God’s law and the law of the State

What happens when you have a particular group in society who are not minded to follow the law of the State, but prefer to follow God’s law as they interpret it?

Recently this question has come up in relation to Sharia law, particularly after the Archbishop of Canterbury said that some aspects of sharia law would inevitably be adopted in Britain. But the question doesn’t just arise in relation to Islam. Many religions have a group within who prefers the laws of God to the laws of the State. For example, orthodox Jews in Australia may take some disputes between one another to the Beth Din, a religious court where rabbis hand out judgment. And some indigenous Australians may prefer that a dispute be dealt with under traditional law rather than “whitefella law”.

My personal opinion is that as long as the law of God does not transgress fundamental human rights, then parties can consent to that particular law binding their actions. It is rather like an agreement to arbitrate in a contract where any disputes are referred to a mutually agreed arbitrator. The problem occurs when a particular practice or punishment which is said to be required by the law of God or tradition is illegal under the laws of the State: eg, stoning, spearing through the leg, promise of child brides etc. My personal opinion is that such things should not be allowed. The issue is slightly more vexed with indigenous tradition than it is with other religious laws because indigenous people didn’t “choose” to move here and to be subject to our laws, they were imposed upon them from colonisers. Nonetheless, as I have explained in one of my very early posts, as a feminist, I just cannot countenance the assault and rape of a teenage “promised bride” by her tribal husband, for example. Cultural relativism be damned.

It is a difficult question however, because it is a balance between religious tolerance and universal human rights (which should apply to all, regardless of race or religion or anything else).

Consequently, I was really interested to read this article in Slate about the American legal system and the Amish and the Mormons. I hadn’t really thought deeply about the conflict that would arise between State law and the traditions and laws of these two groups.

Amish are Anabaptists of Swiss-German origin who live in separate communities. They dress in conservative dress, do not use much modern technology and do not educate their children beyond 8th grade because of the “worldly values” they might learn. Study is focussed on the Bible, and children are expected to work in the fields with their parents once they leave school. They do not believe in Social Security, and do not either make payments or accept payments from the government. The educational practices and expectation that children will work in the fields has brought them in to conflict with US education and child labor rules. In Wisconsin v. Yoder 406 U.S. 205 (1972) three Amish parents were fined by the Wisconsin authorities for taking their children from school before the age of 16, but the US Supreme Court ultimately upheld the right of the parents to do this. Amish refuse to participate in wars, and their conscientious objection has also gotten them into trouble. As the article in Slate observes, the Amish have been given a fair degree of latitude, in part because they are peaceful and because they have managed to broker compromises with the State.

Mormons are members of the Church of Jesus Christ of the Latter Day Saints. They believe in the Book of Mormon. The Church of the Latter Day Saints officially abandoned polygamy after pressure from law enforcement in 1890, but some other fundamentalist groups continue to practice polygamy. The practice of taking multiple wives and taking child brides has brought the Fundamentalist Mormon Church into conflict with the law. In the last few weeks, Texan authorities raided a Fundamentalist Mormon compound after a 16 year old girl called authorities to say that she had recently borne a child to her 50 year old husband. Other US States are concerned that this raid may ruin their efforts to make Fundamentalist Mormons trust them and cooperate with them. As the Slate article outlined, a large raid on a Short Creek Fundamentalist Mormon community in 1953 was ultimately counterproductive. The Slate article concludes that the Mormon groups are in a different situation to the Amish:

But the fundamentalist Mormons groups are in a state of evasion. The ban on bigamy functions as a zoning ordinance: Plural marriage is fine in isolated communities, but not in Salt Lake City, and certainly not on TV talk shows, as Tom Green found. So long as the fundamentalists remain in hiding, the extreme ugliness of conducting raids creates a form of tolerance. They are thus in a “don’t ask, don’t tell” state of legal limbo that could break open at any time. They are outside the law in a different way.

It will be interesting to see whether the Texan raid is counterproductive or forces the Fundamentalist Mormon church into submission.

These situations remind us that the conflict between God’s law and the law of the State has many facets, and there are different ways of resolving the issue. Have a read of the Slate article and see what you think.

Pregnancy is not an illness…

…but sometimes it sure as hell feels like it. Boom tish!

When I was having my daughter, we had a trainee midwife attending us as one of her “case studies” for qualification. She had a sticker or something with the motto “Pregnancy is not an illness”. From this you could tell she was young, idealistic, totally delightful and had never had a child herself. I always wanted to add the punchline above, but I restrained myself. After all, I had no idea until I had become pregnant myself.

