ode to autumn
DIVORCE COURT TO DECIDE CUSTODY OF 14-YEAR-OLD CHILD BORN TO SURROGATE AND NEVER ADOPTED The Connecticut Supreme Court has reversed a divorce court's ruling that it did not have jurisdiction over a custody dispute between a divorcing couple where the wife had never formally adopted the 14-year-old child the couple conceived through traditional surrogacy. Although it agreed that the wife was not a parent because the child was not a "child of the marriage" as that is defined under Connecticut law, the appellate court ruled she may pursue her claim for custody as an "interested third party." Such parties are permitted, under Connecticut law, to attempt to rebut the presumption that it is in a child's best interests to be placed with his/her biological parent. The decision culminates seven years of litigation, and the court noted that raising the child together for her first eight years, the husband's having participated in a "public ruse" that the wife was the child's birth mother, and the child having lived with the wife for over seven years thereafter, were sufficient to rebut the legal presumption that it was in the child's best interest to be in the father's custody. The court accepted the lower court's ruling that, having failed to adopt the child, the wife was not within the law's definitions and protections of a "child of the marriage," which it noted included a child born through artificial insemination or a child born to either spouse and adopted by the other. While the decision therefore confers what is known as "subject matter jurisdiction" on the trial court to decide whether the girl is better off with the wife or husband, it does not award the wife status as mother. To retain custody, she must ultimately meet the standard of proof set out for "interested third parties". Three justices dissented from the court's opinion, arguing that the child should be considered to come within the law's definition of "a child of the marriage." A similar issue has been recently debated by the California courts in the widely reported case of Jaycee Buzzanca. (Legally Speaking, winter '97, summer 498). Doe vs.Doe, Conn SupCt, 244 Conn. 403 (4/7/98). Text of 1st Esther Boserup Memorial Lecture - " Women, Family & Human Development", by Prof. Martha Nussbaum Women, Family and Human Development Martha Nussbaum Giribala, at the age of fourteen, then started off to make her home with her husband. Her mother put into a bundle the pots and pans that she would be needing. Watching her doing that, Aulchand remarked, "Put in some rice and lentils too. I've got a job at the house of the babu. Must report to work the moment I get back..." Giribala picked up the bundle of rice, lentils, and cooking oil and left her village, walking a few steps behind him. He walked ahead, and from time to time asked her to walk faster, as the afternoon was starting to fade. Mahasweta Devi, "Giribala", 19821 Accused Md. Jahangir Alam was found after marriage to be a ruthless, cruel and greedy person. Accused petitioner Selema Khatun is mother and accused petitioner Md. Solaiman is younger brother of accused Jahangir Alam. Accused petitioner Thanda Mia is father and accused petitioner Abdul Mannan is maternal uncle of accused Jahangir Alam. Accused petitioner Md. Hashim is a close friend of accused Jahangir Alam. All the accused persons in collusion with each other started torturing complainant Ferdousi Begum both mentally and physically after the marriage with a view to squeeze money (as dowry) from the guardians of complainant Ferdousi Begum.... Finally on 30.9.85, accused Jahangir Alam asked his wife Ferdousi Begum to bring 20" Coloured T.V. Set, Radio, Wrist Watch and cash money amounting to Taka 25,000 from her brothers...Complainant Ferdousi Begum expressed her inability to go to her brothers with such demand. At this stage all the accused persons...became furious and started beating Ferdousi Begum with rod, lathi, etc. At one stage accused Md. Jahangir Alam caught hold of her throat and attempted to murder her by throttling. Accused Jahangir Alam also kicked her several times and caught her hair and pulled her down on the floor, pressed her and dragged her out of the house. Then all the accused persons snatched away her gold ornaments from the body and left her with one cloth in the courtyard where she lost her senses due to inhuman beating and torturing by the accused persons for the whole day. As a result of this beating by all the accused persons she lost hearing capacity of her right ear. Both her legs were so severely injured that she felt difficulty in walking....The spinal chord showed traumatic collapse in X ray and dislocation of bone was also found in the X ray. Salema Khatoon vs. State (F. H. M. Habibur Rahman J.)2 I. A Home for Love and Violence Women are givers of love and care. In virtually all cultures women's traditional role involves the rearing of children and care for home, husband, and family. These roles have been associated with some important moral virtues, such as altruistic concern, responsiveness to the needs of others, and a willingness to sacrifice one's own interests for those of others. They have also been associated with some distinctive moral abilities, such as the ability to perceive the particular situation and needs of others and the ability to reason resourcefully about how to meet those needs. These virtues and abilities need to find a place in any viable universalist feminism. Feminists have long criticized male universalist theories for their alleged neglect of these important values, and have frequently argued that universal approaches based on liberal ideas of dignity and equality cannot make sufficient room for them. They have worried that liberal theories of justice would turn havens of love and care into collections of isolated mutually disinterested atomic individuals, each bargaining against the others with a view to personal advancement. On the other hand, it would be difficult to deny that the family has been a, if not the, major site of the oppression of women. Love and care do exist in families. So too do domestic violence, marital rape, child sexual abuse, undernutrition of girls, unequal health care, unequal educational opportunities, and countless more intangible violations of dignity and equal personhood. In many instances, the damage