The Triple System for Regulating Women's Reproduction

Cahn N. Carbone J. , Red Families v. Blue Families: Legal Polarization and the Creation of Culture (New York: Oxford Press, 2010).

Coontz S. , The Way We Never Were: American Families and the Nostalgia Trap (Basic Books 1993).

Sociologists call this the “institutionalization” of the family; see Cherlin A. , “The Deinstitutionalization of American Marriage,” Journal of Marriage & Family 66, no. 4 (2004): 848–861; cf. Schneder C. , “The Channelling Function in Family Law,” Hofstra Law Review 20, no. 3 (1992): 495–532. Indeed, many think the elites expressed perhaps too much agreement, as they neither understood not sympathized with differences in family formation, stigmatizing non-births, for example, coercing adoption, and failing to recognize domestic violence and sexual abuse; see, e.g., Solinger R. , Wake-Up Little Susie: Single Pregnancy and Race Before Roe v. Wade (New York: Routledge, 2000).

See Cahn Carbone , supra note 1.

See, e.g., Democracy Now!, “Twilight of the Elites: Chris Hayes on How the Powerful Rig the System, From Penn State to Wall St.,” July 17, 2012, available at <http://www.democracynow.org/2012/7/17/twilight_of_the_elites_chris_hayes> (last visited April 9, 2015).

E.g., The Atlantic City Lab, “Richard Florida,” available at <http://www.theatlanticcities.com/authors/richard-florida/> (last visited April 9, 2015).

Bishop B. , The Big Sort (New York: Houghton Mifflin Company, 2007).

See Carbone J. Cahn N. , “Embryo Fundamentalism,” William & Mary Bill of Rights Journal 18, no. 4 (2010): 1015–1052.

Murray C. , Coming Apart: The State of White America (New York: Cox and Murray, 2012).

For an example of these restrictions, see briefs filed in Hobby Lobby; Bazelon E. , “Procedures Involving Gravely Immoral Practices,” March 11, 2014, available at <http://www.slate.com/articles/news_and_politics/jurisprudence/2014/03/hobby_lobby_contraception_case_briefs_reveal_what_the_religious_right_really.html> (last visited April 9, 2015).

e.g., Singh S. , “Unintended Pregnancy: Worldwide Levels, Trends and Outcomes,” Studies in Family Planning 41, no. 4 (2010): 241–250.

We argue in Marriage Markets that marriage has declined in large part because women find a legal commitment to an unreliable man to be a bad deal, and that divorcing couples often effect their own settlements by opting out of judicial supervision – the custodial parent does not ask for support and the non-custodial parent does not see the child. Empirical research validates these observations finding that both marriage and the likelihood of a shared custody order correlates with male income. Carbone J. Cahn N. , Marriage Markets: How Inequality Is Remaking the American Family (New York: Oxford, 2014).

See, generally, tenBroek J. , “California's Dual System of Family Law: Its Origin, Development, and Present Status (Pts. I–III),” Stanford Law Review 16, no. 2 (1964): 257–317; Stanford Law Review 16, no. 4 (1964): 900–982; Stanford Law Review 17, no. 4 (1965): 614–682 (hereinafter “tenBroek Parts I–III”).

Id. (pt. I), at 257–258 (finding “[W]e have two systems of family law in California: Different in origin, different in history, different in substantive provisions, different in administration, different in orientation and outlook. One is public, the other private […] One is for underprivileged and deprived families; the other for the more comfortable and fortunate”).

See tenBroek, (Pt. III), supra note 13, at 675–682.

See, e.g., Cahn and Carbone, supra note 1; Abrams K. , “Family History: Inside and Out,” Michigan Law Review 111, no. 6 (2013): 1001–1020, at 1003; Brito T. , The Welfarization of Family Law, U. Kan. L. Rev. 48, no. 2 (2000): 229–284, at 238–2350; Harris L. , “The Basis for Legal Parentage and the Clash Between Custody and Child Support,” Indiana Law Review 42, no. 3 (2009): 611–638, at 612–614; Hasday J. , “Parenthood Divided: A Legal History of the Bifurcated Law of Parental Relations,” Georgetown Law Journal 90, no. 2 (2002): 299–386, at 357–384.

