Third-Wave Feminism, Motherhood and the Future of Feminist Legal Theory

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Third-Wave Feminism, Motherhood

and the Future of Feminist Legal Theory
by Bridget J. Crawford1
This paper theorizes the noticeable absence of law from discussions of motherhood by feminists who came to political consciousness in and after the 1990’s. Young women loudly proclaim their difference from feminists who have come before, but in doing so, they over-emphasize and even elevate women’s reproductive achievements over others. First-person narratives like Rebecca Walker’s Baby Love,2 Evelyn McDonnell’s Mama Rama,3 and Peggy Orenstein’s Waiting for Daisy4 reify motherhood into a sought-after and revered state. These authors, perhaps unwittingly, contribute to the very mythology of motherhood that prior feminists sought to vanquish. They seemingly reject the feminist adage that the “personal is political.” For Walker, McDonnell, Orenstein and others, the political is personal all over again.

By offering a critique from squarely within the generation of women who have proclaimed a “third-wave” of feminism, this article speaks directly to my peer group of legal scholars. I am a third-wave feminist by strict demographic definitions,5 but not by preference, politics or proclivity. Women like me (and our allies) who grew up and first studied law in a post-ERA, post-Title IX and post-coeducation era need to develop our own account of the law’s limitations and potential. This account should be informed by our own experiences but also needs to understand preceding feminist concerns and methodologies. Writings of young feminists, when read in the context of the work of Martha Fineman, Robin West and Adrienne Rich, among others, can articulate a feminist theory of motherhood. In fusing contemporary third-wave feminist writing with extant feminist legal scholarship, one can discern the beginnings of a potentially rich “third-wave” feminist legal theory with its sights on pragmatic gender justice.

Part I of this article identifies the principal themes of third-wave feminist writings on motherhood and distinguishes those themes from third-wave feminist writing in general. Part II makes explicit the ways in which third-wave writings on motherhood reject so-called second-wave feminist analyses of motherhood as an institution. Part III articulates the beginnings of an equality jurisprudence that is informed by third-wave feminism and would recognize women’s reproductive capacities while neutralizing their role in women’s legal subordination.

Part I: Third-Wave Writings on Motherhood
A. The Perpetual Daughter Syndrome
Most third-wave feminist writings on motherhood, to the extent that young authors address the subject at all, proceed from the perspective of the perpetual daughter. This is an inevitable consequence of the generational bookends that young feminists have used to distinguish themselves from feminists who emerged of the 1970s and 1980s. Difference from earlier feminists - their political, intellectual and actual mothers - is the primary trope of third-wave feminism. Its methodology is the first-person narrative. When Rebecca Walker proclaimed in the pages of Ms. Magazine in 1991, “I am not a postfeminism feminist. I am the Third Wave,”6 she was 22 years old. As third wave feminists like Walker (who is now 38) have aged, their preoccupations and occupations have changed. Pregnancy and motherhood are replacing activism and fluid gender identity as third-wave subjects. On one level, the shift in subject-matter focus is a natural consequence of the third wave methodological reliance on the first-person narrative. On another level, this shift marks a potentially conservative strain in third-wave feminism.
In Walker’s case, her complicated relationship with her own mother, novelist Alice Walker, undergirds her narrative. One of the Walker fille’s first concerns upon finding out she is pregnant is her mother’s likely reaction. “I had a tempestuous relationship with my mother, and feared the inevitable kickback sure to follow such a final and dramatic departure from daughterhood.”7 Becoming a mother, then, in Rebecca Walker’s construction, is the process by which one becomes an adult and unbecomes a daughter: “[T]he fact is that until you become a mother, you’re a daughter.”8 Walker sees motherhood as the ultimate destination of a self-described 15-year journey taking place roughly between the time of her college graduation and the impending birth of her child.9 With synechdotal swiftness, Walker then reads her own pregnancy as a watershed moment for feminism writ large. She describes her “journey” toward motherhood:
Ultimately it was like trying to steer a boat with a banana. I had no idea what was going on, no clue whatsoever . . . . I didn't know that the longing, fear, and ambivalence or part of the pregnancy, the birth, and everything that came after. I didn't know that the showdown between the ideas of my mother's generation and my own was inescapable, and slated to play out personally in our relationship. I didn't know that those fifteen years constituted my real first trimester, and all that time my baby was coming toward me, and I was moving toward my baby.10
Walker reads the shift from daughterhood to motherhood as a personal transmigration that portends change, if not in the leadership of the women’s movement, then in its focus and tenor. The "showdown" that she perceives between her mother and herself becomes generalized into a “showdown” between younger feminists and older feminists. As third wave feminists shift from an identification as activists, writers and cultural producers to motherhood, they perceive themselves as assuming center stage in feminism. Third-wave feminists emphasize their fertility over the menopause of women in the preceding generations. Third-wave feminists’ literal and figurative mothers are passé, spent and past their prime.