I have to say that I was gobsmacked by how unwell I felt when I was pregnant with my daughter. I had blithely expected that I would carry on life as usual, and work up until the day I had her, but it didn’t work out like that. I ended up leaving work early. I know some women who haven’t felt ill, and others who ended up having to be hospitalised because they were so sick, so it really does depend on the person.

The worst of it is that the really sick period (5 weeks to 14 weeks for me) is when you aren’t supposed to tell anyone. So you can’t explain to anyone why you’re turning green at the sight of a cup of coffee, or you have a sudden insane desire for Pink Lady apples all the time. (Mmm, that yummy pink crunch!)

Any expectation that your life will go back to normal straight after having a baby is also misguided, in my opinion. I’ve heard of a barrister struggling to Court to make an appearance one and a half days after giving birth, which just seems insane to me. In fact, from the way it was reported to me, it was like a competition: “X came back 2 days after she’d had hers, but can you believe it, Y beat her and turned up 1 and a half days after she’d had her baby!” Seems like a pretty stupid kind of competition to me.

Anyway, I’ve been thinking about the reports that Cate Blanchett is to take part in the 2020 summit two weeks after her third baby is due. That seems like insanity to me. The only way in which she could possibly manage it is to palm the child off to someone else for most of the time. And even then, she’ll still be feeling a little sore and sorry for herself. If she’s trying to breastfeed, she might need the baby brought in and out of the summit. Or I guess she could take the child to the summit, but it’s very difficult to concentrate on work-related matters when you’ve got a beautiful newborn there demanding your attention. At least, that’s my experience. And I wouldn’t have it any other way: this new person has come into your life and you want to get to know them.

Cate might miss out on her new child for nothing anyway: this 2020 summit sounds like a bit of a furphy to me. A case of letting people talk, and then just going on as normal afterwards. It reminds me of Charles II’s strategy with Parliament – he got them to fight and talk amongst themselves, while he got on with ruling the country. Mind you, Parliament had an equally dismissive idea of him: “Give him a whore and a side of beef and he’ll be happy.” Lovely.

So, despite thinking of myself as a feminist, I’m just not sure about Cate’s appointment to 2020. She’s a great actress and all that, but her attendance so shortly after the predicted birth of her child gives a message to women that, yes, you can just get back to things straight after having your baby. This might be the case if you have a phalanx of nannies and other support people, but for most normal people, the process of having a child is an exhausting and all-engrossing one which does affect your capacity to work. Even if you’re not unwell and tired during the pregnancy itself, you are likely to be sore and tired after the birth (whether natural or caesarian). And babies are made so that they cause us to focus a lot of attention on them when they are born. And you know what? That’s natural.

Dance of the seven robes

The title to this post could also be “Anything you can do, I can do better.” I’ve long believed that bickering and conflict between the three Abramic religions (Judaism, Christianity, Islam) is a bit like sibling rivalry, as I’ve said before, and the story below just confirms that belief. The three are very similar, but the differences are all the more contentious because of that.

Apparently there is a new trend among ultra Orthodox Charedi women in Israel. Inspired by Rebbetzin Bruria Keren, these ultra Orthodox women wear ten skirts, seven long robes, five kerchiefs knotted at the chin, three knotted at the back of the head, hide their faces behind a veil and then cover themselves with several thin shawls. Whew! I’m surprised that these women can walk after putting all those clothes on.

The effect is somewhat like a niqab, or a full Islamic veil revealing only the eyes. I refer to and repeat my comments about the niqab (here and here). An outward show of inner faith, or a display of modesty before God are, to my mind, acceptable reasons for wearing religious costume. But as a feminist, I draw the line at religious costumes which impede women from interacting with the outside world. If a woman cannot engage in face to face communication, cannot drive, cannot run, cannot drink a glass of water in public…then I think it’s just plain wrong. It makes her less of a person than a man. I also dislike the idea that layers of clothing must be worn because a woman’s body is peculiarly seductive, or because it is thought that women’s bodies are unclean or lewd.

There are a number of interesting things about this phenomenon. First, the ultra Orthodox men tend to dislike the practice, despite their emphasis on tzniut, or modesty, in women. Thus it has been considered to be a kind of “counter revolution” – women saying, “Well, if you’re going to ask us to be modest, we’ll do that to the maximum degree possible.” I still don’t think that it can be considered “empowerment”, except in a very negative way.

