Unknown Speaker 00:06 Since we have introduced ourselves to you, the next person, the next thing we should do is have you introduce yourself to us. So that we'll end this conversation. So we'd like to start the ball around here. And you could just tell us your association or affiliation approximate to this. And I guess your reasons for being in this particular workshop and what you're hoping to get out of this. Unknown Speaker 00:41 My name is Cynthia Becker, senior Youngstown State University, and a pre law major of the University of Cincinnati and pursue a failing long distance prospective practice of graduation. Margaret theory I'm returning the watchman in Boston, and particularly interested in person health. I'm currently wearing a medical doctor and I'm the officer can share the passion for making major medical school in Philadelphia. My daughter she's my mom. Born junior. I'm Cassie Brown. I am a professor. And I'm here. Unknown Speaker 01:42 I'm Jay Gould, director of the board up and working. We do have my time to present the Constitution advice and help internet connection helping them develop down in South Africa, and I'm a Virginia I work and I hope to go to law school. And also not want to go to law school. Sophomore, Unknown Speaker 02:23 I would also like to join us Unknown Speaker 02:31 I'm Jennifer Klein, and I'm a student at Barnard. And I'm studying history and I'm interested in doing research on constitutional history and seeing issues on women and the Constitution. Unknown Speaker 02:46 Rosen I'm a sociologist, and teacher, a small college was Worcester. No one has ever heard of this college. And I also have just finished a book on women who work in factories in this place and the jobs coming out in September. I also teach a social problems course and look at the whole issue of progressive technology, which has been fascinating to personal identity. And I'm also interested in the whole issue. I also teach a course on women in management. So a bunch of these issues that we've been interested in. Unknown Speaker 03:28 I'm Jean Eliana teacher directors, and I'm writing a book on women in the state. And this is part of part. Unknown Speaker 03:37 B Spitz and I'm an economist, I teach at the Center for Labor Studies of Empire State College here in New York. And I'm, I also teach Women's Studies and I'm got a lot of students who are interested in going to law school they think. Unknown Speaker 03:53 I'm Margaret crasnick, and I teach at Duquesne law school in Pittsburgh, and I have an interest in employment law and employee health issues. I'm your che, and from I know where Nicholas's I'm from Western Massachusetts Ellis college, and I direct the Career Service at the college, I should say, I am the Career Service. Director. And it's really nice that you and I think these issues are very important. In my job for free Unknown Speaker 04:31 Crawford, I'm an attorney I practice on Staten Island, by myself, and I'm very active in the women's bar at the state of New York and the local chapter and the boys bar is sometimes called where I will serve as a co chair. And I'll be visiting co chair persons and co chairs instead of CO Chairman Finally, I'm just here because my daughter who's a college student invited me to come in and I'm very happy to find out that this program My name is Bobby Cordero. Unknown Speaker 05:02 And I take the time off school waiting to hear from law school and Unknown Speaker 05:09 have taken up my Federalist study began. Taking a Unknown Speaker 05:16 good start, let me just make one other comment is that there are obviously a number of very important issues that we're not touching the point we have, such as parental leave and pregnancy related issues, affirmative action, which is going to be with us for a while, and comfortable work with you had some discussion, said session. If we have time at the end, I think that we would be glad to address some of those issues. Before we get to focusing on some sort of general should also say that one of them we decided reproductive technology, focusing on this year for surrogacy, and what's happening now. So why don't we start? But I'm gonna get my Unknown Speaker 06:05 question. I couldn't bring those chores today about this conference. But I want to tell you all about it. The project on reproductive wellness for the 1990s that's being done by the women's rights clinic and Institute for Research on Women doctors, is focusing on six topics. One is late abortion. Two is prenatal screening and selective abortion. Three is fetuses patient, can you compel a woman to have a cesarean section undergoing chemo therapies, that kind of thing. We would like to have hazards in the workplace, something we're calling interference with reproductive choice, if clinic violence, sterilization, abuse, all the ways that your reproductive choice are interfered with. And then the last one is alternative reproduction, which will include third parties and the kind of thing that I'm going to talk about. So in all those areas, we are making proposals or presenting position papers, trying to look at it from a feminist perspective, this conferences to get the boys bar and the boys everything else do pay some attention to us. But we are very anxious, over presenting our proposals and have the the critique of the bodies established emphasis and political, etc. To make sure that there are feminists out there who are understanding and thinking through the ideas with all sudden with them. So it's made for in New York City at the Doral and it's $45. If you're interested, send send in a check I've written that word should be made out to to us at the women's rights litigation clinic. There are limited spaces and the origin of pretty good insurance. So if you think you're interested, you should commit yourself in advance you get lunch and refreshments and conference materials. Okay. Jan indicated that I'm really going to focus on the question of surrogacy partly because Rana this morning, reviewed some of the more general issues and a lot because we think that it is better for us to try and discuss and grapple with one topic. Well, I'm going to do is outline what I see a number of the questions that you have to think about and wrestle with in approaching the issue. And then very quickly give you a hint of where at least today I'm coming out in terms of what my proposal would be. I think that all of us are finding that we're all over the lot on this. I think it's generally true. And it's particularly true about services. That, number one, it's real hard to figure out what our agenda is before we go out and fight for it. And number two, it's an area where there's tremendous potential for repression, and tremendous potential for liberation. And it's, you know, to figure out what line you want to walk is, is pretty tricky. I think that on the one hand servicing really reflects and plays a role in reinforcing conventional notions of the family of people are going out and trying to acquire a kid in a way that will allow them to raise the child in in the city. Even though the method again, the child's new and unconventional, new and the commercial sets of people have been having children for other people for a long time. But this new commercial process is new. But the idea is to get a child that then can be your own child, which you then raise in the family that looks like your regular two parents, family. So in that sense, it seems to me that it's it's regressive. And it sort of confirms and reinforces that that On narrower family, other conventional family should be honored to be reinforced. And that's how people should go about doing things. It's also clearly reinforcing the value of genetic ties to your kids. And I think that, that that's been something that may have been more important to man. Certainly you hear it as terribly important to Bill Stern. But I think because men are less involved in the physical part of childbearing, and seems to be very unfortunately less involved in the rearing part. The genetic part and the property part, passing on your property to your kid Unknown Speaker 10:49 has been very important. Again, surrogacy is a wave on reflecting that. On the other hand, of the general opening up the ways that people have and acquire children, seems to me hassled liberating potential. And the notion that you can have different kinds of families and different kinds of relationships to get kids, I mean, that it's not such a disaster, to say you can have a genetic tie, you can have a gestational time you can be a social parent. That that that potential is, is a way of getting past the very narrow view of the family. And, more specifically, the fact that you could have two gay men who now have a child. So another way that surrogacy could get us beyond families, as we know. Today, I would guess it didn't hear rain at this moment. But I would guess that she talked about some of the traditions of families that beyond you know, sort of white regular middle class, mainstream American traditions where people have kids, where people had kids deliberately for each other where they have shared kids in ways there's, there's a greater there's a notion of gift baby, this notion of honorary kin, I happen to feel like that is tremendously important. I think that that this just in terms of mainstream America, and you're supposed to own your kid, in the way you can relate to children is to possess one. And I think that that's very limiting, particularly for women. It's limiting in terms of what what else they can do in their wives. Interesting response, what do they have to do in terms of the potential for guilt tripping? And so I think that that thinking about different ways of relating to kids is very important. I think actually, if we have more ways of relating to kids, we