women suffer in the family takes a particular form: the woman is treated not as an end in herself, but as an adjunct or instrument of the needs of others, as a mere reproducer, cook, cleaner, sexual outlet, caretaker, rather than as a source of agency and worth in her own right. The cases in my epigraphs show this tendency clearly. For Giribala's husband, she was as a domestic servant, rather than a person3. Her role was to walk a few paces behind, carrying the lentils. For the family of Jahangir Alam, Ferdousi Begum was little more than a device to extract money from her brothers; her bodily well-being was worth less to them than a 20" color TV set, a radio, a wrist watch, and a small amount of cash. Family, then, can mean love; it can also mean neglect, abuse and degradation. Moreover, the family reproduces what it contains. Just as it is often a school of virtue, so too (and frequently at the same time) it is a school of sex inequality, nourishing attitudes that not only make new families in the image of the old, but also influence the larger social and political world . (This influence goes in both directions, clearly, since the family and the emotions it contains are shaped by laws and institutions regarding such matters as marital rape, child custody, children's rights, and women's economic opportunities.) It is implausible that people will treat women as ends in themselves and as equals in social and political life if they are brought up, in the family, to see women as things for their use.4 The family is frequently romanticized as a home of virtues that rise above mere justice, a "haven in a heartless world." But, like all forms of community, the family is typically hierarchical: it contains asymmetries of power and opportunity. When contemporary theorists praise "community", and criticize "individualism," they sometimes seem oblivious to the fact that communities are composed of individuals, and that they do not treat all individuals equally. If we are inclined to give a group such as the family special privileges, we ought to consider the damage done to people when things go badly there. Even without settling the question whether the conventional family is inherently patriarchal, we can see that it frequently is, and that it has done great harm to women and girls. If we keep Giribala and Ferdousi Begum firmly in mind, we will be prevented from swathing injustice in a rosy glow of romance. In this essay I shall confront the questions posed by the presence of the family, and the roles it constructs for women, at the heart of a society that is attempting to promote human capabilities -- prominently including the capability for various forms of love and care. I shall argue that a liberal approach to the family that treats each individual as an end is in no sense incompatible with the appropriate valuation of love and care; indeed, it actually provides the best framework within which both to value care and to provide it with the necessary critical scrutiny. By thinking of people's affiliative needs, as well as their needs for the whole range of the human capabilities, we can best ask questions about how the family should be shaped by public policy, and what other affiliative institutions public policy has reason to support. I shall argue that an approach aimed at promoting "human capabilities" provides an even better framework for analysis, here, than standard liberal proceduralist approaches, since it is explicitly committed to a prominent place for love and care as important goals of social planning and as major moral abilities -- within a life governed by the critical use of practical reason. At the same time, the capabilities approach avoids a common defect of at least some liberal theories, in that it does not rule any institution "private" and so off-limits for purposes of public scrutiny. Individuals have privacy rights, in the form of associative and decisional liberties. But there is no institution that, as such, has privacy rights that prevent us from asking how law and public policy have already shaped that institution, and how they might do so better. Personal liberty is a central social goal, whether or not it is exercised inside the home; personal dignity and integrity are also central social goals, no matter where the threat to them is located. II. Capabilities: Each Family Member as End What human capabilities are at issue, when we think of the family structure? As the case of Ferdousi Begum shows us, they all are: life, health, bodily integrity, dignity and non-humiliation, associational liberties, emotional health, the opportunity to form meaningful relationships with other people, the ability to participate in politics, the ability to hold property and work outside the home, the ability to think for oneself and form a plan of life -- all these things are at stake in the family, and the shape of the family institution influences all these capabilities, for both women and men. The family is indeed a home of love and care, and we should not ignore these capabilities when we assess what different family structures contribute. But we should also remember that the family has a tremendous influence on the other capabilities. Indeed, it influences them pervasively and from the start, since children are born into such groupings, for better or for worse. On this basis, the family has an especially great claim to be regarded as what John Rawls has called the "basic structure of society," an institution, that is, to which principals of justice most especially ought to apply, if our goal is to promote justice for all citizens. In a similar way, my capabilities approach suggests that public policy should devote particular attention to any institution whose influence on the formation of capabilities is profound, since a bare minimum of social justice will involve bringing citizens up to a threshold level of capability. When we look at the family, whose capabilities do we look at? Here we must repeat: we look at the individual. Here as in the case of religion, a principal of each person's capability should guide us. It is not enough to ask whether the family promotes a diffuse and general kind of affection and solidarity. We must ask in detail what it does for the capabilities of each of its members -- in the area of love and care, and also with regard to