The other interesting thing is that the women are apparently mistaken for Arab Muslims or Arab Christians, and are somewhat offended by this. They don’t feel any solidarity with their Arab sisters. I wonder, as foreshadowed by the alternative title to the post, whether there’s a sense of “oneupwomanship” here: “You Muslims think you’re modest? We Jews can be ten times more modest, and wear even sillier outfits, just watch us.” I’m waiting for some fundamentalist Christian women to start wearing old fashioned metal diving suits, just to show that they are the most modest of all.

In the end, it’s up to all these women (of whatever religion) to choose to wear whatever they please. I don’t really mind, as long as they don’t judge me for what I choose to wear, and don’t impose their standards on me or my daughter. My body is not dirty, thank you very much, and nor am I a harlot because I show my ankles. To me, empowerment is being able to move and communicate freely.

(Via Indyblogs)

Update

And it’s stories like the one of Indian tennis player Sania Mirza which make me believe that requiring women to cover up cannot be empowering or “feminist”. Mirza is an Indian Muslim, and some radical clerics have issued a fatwa against her. She has just withdrawn from the Bangalore Open after receiving threats because she wears short skirts and sleeveless tops.

Waxing lyrical

Perhaps I’m old-fashioned, but I’ve never understood the appeal of the Brazilian wax. In fact, I’m a bit disturbed by the thought that there might be guys out there who prefer women to be hairless. Do these guys like to imagine that the woman is very young? Erk.

There is a piece in The Age today about Brazilian waxes for teens and pre-teens. The piece references a site called girl.com.au which touts itself as “Empowering girls worldwide”. The site has a feature on Brazilian waxes. I thought I’d go have a look. I was horrified. It explains the concept as follows:

Removing all hair from the vagina area, the Brazilian Wax although sadistic in nature is surprisingly not as painful as you might think, to some.

My first comment is that this is an appalling sentence. (Yes, I’m a pedant). My second comment is that I have my legs waxed and it hurts! And once my sister persuaded me to have a bikini wax…owch! Not the kind of thing you want sensitive girlish skin to undergo. I think I’ve made the right decision to avoid Brazilian waxes. The piece goes on to describe the process in ways that make it sound like some kind of torture or violation:

Brazilian waxing involves spreading hot wax your buttocks and vagina area. A cloth is patted over the wax, then pulled off. Don’t be alarmed if the waxer throws your legs over your shoulder, or asks you to moon them, this is normal and ensures there are no stray hairs. A tweezer is used for the more delicate areas (red bits).

EEEK! Doesn’t sound very empowering to me. Apparently if I wanted to become a model this would be a “must”, but fortunately, I got over that particular desire at the age of 13.

I think they have changed the most offensive part of the feature since Dubecki wrote her article. Dubecki says that the site says “Nobody really likes hair in their private regions and it has a childlike appeal”, but the site now says, “Nobody really likes hair in their private regions and this removes it.” Nonetheless, it’s still pretty full on. It suggests that “nobody” likes people who have pubic hair and that “everyone” is removing it.

I suppose it’s all about what you’re comfortable with. I can understand wanting to remove leg hair, and if my 15 year old daughter wanted to wax her legs, I’d let her, with parental supervision. However, I don’t think I’d allow it before the age of 14. Also, if my daughter wanted to shave her underarms, I’d let her. It would be hypocritical of me not to let her do these things because I do them myself.

But I draw the line at Brazilian waxing. The skin there is particularly delicate. And that area is private. It is a sexual area, in a way that legs and armpits are not. There’s no reason to undergo Brazilian waxing unless one is (a) wearing very revealing clothing or (b) exposing that area to others. I just don’t think that it’s appropriate for young teens to do either. Furthermore, I don’t want my daughter thinking that there’s something wrong with her when she hits puberty and gets pubic hair. The inference is that an adult body is somehow dirty or wrong, but girlish, thin and smooth is “sexy”. It’s just a continuation of the idea already present in the media that only girls are attractive, and that a womanly body (with curves, breasts, pubic hair) is ugly. I don’t want my daughter to believe that. And I’d encourage her never to undergo the process described above.

As I’ve said before, there are some very confusing messages out there for young girls these days. Girls’ magazines seem to assume young girls will be wearing makeup and revealing clothes before hitting their teens. Let’s not beat around the bush. Makeup, revealing clothing and waxing are all designed to make a woman more sexually attractive to men. Do we really want 8 year olds doing things which are ultimately designed to make them sexually attractive? I don’t. No wonder Jamie Lynn Spears is pregnant at the tender age of 16: to be rather crude, she looks like “gaol bait”. If we sexualise girls at a young age, we shouldn’t be surprised if they then go out and behave in a sexualised manner.

I really don’t want my daughter to go out and explore her sexuality until she’s ready. And I want her to be comfortable with her womanly body when she grows up. Now, I think that’s an idea which is truly empowering.

