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Author: Kimberly Mutcherson

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Who’s Your Daddy?

Perhaps you, like me, sometimes find yourself wondering, “What ever happened to that delightful actor Jason Patric, star of the beloved 1987 film The Lost Boys?” I have a partial answer to that question. He is a biological father who is fighting to become a legal father to a child he shares with an ex-girlfriend. The story is more interesting than it might initially seem because of the way that Patric’s child was conceived.

The child in the middle of this custody dispute is named Gus and his mother, Danielle Schreiber, is Patric’s ex-girlfriend. According to published reports, Patric and Schreiber were not in a relationship when Gus was conceived or born. Patric donated his sperm to Schreiber, in the same way that thousands of men donate or sell sperm each year for infertility treatments for women to whom they have no connection. Schreiber conceived in a doctor’s office. If the two were a married couple and the pregnancy resulted from fertility treatment using the husband’s sperm, there would be no problem with Patric’s claim that he is both a genetic and legal father. But that was not the case here, and their accounts of their post-birth expectations are, unsurprisingly, very different.

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What It Means to Talk about Reproductive Justice

In my first post, I offered a truncated discussion of reproductive justice (RJ) in which I strongly asserted that RJ is not solely, or even primarily, about abortion. I then went on to write a blog post about abortion, so I forgive you if you think that I was being deceptive. Perhaps in that post I could have directed you to check out the schedule for a conference that I’ve been organizing at my law school called, Beyond Roe: Reproductive Justice in a Changing World, which will take place on October 11. That schedule, while certainly not ignoring abortion, also considers issues of faith and reproduction, choices in childbirth, assisted reproduction and women’s equality, access to contraception and more, which illustrates my point about how wide a shadow the RJ umbrella casts. In this post, to further illustrate my point, I am going to write about examples of reproductive regulation, some more overt than others, that fall squarely within the rubric of RJ and offer some ideas about how a justice lens helps illuminate critical issues and lead us toward resolution.

As I wrote previously, reproductive justice (RJ) is about the right to have children, to not have children, and to parent children in safe and healthy environments, which means that its reach is expansive. That expansive reach is absolutely necessary in the world of reproductive hierarchies in which we all reside. I use the term reproductive hierarchies to reflect the reality that individual decisions about reproduction are subject to varying levels of approbation or disapproval as expressed through public policy and law. While our system creates benefits for many of those who procreate and finds ways to encourage their procreation and support their parenting, for instance by giving tax breaks for child care and education costs, there are many others whose choices about whether and how to bear and beget are less accepted. For instance, an undocumented immigrant who gives birth to a child on American soil may get accused by many of giving birth to a so-called “anchor baby”— a pejorative term used to refer to certain children born in the United States to non-citizen parents. Young women who give birth while still in high school or college are subject to various penalties, including being asked to leave their schools or being forced to leave because of a lack of support for young parents. There are those who strongly believe that people who are LGBT should not procreate or parent and many state laws either do not protect LGBT people from discrimination in access to the tools of assisted reproduction or deny stability to families created by same sex couples. Even in the absence of pregnancy, women are subject to strictures that can be significantly limiting economically and professionally based on concerns about risks to a potential fetus. Breastfeeding mothers who work outside of the home have to contend with employers who provide inadequate or no time or unacceptable space in which to pump breast milk during the day, thus making it harder or impossible for women to effectuate a choice to breastfeed. Individuals living with intellectual disabilities, especially women, are at risk for non-consensual sterilizations sometimes without adequate procedures in place to protect their reproductive interests.

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Coming out of the Abortion Closet

It is a pleasure to spend a month blogging on Concurring Opinions, and I am looking forward to some wonderful exchanges over the next four weeks. This is my first extensive blogging experience and because we have only a short time together, I thought it prudent to jump in with both feet by offering an early confession. Here it is: I am loyal reader of the New York Times Vows column, which chronicles the love stories of newly married couples. This confession may seem off topic, but I assure you that it is relevant to my work as a scholar and teacher focused on family law, health law, and bioethics with a significant interest in reproductive justice issues. If you read the words reproductive justice and immediately thought, “That’s just a fancy way of talking about abortion,” your understanding of reproductive justice is too narrow. Reproductive justice (RJ) refers to a movement founded by women of color activists who wanted to work within a movement that focused on the right to have children, to not have children, and to parent children in safe and healthy environments. The framework’s roots are in the human right to make fundamental personal decisions related to procreation, family formation, and parenting. Importantly, the RJ framework explicitly recognizes a societal and governmental obligation to support individual decision making and create the conditions that allow individuals to implement their core life decisions, including decisions about how, when, and with whom to become pregnant or give birth to a child. During my time as a blogger on this site, I am going to focus primarily on RJ issues, which run the gamut from childbirth decision making, to forced sterilizations, to restrictive abortion regulation.

