To love the babe that milks me: infanticide and reconceiving the mother.

• Author: Lang, Lucy Jane

"We must integrate into our in-itself-for-itself the given of an original relationship with our mother ... in which, at one time, we received life rather than death from the other." (1)

"[I]n light of the extended period of time little Lazaro was subjected to the tortuous abuse leading to his death, the ultimate sentence is warranted in this case.... Is it so ordered." (2)

1. INTRODUCTION

   Ana Cardona is currently awaiting execution on Florida's death row for the brutal abuse and murder of her three-year-old son. After her trial, the court found as fact that:

   During an eighteen-month period ... Cardona beat, choked, starved, confined, emotionally abused and systematically tortured Lazaro. The child spent much of the time tied to a bed, left in a bathtub with the hot or cold water running, or locked in a closet. To avoid changing Lazaro's diaper for as long as possible, Cardona would wrap duct tape around the child's diaper to hold in the excrement. Cardona blamed Lazaro for her descent "from riches to rags," and referred to him as "bad birth." (3) The court went on to explain that Cardona hit the child on the head with a baseball bat before abandoning him in the bushes near Miami Beach, where he died slowly over the course of the next four days before his disfigured body was found. (4)

   This Article first argues that the existence of infanticide (5) in the United States reflects the extent to which women are not free to choose whether or not to become mothers, due to hidden cultural pressures and a lack of alternatives, and then offers an alternate framework for understanding motherhood. (6) This argument does not intend to justify crimes of infanticide or to devalue the suffering of children; rather, it calls attention to the fact that women are socially and legally expected to have and raise their own children. By providing a theoretical framework for understanding the possibility that not all women choose to have children, this Article issues a call to reframe our conception of motherhood and to provide viable options for women who cannot or do not want to raise their own children. (7) Through the application of a theory of suffering, this Article argues that the United States criminal justice system is remiss in prosecuting infanticidal mothers under standard homicide statutes and should rather adopt specific infanticide statutes that recognize the distinctions between infanticide and other homicides. While such statutes would not necessarily reflect diminished culpability for the criminal act, differentiating infanticide from other forms of murder could protect women from public vilification as "murderers" (8) and from lengthy, unpredictable sentences. (9)

   Despite the many instances of mothers who treat their children with shocking brutality, women are inundated with positive notions about motherhood and encouraged to enter the "cult of motherhood." (10) Women are taught that having and raising children is the ultimate female task, a form of self-imposed suffering that fundamentally distinguishes women from men. (11) This Article seeks to dispel the mythology that motherhood is necessarily a choice and rather suggests that motherhood may be a form of unchosen suffering imposed upon women by various cultural and legal constraints. Employing Cynthia Halpern's two theories of suffering, (12) this Article argues that although motherhood manifests itself as a form of positive suffering for many women, the historical existence of women who injure or kill their children suggests that motherhood can also be experienced as negative suffering. (13)

   Infanticide and its treatment in the law illustrate the entrenchment of the American presumption that motherhood is per se a choice. Considering the different forms of infanticide currently recognized in American legal scholarship, this Article explores the extent to which infanticidal mothers are not deviant mothers, but simply mothers who experience their motherhood as negative suffering in contrast to the positive suffering women are taught to expect. Part II establishes the framework of two theories of suffering proposed by Halpern, while Part III explains the relevance of theories of suffering to theories of motherhood. Part IV explores the importance of the theory of negative suffering for reconceptualizing mothering. Part V sheds light on our concept of motherhood by tracing how negative suffering manifests itself differently in cases of neonaticide, filicide, and abuse-related infanticide. Part VI proposes recommendations for acknowledging how motherhood might constitute a form of negative suffering.