Yet if Walker were correct that motherhood marks the end of daughterhood (and that they are mutually exclusive identities), then the pages of Baby Love would not be replete with accounts of continued emotional skirmishes between mother and daughter. For example, the Walker mere threatens to publish an angry response to the Walker fille’s claim in a memoir that, “[M]y parents didn’t protect or look out for me, but fed, watered, and encouraged me to grow.”11 Walker describes her mother as overwhelmed by ambivalence about the maternal role: "When I was in my twenties, my mother told me that she had to decide to love me, that she could have gone either way and she chose to love me.”12 In contrast, Walker writes after her son’s birth, “There is no choice involved in my love for Tenzin, and if there were some secret place where I wondered, and there isn't, I would never tell him about it.”13 So for Walker, motherhood brings at the very least a duty to act as if one loves unconditionally, even if the feeling does not come naturally (which Walker claims she does). Mothers have special obligations to children. “Because mothers make us, they map our emotional terrain before we even know we are capable of having an emotional terrain, they know just where to stick the dynamite. With a few small power plays -- a skeptical comment, the withholding of approval or praise -- a mother can devastate a daughter.” Walker generalizes about motherhood and feminism from her experience of being a particular woman’s daughter. The solipsism of her narrative threatens to obscure her underlying conservative message: motherhood is the key to women’s personal fulfillment.
B. The Inevitable Mother Syndrome
In contrast to Walker, Evelyn McDonnell does not portray motherhood as the central quest of her life. A former freelance writer for the Village Voice and other publications, McDonnell is now the popular culture critic for the Miami Herald. Her memoir is as at least as much (as the subtitle promises) about sex and “rock ‘n’ roll” as it is about motherhood. McDonnell contextualizes her own experience as a stepmother and mother within her rich professional and personal lives. Motherhood is not to be taking lightly, however; she reflects with seriousness on her two abortions, one of which she had shortly after she began dating a man who would become her husband.14 After marriage, when McDonnell and her husband tried to conceive to no avail, they did not begin the obsessive journey of fertility treatments. Instead after “a couple” of years of unprotected intercourse, one day McDonnell discovered she was pregnant. “I didn’t need to be a biological mother to feel complete; I had just hoped for it as a bonus,” she explains. For McDonnell, motherhood is a joyful aspect of her life, but it is not the inevitable result of a quest like Walker’s or Peggy Orenstein’s.
[The part will then contrast aspects of Orenstein’s Waiting for Daisy with Baby Love and Mama Rama.]
What is a feminist legal theorist to make of her peer group’s “graduation” from college activism and cultural work to marriage and motherhood? McDonnell, for one, is self-aware, but not apologetic about the move. She finds rich links between her youthful topless marches in New York City parades to toplessness (or at least partial toplessness) as a breastfeeding mother.15 Yet regardless of the differences in their individual stories, reveal, there is no escaping that Walker, McDonnell and Orenstein endorse motherhood. It is a mature, revered and pleasant status.
Walker, for one, endorses motherhood for all women. She says to a college audience that “being pregnant is the best. I highly recommend it. I really do."16 With comments like these, Walker contributes to the mythology of pregnancy as a natural, blessed-out state. She also endorses a hierarchy of values and commitments in which “family” (read: motherhood) should come before activism and careers. Walker uses a speech to a women’s group to articulate her position:
I talked about how since I been pregnant, I've been more concerned than ever about the need for people in politics in the public eye to have healthy personal lives. So often the momentous cultural work happens at the expense of family and sustained intimacy with loved ones. I saw a lot of heads nodding as I spoke, and several couples came up afterward to talk about their trying to keep their families together in the midst of giving so much of themselves to the work they care so much about.17
Walker likely would deny that she endorses or advances a universal position on motherhood, claiming a cover of individual experience or at least limited application of her beliefs to women of relative privilege, like her. But nowhere does Walker herself so qualify her remarks. Pregnancy is simply “the best.” Young women can stop debating the relative merits of careers, service or family. Walker has the answer and takes it on the college and women’s center lecture circuit.
