The Maternal Bond – Part 2 – The Women


By Anne P. Mitchell, Esq.
Dec 3, 2004, 11:29

Summary: The Maternal Bond was originally published in the American Journal of Family Law, and is serialized here at by special arrangement with the author.

1992 (c) Anne P. Mitchell, Stanford Law School
Published in: American Journal of Family Law, Volume 9, Number 3, Fall, 1995

Part 2

II. The Women

Traditionally, the force which coerces a woman into choosing between child and career has been identified as the patriarchal and male-dominated society. As Kathleen Gerson explains, the theory is that there are ways in which “social institutions created and controlled by men shape women’s options and thus coerce their behavior. It begins with the assumption that men as a group dominate women as a group; there may be isolated individual exceptions to the rule of male dominations, but these anomalies do not invalidate the general principle. Given this generally indisputable assumption, the [theory] posits that women’s behavior results from male domination.”3

There is a growing body of evidence, however, which suggests that the above assumption is, in fact, disputable with respect to current times, and that it is women themselves, both as mothers making choices, and as feminists advocating policy, who are holding women within the confines of the maternal bond.

In a day and age where the feminist movement is strong and where sexual equality is demanded, the area of primary childcare and custody appears to have been exempted from the feminist insistence on equality and parity with men. As Jong points out, women don’t want the umbilical cord to be severed. Women don’t want to allow men the opportunity to achieve parity with women in terms of child-rearing and custody.4

One reason for this may be that women currently have a great advantage in the area of custody, as there exists in the family law system a very strong bias in favor of awarding custody to mothers over fathers. This gives a power to women the likes of which they have in very few, if any, other areas of their lives. In a world where women have been dominated and suppressed by the male institution at every turn, the ability to wield absolute power over the man one is divorcing, and to use his own institution against him by depriving him of free access to his children, is a great temptation indeed. Even though equality is arguably the ideal of the feminist movement, it is understandable that women may not want to lose this very powerful, and rare, upper hand.

This refusal to allow men sexual equality in terms of childrearing and custody decisions 5 is reinforced by proclaiming the sanctity of the mother-child bond. The modern dogma which supports and perpetuates the myth of an exclusively maternal parent-child bond is contributed to by the works of such noted feminist authors as Nancy Chodorow 6, Susan Contratto, Carol Gilligan, and Lillian Rubin. As Chodorow admits, the assumption “apparent in recent feminist literature is that mother and child are an isolated dyad. Mother and child are seen as both physically and psychologically apart from the world, existing within a magic (or cursed) circle.”7

One might do well to question the motives of the authors of such writings. It seems just a tad too convenient that the feminist movement, now making serious inroads in the fight to convince society that men and women are equals, has suddenly discovered that this equality does not extend to men in the area of parenting and custody.

Faye Crosby does question the writings which further this philosophy in her book, Juggling. Crosby notes that some feminist authors, such as Chodorow and Rubin, advance a theory of sex-based differences which holds that women are selfless and other-oriented, the guardians of relations, while men are viewed as very self-oriented, and not terribly good at relationships. Crosby refers to this as the “new sexism”. As she describes it, “[t]he new sexism seems as potentially crippling as the old sexism. If we accept the view that men and women differ in their need to attach themselves to others and in their skill at relationships, we have only a tiny distance to go before we decide that mothers make the best parents. …And, after all, who do we want raising our children – someone who is detached and uncaring or someone who is tuned-in, emotionally available, and sensitive?”8

Interestingly enough, this “new sexism” isn’t new at all. It is the very breed of thinking which put women into maternal bondage in the first place. And ironically, these are the very bonds which the fledgling woman’s movement first sought to cast off. What is new about it is the number of women who have jumped on the bandwagon.

Back in the nineteenth century, the industrial revolution caused a shift in the complexion of American family life. Where before fathers and older children had been home working their fields or their trade, with mothers tending to myriad domestic chores, the industrial revolution pushed them out the door and into production houses. This left mothers at home with their infants and younger children. At the same time, various technological advances worked to considerably lighten a mother’s domestic task load. As June Carbone and Margaret Brinig9 explain it, women who remained in the home during this age of industrial enlightenment found their domestic contributions recast and redefined. Thus motherhood was redefined as the nurturing which was necessary to the well-being of infants and young children.

This redefinition was played out in the courts as well. Carbone and Brinig explain: “With the growing maternal involvement in childrearing, custody presumptions also changed. At the beginning of the nineteenth century, courts favored fathers over mothers in custody disputes in the belief that fathers were in a better position to provide for their children. As the new ideology celebrated the traits that only mothers could bring to the young, the paternal presumption changed in favor of a maternal one. The courts protected, and thereby encouraged, the increasing maternal investment in childrearing.”

Thus women in the nineteenth and early twentieth century were relegated to child care, and little more. It is these very limiting definitions of womanhood which the first twentieth century feminists fought to change, and which the newer feminists, with their “new sexism”, seek to reinstate.

