A Review of Martha Fineman's the Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies: She Threw Out the Baby with the Old Feminisim

Santa Clara Law Review Volume 36 | Number 2 Article 12 1-1-1996 A Review of Martha Fineman's the Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies: She Threw Out the Baby with the Old Feminisim Eleanor Willemsen Michael Willemsen Follow this and additional works at: http://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Eleanor Willemsen and Michael Willemsen, Symposium, A Review of Martha Fineman's the Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies: She Threw Out the Baby with the Old Feminisim, 36 Santa Clara L. Rev. 477 (1996). Available at: http://digitalcommons.law.scu.edu/lawreview/vol36/iss2/12 This Symposium is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact . A REVIEW OF MARTHA FINEMAN'S THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES: SHE THREW OUT THE BABY WITH THE OLD FEMINISM A Review Essay by Eleanor Willemsen* and Michael Willemsent In her provocative keynote address, Martha Fineman presents us with a challenging proposal for thinking our way out of the "welfare dilemma." She addresses the social problems that stem from children growing up without resident fathers. These problems range from troubles in school, increased aggressive behavior, and precocious sexuality to inadequate nutrition and medical care. Fineman urges us to redefine the family as a "caregiving dyad," comprised of a dependent child (or other dependent person) and his or her principal nurturer, who is most often the mother. This enables us to focus on our collective responsibility to this revised family, free from the notion that its needs are the private responsibility of the absent father. She points out that caregiving and emotional nurturing are "gendered" activities that are usually assigned to females in our society, thus causing them to become undervalued. The caregivers of dependents often depend on resources outside of their own domain in order to provide the secure and nurturing setting that they and their children need. Fineman proposes that we should accept a collective responsibility for the derived dependency of this caregiving dyad instead of assigning it to a biological father who needs to be "brought back" into the family. We must provide support for the family as she has redefined it. Fineman seems to base her suggestions on two interrelated concerns. First, when we assign responsibility for the * Professor of Psychology, Santa Clara University. t Mr. Willemsen was a research attorney for the California Supreme Court for twenty years. He is currently an appellate attorney in Palo Alto, California. 477 478 SANTA CLARA LAW REVIEW [Vol. 36 nurture of the family to the father, we make the family's security a private matter which is based on the sexual bond between a man and woman. Our failure to see this child support as a public concern allows us to avoid subsidizing it. The result has been that many single female caregivers and their children are inadequately supported, by themselves or by society, and the problems of child poverty result. Children are at risk because their opportunities for nurture and care come from the sexual relationships that their principal nurturers may or may not have with the child's biological father. Threats to these sexual relationships are threats to child nurture. Finally, Fineman argues that, as a practical matter, forcing biological fathers to take financial responsibility has little potential to reverse child poverty. Because fathers of children raised by single mothers are not able to provide the needed resources to support them, child poverty will continue. Much of Fineman's paper goes beyond the practicalities of how parents should nurture children, and instead focuses on the impact that current welfare policies and reform proposals have on women. While this too merits discussion, our concern is that the child's best interests will not be adequately addressed. We will carefully examine points of Fineman's argument before developing an analysis of this concern. We will look at her criticism of current feminist jurisprudence, explain her skepticism about the practical effects of making policy revolve around the father's role as a provider, and restate her proposal for the circumstances under which fathers should be assigned enforceable responsibilities for the nurture of their children. Fineman notes much that is worthy of criticism in current feminist jurisprudence as it is applied to family law. Feminist scholars focus on equality between men and women, but the corresponding revisions in family law do not achieve this equality. The "no fault" family law revisions made in recent years achieve greater sameness of treatment of men and women. Men and women have equal access to contact with the child, equal standing to petition for custody, equal obligation to provide support, and equal responsibility for ensuring that the child has an opportunity to preserve a relationship with the other parent. The scrupulous attention to treating the mother and father the same may appear to be based on 1996] SYMPOSIUM: THE FUTURE OF THE FAMILY 479 the presumption that they are equally important in children's lives. However, it is instead based on a concern for equal rights among men and women. Fineman addresses the results of an equality-based feminist approach to child nurture issues. First, this new "no fault" law retains traditional patriarchal notions of the family as a private and provider-based social sphere based on the sexual relationship between a man and woman who happen to be parents. Admittedly, under current law there is a more equal distribution of responsibility between the mother and father within the traditional family structure. Second, "no fault" law has done nothing to improve the welfare of children. In fact, their situation has become worse. Finally, child nurture continues to be regarded as a private matter, and therefore remains outside the realm of public responsibility. Fineman's analysis of the points we have just identified is organized around her central thesis: "no fault" family law, based on the goal of treating men and women the same, damages women. This law retains the worst features of the patriarchal family. Namely, child nurture is a private matter and those who provide economic support have control. Additionally, this law assigns women new burdens of economic responsibility. Women retain the traditional gendered responsibility of child nurture because there is little recognition in the law for an equal duty of fathers to nurture their children. Women continue to nurture children, but must now do it without adequate provision for their derived economic dependency. Fineman asserts that (...truncated)