Content area
Abstract
Manifest and latent descriptions of motherhood contained within judicial discourse are analyzed through a content analysis of 102 cases in U.S. case law from 1980 to 1995. Building on a feminist jurisprudence theoretical framework and using an analytic induction model, the author describes the process whereby ideological definitions of motherhood are incorporated into judicial discourse and impact judicial decision-making. This process is identified as the criminalization of motherhood.
The author differentiates between three components of motherhood to describe this criminalization process. The identity of mothers rests upon a judicial presumption of motherhood which insists on a thoughtful rejection of the motherhood status in cases of adolescent access to abortion and surrogacy. This presumption of motherhood allows courts to treat the needs of the child as indistinguishable from the needs of the mother. Differentiation between child and mother therefore is problematic and requires an intentionality which is not required for the mother-child relationship itself. The responsibilities of mothering identified through this analysis also speak to an idealized motherhood by emphasizing an expert-defined and legally-mandated emphasis on the "best interests of the children." These responsibilities include expectations in five areas: financial, nurturant, physical caretaking, relational, and moral. Mothers in custody, parental rights, divorce, and child support decisions are expected to respond to questions of their fitness by demonstrating their ability to meet their children's needs in these areas. Finally, the author concludes that the development of a conceptualized private motherhood through the application of the privacy doctrine which has been applied to protect mothers in discrimination cases has facilitated the adoption of idealized standards in other cases involving mothers. Succinctly, the private motherhood protected by the privacy doctrine serves as the "ideal" comparison for the "real" public motherhood of the mothers brought before the court for evaluation. The cumulative nature of this applied ideological process is the criminalization of motherhood.