the other capabilities. Such a focus on the individual has sometimes been held to slight the worth of love and care. But really, it does no such thing. If liberal individualism urged people to be egoists, putting their own concerns first and those of other second, or to pursue a solitary conception of the good, in which deep attachments to others play no role, then we might well accuse such a theory of indifference to the intrinsic value of love and care. But liberal individualism really involves none of these things5; indeed, all the major liberal thinkers have in their different ways emphasized the intrinsic worth of love and care. To give just one example, For John Rawls the model of moral impartiality that is provided through the Original Position, including its Veil of Ignorance, is intended as a model of the virtue of fraternity6; and the Rawlsian account of moral development gives attachments in the family a central role. My own view, similarly, gives capabilities for love and affiliation a central role in the political conception itsefl, as central social goals. The liberal principle of each person as end does entail, however, that the person, not the group, should be the basic unit for political distribution. Basic political principles mandate that society secure a threshold level of the central goods of life to each, seeing each as deserving of basic life support and of the basic liberties and opportunities; that we do not rest content with a glorious total or average, when some individuals are doing badly, whether in liberty or in material well-being. Such a principle is especially urgent when we think about the life of women and girls in the family.For all too often, women have lost out on the basic goods of life because they have been seen as parts of an organic entity, such as the family is supposed to be, rather than as political subjects in their own right. In concrete practical terms, this has meant that too few questions have been asked about how resources and opportunities get distributed within the family. For women such as Giribala, her daughters, and Ferdousi Begum, an emphasis on individual rights and entitlements, far from removing opportunities to love and care, would seem essential in order to promote more fruitful and less exploitative styles of caring. Instrumental and male-focused ways of valuing women are amazingly persistent, even in lives that are elsewhere characterized by profound moral reflection. Any reader of the Autobiography of Mahatma Gandhi, for example, is likely to be very struck by the strange combination of a rare moral depth and radicalism, which questions not only colonialism, but also the entire foundation of the Hindu social order, with attitudes to his wife that are extremely traditional and male-centered. Although Gandhi repents of his personal jealousy and his sexual demands on his wife, he never shows the slightest sign of a thought that she might also be a sexual agent, or that one of the things wrong with his sexual demands on her was there extremely egocentric character. And even when, by his own account, he attains a purer and more harmonious relationship with her, he continues to praise her, above all, for conventional wifely traits of obedience and reverence, rather than for any traits that would suggest that he respected her as a source of agency in her own right. Seeing this moral intransigence even in one so morally outstanding, should we not believe all the more in an approach that insists on treating each and every person as an end? We can see this point from another angle if we now consider the different approaches economists have taken to the family. The most prominent economic model of the family, that of Gary Becker7, assumes for purposes of descriptive modeling that the family is a harmonious organic unit held together by altruism; the head of the household takes adequate thought for the interests and privileges of its members. It has frequently been objected that this approach is not individual-focused enough even for purposes of description and prediction (as Becker now acknowledges8); still less does it serve as the basis of an adequate normative approach. Conflicts for resources and opportunities are ubiquitous in families. For this reason economists have increasingly turned to a different, and more individual-focused strategy, modeling the family as a bargaining unit9. In this approach, it is not denied that the members may be linked by bonds of love and cooperation; they may pursue shared ends, and view one another's well being as among their very most important ends. But they are seen to be distinct individuals, to some extent also in competition with one another. Used descriptively, such an approach can tell us what conditions strengthen the bargaining power of different family agents, and help us to predict what changes, public or private, will alter those relations, and in what ways. A normative approach based on such a descriptive/predictive model would be a model of a fair bargain, in which the interests and rights of each member are respected. Obviously enough, there is a natural fit between a normative approach based on the principle of each person's capabilities and an economic approach of this type. The principle of each person's capabilities, although endorsed in some form by most of the major liberal theories of justice, has a striking consequence that liberal theorists have not always acknowledged. It is that the family as such has no moral standing within the core of the political conception. It is persons who have moral standing. We are interested in the family as a locus of individual development, expression, education, and so forth. But it has no standing qua organic unit. If politics decides to recognize certain groupings as enjoying a special status, my approach does not forbid this10. But the moral question behind the political choices should always be, "What do these groups do for people, thinking of each person as an end?" This focus should guide us when we ask which groupings of individuals, if any, deserve special protection in a political structure. III. The Family: Not "by Nature" Sometimes these questions are not asked about the family, because it is taken to be a "natural" unit. If this means a unit whose form is invariant across cultures, the claim is evidently false.