Narratives like Walker’s, McDonnell’s and Orenstein’s reflect a retrenchment in the family and an emergent emphasis in third-wave feminism on motherhood. Second-wave, equality-based feminists historically have de-emphasized the ways in which women's childbearing capacity distinguishes them from men. But third-wave feminists imply that women’s experience of mothering is inevitable, biologically-driven and rooted in femaleness itself. In this sense, one might interpret Walker and McDonnell as embracing a more relational feminism, in the style of Robin West. [expand description of West]
C. The Natural Mother Syndrome
1. Mothers and Children
In sharp contrast to second-wave feminists, both Walker and McDonnell (albeit to a lesser extent) conceptualize motherhood as a deep, biological relationship. Rebecca Walker, for example, distinguishes the feelings she has for her own child from the feelings for her former female partner’s child whom Walker quasi-adopted. “It's not the same,” she says. “I don't care how close you are to your adopted son or beloved stepdaughter, the love you have for your nonbiological child isn't the same as the love you have for your own flesh and blood.” In Walker’s narrative, her partner’s child is a two-dimensional character who serves only as a touchstone for Walker’s reflections on her own pregnancy. “I think I already love this little being inside of me more than I’ve ever loved anyone,” she claims.18 After her son’s birth, Walker further distinguishes the difference between her feelings for her baby and for her stepson. Biology trumps a family that arises by choice. Walker and her biological son are, in her words, “bound through space and time in the beginningless beginning, that place of infinite mystery. We have met there, on that ground, in a meeting impossible to erase. Even when we are far from each other, we will each possess a fragment of that encounter, bare kneed in the loamy dirt we call our separate selves. I am no longer inexperienced enough to diminish this connection."19 In other words Walker attributes her prior enthusiasm for step-parenting to “inexperience.” She posits and innate, inevitable, permanent and even mystical connection between a mother and a biological child.
While less self-centered, McDonnell's narrative also makes a qualitative judgment about the difference between the bond a mother has with a stepchild versus biological child. There is something, McDonnell notes, about the bond her stepdaughters have with the woman who carried and nursed them. When her stepdaughters act out or encounter trouble at school, McDonnell reports that she is happy to allow her husband, the girls’ father, to negotiate parenting issues on his own. About her own son, however, McDonnell feels differently. She is involved in his daily life, marvels at his tiny achievements and plans for his future.
[Add analysis of Orenstein.]
2. Grandparents and Children
If Walker is certain about the nature of the relationship between a mother and a child, she is less clear about the relationship that arises between and among a child and his grandparents and other relatives. If biology overrides any other feelings a mother could have, it should be the basis for other relatives’ feelings as well. But Walker doubts that anyone other than a mother will be tied to a child by virtue of biology alone. For example, Walker contemplates choosing a name for her baby that does not come from her family of origin’s tradition. How will her Jewish father bond with the child, she wonders, if the child does not have a biblical-sounding name? Walker and her husband want to name the child Tenzin, after the Dalai Lama, and in affirmation of their chosen spiritual tradition, Buddhism. But a name that does not conform with family heritage may come at a cost. Walker writes:
I feel like I'm letting down the clan. If the baby has that doesn't resonate with my family's biblical template, they may not bond with him. He's going to need grandparents. Isn't it my responsibility as a mother to make sure the seeds for these relationships are planted?
I also want him to relate to his roots, to know what it means to be part of this crazy tribe of people who mix love and arguing like chocolate syrup and milk, who use a Yiddish proverbs as terms of endearment, and who manage to find a fabulous YSL sandals in the mountain of lame shoes at the Barney's warehouse sale.20
In language that ostensibly articulates her child’s ideal to her father’s side of her family of origin, Walker reveals what may a lack of identification with her own Jewishness. She wants her son to relate to his Jewish heritage, but then uses stereotyped bargain-hunting behavior to characterize that heritage. When her father suggests baby names like Samuel and David, Walker says “I felt like Judas.”21 Likening herself to a follower (and then betrayer) of the central figure of Christianity serves to differentiate Walker from her Jewish father. Her own feelings about naming may be complicated by the fact that as a teenager, Walker changed her birth name from “Rebecca Leventhal” (her father’s family name) to “Rebecca Walker” (her mother’s family name). In doing so, she de-emphasized her affiliation with her Jewish father in favor of identification with her African-American mother, who was by then a famous author. Perhaps the guilt Walker feels arises out of her own spurning of her father’s tradition than any concern for her child’s future bond with his grandfather.