Childcare, guilt and the working parent

After we moved to our new house, I bit the bullet and put our daughter in creche. I reasoned that she’s almost 2 years old, so she should be able to cope with it.

The first time was awful. I stayed with her for three quarters of an hour before I left. She was very nervous and clingy, and when she realised that I was going to leave her with these people, she started to cry, and gave me a look which indicated I had committed absolute betrayal, calling out “Mummy, Mummy, Mu-u-u-u-mmy!” and stretching her arms out. She wasn’t the only one crying. I am afraid I sobbed the whole way into work. The second time was much better, but then she got sick, and had a week off. We’ve had her in childcare for a little over a month now, and of that time, she’s only been there half of the time because she keeps getting sick (colds, bronchitis, ear infections). I’m lucky that my Mum lives close by and has been able to come over at the last minute. I hope that the bubba will get more resistant to disease as time goes on; if she’s still getting sick like this in a few months time, I don’t know what I’ll do.

I wouldn’t mind putting her in for a morning twice a week, but from 8am to 6pm seems like an awfully long time. The carers there are lovely, and being a social little thing, she seem to enjoy interacting with other babies and doing little activities. But she’s always so glad to see me when I pick her up, and when we get home, she has to cuddle me for at least 15 minutes straight. We have a love-fest and tell each other how much we love each other. In fact, she says “I lubboo Mummy”. It’s adorable.

When politicians talk about the problems of childcare, they generally mention availability as the key concern. Yes, that is a problem, and the waiting lists at some childcare centres are insane. I was just lucky this one recently opened up and had some vacancies. However, in such debates, it’s just assumed that mothers are champing at the bit to get their kids into childcare and get their noses back to the grindstone. I would suggest that the reality is a little more complex, at least from my point of view. I’ve noticed that the debate falls into two camps – the staunchly pro-childcare and the staunchly stay-at-home advocates. I don’t fall into either. I’m a little more ambivalent. I think if someone occupies one or the other, that’s okay, but most mothers (and fathers) are probably more like me, they just don’t want to admit it.

I like my job, and even if I didn’t have to work, I wouldn’t want to stop working altogether. It’s good to have my own time, where I can do adult things, and have adult conversations. It’s also good to keep one’s brain going. But the whole time I’m at work, I miss my baby. On the way home, I’m impatient to see her. I treasure our days at home together (well, mostly…she wouldn’t have her afternoon nap and let me do marking yesterday, and she wouldn’t take her antibiotics either for some reason…grr).

Financially speaking, I have to keep working, because I have a mortgage and it has to be paid. I’m saving for all I’m worth just in case interest rates go up a substantial amount, or something else happens. That’s the problem of being an ex-banking lawyer; I can imagine the worst case scenarios all too well.

I don’t know what the solution is. I don’t know how to make myself feel less guilty. I don’t want to make my parents have to look after my daughter all the time (they’ve already done enough with my sister and I – they should enjoy their freedom/retirement). For the moment, I’ll just keep going, and keep juggling all those balls in the air (mother, wife, academic, student, blogger…you name it).

P.S. Only 14 more papers to go out of 100. This post is my reward to myself for having marked 6 papers this morning. At this rate, perhaps I’ll finish today? In fact, perhaps I should stay up tonight just to get them out of the way? Hmm, tempting…

One is fun, two is double trouble

A mother of IVF twins is suing the doctor who runs the IVF clinic because she says that she only wanted one child implanted, not two, and she has now suffered emotional stress, financial stress and problems in her relationship with her lesbian partner. The mothers are seeking $398,000 to cover the costs of raising one of the girls.

Such cases are known as “wrongful birth” cases. The case of Cattanach v Melchior [2003] HCA 38 set the precedent for these kind of cases. In Cattanach, a couple sued a doctor over a tubal ligation. The wife had told the doctor that she had had her right fallopian tube removed as a teenager, and accordingly, he only clipped her left fallopian tube. This was incorrect. Four years later, she discovered she was pregnant, and gave birth to a son. The parents successfully sued for damages compensation for (1) losses suffered as a result of the pregnancy and birth (2) losses suffered by the husband for a “loss of consortium” and (3) damages representing the costs of raising the child. They were successful (to varying degrees) in all claims. The High Court confirmed that the plaintiffs were entitled to damages for the third head of damages.