Now back to the Vows column. If you are not a loyal Vows reader, you should know that the Vows column is not a run-of-the-mill wedding announcement. Vows is a full-length article written by a Times reporter. The column tends to highlight people who are interesting because of who they are (i.e., famous or related to famous people) or because of the uniqueness of their stories. This weekend’s column focused on Udonis Haslem, a very successful NBA player who is captain of the Miami Heat (there’s your fame), and his new wife, Faith Rein, who is a stay-at-home parent to their two young children. What is striking about the description of the couple’s long path to marriage, they met 14 years before they wed, was that it referenced an abortion that Ms. Rein had while she was a junior and Mr. Haslem was a senior at the University of Florida in Gainesville where they met.

As Maggie Little has written, “To be pregnant is to be inhabited. It is to be occupied. It is to be in a state of physical intimacy of a particularly thorough-going nature.” (Abortion, Intimacy and the Duty to Gestate). To become a parent is to choose to be forever changed often in inestimable ways. As college students, Ms. Rein and Mr. Haslem felt unable to move forward with having a child. Citing their age, their athletic commitments, and the lack of wherewithal to cover the cost of caring for a child, they decided, as a couple, to end that early pregnancy.

The discussion of abortion is just a few paragraphs in a lengthy story that follows the young couple over more than a decade, during which they endured extended periods of separation, the death of his mother, and the birth of their two children. Yet, it is their willingness to discuss abortion that is probably most striking for many readers. In discussing her abortion, Ms. Rein emerges from what Pam Karlan has called the abortion closet. Despite the fact that abortion is a ubiquitous medical procedure that at least 30% of women will experience by the age of 45, many women avoid ever publicly admitting that they have had abortions.

As soon as I read this part of the Vows column, I knew that it would spark letters to the editor and plenty of Internet chatter. Jezebel.com, a feminist website, posted about the column, sparking many commenters to express disgust that this couple shared such a personal matter in a public forum, and in particular a public forum discussing a wedding celebration. The Vows column is all about sharing a couple’s journey. It’s not a short recounting of where the wedding took place, how many guests attended, and what kind of food they served at the sit down dinner that followed, although it does incorporate that critical information. Rather, it is about how two people decide to share their lives together and overcome challenges and obstacles. It makes sense, then, that this couple chose to talk about abortion in their Vows column. Past Vows columns reflect on military deployments, cancer diagnoses, dying parents, and relationships that started as extra-marital affairs. As Ms. Rein says of her now husband during the time when the couple decided to end her pregnancy, “I found him caring, supportive, nurturing and all over me to be sure I was O.K. I saw another side of him during that difficult time and fell deeply in love. He had a big heart and was the whole package.” For this couple, deciding how to respond to an unplanned pregnancy was a defining moment in their relationship and was therefore worth recounting and sharing as a pivotal part of who they are as a marital unit.

I am unconvinced that those complaining about the talk of abortion in a column about a wedding would take offense if the couple had chosen to speak about a struggle with infertility (a subject that the New York Times chronicles with intense interest), or a miscarriage, or an early pregnancy that they chose to carry to term and then put the child up for adoption. Had they discussed one of these other private matters, I doubt that anyone would be decrying their failure to keep private things private. It is the sense that abortion should be a shameful experience not talked about in polite company that leads to shock and disgust at this couple’s willingness to speak openly about a topic that affects so many and about which it is almost impossible to have conversations that do not degrade into arguments filled with name calling.

I did not plan to start my blogging time here with a story about abortion, a topic that so quickly divides people, but the Vows column, my own reaction to it, and the reaction that I saw beginning to bubble up on the Internet grabbed my attention. I am curious to see what backlash awaits this young couple when they return from their honeymoon. I hope they will receive significant support for their candor about an experience that shaped and strengthened their relationship and that deserves to be out of the closet.