'M' is for the many things that 'mother' means Family life has changed, but family law hasn't kept pace

May 03, 1998|By Jane C. Murphy

As we approach Mother's Day, it is worth re-examining our understanding of what it means to be a mother.

At first blush, the law seems an unlikely place to turn. Until recently, legal scholars have written little about the subject of motherhood. There is even confusion about how to define "mother" under the law. As Columbia Law School Professor Carol Sanger said, "'Who is a mother?' no longer has a simple answer, now that genetic contribution, gestation and stroller pushing may each be provided by a different woman."

Despite this inattention and confusion, a look at family and welfare law clearly shows whom the law rewards as a good mother. Judicial and legislative pronouncements about when mothers may have custody of their children, when mothers may or must work, and with whom mothers may live are all entrenched in a legal construct of ideal motherhood. The stereotype these laws embody is that of a self-sacrificing, nurturing, married and stay-at-home mother.

The way mothers behave has changed dramatically in the past 40 years. Much of family law is premised on the ideal construction of the family that presumes an arrangement that is almost nonexistent ` a mother at home with minor children and a father working outside the home.

The law sets standards for child-placement decisions based on a view of a mother's proper role that has changed little since the 1950s. Mothers are expected to be married, to stay at home, to be available to their children around the clock, and preferably to be monogamous and heterosexual.

The adherence to the ideal mother stereotype, however, yields to an assumption of equality when the law considers mothers' economic rights and responsibilities. Contrary to women's actual experiences, the law assumes mothers enjoy an autonomy that permits them to make choices without regard to their children's needs and an equality of economic opportunity between mothers and fathers. Since the 1980s, a presumption of equality has governed laws regulating child support and public benefits for poor mothers with children. Here, the law assumes that parents ` again, primarily mothers ` caring for infants and small children have equal access to work opportunities. This assumption is misplaced and harms women.

Mothers' gender and role as caretakers put them at a disadvantage in the workplace. Although mothers' diminished earning capacity has long been recognized, statutory and judicial reform has done little to change the situation. Discrimination against women, "concern" for the health of mothers ` actual or potential ` continue to hinder women's employment opportunities. The wage gap for women has improved from 60 cents for every dollar men earned in 1980 to 76 cents in 1997. Although the gap has narrowed, at least for middle- and upper-income women, it still exists.

Moreover, mothers' predominant role in child rearing means that they are particularly disadvantaged in the labor force. Many studies demonstrate that it is women who sacrifice career advancement for parental responsibilities. Mothers, not fathers, opt for the "mommy track" rather than succumbing to the open-ended availability that most high-paying, demanding jobs require. Women, by necessity, take time off for childbirth and, more often than fathers, work part time after their children's birth. Mothers, rather than fathers, take time off to care for sick children or when there is a lack of child care. All of these circumstances limit the work choices of mothers with children at home and harm many mothers in the workplace.

Despite the disadvantages mothers experience as wage earners, child support and welfare laws are premised on the policy decision that custodial parents of small children should be in the workplace rather than at home caring for children. This policy is based upon a flawed premise of women's economic equality and hurts mothers and their children.

For example, under Maryland's child support laws, if a single parent ` and it's primarily mothers who do this ` stays at home to care for a 3-year-old child, that parent is considered to have "voluntarily impoverished" herself. The result is that support from the child's father is reduced.

The situation might be even worse for poor mothers under the new welfare law. The cost of conforming to the dual standard of ideal mother and unencumbered wage earner is high for mothers whose public benefits depend on efforts to find and keep employment. If these new working mothers lack vigilance, and if they leave children unsupervised and exposed to street dangers or domestic dangers from violent boyfriends or husbands, they are at great risk of losing their children to another relative or the state.

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