wouldn't feel this pressure or or particular couples, infertile couples would feel this pressure to go out and acquire a kid that then looks like their own way. Other couples have their kid. And so I would really think about other before we even get to the question of surrogacy, what can we do in society to broaden the range of relationships, not just adoption, but real godparents, roles, real aunt, uncle rolls, Andre, whatever the anthropologist talk about that. Okay. Now I wanted to mention, two themes that I think are ongoing struggles in the feminist debate that come up in this area make it particularly difficult for us to figure out what we want, and sort of play out a little differently in this area and a lot of areas. The first one is whether your primary focus and concern is that women have been victims and are exploited. And I'm sure you've heard about this in the pornography that day. I'm sure you've heard about prostitution debate. The other side of that, I'm sure you've heard of that is the wrestled with is the question of women as agents, to what extent as screwed up as the world is they are capable of doing the best they can in taking charge of and making arrangements in that world. The second question that I wanted to connect to this discussion is the ongoing debate about what the role of women's special reproductive functions is and should be in figuring out how to approach a quality here, there's the possibility that Have escaping women's total definition as mothers and the paternalism that's in use to figure out who they are. On the other hand, there's a great fear that women are going to be reduced even more to baby making machines. And so the debate that you hear in the context of, for example, how pregnancy should be treated in the workplace, and should pregnancy be singled out and given the basis for special treatment, or whether we should try and figure out when the pregnant woman is like, people who are not disabled or people who are disabled. That discussion I think plays out in a slightly different way. Here. Unknown Speaker 15:48 One of the specific ways that comes up is when you start thinking about particular rules, and whether you want to limit when people can use surrogates. Some of the legislation proposes that only if the woman is truly infertile, will a couple be eligible to use a surrogate? And then, what seems to be involved in some judgment about what a woman really should be a mother? Unless it's absolutely impossible. So if it's dangerous to her how she wants to plan something else with her life? Those are impermissible reasons. Well, these are difficult questions, but it's important to think about them in terms of how much they define women totally in terms of their reproductive functions. Okay. Now, what I'd like to do is run down the type of position that I see on the continuum, many people talk about getting together debate on surrogacy, but I don't think there are just two positions, I think there's really a spectrum. And I think I'm the one and the people who say we absolutely should not allow it is human and it is unnatural, then people say it's useful to allow, because it is important to permit people to have access to to get to children. But what's really horrible to the commercialization of the selling of a person, you shouldn't sell a kidney, you shouldn't sell a person being selling as bad, etc. So those people would permit it, they would say it's an illegal practice, but they would take steps to rule out agencies, brokers, that wouldn't permit a woman to get money for herself, then there are people and I have to be honest, I'm one of them take a compromise position, which is to say that I think it should be permitted. But I think there are tremendous dangers of exploitation, coercion, I think that the people who are going to be the contracting parents are always going to have more money. That's the whole point and the women are going to sign up for it may have other reasons of their likely consider it because they need money. But I wouldn't move it out. Because of that, but I would like to do something to to balance out the bargaining power. So the position that I would take is to say who the just a mother can decide only after the child is born, to relinquish it to the couple there that will put a brake on the practice, because people are going to be very careful that when they get involved with somebody, they've done what they can to make sure if she really wants to do it, and truly understands what it's about, and she trusts them, etc. So that's kind of intermediate position. Other people now move down the spectrum, really think it's important to honor the notion that a woman can decide what she wants to do with with her life and the body. They would permit contracts. But they would not force them. To give up the child, they would say she was in a contract, she changed her mind. They would deal with it the way we deal with a lot of contracts. That is to say, you have to pay some damages if you didn't go along with your deal. And then I think at the extreme end you have people who are in favor of forcing the contract A deal is a deal. It is important that we are consistent with our moral commitments. We shouldn't assume the woman is less capable of knowing in her mind and in this It's important for people who want to obtain children this way to be able to rely on those promises. Now, I've left out some difficult questions about what extent if you have a contract, you could agree to limit the woman's behavior that you want smoke, smoking or drink, she will have amniocentesis, she will not have an abortion. Those are questions about how much you are willing to allow private parties to agree to live at a woman's behavior whilst she is pregnant. That raises a whole lot of questions, which we don't really have time to get into, like that California case about the extent to which a woman Unknown Speaker 20:48 can be prosecuted criminally for not doing what the doctor said she should do get to the hospital fast, etc. You recall the case I'm talking about there another set of problems, which I am as good law school teacher just telling you I'm not talking about. And those are things like who's going to keep the kid if he the parent wants the kid, because it's not a perfect baby. Questions about what the support obligations are? Et cetera. Okay, now, I just wanted to say a couple more words about the question of money, whether or not it's a good idea to permit payment. And again, I'm going to raise questions. In thinking about this, I think you should think about, is it like prostitution? Is it using your body in a sexual way to make money? If it's like prostitution? Does that mean yes. And it's okay. It shouldn't be contained? Or does it mean? It's like prostitution, therefore, it shouldn't be permitted. If it's not like prostitution, how is not like prostitution for some people. It's not like prostitution, therefore, it shouldn't be permitted. For other people. It's not like prostitution and therefore it should be permitted. Okay, is it as I suggested before, like selling a kidney? That's a that's a sex neutral reason for being opposed to it for for people. It raises the question now, are you opposed to sperm donation for payment for sperm donor donation? is can you pay for sperm donation? Can you pay for blood? Can you pay for kidneys? Can you pay for babies? Is the slight baby selling in the adoption sense? Most states have prohibitions on on paying for babies who should pay somebody's expenses. adoption agencies are supposed to be nonprofit adoption agencies, because you don't want to put pressure on somebody to sell a baby is the fact that this baby would not have been conceived, but for the deal, enough to make it different. So that's my last set of difficult questions about the process in general, I want to make a couple of points about the baby and controversy General. Unknown Speaker 23:16 You're laughing? No. I said, is this an exam on London, we Unknown Speaker 23:22 did go so far as to tell you where I can push it on you too much. They're gonna get you get to grade them on their answers. That's what it is. On the Fabian controversy, I think that it's important to worry about is, is how particular cases it how much is it when Mary Beth Whitehead happened to be who Richard Whitehead happened to be, who Bill was the stern happened to be? Or is the kind of difficulty in the way the case is going on? Something that's likely to be come about every time because of this inequality, class bargaining power? I tend to think that one of the reasons why people were dumping on Meredith Whitehead was that they thought it was really a natural degree to do it in the first place. So she goes points for not being a natural mother. And then when she wanted to keep the kid, she lost points again, for not keeping her promise. It's like a double whammy. And so that's, that's, that's my shopping list of things that I think it's useful to think about. As I said, I really take an intermediate position. I am terribly worried about the potential for views, which are one of the things you've heard about is what is going to be even greater potential for abuse, when embryo transfer becomes more popular, and then you will have white couples looking at racial minorities. Now I think there's a check on that white couples want more kids. So they're not going to get a surrogate mother who's a minority. But if you have an embryo transfer, or you have the implantation of the egg, then there's a tremendous exploitation for adding racial exploitation to this. But I am worried about the dangers, but I'm not willing to limit the way I'm not willing to limit and I don't think it'll be effective, eliminated, just have a black market. So I would rather father live in a sensible way to