3. Fathers and Children
None of Walker, McDonnell or Orenstein articulate a clear role for fathers in parenting. In Walker’s case, this is especially ironic, because at the time she was writing Baby Love, she also was promoting a book about black male involvement in family. Walker describes her indignant reaction when her husband opposes her plans for a home birth attended by friends and loved ones reciting poetry and prayers. Her husband, Glenn, wants the birth to be a semi-private experience for them as a couple (with healthcare providers at the ready).22
Walker’s narrative does not map her husband’s role in her son’s life. She recounts the thoughts inspired by a visit with her stepson at boarding school: "Well, if I sink into a depression that threatens to damage my child, or if I buckle under the pressure of balancing the demands of work with the constant labor of motherhood, or if Glenn leaves me and never wants to see me or his child again and I'm devastated, there is always boarding school. It sounds awful, but the thought was infinitely reassuring."23 So she might envision a husband (or at least another adult) as a backstop for Walker herself as primary parent (i.e., husband-as-respite-provider). Alternately she may view a husband or other adult a necessary part of a family, without which boarding school is the only alternative for children. The ideas are conflated to a certain degree, but the reader understands enough from Walker’s portrayal of her former female partner as an irresponsible, vagabond artist with no daily relationship with her young teenager at boarding school. In Walker’s vision, “normal” families are ones with fathers, and “abnormal” ones (with children who attend boarding school) are those headed by depressed and/or single and/or lesbian mothers.
McDonnell similarly equates motherhood with a certain staid and bourgeois lifestyle. When her stepdaughters first come to live with her in New York, McDonnell claims to have only one friend among her East village freelance peers who also has a child, and that child is adopted. Procreative activity, then, is the ultimate hallmark of adulthood, even if McDonnell and a friend gripe about their need for “rama,” which is "adult" or "me" time.24 McDonnell uses cool, hipster vocabulary to describe challenges of balancing parenthood and other responsibilities, feelings that all parents have had. But despite her creative descriptions of familiar dilemmas, McDonnell does not look up from her own experience to critically assess motherhood as an institution.
II. The Political Is Personal
[This Part will distinguish third-wave writings on motherhood from analyses of motherhood by Martha Fineman, Robin West and Adrienne Rich.]
None of Walker, McDonnell or Orenstein apply as their significant critical skills to motherhood as a social, cultural or legal practice. Absent from their personal stories any hint of an analysis of the implications, practices and behaviors associated with motherhood, i.e., childrearing, childcare, unequal allocation of parenting responsibilities, underemployment and unequal pay for women, limited career opportunities and financial instability upon divorce. None of the narratives gives the reader any hint of motherhood is something more than the pleasurable fulfillment of a personal desire. In third-wave feminist writing, motherhood is not an institution or a political choice. It is reclaimed as the ultimate personal choice (notwithstanding McDonnell’s protestations to the contrary). [quote]
Emptying motherhood of its political contents suggests that third-wave feminists embrace a return to an emotion-centered analysis of the family. Walker in particular rejects her mother's intellectual, choice-based approach to parental attachment. Perhaps out of some desire to re-parent herself, Walker defines her own maternal feeling as natural and inevitable. In a one-size-fits-all approach, she effectively encourages young women, “Try it; you'll like it.” Walker advocates for all women the motherhood that she herself finds so engaging and important. But this advocacy of motherhood is uncritical, lacking any recognition of the ways in which the motherhood is, for example, correlated with women’s dependence on others.
In order to transform third wave feminist ideas any kind of political or legal agenda, third-wave feminism needs to move beyond the personal storytelling and proselytizing to theorize motherhood and parenting. If mothering is not the exclusive domain of women, as Martha Fineman has suggested, then one could develop an agenda for parenting informed by third-wave feminism. However, the only third-wave voices on motherhood are those of women like Walker, McDonnell and Orenstein, women who have white-collar jobs as writers, even if (successful) freelancers, and for whom child care, quality education, Social Security, parental leave and pregnancy discrimination are not (yet?) pressing issues.
In failing to examine the political consequences of their own choices, third-wave feminists commit many of the same intellectual mistakes of which they have accused second-wave feminists: universalizing women's experience and ignoring the complexities of individual identity. For Walker, McDonnell and Orenstein, motherhood is a central and controlling identity.