See discussion in Marriage Markets. We argue that the new family law system of the elite remains premised on neo-traditional gender performance. It protects the investment of high status men in children though a presumption in favor of shared parenting after divorce. It also limits the financial claims that follow marriage through a presumption of independence that disfavors spousal support. Yet, the emergence of greater gender disparities in the income of college graduates (at the same time gender disparities have shrunk elsewhere) mean that college graduate women continue to marry men who earn more than they do, and continue to cut back on their hours disproportionately when two career demands conflict with family obligations.

Carbone J. Cahn N. , “The Triple System of Family Law,” Michigan State Law Review 2013, no. 4 (2013): 1185–1230, at 1211–1212.

Rampell C. , “Where Do You Fall on the Income Curve?” Economix Blog, New York Times, May 24, 2011, available at <http://economix.blogs.nytimes.com/2011/05/24/where-do-you-fall-on-the-income-curve/ (last visited April 9, 2015).

Stoops N. , “Educational Attainment in the United States: 2003,” U.S. Census Bureau , at 3, Table A (2004), available at <http://www.census.gov/prod/2004pubs/p20–550.pdf> (last visited March 31, 2015).

Rauch J. , “The No Good, Very Bad Outlook for the Working-Class American Man,” National Journal , December 5, 2012, available at <http://www.nationaljournal.com> (last visited April 9, 2015) (finding that “[…] from 1969–2012, men with only a high school diploma saw their earnings decrease “by around a fourth. And men who didn't finish high school have fared worse still”).

See Carbone Cahn , supra note 12.

Indeed, the top ten percent of women by income is the only group in society whose marriage rates have stayed steady. Greenstone M. Looney A. , The Marriage Gap: The Impact of Economic and Technological Change on Marriage Rates , Brookings, February 3, 2012, available at <http://www.brookings.edu/up-front/posts/2012/02/03-jobs-greenstone-looney> (last visited April 9, 2015).

See Finer Zolna , infra note 38.

Twenty Something Marriage, “The Great Crossover,” Knot Yet: The Benefits and Costs of Delayed Marriage in America , at Figure 10 (2012), available at <http://twentysomethingmarriage.org/the-great-crossover/> (last visited April 9, 2015) (age of first birth).

See, e.g., Murray C. , Losing Ground: American Social Policy, 1950–1980 (New York: Basic Books, 1984) (making case for welfare reform).

Cherlin A. , “Between Poor and Prosperous: Do the Family Patterns of Moderately-Educated Americans Deserve a Closer Look?” in Carlson M. England P. , eds., Changing Families in an Unequal America (New York: Stanford University Press, 2011): At 68–84.

See, e.g., Bowen D. , “All that Heaven Will Allow: A Statistical Analysis of the Coexistence of Same Sex Marriage and Gay Matrimonial Bans,” Denver University Law Review 91, no. 2 (2013): 277–334.

See In re Marriage of Jackson, 136 Cal. App. 4th 980, 998 (2006) (reversing order terminating mother's parental rights).

Knot Yet website, available at <http://twentysomethingmarriage.org/> (last visited April 9, 2015).

Bureau of Labor Statistics, “Marriage and Divorce: Patterns by Gender, Race, and Educational Attainment,” October 2013, available at <http://www.bls.gov/opub/mlr/2013/article/marriage-and-divorce-patterns-by-gender-race-and-educational-attainment.htm> (last visited April 9, 2015).

Hamilton Project, “The Marriage Gap: The Impact of Economic and Technological Change on Marriage Rates,” February 2012, available at <http://www.hamiltonproject.org/papers/the_marriage_gap_the_impact_of_economic_and_technological_change_on_ma/> (last visited April 9, 2015).

Better-educated and wealthier women are more likely to report that the wrong partner is a factor in a decision to have an abortion. See Chibber K. Biggs M. Roberts S. Foster D. , “The Role of Intimate Partners in Women's Reasons for Seeking Abortion,” Women's Health Issues 24, no. 1 (2014): e131–138.