balance out. No, no, no, you gotta say? Okay. Unknown Speaker 25:55 I want to take the question. First of all, I want to say I'm delighted that there are so many women who want to go to law school to practice this law, there is a noticeable decline in enthusiasm for such practice, as unfortunately, I think as the numbers of women going to law school increase. And those of us who have been feminists for a long time, and teach with some dismay on the fact that we have many students who, whose response to feminism is to try to dismiss it, even though at some point one wants to say that the kinds of paternalistic shaking of a finger, you wouldn't be here, but with no other gratitude expected, except that recognition, what I want to do is take an issue, Unknown Speaker 26:45 which I would Unknown Speaker 26:47 argue, is as gendered as the issue that McCain is talking about, by gendered, I mean, that, despite the concerns about equality, and the concern in the women's movement for equality, that there are some issues that are less susceptible to being talked about, in classic equalitarian terms, because of the power of, of the sex gender system, that is that system that identifies us as women or men, which in a sense, is a construction, we could have 17 different sexes, if we wanted to look at various hormonal levels, rather than dividing us into two, and then a series of roles that are connected with that construction with the with the social construction of sex, which make it appropriate for us to be women or men, or, and it's translations in, in the family law system, into the gender roles of husbands and wives, and mothers and fathers. And I want to argue that with suggest to you that, despite the best intentions of the women's movement, and I think it has been largely the women's movement has been interested in this question. The effort to make gender neutral divorce laws, and the laws relating not just simply to the division of property, but to support payments and to others commenting on what we're going to comment. Yes, Unknown Speaker 28:22 I'm sorry, I'm sorry. I know. Okay, so we're going to do is all comment on one issue. And then as I say, it's going to Unknown Speaker 28:35 go on to the next Unknown Speaker 28:37 thing I thought we were gonna understand. My understanding was we were going to talk about all three and show the connections and then we was a nice intro. Topic. Yeah, what made sorry, that's perfectly perfectly. I think what Nadine is, what Nadine has suggested us is not only very well phrased, but terribly important. What I'd like to pick up on is this whole question of the victim agent, the role of the state, and what I think and simply add to the discussion, because I think it affects what Jen and I were talking about the role of the state as a regulatory mechanism and the very complicated and conflicted views that that feminists have about the role of the state. That is that it's not our apparatus. On the other hand, it is viewed without, I think, with some, some good reason from time to time, at least tactically, as a vehicle for bringing about changes that are deemed desirable If only we knew how to control all of the unanticipated consequences or anticipate the consequences of those actions and then possibly be able to do control them so that I would simply underscore may DNS on the DNS concern that that the victim agent notion gets tied in with the question of the way in which we, as feminists, looking at these issues view, view the role of the state as the buttress or support or reinforcer of certain images, and that both images, I would argue that the problem very often is that we are both and that's one of the dichotomies. The only other thing I want to add to this, which is, I think the underpinning the underlying issue with not much of these reproductive technologies, which making doesn't want to talk about in great detail today, but I think the surrogate issue is one manifestation of it. And that is, the fact that these are extraordinary and random referred to it's one of the capital intensive nature of these undertakings, whether it's lawyer service, he doesn't have to be doesn't have to write but if that's only if it doesn't have if there's not an exchange, if there's not a payment, either both for the lawyer, and for the AD AD for the surrogate, a surrogate, a surrogate parent, but the extent to which it's it is underpinned by what I think is, is the sort of the broader drive for a capital intensive technology and the use of venture capital. And this viewed as a growth industry. It seems to me that we also have to factor into this though, the recognition of those forces being at work, which will, which are the possibilities for control, I think, are more remote. So that's the second thing. The third thing I want to suggest is that there are and maybe they do you want to comment on this, there are in other countries is the issue of surrogacy has been addressed. I know in Great Britain, it's been outlawed, except for on a commercial basis. Do we have it? Yeah, do we have any evidence from either Great Britain, or Australia, and I know they're talking about it in Canada as well, about how it works, when there is no, Unknown Speaker 32:27 no payment permitted. And there have been various Unknown Speaker 32:33 what we could anticipate across this. Unknown Speaker 32:39 I think that there are a couple of things we need to look outward for anything brought up by by the team, but just like to come and further along. One is I think we as feminists have to start finding new language because I think we have in America why that situation found that the word surrogate mother just is not a good terminology, the old one up using it, because we don't know how else to relate, you know, refer to this situation. However, we're talking about a mother, a mother, and we have to deal with two people who are claiming to have genetically produced this, this third, this third entity, so we're not talking we're talking about a woman who has offered to use her body to mother a child, who she will then give up parental rights to I don't know what quick phrase we can use. But I suggest that we do need to find a new word because it's language is very important on how the law of views of situation language is vital to the law. So how you phrase something how you title something very often decides what happens to the, to that entity. Secondly, I think that we as feminists have to start moving very quickly, to try to get ourselves together and discussing these issues and to help any very rapid responses that are now coming out of the legislature. Just I don't know whether you're aware, but there has been a law introduced in New York, to regulate servicing, Unknown Speaker 34:13 use the word zoom. It's I'm big. Unknown Speaker 34:16 And the I mean, I would I would say my predilection is probably towards don't allow or do not allow it to be to be commercial. I suspect if you don't allow it to be commercial, it will disappear on its own volition or it will only be done as kindy transfers, I thought, you know, siblings for each other great friends for each other things like that on a truly altruistic basis. I don't think it's the same thing. When we're talking about the surrogacy through actual load of fertilization. The woman who carries the trial is not the same thing as domain to a sperm bank. I think that I think that if you said to women, you know, you can sell your eggs because I would have gathered, you know more about this than I do with technology. But at today there is a possibility of taping eggs that could later be fertilized outside. And that would be analogous to the sperm bank. But but the carrying the travels and nowhere now there's any more than I think that the man who implants impregnates a woman through through intercourse, I think is more attached in some way to the end product than the man who provides some genetic material through a sperm bank is to is to it. And I don't know whether that's just the head distinction I make. But I think that there are real distinctions that that can be can be seen them and that we should look at that. But to get back to the laws that I think that the one that's coming out in New York, I think is so dangerous and can run away with versus there is right now, I believe a knee jerk reaction towards sympathy towards infertile couples. And that is a great move to, because that's what the legislature relates to they do not relate to this woman was being asked to provide the service they relate to the family hearings? Well, that's okay. Number one, my political agenda would be the first thing that we should be demanding of the legislature is that there's got to be hearings, on, you know, on the issues, it's not going to go through this year. And I think that, you know, it's just beginning. And I think we've got to get on top of it. Let me describe the New York law because I think it might be the prototype for what it will appear in other states, it permits surrogacy, except only on the court supervision because judges don't really care. So what as a way of I mean, it's not totally off the wall quite truthfully, if you're going to agree with with allowing surrogacy judges are rub it wood, judges can presumably determine whether there is coercion or amount of whether the person fully and freely enters into the enters into the contract is and is aware of what she is what she has fought before. So that in order to make such a contract, you must go into the court and present the contract to the judge who then takes on some sort of hearing, and makes a determination as to whether it's a fully entered contract, the woman is treated like as we get my opinion on this, like a mass transportation, she is limited to $10,000. So she cannot bargain for how much she can make on