Carbone and Brinig’s work demonstrates that the new feminism, along with contemporary divorce law trends such as the institution of “no-fault divorce”, have conspired to set women back to an age where they are only free to be whatever they want so long as they can do it within the confines of maternal bondage. According to Carbone and Brinig the new feminist ideals operate to “encourage women to choose both to stay within the labor force and to value childrearing above career pursuits.”10 [Emphasis added].

The maternal custody preference, and the exalted status accorded the maternal bond in general, are factors which can coerce today’s “liberated” women into becoming or remaining fully responsible for raising the children of our society.

By championing these mothercare ideals, women themselves, including certain members of the feminist elite, are in fact helping to force into maternal bondage those mothers who might genuinely prefer to be the noncustodial parent, or to release a child for adoption, but for the strong stigma attached to such decisions. A stigma which is perpetuated not only by the maternal preference, but by that feminist literature which casts mothers as the repository of all that is nurturing, and the fathers to whom these mothers might wish to relinquish custody as the antithesis of that ideal.

Another area of feminist thrust which has contributed to the incidence of women being coerced into primary caretaker status is the push for a greater maternal subsidy.11 Rather than encouraging and helping women to become self-sufficient and autonomous, the current feminist catechism teaches that women must be financially kept by men, and absent a man, by the state as a patriarchal substitute. This keeping comes in the form of spousal support, child support, and welfare. This is not to say that there are not women who are needy, there are. But consider these words from a collection of feminist writings which is, ironically enough, titled America’s Working Women: “One way of looking at [the incidence of women on welfare] might be this: welfare could be the salary women receive for raising children.”12

For women who haven’t been coopted into the welfare system, there is the “salary” of child and spousal support. Brinig and Carbone, for example, support a fault-based theory of spousal support which has the man subsidizing the woman regardless of who is “at fault”, excepting perhaps those situations where the woman earns more than the man. Where the man is at fault “the award to the woman should maintain the standard of living she enjoyed during the marriage even if it is a hardship on him.” Where she is at fault, she must be compensated for lost career opportunities. Where neither party is at fault, Brinig and Carbone come to the inexplicable conclusion that the woman should be subsidized so as to “encourage her self sufficiency”.

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Child support awards are designed, in theory, to underwrite the cost of raising a child, and to allow the child to share in their father’s income and lifestyle.13 Nearly all states14 now have statutory formulas which give the custodial mother15 a specific percentage of the father’s income, often at least 17% of his gross income for one child, and 25% of his income for two or more. While it is true that collection of support is a problem, nobody has suggested that the formula amounts are artificially inflated to compensate for non-payment, nor indeed that there is any nexus at all between the percentage of child support awards which are not kept current, and the formula driven award amounts.

Aggressive feminist lobbying has no doubt played a part in the new awareness in our Federal and state legislatures as to the plight of the single mother. Hence the new and “improved” child support formulas, and modern theories of spousal support. However, by trying to throw money at the problem they are encouraging the single mother to stay subordinated to the maternal bond, rather than helping her to truly make a place for herself in the world, and to be autonomous and self-supporting.

One feminist author, Herma Hill Kay, admits of the problems inherent in a system of maternal subsidy. Kay argues that women will be unable to achieve true societal and economic equality so long as they have to continue making choices which are “economically disabling for women, thereby perpetuating their traditional financial dependence upon men and contributing to their inequality with men at divorce.”16 Kay further argues that one of the fundamental reasons that there is ongoing inequality between the sexes is that women are still relegated to the status of primary caretaker, and that this can be remedied by encouraging a sharing of childcare responsibilities between men and women, and by perpetuating that balance of responsibility beyond divorce through the use of joint custody.

Brinig and Carbone criticize Kay for suggesting that “the appropriate response to women’s dependence on their husbands’ incomes is less, not more, financial support upon divorce. In order to dismantle the gendered division of labor within the family, Kay argues that the marital bargain, at least the traditional one that exchanges male support for female services, should not be enforceable. Her analysis further implies that compensation for lost career opportunities, at least for modern women who make choices that are “economically disabling,” should also be limited. In states that preclude consideration of fault, lost career opportunities are emerging as the primary basis for spousal support. Compensation for those lost opportunities, however, sanctions the very choices of which Kay so strongly disapproves: namely, decisions by modern women to forego substantial career opportunities in order to contribute to the care of their children or their husband’s careers. Kay issues no call for a reduction in divorce awards, but such a call is unnecessary. Her endorsement, albeit qualified, of the present divorce system, which Lenore Weitzman depicts as a system of transitional awards that falls far short of compensating the career sacrifices modern women are continuing to make, has much the same effect. Kay’s central premise is that in order to achieve equality, men and women need to make the same choices. Women need to join men in the pursuit of careers; men need to join women in caring for their children.”