Hersch J. , “Opting Out among Women with Elite Education,” Review of Economics of the Household 11 (2013): 469–506 (finding that women who graduate from the most elite institutions are more likely to opt out of the workplace than women from less elite schools once they have children).

See Knot Yet website, supra note 32.

Biggs M. A. Gould H. Foster D. , “Understanding Why Women Seek Abortion in the U.S.,” BMC Women's Health 13 (2013): 29, available at <http://www.ansirh.org/wp-content/uploads/2013/06/biggs_gould_foster_whi7–2013.pdf> (last visited April 9, 2015); see also Finer L. Zolna M. , Unintended Pregnancy in the U.S.: Incidence and Disparities, 2006, Contraception 84, no. 5 (2011): 478–485; Gold R. , “Rekindling Efforts to Prevent Unplanned Pregnancy: A Matter of ‘Equity and Common Sense,”’ Guttmacher Policy Review 9, no. 3 (2006): 2–7, available at <http://www.guttmacher.org/pubs/gpr/09/3/gpr090302.html> (last visited April 9, 2015) (showing abortion rates by income); Clarke A. , Inequalities of Love: College-Educated Black Women and the Barriers to Romance and Family (Durham: Duke University Press Books, 2011): At 246 (reporting that white women college graduates are most likely to terminate their unplanned pregnancies).

Wolf A. , The XX Factor: How the Rise of Working Women Has Created a Far Less Equal World (New York: Crown Publishing, 2013): At 27 (15% of women with less than a high school education are childless compared to 26% for those with a postgraduate or professional degree).

Martinez G. , Fertility of Men and Women , National Health and Statistics Reports, U.S. Department of Health and Human Services, no. 51 (2012), at Figure 1, available at <http://www.cdc.gov/nchs/data/nhsr/nhsr051.pdf> (last visited April 9, 2015).

See Carbone J. Cahn N. , “The Gender/Class Divide: Reproduction, Privilege, and the Workplace,” FIU Law Review 8, no. 2 (2013): 287–316; Mohapatra S. , “Using Egg Freezing for Non-Medical Reasons: Fertility Insurance or False Hope?” Harvard Law & Policy Review 8, no. 2 (2014): 381–412. Shatia P. , “Frozen Eggs Fund,” October 16, 2013, available at <http://www.ozy.com/resolved/frozen-eggs-fund/2757.article> (last visited April 9, 2015).

Id.; but see Practice Committees of the American Society of Reproductive Medicine and the Society for Assisted Reproductive Technology, “Mature Oocyte Cryopreservation: A Guideline,” Fertility and Sterility 99, no. 1 (2013): 37–43, at 40 available at <http://asrm.org/uploadedFiles/ASRM_Content/News_and_Publications/Practice_Guidelines/Committee_Opinions/Ovarian_tissue_and_oocyte(1).pdf> (last visited April 9, 2015) (cautioning against the creation of “false hope” about the technology).

Carbone J. , From Partners to Parents (New York: Columbia University Press, 2000).

McCartney R. , “Teen Pregnancies Stay Stubbornly High in Poor D.C. Wards,” Washington Post , January 29, 2014, available at <http://www.washingtonpost.com/local/teen-pregnancies-stay-stubbornly-high-in-poor-dc-wards-low-expectations-are-cited/2014/01/29/0e65b1a4-8927-11e3-a5bd-844629433ba3_story.html> (last visited April 9, 2015).

See Wolf , supra note 38, at 160.

See Cahn Carbone , supra note 1, at 8.

Edin K. Kefelas M. , Promises I Can Keep: Why Poor Women Put Motherhood Before Marriage (Oakland: University of California Press, 2005): At 43.

Kearney M. Levine P. , “Why Is the Teen Birth Rate in the United States So High and Why Does It Matter?” Journal of Economic Perspectives 26, no. 2 (2012): 141–163, available at <http://pubs.aeaweb.org/doi/pdfplus/10.1257/jep.26.2.141> (last visited April 9, 2015).

See Finer Zolna , supra note 38.