the other market, she can make $10,000 and that is if that's how we get around, we won't have babies. So like, make the poor woman take the lowest, you know, salary for? And I guess in that way, I guess, legislators thinking that thinking, you know, are able to justify, well, this is a really evil because not too much money. Plus is keeping it a middle class thing. So I think that they're saying we want middle class people to be able to take I think there is I think actually it's the same $10,000 I'm not sure. But I believe there's a limit on both what the broker can get, and what the what the woman can get. The only people who may use this are people who can demonstrate infertility, that the woman is incapable of over, I guess you could say, for carrying a trial. So that raises great questions to those of us who are concerned that way from the single women be able to use it must be a couple situation, why some single women be able to use homosexuals to be able to use it, it seems to me once people accept the moral or ethical legitimacy of the process, then I find it difficult to understand the rationale for discriminating on who may use it. The first question is, is the process legitimate? And if that's legitimate, why should not it not be freely available to anyone who wants to use it? The legislature will only say, you know, this is like the worthy talk. There are, you know, worthy people and unworthy people. And I think that's the deeds that you know, if you really were Isabella, if you really want to be a mother, but can't that's okay. But if you choose not to be a mother for some other reason, that you know, that is not okay. The law also provides that once the the egg is fertilized that the father becomes responsible for for the trials, so that in fact, the father must assume all responsibility for the the form chart. Now, I don't know how many aware of it now this has been told to me I have not seen the the contract itself, but it The stern, stern wife that contract is my understanding that the contract provided that if she aborted or miscarried in the first three months, she got nothing. If she had a stillbirth, she only got partial payment. And if she can $1,000, between making a pass at the form or trial, she didn't take that. But that's what I that's what I've been taught now seems to me that a judge should not have trouble finding that unconscionable and plain contract language. So I think those are the kinds of things what kind of contract you know, conscionable. My own answer to the argument on should a woman be able to freely use a body and, you know, is not let laws or legislation that prohibits that against our general idea that we're not just being themselves. And this is yet another protected restriction that I don't analogize it that way, it seems to me that we have a lot of labor laws that are protective of society. Right now, we're going through a whole series of series of issues about protests. Now, if you say everybody should be free and be able to, to negotiate their own employment contract, you know, as they see fit, then it's why is it unfair that somebody should have to have to negotiate, demonstrating that they're drug free to get a draw, but we say, Yes, we can invade, that the legislature can prove that in issues of such great privacy and privacy issues, that that type of employment contract is not permissible, and it can't be freely entered into, I think the same thing may be true and and not overly protected to say that that simply is an unacceptable invasion of private areas, and that there's no way that that can be a free Goshi ated contract of sale, that was just simply not something to choose to give up if they have other alternatives that we choose to do. The other alternative is carrying the child for another person for pay. So I think that there are areas you know, that the Constitution would permit legislators to, to prohibit the activity, as I say, I'm sort of inclined to go in that direction by myself, because I don't see. If it is permissible, I think that in fact, we will find ourselves to, you know, white middle class, parents of means using poor people of the brain. Unknown Speaker 42:54 What is the white baby in case, it was absolutely terrifying way in which experts have been used, I mean, the sort of exposing of the purchase ability of, of expertise on all sides, and the sort of totally subjective manner in which the issue is discussed, and the way in which women get pitted against each other. I mean, there's a sense in which both women lose either way, and it seems that while the father is a two fathers, Mr. Whitehead, when his vasectomy, and Dr. Stern desperately wanting to reproduce his own genes, having lost his lost his family and Holocaust, sort of, once again, this sort of appear at the margins every once in a while, but that the struggle over these two women, and the way in which they are being evaluated by so called experts, perhaps is a very compelling question. And these things would never be important. Unknown Speaker 44:00 But I saw an Oprah Winfrey Show, where there were a lot of women in the audience who had been in fertile or infertile. And there was a panel of women who had given given birth to babies. And then, you know, through contracts of services, the women in the audience who had been infertile or eternally grateful to these women, women who had been surrogates, had enjoyed the experience. It had been regulated. And they were they felt they were performing a very worthwhile service. It wasn't exploitation. And I think that's you're you're, you're assuming, it seems to me from especially what you said, but if it occurs, it's an exploitative relationship. And I don't think that's true. Unknown Speaker 44:44 Let me just say what I think is, I think that it's like most women's jobs, extremely low pay. And I, I mean, I am sympathetic. I'm glad you're saying this because I think it is worthwhile. But when you do you know and do the calculation because I have to be Something like $1.37 an hour. And I would not be opposed to there getting more money. And I think there's but it's Unknown Speaker 45:09 important to make that distinction because I felt a real disdain to, to recognize the process is something that is very important. In many cases, there's nothing I mean, it's inherently Unknown Speaker 45:20 of No. Because I Unknown Speaker 45:22 think that's important to hear how well were those women paid? Unknown Speaker 45:26 varied. I don't remember exactly how much Unknown Speaker 45:32 10,000. And the Unknown Speaker 45:34 the one woman had done it four or five times, she was so proud of herself, when she wasn't poor. Why? She had two kids of her own, and she liked being pregnant. And, you know, she worked for this clinic. And I've used her and she enjoyed it. And she thought she was doing something, you know, and the women in the audience who hadn't had been without children until the surrogacy occurred, we just, you know, eternally grateful because they really wanted children and like, this is the way they wanted to Unknown Speaker 46:04 get it. There was a very primitive account of one and that was, it was a Time magazine article, or Newsweek article on the Whitehead case. And then there was an account of a very positive experience where the, the woman's husband was in the delivery room, helping her through the waiver, and the contracting couple were also there. I mean, and I think it's important to explain it can be positive. I do think that that compared to as low sperm donor gets, for example, the wages, Unknown Speaker 46:41 yes, I'm not arguing that. But the thing that made the successful one successful was the fact that from the very first moment, it was entirely regulated. And there was a woman lawyer. Well, from the time they they drew up the contracts, there were there was a woman lawyer. I can't remember what her name was or where she works, but this is her career is to, to do these contracts for people. And she works for various agencies. And the ones that were successful were was not only by the state, no bike by a contract, that was fair, and Unknown Speaker 47:13 that, you know, give us any data on a bit of a case, you know, in terms of, yeah, I mean, she's in a large study that I'm surrogate mothers, and how they have the situation is worked out. Unknown Speaker 47:28 I hope to see scatterings of reports that I think we know there are approximately 500 Such incidents that have been kept this is the white hat incident is not the first one where the mother has refused to do the trial that have been compromised this a provider is unique in the fact that there was no compromise. Maybe some courts have held Unknown Speaker 47:52 it could lead to litigation. That's right. Yep. And there have been compromises Unknown Speaker 47:55 that happened some joint custody agreements. I know I read about at least two of them. There is one, at least one problem. I am sure there's more than that there is a least one of the offspring who's now a ward of the state because both the mother and the father refused to take. I don't think that they're Unknown Speaker 48:12 known cases where the kid is old enough to so there's studies Unknown Speaker 48:19 I meant in terms of I mean, because one of the things that that, I think is a real issue, and I'm not sure I haven't heard anybody I haven't heard anybody talk about it is that is that what seems to be happening in this situation is whether you pay somebody or not. And especially when you pay somebody, things get hairier, you're introducing a third party into this arrangement. And then what what can tend to happen is that, on some level, the surrogate mother, or there's always the possibility that she could change her mind, at which point, you introduced the possibility for litigation and