I’m a lawyer. Sometimes I have to write about the law. I can’t help it. I’ll try to spice it up for you guys by adding some mild profanity and some colorful examples. I’m actually pretty excited about this topic, I once did a presentation on it in law school, went over my time, and was docked a bit for being a little passionate. Well, now I get to write it for you and not for some stuffy judge or pretentious law school professor. Hell, I’m even going to write it in the first person, and directly talk to my audience instead of pretending like I’m writing for the benefit of the cosmos. I’m such an academic rebel.
Historically, reproduction has been a really big deal. I get it, it’s kind of what keeps our entire species around. This is obviously centered around women. Men of course spend about 2-60 minutes contributing to this, and then us ladies get the next 10 months. Not to downplay their generous sharing of genetics, but we do all the work. In order for our species to continue, it is REALLY important that we be allowed to do this. It is natural that we be expected to do this, and it is logical for people to experience an odd primal panic when they hear that we have chosen not to do this.
I’m going to skip the whole abortion and access to birth control debate that centers around our choice not to reproduce. That’s a topic for another day. Today is about how the law deals with our choice to reproduce. And for the most part, the law (in the US) is totally on board with our right to reproduce. This is a seriously protected right. In order to tell a woman she can’t reproduce, she has to be mentally ill, with pretty much no hope of ever getting better.
You wouldn’t believe the steps you have to go through to sterilize a woman. There are guardians, court dates, experts, mental evaluations, psychologists, testimony from family, doctors, it’s a huge process. It takes years. The case law on this where women have been sterilized all centers around mentally retarded women who have the sexual drive of a grown woman and an entirely non existent mental capacity for understanding how reproduction works or what is happening to their bodies. Essentially, unless your mental age is below about 10, you get to reproduce. Even if it is below the age of 10, there are all those previously mentioned doctors, court dates, legal guardians, etc. that you have to go through before they sterilize you. Not only that, but there has to be absolutely no hope that you will ever get better. None. There also has to be some sort of demonstrated history of your desire and ability to interact with sperm in a way that could get you pregnant. If you’re mentally 3 and live in a woman’s home, you’re not getting sterilized.
I like my rights to reproduce, and I think they’re seriously important. To this point, I am completely on board with the law. I like it, it makes sense, and it protects the single most important part of our remaining a species, our ability to reproduce. This being a feminist blog, I obviously take issue with something, and that thing I take an issue with is how easily a mother can be deemed unfit to actually raise her child once she has birthed it.
Let’s go over some history of the reasons women have gotten their kids taken away from them. Back in the day (not very long ago at all) a woman could have her kids taken away because she was now dating a black guy, and that obviously made her unfit to be a mom because she was subjecting her children to an obviously immoral and damaging situation. The same goes for women who took lesbian lovers, women who decided their careers were important, and women with mental health issues. The law has evolved, thankfully, and now in order to have your kids taken away it has to be proven that you’re seriously fucked in the head, or have some sort of serious drug problem. Superficially, this makes sense. My issue is with what kind of mental illness can qualify as a deal breaker in your rights to raise your children.
I’ll give you some background here. My family has some history of serious mental issues. Mostly severe depression, with a plethora of personality disorders thrown in to spice it up a bit. Depression gets dull, you know? Growing up with this was obviously quite traumatic, and like every good Jew out there, I spent years in therapy overcoming some of the obstacles this placed in front of me. Was it fun growing up with my mother? No. I don’t even talk to her anymore. That being said, I have sadly inherited many of her issues. I go through periods of severe depression, and have been forced to develop coping skills. That sucked, and was really hard work. But would I have been better off having never been subject to her crazy?
The answer for me is that I don’t know. Many of the more severe mental health issues appear to be inherited. That means once a crazy woman reproduces (I remind you of how seriously protected this right is) her offspring are likely to deal with many if not all of those exact same issues. Frankly, I’m not convinced that putting children in a setting with which they have no context to understand their own issues is really the thing to do.
This seems to be where I take issue with modern parenting. Most approach it as though they need to make life good for their kids. Well color my cynical, but life aint always good. For me (admittedly not a parent so I have no idea what I’m talking about, but this isn’t going to stop me) the most important part of parenting is preparing your kids for the sometimes really bad world that awaits them. Giving them the tools and perspective they will need to navigate everything that lies ahead of them and remain healthy, happy, productive people.
So what the law allows us to do is to take a kid destined for mental health issues, and put them in a “healthier” environment which provides them with none of the context needed to understand these issues. This can’t be good. At the same time, I’m the last person to say that a kid should be living in a crack den, so where do we draw the line?
Legally, the line is typically drawn where a woman demonstrates a continued and affirmative desire to abandon her child. This can be done in any number of ways, but usually can be done by showing a continued pattern and little hope of her changing. Enter aforementioned doctors, representatives, etc. There are a lot of us always getting involved. But this is just a permanent cutting off of parental rights. The road to temporarily taking away custody is much shorter. Depending on the state, this can be done quite easily. Not to leave men out of this, it is actually an even bigger problem for them as the law does typically lean towards women keeping kids. That 2 minute contribution to the genetic code carries lifelong implications for the offspring, so I don’t want to discount them here either.
The point, however, is that depending on the skill level of the lawyers and the applicable state law, a woman can still get her kids taken away for raising them in a way the state deems to not be in the “best interest” of the child. The best interest is an across the board legal standard, with the differences being in how a state decides what that child’s best interests are. That’s right. The state, the government, decides whether you’re a good mom. This means that someone whose views differ from the people in their surroundings can easily have their kids removed, because after all, its not in that kids best interest to see their mom date other women, or black men. Thank you to the south for most of that case law.
So what all this law tells us is that it is super important that we women make babies, but that we don’t get to raise them unless we keep ourselves totally in line with how people think the kids should be raised. So it might be okay to spank your kids if you live on a farm, but if you’re an upper east side new Yorker, well that is simply not going to fly. Say hello to child protective services and goodbye to your kids. On the same note, if you live on that farm and are busy shacking up with all the other ladies on the neighboring farms like a good Yankee liberal, well you better be sure that someone has a pretty good shot of convincing a judge somewhere that you’re seriously destroying your child’s mental health.
What the law tells us as women is that our most important right is to keep the species going by creating those babies. Once that’s done however, you can be deemed mentally ill and a liability to your kids. My argument is that even if you are, you still have a right to raise your children. The state’s job in all this, if any, should be to keep that kid alive. Beyond that, well let’s just hope for the best.
Putting such a high value on reproduction is counter-intuitive to putting such a low one on parental rights. Logical inconsistencies bother the hell out of me, and frankly I take great issue with the fact that the state sees my uterus as being more important than my brain. But this is, after all, a fundamental feminist issue, is it not?
As an extremely neurotic woman who is likely to severely damage my future children’s mental health as soon as their old enough to discover my blog, this is a big issue for me. Yes, I’m going to traumatize the hell out of them eventually, and I’m going to pass on those fun genetics that are going to force them to deal with crippling depression. Lucky them. But isn’t that my right? Hell, if we want to be logically consistent here, and reproducing is my duty, well them raising them in whatever way I want is also my duty, and one I fully intend to protect. So my vote is for letting crazy women keep their kids. Where do you stand on this issue? Comment below.
NOTE: At the time I wrote this blog, I didn’t have kids. I now have one and another on the way, and still stand by what I said.
Originally published September 13, 2012