The National Women's Law Center, “What the Medicaid Eligibility Expansion Means for Women,” National Women's Law Center , November 5, 2012, available at <http://www.nwlc.org/sites/default/files/pdfs/what_the_medicaid_eligible_expansion_means_for_women_1-16-13.pdf> (last visited April 9, 2015).

See “State Funding of Abortion Under Medicaid,” Henry J. Kaiser Family Foundation (2013), available at <http://kff.org/medicaid/state-indicator/abortion-under-medicaid/> (last visited April 9, 2015).

Bridges K. , “Privacy Rights and Public Families,” Harvard Journal of Law and Gender 34, no. 1 (2011): 113–174, at 113; Bridges K. , “Pregnancy, Medicaid, State Regulation, and the Production of Unruly Bodies,” Northwestern Journal of Law and Social Policy 3, no. 1 (2008): 62–102.

Bell A. V. , Misconceptions: Social Class and Infertility in America (New Brunswick, NJ: Rutgers University Press, 2014).

See Edin Kefalas , supra note 47, at 45–46.

Cherlin A. , “Between Poor and Prosperous: Do the Family Patterns of Moderately-Educated Americans Deserve a Closer Look?” in Carlson M. J. England P. , eds., Changing Families in an Unequal America (Palo Alto: Stanford University Press, 2011): At 68–84.

The federal government annually collects abortion data from the states. These data do no not, however, include either income or education CDC. See Pazol K. , “Abortion Surveillance – United States 2010,” November 29, 2013, available at <http://www.cdc.gov/mmwr/preview/mmwrhtml/ss6208a1.htm?s_cid=ss6208a1_w> (last visited April 9, 2015).

See Finer Zolna , supra note 38.

Jones R. Finer L. Singh S. , Characteristics of Abortion Patients: 2008 , Guttmacher Institute, May 2010, available at <http://www.guttmacher.org/pubs/US-Abortion-Patients.pdf> (last visited April 9, 2015). Note that the U.S. government does not collect statistics by income.

See Glass J. Levchak P. , “Red States, Blue States, and Divorce – Understanding the Impact of Conservative Protestantism on Regional Variation in Divorce Rates,” American Journal of Sociology 119, no. 4 (2014): 1002–1046 (even if marriage rates increased, it would only fuel rates of divorce and repartnering – the patterns that remain dominant in more religious areas of the country).

See Biggs Gould Foster , supra note 38.

See Edin Kefalas , supra note 47, at 45–46.

See Carbone Cahn , Marriage Markets, supra note 12.

Regnerus M. Uecker J. , Premarital Sex in America: How Young Americans Meet, Mate (New York: Oxford, 2011).

Akerlof G. Yellen J. Katz M. , “An Analysis of Out-of-Wed-lock Childbearing in the U.S.,” Quarterly Journal of Economics 111, no. 2 (1996): 277–317; Regenerus argues that red college students manage an alternative model: Opposition to premarital sex, single-parenthood and abortion. But these students – conservative religious college students – do so as part of what is in effect an elite private club; we doubt the same results are replicable more generally; see Carbone Cahn , supra note 12.

See Harris L. Carbone J. Teitlelbaum L. , Family Law, 5th ed. (Aspen Publishers, 2014): 570–571 (law tends to favor continuing contact with both parents, 626 (friendly parent provisions favor award of custody to parent who will best promote continuing contact with the other parent).

See Biggs Gould Foster , supra note 35.

The issue become particularly acute if the new relationship is abusive or if the new partner undermines rather than reinforces the mother's care of the existing children. Women in abusive relationships are particularly likely to cite the impact of the partner as a reason for the abortion. See Biggs Gould Foster , supra note 38.

See Williams J. , Reshaping the Work-Family Debate (Cambridge: Harvard University Press, 2010).

Carbone Cahn , supra note 8.

See, e.g., Richards S. , Motherhood, Rescheduled: The New Frontier of Egg Freezing and the Women Who Tried It (New York City: Simon & Schuster, 2013); see Zoll M. , Cracked Open: Liberty, Fertility, and the Pursuit of High Tech Babies (Northampton, MA: Interlink Books, 2013).