struggling over this Unknown Speaker 49:01 child. And I think Unknown Speaker 49:05 that's a particularly dangerous possibility. If there's payment involved, I mean, it's also problem. There's no panic involved. But how would you deal with this issue? In a legal context? I mean, that the whole issue here instead of two parents, there are three or maybe more individuals who have claim a right to this child. Unknown Speaker 49:30 Well, I think what we're talking about is different sets of rules that were tried to determine in advance, you did have a claim. If you say that it's impermissible, then presumably, you said it isn't apparent and you would ignore the legal transaction Trump's relationship with the kid under my model, if the woman following birth surrenders the kid, then if you go to the biological father prior to that she has custody, it is for him on the other rules about that you would make a contract enforceable, then you have an ironclad rule that says that you will close the contract. Now, the issue that Jambo risk will uncertainty because some contracts are considered so unfair, that they won't be enforced. And so it is conceivable that a particular contract with the pencil and they're going to be for us. I think it's interesting, though, because in our system, the lot of times when people go into situations with legal rights, they choose not to exercise. I mean, I don't know if this is really true. I understand. I mean, what you're told is that in business, people don't see a lot of times when they're capable of suing, because the ongoing relationship is more important to them. So they mean negotiate with a topic in itself. This is a situation where what they don't want an ongoing relationship. On the other hand, I guess it really, I mean, think one of the things that I have against the Stern's is that my instinct is a person that did not depress it. Unknown Speaker 51:25 Well, but in in most of the cases, that's what happened. Yes. Unknown Speaker 51:29 I did not know about the joint has these twins that I knew about were, were the woman getting the custody of liberal visitation on the dance floor, but not fully covered? Unknown Speaker 51:40 I think there was a negotiated, negotiated. Unknown Speaker 51:44 So in most cases, the birth mother gave birth to a child and there was a dispute with Unknown Speaker 51:50 the fathers just don't pursue it. The one case where, yes, that's right. Unknown Speaker 51:54 And then the mother, then the husband's wife is Unknown Speaker 51:57 feels cheated here. Unknown Speaker 51:59 But I'm really wondering what the dynamic is for her anywhere. What extent and I'm curious about that in the program you saw, so I really wonder whether there are times when for the women or guilt tripped into doing this, so that the man can have his genetic ties. And I guess I said to be the Unknown Speaker 52:18 Elizabeth Stern's ambivalence, Unknown Speaker 52:22 not only am I good ones, but then they undertake this process. And she's supposed to be so involved, and she examined white hair, and she, you know, with lipstick all over the mirror and this great celebration, I really wonder whether at that point, you've been trying to take control and participate. Unknown Speaker 52:39 The interesting thing about that case, is that homeowners wanting his genetic duplicate. When it came to taking care of the baby on a day to day basis, she left her job, and she was the highest paid, you know, Unknown Speaker 52:51 she was she might have done that to make it look like she really wanted to be a mother, you know, to the court. I think that whatever, whatever it is, assuming she might not have wanted to, that would have been a very good room. Yeah, sorry. Unknown Speaker 53:02 I'm a little disturbed by the turn of the discussion here. There's a kind of supercilious upper class contempt for the idea that there are indeed women who enjoy being pregnant. I think there's a lack of recognition of the yearning that people have for a child, people who for one reason or another, cannot have one. It costs you 10,000 or $15,000, to go to Latin America and adopt and find a white baby that you can adopt. Let's face it, folks, it is a terrible problem. I had an aunt and an uncle who had no children. And they went through life with people, demeaning them, Whose fault is it? What's the matter with them? Why don't they adopt? I mean, that's the heritage we have in this world. People want children. And if this is a way that they can have children. Nadine, I agree with you, there should be some compromise way that we can accept this. I don't know why we're condemned and get so wholeheartedly. I firmly disagree with the church as condemnation. I think that what's wrong with with Stern's wife, who, who took over the the maternal functions of this child, that's how she was going to feel that she was a mother, if she left it all to him and she kept her high price job. When would she get that? That real feeling of bonding, she didn't get it. When the when the baby was born, she was only going to get it by Handling and feeding and diapering and do it for the child. I'm sorry, I really empathize with all these people. And I think we have to it's a real problem. Unknown Speaker 54:53 Here are saying that we don't empathize with people who really want babies question is, do we set, you know, set standards allow other people to be exploited? If that's from the viewer? You know, or do we say what you're saying no, people should be able to make a free contract. And anybody say, we don't understand that problem. You know, that doesn't, because we understand that somebody has been born possibly or through some other problem, you know, rather than the stage of life not being able to, to bear a child, that doesn't mean that society should allow the use of other women for, you know, for that purpose. Plus, I think, should we continue to promote quite remarkably high class, you know, middle class thing, should we allow people to continue to insist that they only can relate to fill them up their color and their jeans. One of the problems I have with the law that was was introduced to New York is it's based on this false premise, it says we need to do something about allowing surrogacy, because there are not enough children, for all the people who want that simply isn't the case, we have more than enough children. We just don't have the children have the right racial or religious mixes and you know, of a variety of things. Is that do we have to say that the only way we can have family unity is by having a a genetic duplicate of our, you know, of ourselves? I'd like to one, sorry, okay, back there, that there, we should also move on to snap. Okay. Um, Unknown Speaker 56:43 I was just gonna say that, it's that mindset that puts a couple of can have a child there, they feel guilty that they haven't had this child. And somehow it's a failure and to deal with it by marking children is not necessarily the way that you have to deal with, with a couple that, you know, feels it as failure, you don't have to feel not having a child has failure. And I think as a dean suggested, one approach is really to, you know, change that. That kind of approach, you don't have to look at people who don't have children, as you know, having a problem and you don't have to feel sorry for them in that way. And it just seems that dealing with by trying to get children for these people, is socially dangerous, because it it just seems like if it can become very selective, and almost like a brave new world thing where, you know, it'd become selective. And you also start to, if you get one law that says, this certain kind of person can only have a surrogate baby, I mean, is it plausible to believe that, that eventually, you can get laws that say, these kinds of people can't and this group of people can't reproduce, and you can have this kind of child that we've reproduced for you. And, you know, you eventually begin to prove people apart. And it seems very socially dangerous. Unknown Speaker 58:14 To take this as everybody who does not take this as the last comment was Unknown Speaker 58:18 just pointing out something I think is going to help not only in this discussion, but in discussions this issue genuine, which is to say it tends to concentrate on the needs and rights of the adults involved. The and I won't go further into that. But what gets lost the child who's, presumably the focus of this entirely gets lost in discussion as the child often gets lost as the basis. And I think if you look at the site literature, and social literature, if you talk to your social workers who do child placement decisions, they are very much against services. I personally, not necessarily they're very much against services, because they see all of the psychological problems, the issue trauma, it's true that this generation of kids, it's an array of services, not all the studies done on it, but I think you can project Unknown Speaker 59:16 about child development right now. Unknown Speaker 59:19 Joint Custody is nice, but it's in response to a problem in itself. So it's not something that minister Unknown Speaker 59:28 can always just wanted, they used to say that about adopt kids, oh, kids have all these problems. And there were a lot of there's a whole social context that went along with that, which makes it which makes it not true anymore. And the studies that have been done last for four years. If remember that on adoption. Yeah. Well, maybe it could be Unknown Speaker 59:46 because you have a different set of set, you have a different problems. Adoption is created because you have a child already in existence, Unknown Speaker 59:52 no, but it's the same kind of imputing real problems that are inherent in situation which are really contextual in many cases. Unknown