   Examination of infanticide as the extreme case of the negatively suffering mother clearly demonstrates that our cultural construction of motherhood in positive terms is inadequate for addressing the complicated political and legal landscape into which mothers presently are forced. This Article intends to restructure American restraints on mothers as a legal category by arguing for an understanding of motherhood as both positive and negative suffering. While theory necessarily entails some uncertainty due to its inability to fully describe all mothers' experiences, a theory of motherhood that centers on choice and suffering can nonetheless broaden our cultural and political understandings of women.

2. TWO THEORIES OF SUFFERING

   Cynthia Halpern's two conceptions of suffering, posited as a critical reflection on Sir Isaiah Berlin's "Two Concepts of Liberty," (14) provide fertile grounds for an analysis of motherhood and choice. Integral to this notion is a broad sense of the nature of choice: "I can choose between wines for dinner, or between houses, but that is not the same sort of choice I make as when I choose to suffer for my child, or for my God." (15) Suffering that is chosen in this deep sense is positive suffering, while suffering that is inflicted on the sufferer for someone else's purposes is negative suffering. (16) The forms that positive and negative suffering take are, of course, historically contingent. (17) At this moment and place in history, motherhood is experienced as both forms, but is generally represented in public discourse under the rubric of positive suffering. (18)

   The dichotomy between these forms of suffering is contingent on the individuals who experience them. Positive suffering is chosen or accepted because it has purpose for the sufferer. Negative suffering, however, is inflicted on the sufferer by people or circumstances that are outside the sufferer's control. As Halpern states:

   Negative suffering is not chosen and it may be meaningless to its victims, either because it is understood as natural, with no moral valence, or because it is incomprehensible, or is willfully evil, the intentional infliction of injury, violence, and death by others for their own reasons. It is not so obvious what sorts of suffering fall into these categories, and this is the value of the distinction. The sorting helps clarify what is at stake. (19) The stakes in the alignment between motherhood and suffering are the political and legal interventions that justify and perpetuate the ways in which motherhood is experienced. (20) What of the woman who does not choose the suffering of motherhood, who experiences pain in pregnancy and childbirth, or who is emotionally disinterested or unable to mother, yet who is nonetheless expected to act under the normative value system that presents all motherhood as freely chosen? This is the woman with whom this Article is concerned: she who acts in accord with her experience of motherhood as negative suffering and is subsequently punished by a law that is structured under the presumption that all motherhood is chosen, positive suffering.

3. SUFFERING AND MOTHERHOOD

   There are many parallels between theories of suffering and theories of motherhood that have gone unnoticed in political and legal theory. One of the ways that history grants agency is through the recognition of individuals' and communities' suffering: the stories of soldiers who suffer in times of war, martyrs who suffer for freedom, scholars and teachers who suffer for truth. To conceive of motherhood as suffering is an attempt to grant mothers agency within a theoretical structure that has long denied this power. Tracing the theoretical similarities between suffering and motherhood enhances an understanding of the need to broaden the conception of motherhood within the law and the historical record.

   1. Motherhood, Suffering, and Expressibility

      The relationship between suffering and the experience of motherhood is reflected in their common inexpressibility. Suffering is necessarily resistant to language, (21) and since pain occurs in the interior of another person's body or mind, it cannot be accurately articulated from one person to another. The separation between sentient bodies disables the capacity to express the experience of being in both physical and emotional pain; the best humans can do to share their pain is to try to approximate it through language.

      Suffering as a sensory phenomenon has inherent characteristics that demonstrate its inability to be articulated. Unlike many other sensory experiences, there is no object other than pain itself in the experience of physical suffering. When humans have feelings or fears, they are feelings or fears for someone or of something. Pain, on the contrary, is neither of nor for an exterior object. While other emotional and perceptual states of the lived human experience consistently demonstrate the capacity to interact outside the bounded limits of the human body, pain in its solitary sentience has no external reference point. (22)

      Suffering's ability to destroy language lies in its capacity to reduce verbal expression. While suffering cannot be adequately expressed through language, it also eventually eliminates the ability to use language coherently. In times of intense suffering, the self begins to focus...