For a summary of insurance provisions, see Mohapatra , supra note 41, at Section III.A.

Among women who have never been pregnant, 21% of those without a bachelor's degree versus 12% of those with one have impaired fecundity (physical difficulty in getting pregnant or remaining pregnant), although infertility itself does not seem to vary by income or educational level. Chandra A. Copen C. Stephen E. , “Infertility and Impaired Fecundity in the United States, 1982–2010: Data From the National Survey of Family Growth,” National Health Statistics Reports no. 67 (2013): At Figure 4, available at <http://www.cdc.gov/nchs/data/nhsr/nhsr067.pdf> (last visited April 9, 2015).

Chandra A. Copen C. Stephen E. , “Infertility Service Use in the United States: Data from the National Survey of Family Growth (1982–2010),” National Health Statistics Report 73 (2014): At Table 2, available at <http://www.cdc.gov/nchs/data/nhsr/nhsr073.pdf> (last visited April 9, 2015). In the National Survey of Family Growth, women were asked if they had used any form of medical services to help them conceive and stay pregnant. Those “who reported any medical help…were asked to indicate what specific types of medical help they ever used” and could select as many options as they wanted ranging from advice to infertility testing to drugs to “Other medical help.” Id., at 2–3

See id., at Tables 3–4.

Kuczynski A. , “Her Body, My Baby,” New York Times , November 28, 2008, available at <http://www.nytimes.com/2008/11/30/magazine/30Surrogate-t.html?pagewanted=all&_r=0> (last visited April 9, 2015); see Wallace K. , “Surrogates Redefining Motherhood,” CBS News, January 25, 2009, available at <http://www.cbsnews.com/news/surrogates-redefining-motherhood/> (last visited April 9, 2015) (finding wives of men serving in the military may provide up to 15–20% of all surrogate mothers in the U.S.); Rodrigues A. Meyersohn J. , “Military Wives Turn to Surrogacy: Labor of Love or Financial Boost?” ABC News, October 10, 2010, available at <http://abcnews.go.com/GMA/Parenting/military-wives-surrogates-carrying-babies-love-money/story?id=11882687> (last visited April 9, 2015) (reporting on one woman who earned $30,000 as a surrogate, the same amount of her husband's salary in the military).

See, e.g., Ali L. , “The Curious Lives of Surrogates,” Newsweek.com, March 29, 2008, available at <http://www.newsweek.com/curious-lives-surrogates-84469> (last visited April 9, 2015).

Almeling R. , “Selling Genes, Selling Gender: Egg Donation, Sperm Donation, and the Medical Market in Genetic Material,” American Sociological Review 72, no. 3 (2007): 319–340, at 328 (finding agencies reject over 90% of sperm donor and 80% of egg donor applicants).

One clinic manager explained that:

“You will find that a donor's selling tool is her brains and her beauty. That's a donor's selling point, as opposed to she's a wonderful person. That's nice. But bottom line, everyone wants either someone that's either very attractive, someone very healthy, and someone very bright.” Id. at 326.

One of the criteria to become a donor at Egg Donations, Inc. (which has, according to its website, helped more than 14,000 families), for example, is that the applicant be “well educated.” See “Donor Registration: See If You Qualify,” available at <https://www.eggdonor.com/donor-registration/> (last visited April 9, 2015).

Zarembo A. Garrison J. Yoshino K. , “Fertility Clinic in Octuplets Case has Low Pregnancy Rate,” Los Angeles Times , February 10, 2009, available at <http://articles.latimes.com/2009/feb/10/local/me-octuplets10> (last visited April 9, 2015).

See Ertman M. , Love and Contracts (forthcoming 2015). The lack of regulation may also benefit gays and lesbians by keeping the program out of the clutches of government regulators.

See Carbone Cahn , supra note 8.

ASRM, “State Infertility Insurance Laws,” available at <http://www.asrm.org/insurance.aspx> (last visited April 9, 2015).

Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2785 (2014).

Rao R. , “Selective Reduction: ‘A Soft Cover for Hard Choices’?” Journal of Law, Medicine & Ethics 43, no. 2 (2015): 196–205.