Speaker 1:00:00 I think there's still a problem with that ultimately, I think, but the problem that I have is that it gets lost in discussion. Unknown Speaker 1:00:09 I think people obviously we all know, we could probably go on with this discussion the whole time. I think that there are people who would like to go on to the next subject post would propel. So let me turn it over to Isabel Unknown Speaker 1:00:23 to begin and physically, okay. I'm just saying I want to, I want to talk about what I think are some of the dilemmas or double binds facing the women's movement regarding divorce, law reform, and how the sort of the ideology the combination of ideology and imagination which underpins the law, is, is at work, and may not be consistent with what we say we would like openly to have, which is some notion of an egalitarian society with it relationships of intimate connection and primarily sanctioned marriages in this case, when dissolved, producing results, not make marriage and unequal risk for women. And I want to argue that it's at divorce, that you see what an unequal risk for women marriage actually is. And in order to do that, I want to make a sort of draw several strands of divorce law reform, together to try to generate, I hope, controversy and discussion or at least get you thinking about the way in which the women's movement may operate, push for certain law reforms, as I say, hoping that consequences will follow certain consequences will follow. And how it seems that history is paid, much cooler, has played a much cooler hand in terms of the collective impact of those of those reforms. So the first one I want to say is, first thing I want to say is that women have only in a sense in a marriage recently acquired a separate legal identity. It's basically less than 125 525 years old, the married women's Property Act in New York State, which were among the earliest date from 1848. But it was not until 1860, that women could own their married men could own their own wages. So you're really not talking about, you're talking about an idea of women having access to property that's less married women, that's less than that's about 125 years old, which sort of belongs to history is a fairly short time. On the other hand, the assumption, I think, was that if you allowed women to have property and have access to it, that they would accumulate it. And that in itself suggests what for lack of a better word is a male reference in the law, that is the assumption that men and women as a result of their, despite their socialization, will behave the same way when a right quote unquote, is available to them. That is they accumulate property. The data both historically and contemporaneously show that that is not the case that women tend to have less property in their own names that they have historically, for a number of reasons, including a wage, a wage discriminatory economy, the lack of certain ideas, an image of women as managers of money, very complex notions of economic vulnerability that get translated as dependency. And so that strand, though, that reform is strand that says, All you have to do is make access to property neutral and give everybody an equal chance to accumulate. So that's one form of what I call the gendering which is very consistent with a whole range of contemporary feminist theory that says the more you eliminate sex and gender as any as a category of the law, the more likely you are to propel the society. Okay, then we talked about so that's one whole strange we could I write, I'm writing about this. So I don't want to go into a lot of details, but I'd be glad to talk with any of you after the session about the second strand of what I call the de gendering of the law has to do with the the attempts to eliminate fault and very stereotypical images of who's at fault. In the dissolution of a marriage, where in order to receive since it was often tied with alimony, where women had to be innocent, the scripts were always written or written that men had to commit the offenses that women have were the innocent victims, if they failed to fit into that model, they lost that element. Unknown Speaker 1:05:26 That's a bit of a generalization, but except for a minute that I'm not just simply talking about any one individual case, which might contradict that. But I want to sort of draw out the general themes to give us a sense of what I think is going to be the problem for us, given the nature of the divorce rate and the number of custody issues which have emerged. So that the effort was historically to first of all liberalize the grounds for divorce and to try to somehow to make each party equally capable of committing the fault when it was a fault where the faults were, was fault was an issue. And then finally, to say, you don't even need fault in order to in order to, to get a divorce. But that that the notion of despite that code, the law, we're seeing the elimination of fault from the statute, from the statutes in every state in the country. The fact is that the roles of The Good Wife, particularly that is what a woman had to be, in order to get alimony, I would argue have remained fairly have remained more constant over time, then one would like to believe that is, if you look, for example, at the New York State debate, the legislative debates regarding the new with the Nike ad reform in New York state, there is very there are very clearly dichotomous images of The Good Wife, deserving innocent, who sort of didn't get her name onto the property and so isn't going to get under anything under the old bond deeds that have the court award or something. And the alimony drum, who is the woman who is trying to live off her now former husband's earnings and refuses to be married for it's sort of the sort of social limiting impetus to transfer her dependency to someone else. And this is very striking when you read the legislative debates, because we're not talking about 1880, we're talking about 1980. And you can see these currents sort of continuing to surface where the gender images of who should have been should be doing what emerged very, very, very, very clearly. And the prescriptions were behavior, I would say, even if they're eliminated, in terms of of fault exist, for example, when one makes a claim for alimony. And if one is going to not remarried than one must be debilitated oneself. Another totally invalidating term, we have a series of terms which appear to be neutral. Okay, alimony is now gender neutral, we will not make determinations in New York on women. Now, persons who are economically disadvantaged will be rehabilitated with social, social, social welfare, a particular problem that social workers, but the term rehabilitation, which suggests in some way invalidation of acquires contribution, which is culturally valued as long as you are married, but if you perform it properly, and now becomes a basis for limited so that I think one has, in effect, both in terms of the issue of saying we're not going to look, we're going to give everyone equal access to property. So we're not going to have to look at we can, in fact, presume that people will make contributions to a marriage and have property and in the alternative, if they don't, if they perform these roles, that that the society deems is are acceptable, we'll provide them with limited elements. Unknown Speaker 1:09:23 So long as they need to look at themselves. suggests again, as I say, that dependency that the vulnerability comes translated as dependency to be overcome the homemaking skills now, instead of being valued or skills to be to be set aside, and they're not transferable, and in fact, the data in New York State for since the passage of the new law revealed that women on the average get 1/3 of the assets in in a divorce and that number 1/3 I have a whole theory about what I call magic numbers in the society and 1/3 is a very interesting magic number, it is the number, it is the amount that women were able to get into the Old English common laundry with our system when their husbands died, so that the valuation at 1/3 strikes me as very interesting. It seems to me what we're expecting what we're seeing, despite all the divorce law reforms, and women, as I say, spending a great deal of time thinking about these issues is that today, as in the past, the issue of marital dissolution and distribution search, certainly the property and access to additional forms is one in which a woman's contribution to marriage is the one that is measured in a man's man's is not a man's is presumed and a woman's is the subject of casual scrutiny, which raises again, this whole question, which comes out of navies discuss the discussion about state regulated contracts, do you? What does it mean for the state to to make this determination? When you know, you don't have it, staff would know that, that the situation is stacked in terms of ideology and images. Add to that in terms of additional gender neutrality. The notion of joint custody, which is now in which in every jurisdiction at least there's a push to have joint custody, the argument being that if people don't agree, people can't get together with parents and marriage, and perhaps the divorce will allow them to be and I'm not saying that every there's a project ludicrousness about it. I mean, it's one thing it certainly seems to me to say that if people can agree with you privately, that's one thing, it's another thing for the state to say, this is the preferred the preferred relationship. And we will presume, and now we have some data, that show that show that many women were the that an increasing number of women, when faced with a threat of joint custody will bargain away property rights in order to have in order to keep custody of their children so that the neutralizing of the law produces