, and broadened perspectives on feminism, the essays reject the cultural presumption that all women are in some sense mothers whether or not they in fact have children.(9) Instead, the essays recognize motherhood as one role of many that women may take on.

Just as lesbian feminists, feminists of color, and feminists concerned with class differences have begun to show that feminist legal theory is flawed unless it accounts for the ways in which women are always already sexualized, raced, and classed, Fineman and Karpin's collection suggests that feminist legal theory also must account for "the persistence of traditional values that posit motherhood as evidence of womanhood" (Omolade, p. 279). Starting from the premise that "[a]ll women are socially defined as mothers or potential mothers" (Roberts, p. 229), several of the essays examine the disutility to women of this social definition. For example, Reva Siegel's argument that "abortion restrictions reflect stereotypical assumptions about women's roles" demonstrates how "status-based judgments about women" reflected in antiabortion rhetoric redound to the detriment of all women, regardless of whether they are in fact mothers. Stereotypical assumptions about women, Siegel shows, are neither less insidious nor less present elsewhere in women's lives by virtue of the stereotypes' visibility only in the context of motherhood (Siegel, pp. 64-65). Similarly, Marie Ashe argues that lawyers who uncritically accept social judgments about some women as bad mothers "participate in sustaining the legal structures of class division, of racial injustice, and of domestic violence that denigrate and oppress all women" (Ashe, p. 152).

Fineman and Karpin's collection, then, powerfully demonstrates that mothers' special legal concerns bear directly on the legal status of all women. As the 1970s and 1980s taught us, women risk concrete losses in law if feminist legal scholars do not attend to differences in women's social situations.(10) For example, because courts have not recognized discrimination on the basis of motherhood as sex discrimination,(11) mothers--and therefore women--lose...