By contrast, the English House of Lords rejected a claim of wrongful birth in almost identical circumstances to Cattanach in an earlier case of Macfarlane & Anor v Tayside Health Board (Scotland) [1999] UKHL 50. Personally, I find the words of Lord Millett in that case to be persuasive:

In my opinion the law must take the birth of a normal, healthy baby to be a blessing, not a detriment. In truth it is a mixed blessing. It brings joy and sorrow, blessing and responsibility. The advantages and the disadvantages are inseparable. Individuals may choose to regard the balance as unfavourable and take steps to forego the pleasures as well as the responsibilities of parenthood. They are entitled to decide for themselves where their own interests lie. But society itself must regard the balance as beneficial. It would be repugnant to its own sense of values to do otherwise. It is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth.

This does not answer the question whether the benefits should be taken into account and the claim dismissed or left out of account and full recovery allowed. But the answer is to be found in the fact that the advantages and disadvantages of parenthood are inextricably bound together. This is part of the human condition. Nature herself does not permit parents to enjoy the advantages and dispense with the disadvantages.

The High Court’s approach in Cattanach is to be contrasted with its approach in the wrongful life cases, whereby parents alleged that they would have aborted a child had they known of the child’s disability or potential to suffer a disability (see previous blog post on topic). The High Court found that the plaintiffs were not entitled to damages from the doctors in those cases.

My brothers-in-law are identical twins. I understand that it was a struggle for my mother-in-law when they arrived, particularly as she already had one small child at the time. I must admit that when I had my first scan when I was pregnant, I felt a little nervous. What if I was pregnant with two children? It would be both exciting and scary. It would mean I would have to totally reassess our finances and our way of living. But would I change it? I don’t think so.

As stated in this article in The Age by Carol Nader, there is a tension between the modern day view that parenthood is a choice, and the older view that a child is a blessing. In the past, women could not control their fertility easily. There was little choice as to whether to have children or not. Having children was seen to be a woman’s only role in life. Now we can control our fertility, and intervene in ways previously thought unimaginable to determine whether a foetus is disabled or to determine what gender it is. This gives us more choice and flexibility. It is undeniable that part of the social revolution whereby women can enter the workforce has arisen because women can now control their fertility. I am profoundly glad that I can study and work, and control when I have my next child. I’m not just tied to the kitchen sink, barefoot and pregnant. On the down side, some women have found that they have left it too late to have children, or have experienced severe difficulties as a result. There’s pros and cons to everything.

The result is that we now see parenthood as a choice rather than something that inevitably occurs. And we may feel angry if we can’t control our choice to become a parent in the way that the medical profession told us that we could.

I do not feel comfortable with the case of the reluctant mothers above. I understand that they did not want two children at once, and that they were distressed by the fact that there was an unexpected addition. As I have explained above, I think I would panic if I found out I was having twins. But I can’t help agreeing with Lord Millett. A happy, healthy child is a blessing. In this day and age, a woman is lucky to be able to conceive via IVF. And I also worry about the impact that this case may have on the twins when they are older. They will know that their mothers only wanted one of them, and they may feel rejected. I think that the mothers should not succeed. Sometimes life doesn’t turn out the way we planned where children are concerned. But my own daughter is such a blessing that I can’t quite fathom the distress of these mothers. I think of friends who would love to have children (in both heterosexual and same sex relationships). Surely two isn’t just double trouble, it’s also a double blessing?

It ain’t what you say, it’s the way you say it

I wrote a post a few days back on Catherine Deveny’s article on changing one’s name after marriage. Although I enjoy Deveny’s pieces in the weekend TV guide, I can’t say that I’ve enjoyed many of her pieces in the opinion section, although I always try to keep an open mind.

The piece about changing one’s name after marriage seems to have gotten a lot of people riled. Deveny has written a reply article entitled: “I don’t give a stuff what you do. I’m paid to write what I think.” It appears that the response to her piece has been passionate, with some women supporting her view, but many other women attacking her view quite ferociously.

If Deveny had written an article saying from a personal perspective that she didn’t see why one had to change one’s name after marriage, I don’t think there would have been much controversy. If she had gone on to query why it is always the woman who changes her name, I think it would be valid. However, the bit in her previous article which really got my goat was this:

Why would you do something so drastic simply because you decided to delude yourself it was easier? Because you are deeply insecure, deeply conservative or deeply stupid. And in deep denial.

I suspect it was these three sentences which earned her the angry responses, even from those women who agreed that they would not personally choose to change their surnames upon marriage, or that the surname change was a sign of the patriarchy.