While it may well be true that the present divorce system does not “adequately” compensate a woman for choosing to be unemployed or underemployed, one needs to ask oneself if our system of divorce should in fact be subsidizing such choices. As should be obvious by now, the author believes that the answer to that question must be “no” if ever women are to achieve true parity. Brinig and Carbone seem to ignore that it was the right to make these choices, to get out of the nursery, and to be treated equally in the work force, which was fundamental to the original women’s movement. Given that countless contemporary women have proven that women are in fact capable of sustaining a career as well as having children, to define women back into dependency on the very actors who have for generations oppressed them, namely men and the State, is nothing short of heresy.

Furthermore, to raise a hue and cry, as Brinig and Carbone do, that such a reform would lead to a decrease in the instances of divorce is alarmist and ignores the alternative reality which Kay suggests. If women knew going into marriage that they would need to be self-sufficient in the event of divorce, they would be more likely to resist the subordinated position of being an unemployed or underemployed primary caretaker.

It is likely true, as Kay concludes, that if women were able to make unfettered choices, such as pursuing a fulltime career, then women would find themselves able to be self-sufficient, and relying on nobody for financial support. But before any of this can happen we must stop enslaving women with their “virtues”, and damning them for their choices.

[Continued in Part 3]
2 Victor Fuchs quoting Erica Jong in “Women’s Quest for Economic Equality”, Harvard University Press, 1988.

3 “Hard Choices: How Women Decide about Work, Career, and Motherhood”, University of California Press, Berkeley (1985); p.24.

4 Note that this paper does not address the undeniable sexual difference of childbearing, as pre-birth biological differences have, or should have, little bearing on post-birth childcare options. As Herma Hill Kay points out in her work, Equality and Difference: A Perspective on No- Fault Divorce and Its Aftermath, 56 U.Cinn.Law.Rev. 1, 1987, “by emphasizing the bright line that separates the unique female tasks of pregnancy and childbirth from the common male and female responsibility for childrearing, …analysis suggests that, when both parents are available, neither should become the primary nurturing parent.”

5 Some men’s rights advocates refer to this equality as one where women are as likely to lose custody as men. The author finds this a rather negative categorization, and prefers to think of it as both sexes having an equal right of access to their children.

6 Nancy Chodorow’s book, “The Reproduction of Mothering: Psychoanalysis and the Sociology of Gender”, University of California Press, Berkeley (1978), deals with the theory that women are more nurturing and other-oriented because women were little girls who were themselves raised by mothers, mothers who were women, and thus more nurturing and other-oriented. The flip side of this, she argues, is that little boys do not receive the same “mothering” from their mothers, and model themselves on fathers, who as men are generally self-oriented, and not other-oriented and nurturing. While Chodorow suggests that a way to alleviate this perceived difference is to have equal parenting by both mothers and fathers, so that the positive abilities of each parent will thus be perpetuated in their children (and presumably then generations of boys and girls to come), her own work perpetuates the vision of a maternal persona which is the essence of all that is good and nurturing – the repository of the parent-child bond.

7 “The Fantasy of the Perfect Mother”, Nancy Chodorow & Susan Contratto, 1980. But see Footnote 5.

8 Juggling: The Unexpected Advantages of Balancing Career and Home for Women and Their Families, Faye J. Crosby, The Free Press, New York (1991); p.121.

9 “Rethinking Marriage: Feminist Ideology, Economic Change, and Divorce Reforms”, June R. Carbone & Margaret F. Brinig, 65 Tul. L. Rev. 953, May 1991.

10 65 Tul.L.Rev. 953; 959.

11 The “maternal subsidy” is used here to mean any amount of support which is greater than one-half the actual cost of providing for each child. This definition carries with it the implicit belief that in a society where both sexes are viewed equal to and equally responsible for the responsibilities of parenting, a non-custodial parent of either sex would not and should not be expected, nor required, to contribute more than one half of the cost to raise the child.

12 America’s Working Women, Baxandall, Gordon & Reverby; Vintage Press, New York (1976).

13 While all political and feminist rhetoric insists that any amount of child support awarded above subsistence level is to allow the child to enjoy in their father’s income and lifestyle, a child can only wear so many pairs of shoes, and eat so much food. Nearly all other “lifestyle” perks which might occur as the result of the added support will accrue to the custodial parent, and to anyone else in the custodial household, as well as to the child.

14 States which have specific statutory criteria for the calculation of child support awards include: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin and Wyoming. (Source: Family Law Quarterly, Volume XXV, Number 4, Winter 1992).

15 While it is true that these state formulas are written in a gender neutral manner, studies have shown that in those rare instances where support is ordered of a noncustodial mother, it is often well below the formula amount.

16 “Equality and Difference: A Perspective on No-Fault Divorce and its Aftermath”, 56 U.Cinn.L.Rev. 1 (1987).