consequences of which which further disadvantage, or let me take another example of an attempt to neutralize the law. The house will go to the custodial parents. Okay, if there's a single if there's a single custodial parent with a patient that has we have some data now that suggests that that's increased the number of custody but because the house becomes a key issue, and in communities where the house where people are, have two assets on the house, maybe one of them maybe the most valuable asset, that can become a source of struggle, it becomes a displacement, the real issue was the house, the issue becomes becomes the children. So what I want to suggest is that the data that we've accumulated in New York is Sunday that New Jersey gives David, Connecticut news data in now in California, that suggests that whatever the particular rules governing divorce, whether it's community property, and so called equal distribution, or whether it's equitable distribution of the judge, trying to decide what the proportion should be, where the parties negotiating, knowing that they can always go to court and the judge is likely to give 1/3 to a woman and two thirds to a man on and so people bargain with that understood that knowledge because their attorneys tell that's what they can, Unknown Speaker 1:13:49 could you effect the law in New York? Unknown Speaker 1:13:53 It just, it's that's the practice. I mean, that's what I'm saying. It's the the difference between the formal structure of the law and what might call home for those of us who teach this way, a little law in action way, it actually is worked out, which reveals another level of values and ideology, which is never indicated in the law, but it's played out through the law. So what I want to propose is, although it's put myself out on a limb is, for example, to suggest that we rethink the kinds of rules that we've moved to. First, we think whether the rules can make any difference and the data suggest up to this point that no particular rule that's been developed, has basically not made women worse off after a divorce than their males than their and their husbands and on a long term basis that that is the case. So perhaps what we ought to talk about is a presumption that says women get 50% plus 1% or 2% per year. for every year of marriage, perhaps we ought to talk instead of joint custody. Being a presumption, we ought to go back to you ought to go to notions of a primary parent person who does the caretaking does the work, which is again said to be a gender neutral standard blood is sex and gender specific on given the social structure in this in American society, but will allow some men to be custodial parents, if they put in the time, they put in the time and energy or in fact surrender. last opportunity. We'll use another statement, which is the parent who's who surrendered. The most opportunity in order to take care of the child is the impact the child and take care of the child is the parent who gets is the parent who gets the child. All right. What I'd like to sort of leave you with the discussion is this question of whether in the drive for equality. By making everything gender neutral in a highly gendered structure, such as marriage, we have ended up creating a situation which in the long term, with the exception of a very few wealthy women, who have the assets to make it out in the world, regardless of the divorce settlement will end up you will continue to impoverishment and with an increasing divorce rate, we will have produced the very result, which is feminist is antithetical to our goal. And I'm very deeply troubled by it, I have more questions than answers. But I certainly am disturbed also, by the kinds of thinking than this have or have not thought about this issue, which is I would suggest one of the greatest concerns to our constituency. Because however one they feel that marriage and awards Unknown Speaker 1:16:45 is one question. How would you, you said that women should be looking at from a general point of view, women should be competent, or the caretaker would probably be the one who should be compensated for, quote, lost opportunities. What do you do with a situation where the man comes in, and this doesn't happen. And number five, I begged her to go back to where he needed the money to do this. I made arrangements for childcare, we were able to sway back, she wants to stay home and take care of the child. She has lost an opportunity and she's she has she has voluntarily made it not taking them option. I'd rather stay home with the kid, then go out into the world and hustle or bustle look. Unknown Speaker 1:17:29 I mean, you may I mean, this this may what I'm what I'm suggesting may have to be embedded in also a family policy that provides allowances for children that would benefit benefits, that talks about wages for housework. That in some way tries to yield with a whole bunch of other issues. Yeah, no, but I mean, what I'm saying is what the Women's Movement has done is taken piecemeal, each of these issues. And my argument is they've come back to haunt us. Now, because we dealt with it in a piecemeal fashion. Now, I'm not blaming women for doing that we may have had no other choice, we may not have had choices. But we the divorce rate had not reached the portion that now with reach. So the problem itself, it seems to me to tinker with one end of the system and say, you know, better Child Support Enforcement, when we see that in joint custody arrangements, the judges now say, we don't have to have earning sharing, all we have to do is each parent has to have the child live in the condition in in the economic circumstances of that joint custody parent. So we've had, I guess, what concerns me is that if we continue to think this way, in a string of beads way. Unknown Speaker 1:18:54 I think it's very good that that you brought in the larger picture at the end, because I guess that I'm very concerned that we focus that we are focusing too much on the feminization of poverty and the disaster of divorce, you're not really taking account of the larger problem of how is women's work going to be valued. It's not just in the divorcing couple situation. There are a lot of single women, there are a lot of single mothers, there are other kinds of single people working there. There are people who are working who are doing work at home. And, and if all of a sudden you're going to get wages for housework, or if you're going to say that the woman who stayed home should be supported and recognized and valued for that work, which gets divorced. That's good, but it's not adequate because it doesn't take account of that work, how you can value that work being done by other people. So that's my general comment. I think it's a very important very warm, very large question that you raise, and that there's a it can be misleading to focus on it only of divorce situation, I got to run through a couple of objections, but then I'll shut up. I also think that there's a great danger in your saying that what you're talking about is problems that have occurred because we have degenerated the law, when you've made a very good case for what the law says not making a difference. What happens in community property states, and what happens in equitable distribution states is not all that different. The problem seems to be in states where the law says the judge is supposed to take account for its contribution in a moment, it's close to take account of her inability to get the job or the sacrifices, she's needed. Whatever, he doesn't end, it's 1/3. So I think that on one hand, you're making the point that you are doesn't make the difference. On the other hand, you're blaming the law for being the gender. And it bothers me to say that feminists were wrong to take the quality approach, and blame the law. But it seems like the way the judges are applying the law is more of a problem. And seems to me that rather than you bite the law, what we might need to do is find better ways of getting recognized. And of course, then, I don't know, to what extent has been in the attempt to see whether the education projects that are going on now for judges about what's happening, exposure, whether that's helping the situation abroad, but I think you make a big mistake to say that we made a mistake and asked me for equality or sex neutral provisions, when in fact, some of the laws that we went for are ones that explicitly say you're supposed to value its contribution. And Mr. Fogg Unknown Speaker 1:21:41 Can I go a step further when I was in New York law has been specifically mis mis applied and misinterpret, because in fact, there is a legislative history that says we have equitable distribution, rather than community property except the legislative history. And a legislative report, which is usually to judge should rely on in interpreting rule says specifically that there should be a presumption of 50% or equal to vision and taking it you know, what, instead of looking at these various, these various category, what has happened is everybody has totally ignored the fact that that's what the law originally said. And it certainly is, the 1/3 is what is what is clearly going to be happening. But that is because of inequitable implementation of Unknown Speaker 1:22:30 lawyers trap, somehow, all would have to do is to be interpreted correctly. And what I'm saying by Unknown Speaker 1:22:39 saying that the law, the way it exists, is wrong. And we're saying that the ban has not improved, because the law is not going to apply the way it exists. Now, it might be that it is to do what they're supposed to do. But I think it's really Unknown Speaker 1:22:56 wrong with a metaphysical Unknown Speaker 1:22:59 problem. To say she's right about it, they're not Unknown Speaker 1:23:05 trying to interpret