I thought her article was judgmental in the extreme. It does give me the pip that someone trumpets the fact that she is “paid to write what she thinks”, but why should someone be paid for badly-reasoned thoughts? Since becoming a blogger, I have become increasingly disappointed with the mainstream media. Many of the posts I see in the blogosphere are far more reasoned than the opinion pieces in the newspapers: why doesn’t someone pay some of these bloggers to write an opinion? I think that the mainstream media just churns out some real rubbish sometimes, just to create controversy. Incidentally, in light of my incipient entry into the mortgage belt, and a notification of the second increase to my subscription to The Age in about 6 months, I think I’m going to have to cancel the subscription anyway, so I won’t be contributing to Deveny’s licence to write rubbish anymore.

Yes, there are important questions about traditions in terms of surnames, and it is interesting to think about the politics of the notions which underpin our society. I felt fine about keeping my maiden name before I had a child, but changed after having a child. I know of others who have made the same decision. I know of some women who changed names immediately upon marriage. However, I also know of many women who have not changed their names after marriage and children. All of these women are intelligent, capable and empowered women (regardless of whether they changed their name or no). I respect that each of these women had a choice, and I respect the reasons behind those choices. I certainly don’t judge anyone or conclude that a friend is stupid or “wrong” because of the choice she has made.

As I explained in the first post, I changed my name not because I married, but because my daughter had a different name to me, and I got this odd feeling that I wanted to “match”. I didn’t really think about it deeply, but perhaps there was a desire in me to conform to societal standards and expectations. Nonetheless, this doesn’t mean that I’m automatically stupid, conservative or insecure. In fact, all human beings have a desire to conform to societal standards and prejudices to a degree, otherwise we couldn’t live with each other. It’s natural. And as I’ve also explored earlier, societal standards and prejudices can be both positive and negative. I would be very unlikely to hear a racist or sexist joke in the ordinary course of things, in part because of the pressure of social mores, and to my mind, this kind of social pressure is a “good thing”.

Funnily enough I don’t recall any decision that my child would take my husband’s surname (it’s a bit of a blur, you understand). It just kind of happened. The powers that be just assumed, and I don’t think we questioned it. There were more important things to consider (eg, how to look after this crazy little helpless being which had landed into our lives). Also, my daughter’s names sound better with my husband’s surname. If they’d sounded better with my surname, perhaps I would have pushed for my surname?

I was wondering why we have the tradition about children taking the father’s name. Perhaps it’s something about fathers wanting to stamp ownership on a child. It’s obvious that a child belongs to a mother, because a mother bears that child within her body. By taking the father’s surname, perhaps men feel that they are also stamping their identity onto the child. So it’s not so much that women are insecure, but that men need to secure their position as a father. I know that men do feel a little left out when a child is first born because of the closeness between mother and child.

I think that there also might be a biological anxiety in human society insofar as fatherhood is concerned, from an anthropological/sociological/psychological perspective. There is always the fear that a child is the product of another man, because before DNA testing, a man just couldn’t know for sure… One might think that this anxiety on the part of men is crazy, until you read the case of Magill v Magill, the facts of which are explained in a previous post.  Shortly, DNA tests proved that two of a man’s three children born during his marriage were not in fact his, but were the product of an extra-marital affair. So, I think it’s far more complex than Deveny’s rather glib attempt to blame the patriarchy. Perhaps children take the father’s name because men are insecure.

Incidentally, a point that occurred to me: I wonder what happens in same sex partnerships? Do partners ever change surnames when they enter into a long-term commitment? If so, whose surname do they take? What about the children of a same sex relationship? Which surname is taken by the children? It would be interesting to know what people do in that circumstance.

Yes, it’s good to think about these things, and it’s good to question why we do what we do. But I think it’s best if pieces on the topic are measured and acknowledge that part of the gift of feminism should giving choice to women – there’s no one right way for women to behave.

What’s in a name?

According to this article by Catherine Deveny in The Age today, I must be conservative, insecure or stupid. Why? Because I changed my name (at least to an extent) after I got married. Where’s the option for “D. None of the above”? Deveny was inspired to write the article after seeing Jana Rawlinson (nee Pittman) successfully compete in the World Titles hurdling.
There are a number of reasons why women change their surnames after marriage. When I asked a close friend if she intended to change her surname, she just looked at me for about 5 seconds. Then she said, “My current surname has six letters, but only one vowel. Do you know how much trouble I have with it? And no one in Australia can say it properly anyway.” So she opted for another six letter surname, but with three vowels and three consonants. Another friend had her father’s surname, but she didn’t have much time for him. She was happy to ditch her father’s surname for her husband’s, on the basis that she may as well take the surname of a man she respected. Perhaps in Rawlinson’s case, she wanted to change her name to change her image. Fairly or unfairly, she did suffer some really bad press, and I can understand that she might want to ditch her old name for that reason.

