Panelists: Danaya Wright, Clarence J. TeSelle
Endowed Professor at the University of Florida Levin College of Law;
Deborah Dinner, Associate Professor at Emory Law School; Kara Swanson, Professor
of Law at Northeastern School of Law. Chair
and comment, Holly Brewer, Burke Chair of American History and
Associate Professor at the University of Maryland
Danaya Wright’s “Romanticism and Revolution: Percy Shelley’s Children and the Origins of Parens Patriae” focused on Shelley’s
loss in 1817 of custody of his children from a first marriage. The father of Shelley’s dead wife sued,
claiming that Shelley was an atheist, blasphemer, and adulterer (he deserted
this first wife before she died, and took up with another woman). Lord Eldon, the chancellor who decided the
suit and was known to oppose all manner of liberal reforms, extended the
traditional concept of parens patriae
beyond its grounding in a royal prerogative to those with “reform views” and
“vicious” opinions. In the process,
Eldon inaugurated a new pattern of removing children from fathers who might be
financially sound but transgressed in other ways – they were homosexual,
atheist, sexually promiscuous, or otherwise morally suspect. In this way, the court expanded parens patriae to normative elements of
the household. This judicial oversight
of the domestic sphere was deployed to give the state a mandate to interfere
with parental rights, a mandate exercised primarily against fathers.
Deborah Dinner’s “Working Fathers: The Origins and
Consequences of Sex Neutral Caregiving Entitlements” examined claims by working
fathers in the 1970s that they, too, deserved parental leave. These “male liberationists,” while never a
cohesive group, nonetheless highlighted the tension within feminists’ claims
parity. Traditional maternalist laws
“protected” women, reinforcing stereotypes but also providing important limits
on what employers could demand of female workers. Labor feminists argued that such protections
should be expanded beyond mothers, to limit work hours and provide over time
for all employees. Other feminists
argued instead in favor of formal, legal equality over mandatory
protection. This latter group championed
provision of unpaid leave for all parents, and in the process they privileged
those who could afford to take time off from work, an “upper class equality.” And as Americans began to work longer hours
with less job security in the mid and late 1970s, responsibility for child
rearing shifted firmly inward to the family and away from state protective
legislation, a new cultural and psychological.
Kara Swanson’s “Making Fathers in the Clinic: Donor
Insemination and Legal Paternity” probed the simple process of insemination and
the complex legal world that evolved to “make” fathers of the husbands whose
wives were inseminated with a donor’s sperm from the 1940s through the 1970s. The entire medical process was shrouded in
secrecy, but its goal was the production of a legal fatherhood, and decidedly
not “adultery by doctor.” At first
doctors described the process as “semi-adoption,” a legal fiction that
collapsed under scrutiny by courts. And
one estranged husband in Illinois actually asked that his wife be charged with
adultery. Finally, a model Uniform
Parentage Act smoothed the way for husbands of inseminated women. Nonetheless, the ease of the procedure meant
that it traveled outside the strict bounds of heterosexual marriage that
mid-century doctors assumed would be eligible.
Especially among same sex couples and in clinics where secrecy and
privacy eroded, some sperm donors have been held to paternal obligations. And in the 21st century, lawyers
are now reaching back to the older concept of adoption, as both parents are now
“made” in fertility clinics.
Holly Brewer’s comments noted that Shelley was himself a
minor peer, and thus a high ranking figure.
The extension of such state power to such a man was itself surprising in
the early nineteenth century. In
addition, she urged Dinner to take account of the physical fact of motherhood
as she works on the complex debates among feminists and “male liberationists”
over equality and parity. Finally, she
noted that physical fathers were “separated” from legal fatherhood in Swanson's clinics, a point
that was picked up in questions. Sophia
Lee noted that one might speak as much of “termination” of fatherhood in the
clinic (the fatherhood of the donor) as of the “creation” of fathers. Barbara Welke asked about interracial
couples, especially in light of the work of the late Peggy
Pascoe. Other questions asked about
whether the contrast in Dinner’s work between cultural change and structural
protection might benefit from some investigation of the overlap between the
two. In closing, it is worth noting that
Percy Shelley, the subject of Wright’s paper, challenged his own father's authority when he
surrendered his claim on the family estate in return for a cash payment after his father criticized the son's public and controversial defense of atheism.
