Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1996 Separating from Children Carol Sanger Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Family Law Commons, Law and Gender Commons, and the Law and Society Commons Recommended Citation Carol Sanger, Separating from Children, 96 COLUM. L. REV. 375 (1996). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/177 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. SEPARATING FROM CHILDREN Carol Sanger* I. Introduction ............................................... 376 II. The Social History of Maternal Presence .................... 388 A. Regulating Separations: An Historical Overview ........ 389 1. Exposure, Oblation, and Abandonment ............ 390 2. W et-Nursing ....................................... 395 3. Apprenticeships ..................................... 396 B. Inventing the Virtue: The Nineteenth Century ......... 399 C. The Grand Prerogative Today ......................... 409 III. Reconsidering Separations .................................. 420 A. Separation Versus Abandonment ...................... 420 B. Maternal Motivations and Assumptions of Selfishness... 424 C. Maternal Absence and Harm to Children .............. 434 IV. Legal Regulation of Separation ............................. 438 A. Adoption .............................................. 441 1. Legal Regulation ................................... 442 2. The Manipulation of Motive ....................... 445 3. The Present Story .................................. 448 B. Surrogacy ............................................. 450 1. Legal Regulation ................................... 451 2. Surrogacy and Spiraling Harm to Children ......... 453 3. Maternal Motivations ............................... 457 C. Maternal Employment ................................. 464 1. Legal Regulation ................................... 465 a. Prohibitions, Restrictions, and Disincentives ..... 466 b. Policies Supporting Domestic Presence .......... 472 c. W orkfare ....................................... 476 2. Maternal Employment and Harm to Children ...... 478 3. Maternal Motivations ............................... 481 V. Maternal Perspectives and Regulatory Reform ............... 484 A. Adoption .............................................. 489 B. Surrogacy ............................................. 494 C. Maternal Employment ................................. 498 1. Income Support ................................... 500 2. Child Care Support ................................ 504 3. Family Law Reform ................................ 512 VI. Conclusion ................................................. 514 * Professor of Law, Santa Clara University. I have benefitted tremendously from the thoughtful criticisms of Cynthia Epstein, Janet Halley, Dirk Hartog, Lance Liebman, Gillian Metzger, Martha Minow, Henry Monaghan, Anne Park, Deborah Rhode, Marjorie Shultz, andJeremy Waldron. I am also grateful for comments received from participants at presentations of earlier versions given at the Institute for Research on Women and Gender at Stanford University and at the University of Chicago Feminist Theory Workshop. I 375 COLUMBIA LAW REVIEW [Vol. 96:375 I. INTRODUCTION On September 1, 1939, in anticipation of the imminent German bombing of British cities, 150,000 children were assembled at the railway stations of London and sent throughout the day to "'destinations un- known'" in the English countryside.' Mothers and children under five were evacuated together but school-age children were shipped out to ru- ral billets in school groups, accompanied only by their teachers and civil defense volunteers. 2 Forty years later, an observer remembered the day vividly: [T]he mothers [were] trying to hold back their tears as they marched these little boys and girls in their gas masks into the centre .... The children were wild with excitement but most mums were pale and drawn, no doubt wondering when they'd see their sons and daughters again. It was certainly the first time the mothers had been parted from their schoolchildren.3 By the end of the week, the Times described London as a "Childless City."4 By the end of the month, over half a million children were board- ing with foster families. The evacuations during the Blitz-bands of children marching away from sobbing mothers-establish a baseline of sorts for how we think generally about separations between mothers and children. Separating from one's child is understood as an extraordinary measure, not lightly undertaken. It represents the greatest of maternal sacrifices: this is the very lesson of the two harlots before King Solomon. 5 Little short of a child's anticipated death could compel a loving mother to part from her child, though if his life or welfare were on the line no good mother would fail to do so.6 Thus in the days following the initial wartime evacuations, mothers who refused to separate from their children were socially cen- sured: "My neighbors blame me for keeping him; one woman this morn- ing said I was wicked .... 'Downright wicked,' she said, 'making him wait to be murdered. Didn't you see the Spanish pictures?' ",7 thank River Ginchild, Jessica Schaetzl, and Sarah Wolman for their excellent research assistance. 1. See Ruth Inglis, The Children's War 13 (1989); see also Ben Wicks, No Time to Wave Goodbye 3 (1988). For contemporary accounts, see Harriet Shoen, The Evacuation of School Children from Britain's Crowded Cities and Industrial Areas, 50 Sch. & Soc'y 398 (1939); Frederic Sondern,Jr., London Kids in the Country, Reader's Digest, Dec. 1939, at 15. 2. See Wicks, supra note 1, at 11-28. 3. Inglis, supra note 1, at 13-14. 4. A Childless City, London Times, Sept. 7, 1939, at 11. 5. See 1 Kings 3:16-28. 6. "MOTHERSI" exclaimed a half-page government ad in a London newspaper, "'You'd give your life for your children.... Won't you take this chance to get them away to greater safety and health?'" Philip Ziegler, London At War 138 (1995). 7. Storm jameson, City Without Children, 164 Atlantic Monthly 585, 587 (1939) (the memory of the horrifying pictures of civilian bombing casualties in the Spanish Civil War was still vivid). The plans for the evacuations were drawn up in the early 1930s by British 19961 SEPARATING FROM CHILDREN The notion of separation as maternal sacrifice and as a decision of last resort remains vigorous today. Mothers who fail to separate when conditions call for it-or, the more common occurrence in present times, mothers who separate when conditions do not-are regarded as misguided, selfish, unnatural. As a result of John Bowlby's wartime re- search on mother-child separations, the harms of maternal deprivation, to use Bowlby's phrase, have since been generalized to more ordinary peacetime separations, such as those brought about by maternal employ- ment.8 Separating from one's child-even temporarily, even for sensible reasons-is now often viewed as the worst thing a mother can do. It is often taken as proof that she is not a good mother at all and should not be allowed to resume the status she has abandoned. Thus mothers who voluntarily place children in foster care often find it difficult to retrieve them and mothers who put children in day care while they work or study may lose custody of them in a subsequent divorce.9 In this Article I want to challenge the existing rules of maternal en- gagement and reconsider how we think about separations between mothers and their children as a matter of cultural inquiry and as a matter of law. Specifically, I examine the ways in which law regulates this com- plex but not uncommon aspect of motherhood and compare legal assess- ments about maternal decisions to separate from children with the judg- ments of mothers themselves. My argument is that the present scheme of regulation sustains social understandings regarding mother-child separa- tions with little attention to the circumstances of mothers' lives that prompt their decisions to separate in the first place. Instead, maternal separations are quickly marked as evidence of self-interest and assumed antithetical to the welfare of children. I start from a more neutral premise: one that assumes mothers are no more selfish or selfless than other adults and that regards separating from children as a reasonable maternal practice. Envisioning this revised military officers and civil servants accustomed to sending their own children off to boarding school, Blitz or no Blitz. There was then some surprise by evacuation administrators when, despite a government propaganda campaign, working class mothers of London's poorer East End resisted the plan, some refusing to participate altogether "Very close families were the order of the day in Bow. No one had to tell you about the value of family life in the East End then because, quite frankly, we didn't know anything else." Inglis, supra note 1, at 14. Government and parental assessments of the harms to children of staying in London (and the consequences of their presence for the civil order) differed significantly. As one mother who refused to send her children explained, God knows what it's taken us to keep together all these years;