What about me? I must confess that I didn’t change my surname until my little girl was about 8 months old. And I only changed it for home (driver’s license,  Medicare card, banking details). So many women I know have done the same as I did. My mother didn’t change her surname until she had me, either. I don’t think it’s marriage which makes the difference, it’s children. My daughter has my husband’s surname. And me having a different surname sometimes leads people to conclude that I’m not her mother. Also, there’s probably a touch of obsessive compulsive disorder in there somewhere: my maiden name looked out of place on the Medicare card, in a way that it didn’t when there were only two names on it.

I haven’t ditched my maiden name altogether. I still use it for work and professionally. This is partly because I had published before I got married, so I didn’t want to lose any meagre reputation I might have built up. Sometimes I do wish I could get rid of my maiden name altogether (partly because there was another girl at high school and law school with almost the same name, right down to the middle initial, and people were always confusing the two of us, on paper at least). But then at other times I feel nostalgic and glad that I’ve held on to it. It has a long, although not altogether glorious, heritage. My forefather who gave me my surname was a 15 year old pickpocket who was deported to Australia on the Second Fleet. He allegedly stole a hanky.

The other option, the “sit-on-the-fence” option, is to adopt a double barreled surname, but I don’t really care for the combination of my husband’s and my names. Also, it might make it hard for our names to fit on licenses, certificates and the like. My sister dated a guy with a long double barreled surname for a while, and apparently his name didn’t fit on his graduation certificate. And what happens when a double barreled surname marries a double barreled surname? Do they become quadruple barreled? Or do they pick one name from each pair?

Does adopting my husband’s surname (at least to a degree) make me conservative, insecure or weak? I don’t think so. Strangely enough, I quite like my husband. And I’m proud to bear his name. Should I demand that he bear my surname instead? I think perhaps I did bow to societal convention a little. In some Asian countries, wives do not take their husband’s names (eg, Vietnam), so perhaps I wouldn’t have felt the same desire if I had grown up in that culture. But it does feel nice for the three of us to have the same name – like we are a little named unit.

I don’t think the name changing issue is that important. The more important issue raised by Deveny is why mothers are criticised if they go back to work, but fathers are not. I think her rant on surnames detracts from the valid point she makes.

I hate that bloody “supermum” title. No mother can have it all. If you go back to work full time, it’s inevitable that your relationship with your child will be affected. And if you are a full time mother, it’s inevitable that your career will be affected. I have no illusions about that. Currently, I’m trying to do both part time, which sometimes feels like juggling 50 balls in the air at once. I think I took on too many things this year, which is part of the reason I was depressed last month. I didn’t feel like a supermum, I felt like someone who was stretched to the limit.

When babies are first born, they are still totally reliant on their mothers. It’s like the umbilical cord is still present, it’s just invisible and the baby is now on the outside. The physical realities of pregnancy and motherhood mean that women do have to drop everything, for at least a time, and concentrate on bringing up baby. But when the baby gets older, parenting is a joint effort, and the focus shouldn’t just be on the mother. There are many different ways of organising your parenting. I know of families where the father stays at home, and of families where both parents work part-time in order to share the care of the children. I also know of families where the mother stays at home, and of families where both parents work full time or almost full time.

I have no idea how Jana Rawlinson managed to win a World Title hurdling medal with a young son. I wonder if she feels like she is juggling 50 balls at once? Good luck to her. But I also wish good luck to all the other parents out there who are juggling work and children and everything else…

Legalising abortion

The Victorian government has decided that it is going to decriminalise abortion in this state, and clarify the legal position. I’m glad. I think it’s best to be totally clear about the exact situations in which abortion will be legal or illegal. Much better than leaving things in a legal and moral vacuum.

I do not think that abortion should be illegal, or perhaps I should say that I believe that it shoudld be legal in some circumstances. As far as I am concerned, there are clearly circumstances where a woman should be able to choose whether or not to keep a child: where the child is the product of a rape, for example, or where a child is likely to be severely disabled. And what if the mother is unwell or unable to cope with a child for some reason? But on the other hand, I am very wary of late term abortions unless there is a very good reason (for example, the child has a massive congenital defect).

The abortion issue is such a divisive one. I don’t feel that I can be quite comfortable with either extreme position. I think women should think carefully before having an abortion, and, as far as I’m aware, the vast majority of women do. I have had some friends who have taken this step, and I do not think these women made the choice lightly. I would never castigate them for taking that step, and I do not think it is my place to do so. Nor would I judge them if they had chosen to keep the child.