the law and they said, We're talking in terms of rehabilitative alimony in a situation where we would have gotten alimony at all. That was a case of benefit. This solved, you know, awarded this woman, the, you know, her our law school and medical school education, saying she put her husband through rehabilitative alimony. And that was a great decision at the time that was under the old law. But more than got changed and said, Why don't we take it all into effect, you know, all these all these categories? And what Olson you found is a bunch of judges taking a 55 and six year old woman's and we'll give her five years of rehabilitative alimony where she could be ready to re enter the job market where she'd never been a part of before. And I agree with sermon you. Unknown Speaker 1:23:59 You're going to answer there. Unknown Speaker 1:24:00 Well, this is this is this is a what I said it's a metaphysical debate. This is this is the beige that goes with the Wasco pickup Unknown Speaker 1:24:15 because the whole question is, whether it whether the issue is if the law were interpreted fairly, or whether there are implicit assumptions and values packed in built into the social structure such that the laws can't produce the results even. Unknown Speaker 1:24:37 Law says what you propose essentially and does not apply, Unknown Speaker 1:24:41 because it doesn't, it has no reality of it. Unknown Speaker 1:24:46 In New York, we fought for equitable not equal, because not all we did for a long time. We wanted equitable, not equal. Thinking that fair would give a lot of women and a lot of situation Just more than 50% Dum Dum Dum, now we have equitable and we say that 3035 years. So after five years, she'll be just seven kids. Okay? The judges do go to school, I'm always pleased to know. And in Buffalo, Syracuse, they were there this past being educated, and they had a special program on sexism. And one of our judges, wonderful. One of our judges, who's in his 40s was very proud. The fact of the fact that at this conference, they were selling buttons that say, Save the males, judges from Staten Island or save the what man. Unknown Speaker 1:25:49 I just kind of want to introduce a new perspective. I'm not a lawyer, and I don't know anything about legal debate. But I mean, it seems to me that that what we're looking at here is I mean, a situation where one women do work. I mean, so I think maybe we should change the context of the discussion in terms of women who's been a homemaker. The problem is that, that though they were they earn less than men, and when they divorced, that continue to earn less than men. And in none of the divorce laws, as far as I know, and I'm particularly familiar with the California case, because I read the sociological study by Eleanor Weitzman. And we basically she she points out to us a very clear point of saying that the husband's income is not considered part of the community property. And that's a community property. Situation is differently, when in fact, what happens is that the labor market inequities keep getting get reinforced once the divorce takes place, because women are poor in general. I started it makes sense to me that it's happening and in no way have any of the legal of legal restructurings taken into account, Unknown Speaker 1:27:03 should we equate do I really do quit? I think there are two issues that we have to look at. One is upon divorce, what is the equitable arrangement we have, in terms of how you should defy monies that were can be attributable to both communities, because both people can participate in the creation of those monies. That's one set of problems. However, you know, should we also work and say that marriage is a job, if you've never married, you would have I think this is what you'd be supporting yourself on the unfortunately low wages that most Unknown Speaker 1:27:38 women, most women earn, you might still be poor, Unknown Speaker 1:27:41 and you will be doing nothing you might select where you would be poor, probably, I mean, there's some very few of us who you know who are not. So you would be poor and struggling much more than a, you know, a single man is marriage a job so that you say I take it and I'm entitled to a job for life, which you would not get me out and the rest of society, and that I shouldn't choose to get out to whatever extent, you know, my husband is able to make the most money possible, you know, and honor the distinction between the 20 year old the 30 year old, the 40 year old and the 50 year old in terms of in terms of the what we're talking about what contribution they made to the creation of the of the economic part, and to what extent women should be allowed to continue to rely on marriage as a form of, you know, an occupation that, you know, they expect to repay for a while, but I questioned whether that is a way that the law should be, should be structured to, to do marriage as a as a job. But given Unknown Speaker 1:28:47 the low wage 700 And something specific kind of, I mean, maybe it's just taking a strong point, and I don't want to dominate this discussion. But it seems to me that in some sense, women are induced into getting marriage married because of the low wage, they aren't a labor force. So you can Unknown Speaker 1:29:05 Yeah, yeah, I wanted to raise another question that relates the law, to our practices and to feminist goals. I think the law has to change as the proportion of women who are in the workforce changes, or I think we should hope that it would change so as to recognize the different status that women now have from 10 and 20 years ago, now. Today, feminists are no longer talking about wages for housework. They're talking about de gender rising housework and child care. They're hoping that more men will take care of babies and small children and wash the dishes and, and not just do these things under direction of their wives, but initiate some of these things. And if that is a goal that is little by little being realized, should not joint custody. be supported by feminists rather than as you suggested, I'm not saying what position you took. But you cited the case that that women had fought for their own custody of the children and more willing to give up, or were forced to give up property in order to prevent joint custody. Now should not joint custody be our shall we say, a long term goal of our feminists, that is, if we are really interested in this goal of de gender rising housework and child, Unknown Speaker 1:30:33 I think the quarrel I have is what my quarrel is with the state requiring that we're assuming that that is the ideal form when there are many women do not want that. I mean, that the presumption is not so much. The presumption hasn't necessarily occurred because women's groups have pressured if you look at the legislative history for joint custody issues is often come from the fathers for equal rights, want joint custody as a way of so called equalizing a family situation, I have no problems with that if the parties agree to it, I have a great deal of difficulty saying state want to impose. And I have to tell you that this battle is being fought in I mean, it's been beaten back several years in the New York State Legislature. But in every state, this battle is being fought. And we're now I live in right on the Canadian border, the Canadian women are now experiencing what has happened in the United States. I think that there Unknown Speaker 1:31:33 are feminists who are advocates of joint custody and would go a little bit, they're not quite clear what position they would take. But they would go farther than Isabel, in a sense of trying to explore situations where the court might encourage it, as opposed to a Tosa and what that means, oh, that's possible. It's not clear. But I think the things that they point out is that being that there might be real values for women in in seeing that, that is that men should be involved, not just wanting to encouraging them, but feeling like they could be free to do other things that they would have worked on, psychologically, they might have more space. So that I think within the feminist community, there is some discussion, some debate that Carol and Katie paper. But I think also, there's some people like me, who have been concerned about whether the primary caretaker standard is a good one. Because I don't like the idea of reinforcing that there is a timer or a caretaker, and that you add up who spent more time whatever, because I think it counteracts the goal that you're talking about. It's very cool. And I also don't feel like I suppose, again, in terms of what you were basically about what's best for the kid to somehow give them within the child because in the past, she's done the work and she should be rewarded and the man should be punished for not having done it is the right right way to go a lot because it might be punishing, not punishing, but it may not be what's best for the kid to presuppose that we did in the past. I think with the issue on surrogacy, we could continue with this for another. And I'd like to your presentation today. Unknown Speaker 1:33:26 No, just to be fair to you. No, no, it's Unknown Speaker 1:33:27 okay. All I would like okay. i You don't have to worry about being better me if you'd rather continue. Let me just go very briefly over the problem. So of hazards and reproductive hazards in the workplace. And let me start where I start from on the problem, which is looking to the turn of the century of the last century into this century, not the common turn of the century. What I fear will happen on the turn of the coming century and that is what we call protective labor legislation. And the, the, the mind to know there was a voluntary step back even further, there was a case early 1900s versus to New York in which the