Horowitz J. Polsky D. , “Cross Border Effects of State Health Technology Regulation,” NBER Working Paper No. w19801 (January 2014), available at <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2380433> (last visited April 9, 2015).

See, e.g., Gottheim P. , “Ethics within Markets for a Market for Ethics? Can Disclosure of Sperm Donor Identity Be Effectively Mandated,” in Goodwin M. , ed., Baby Markets: Money and the New Politics of Creating Families (New York: Cambridge University Press, 2010).

For a discussion of how parentage has been handled internationally, see Lin T. , Note, “Born Lost: Stateless Children in International Surrogacy Arrangements,” Cardozo Journal of International & Comparative Law 21, no. 2 (2013): 545–588, at 556; see also Re X & Y, 2008 EWHC 3030 (Fa); Vorzimer A. , “Decision To Affirm French Citizenship for Babies Delivered by Surrogates Abroad Causes Controversy,” January 31, 2013, available at <http://www.eggdonor.com/blog/2013/01/31/decision-affirm-french-citizenship-babies-delivered-surrogates-controversy/ (last visited April 9, 2015); see also D.M.T. v. T.M.H., 129 So. 3d 320, 347 (Fla. 2013), reh'g denied (Dec. 12, 2013).

See, e.g., Dennis A. , Guttmacher Inst., “The Impact of Laws Requiring Parental Involvement for Abortion: A Literature Review” (2009), available at <https://www.guttmacher.org/pubs/ParentalInvolvementLaws.pdf> (last visited April 9, 2015) (indicating that principal consequence of parental involvement law is greater interstate travel to secure abortions).

See Cohen I. G. , “Circumvention Tourism,” Cornell Law Review 97, no. 6 (2012): 1309–1398, at 1312–1313, 1321–11.

Sears B. Badgett L. , Beyond Stereotypes: Poverty in the LGBT Community (2012), available at <http://williamsinstitute.law.ucla.edu/headlines/beyond-stereotypes-poverty-in-the-lgbt-community/> (last visited April 9, 2015).

See Carbone Cahn , supra note 41.

American Society for Reproductive Medicine, “State Fertility Insurance Laws,” available at <http://www.asrm.org/insurance.aspx> (last visited April 9, 2015) (933 transfers in 2010, 1019 transfers in 2011).

See Richards S. , “Get Used to Embryo Adoption,” Time , August 24, 2013, available at <http://ideas.time.com/2013/08/24/get-used-to-embryo-adoption/> (last visited April 9, 2015); Ford P. , “Determining the Fate of Frozen Embryos: Do You Know Where Your Children Are?,” Elle , September 30, 2013, available at <http://www.elle.com/life-love/sex-relationships/advice/a12594/freezing-embryos/> (last visited April 9, 2015); see generally, ASRM, “Recommendations for Gamete and Embryo Donation,” Fertility & Sterility 99, no. 1 (2013): 47–62, available at <http://www.sart.org/uploadedFiles/ASRM_Content/News_and_Publications/Practice_Guidelines/Guidelines_and_Minimum_Standards/2008_Guidelines_for_gamete(1).pdf> (last visited April 9, 2015) (finding older studies of attitudes toward embryo disposition find a great deal of ambivalence about both destruction and donation for reproductive purposes); see Lyerly A. , “Factors That Affect Infertility Patients' Decisions about Disposition of Frozen Embryos,” Fertility & Sterility 85, no. 6 (2006): 1623–1630; Bell L. , “What Is the Fate of Leftover Frozen Embryos?,” MSNBC, August 27, 2009, available at <http://www.msnbc.msn.com/id/32489239/ns/today-parenting_and_family/> (last visited April 9, 2015) (“In a recent survey of fifty-eight couples, researches from the University of California in San Francisco found that 72% were undecided about the fate of their stored embryos […] Couples have held on to embryos for five years or more”).

Velez M. P. , “Universal Coverage of IVF Pays Off,” Human Reproduction 29, no. 6 (2014): 1313–1319; Becker J. , Forcing the Spring: Inside the Fight for Marriage Equality (New York: Penguin, 2014).