Would I have done the same in similar circumstances? I just don’t know. When I saw my daughter at the 12 week ultrasound, I was amazed at how perfect and developed she was already. My daughter is such a precious bundle of joy, but she has had the luck to be born into a stable family with parents who can look after her.

The other difficulty is that it takes two people to create a child, but only one person bears the child. So there are two people who have an interest in what happens to the child, but one person (the man) is able to walk away if he wants to, whereas the other person (the woman) will at least have to bear the child, even if she then gives it up for adoption. The burden of the child is disproportionately on the woman. I do get a bit frustrated with men jumping up and down about the issue and telling women what to do. Yes of course they have a right to an opinion on the issue, and of course the father of a child should be able to have a say in what happens to the child. But ultimately, the man isn’t the one who has to cope with the child when it arrives. If he wants, he can walk away the day after conception and never see the child again. This just isn’t possible for the woman. She is literally the one left holding the baby!

What I do object to is someone telling me that I cannot make certain choices because of what their faith says, when I do not share that faith. I’m perfectly happy for people to make choices for themselves on the basis of their own faith. I’m also perfectly happy to have a reasoned dialogue with someone whose moral perspective is informed by their faith. But I’m not just going to agree that a certain thing should be done on the basis of a faith that I do not share, without discussing the issue in a logical and calm manner. I think that the move to legalise abortion is a good thing; it will hopefully lead to some logical and calm decisions about what is right and wrong in this very difficult area of morality and law.

More on choosing judges

Women are represented in the law as judges, barristers, solicitors, attorneys-general, law makers and court administrators. They identify an issue quickly, focus on it and persuade rather than dictate. Mostly, women who work in the law are goal oriented. They readily identify their litigation goal, their judgment goal.Women provide perspective. They search out the resolutions.Women have finely honed organisational skills (hence they make excellent juniors and instructors in litigation, sometimes of itself a distinct disadvantage).

Women are adaptive and flexible. They have identified the open and closed areas of legal practice. Thus, women have remained in the traditional fields of family law, conveyancing and criminal prosecution but expanded into relatively new areas, taxation and revenue law, planning and environmental law, administrative law, human rights law and indigenous land rights law. In so doing they have avoided the more adversarial, combative zones of commercial law and common law.

Women bring to the law a strong sense of method. This is borne out in the judgment writing of women in the superior courts…

(Extract from speech by Marilyn Warren, current Chief Justice of the Supreme Court of Victoria, on 15 May 2003 to Victorian Women Lawyers)

I’d like to explore my own ambivalence about the words of Chief Justice Warren above. Are women different to men? Do they bring different qualities to a role? Before I had male cousins, I would have said that women and men were the same, but I no longer believe this. In general, women and men do have different approaches to matters. That is not to say that either approach is better than the other. It is also not to say that all women are the same. Most people will have a mixture of “masculine” and “feminine” traits. For example, my husband will kill me for writing this, but I am better at reverse parking and spatial tasks than he is (typically thought to be a more masculine trait). Further I am far more adversarial than my husband. He does not like confrontation. I don’t like it either, but if I have to confront someone, I will. And there are women who are far more aggressive than any man, and far less caring. Think about someone like Maggie Thatcher – hardly a stereotypically “feminine” woman.

I guess I’m wary of gross generalisations, and the idea that women are somehow better than men. We aren’t better than men, sometimes we’re just different. But I do think that many women have a very valuable perspective to add to the judicial bench. With this in mind, I am considering the appointment of Justice Kiefel to the High Court of Australia.

Will Justice Kiefel bring a different perspective to the Court? I really hope so. I don’t care if it’s as a result of her gender or not. To me, the point for celebration is not that Her Honour is a woman, but that she shows some signs of having independent thought processes. The present High Court is so hidebound. I don’t know if this is some kind of pendulum effect – whether the Court is at pains to swing away from the perceived “activism” of the 80s and 90s. I think that this is mistaken. To try to keep the law static is as much activism as is attempting to change the law. It also has a political agenda behind it.

The whole point of being on the High Court is that the law is (within reason) what you say it is. You are not bound by precedent. A High Court should both explain what the law is and develop it if necessary. By contrast, recent judgments of the House of Lords in the last 10 years have been interesting and one gets the feeling that they actually have open minds. I find myself almost wishing that there was still an avenue of appeal to the Privy Council. {Zounds, can a republican like myself really be saying that? Shows how desperate times have become… Note for US readers: republican = anti-Queen-as-head-of-Australia in this context}

So, congratulations, Justice Kiefel. May you make a difference!