Lost Paternity in the Culture of Motherhood

Abstract:     
In her recent Columbia Law Review article, "Infant Safe Haven Laws: Legislating in the Culture of Life," Professor Carol Sanger shows that American safe haven laws, viewed "within a larger political culture," promote the "goal of the culture of life: the reversal of Roe v. Wade." Their effectiveness in that pursuit, she correctly notes, depends on whether judges and others recognize the "strong differences" between varying culture of life settings. Like Professor Sanger, I see differences between safe haven abandonment and abortion. Unfortunately, Professor Sanger fails to note that American safe haven laws, within a larger political culture, also significantly promote the culture of motherhood, that is, the unconditional respect for relatively exclusive maternal decisionmaking about newborns, regardless of children's best interests, of any legal paternity interests, and of the strong social policy favoring two parents for each child born alive as a result of consensual sex. As with culture of life settings, there are "strong differences" in culture of motherhood settings. I see significant differences between protecting potential human life from maternal acts and protecting actual human life from maternal acts. I see differences between pursuing actual deadbeat dads and simply projecting certain dads as deadbeat. I see differences between children conceived as a result of artificial insemination via an anonymous donor and children conceived as a result of consensual sex. I see differences between terminating potential or actual legal paternity before and after birth. The culture of motherhood, as the culture of life, in American family law merits our serious attention. There "are strong differences of opinion" on some forms of exclusive maternal decisionmaking. In particular, beyond revisiting safe haven laws, state legislators (and Congress, through the Social Security Act) need to reform many of the adoption and birth certificate laws governing children born as a result of consensual sex. American laws should better assure that the men named as legal fathers at birth merit that designation and that more children have legal fathers named at the time of birth.

Number of Pages in PDF File: 18

Accepted Paper Series