[The remainder of this Part will compare the third-wave feminist rejection of critical analyses of pornography and sexual “liberation” with the implicit third-wave rejection of second-wave feminists’ critical analyses of motherhood. On the one hand, there is a “disobedient daughter” posture in third-wave feminist adoption of a pre-feminist approach to motherhood. Their navel-gazing at the motherhood experience is a grating extension of the self-important, first-person narrative that characterizes much of third-wave writing. On the other hand, sustained third-wave interest in motherhood might suggest the possibility of a broader engagement with questions about the roles that women play throughout their lives. Third-wave feminism has the potential, then, to move from debate over the ironic playfulness of wearing fishnets in the boardroom to understanding how motherhood – or at least potential motherhood - shapes and defines many aspects of women’s lives.]
Part III: The Future of Feminist Legal Theory
[This Part identifies how third-wave feminist perspectives on motherhood could be infused into feminist legal analysis. A legal agenda informed by third-wave feminism would take a nuanced, pragmatic approach. It would seek laws that recognize women’s reproductive capacities without making those same capacities the basis for women’s continued legal subordination to men.]
A. The Application to Law
[This subpart will ask what, if anything, is legal about third-wave feminist claims about motherhood? On the face of their narratives, Walker, McDonnell and Orenstein appear to make no legal claims at all. At the same time, however, legal doctrine could arise from it.]
[If mothers are centrally important and unique, then maternal preferences in custody might re-emerge, but mothers who fail to meet social expectations for “motherly” behavior would be severely punished (increased incarceration for drug use, etc.).]
[If mothers do have a special relationship with children that fathers do not, then fault could again become relevant in majoritarian U.S. divorce law. Women who are “wronged” would need to be compensated appropriately, but would women who “do wrong” necessarily forfeit property or rights? How are any of these forecasts different from the ones made by feminists 10 and 20 years ago?]
[If motherhood is essentialized as the “true” woman’s experience, maternal leave policies might flourish (or be eliminated). Men might never take parental leave (as they rarely do now). Child-care would remain privatized in the family/non-state context, which historically has been a cause for women’s continued economic subordination.]
B. The Application to Men
[It is not clear how a third-wave account of motherhood would impact men. In some ways, Walker et al. suggest that motherhood is an inevitable, esteemed state that women achieve. On the other hand, other third-wave writings resist the notion of a singular “female” experience, opening the door to the possibility, as Martha Fineman has suggested, that men can be mothers. Young feminists insist that any transformation of law or society must include men in solutions. But how can solutions effectively include men, when men as a group stand to “lose” power, prestige, etc. in change?]
[If men can and are mothers, then the legal reforms roughed out above would result preferences and protections for caretakers (Fineman), not just women. Read in this way, third-wave feminism can be read to embrace some second-wave analyses of motherhood (Fineman).]
[But what is gained/ lost in decoupling motherhood from biological femaleness? By including men in the analyses, will the dominant power structure be reproduced, so that women will still be disadvantaged and subordinated on the basis of their potential to be mothers?]
C. The Application to Feminism
[In searching somewhat unsuccessfully for any natural legal content of third-wave feminism, one might conclude that its true power has been as a reactive posture and rhetorical tool? Third-wave feminists themselves have not articulated a clear legal agenda, but they have contributed to generational splits within feminism that are not helpful or even inevitable.] [Expand.



If feminism is to realize its promise, then all those who strive for gender equality should understand the risks of employing “wave” terminology. Classifications like “second-wave” and “third-wave” appeal intellectually because they are simplistic. They serve as convenient short-hand for rifts and disagreements within feminism, but the vocabulary allows feminists to put off difficult discussions about feminism’s theoretical challenges. [more on anti-essentialism, descent into post-modernism] Perhaps most importantly, the “wave” terminology is an emotionally-charged way that women classify and make distinctions among themselves. What young feminists in particular do not seem to realize is that “wave” is another way of labeling ourselves as men always have: young vs. old; fertile vs. menopausal; attention-worthy vs. disregardable. A truly new wave of feminism would reject these false divisions between women because continued fractures in feminism benefit the dominant gender order, not women’s equality.

1 Professor of Law and Associate Dean for Research and Faculty Development, Pace University School of Law. B.A. 1991 Yale University. J.D. 1996 University of Pennsylvania Law School. Thanks to Darren Rosenblum and [ ]. The author may be contacted at and (914) 422-4416.

2 Rebecca Walker, Baby Love: Choosing Motherhood After a Lifetime of Ambivalence (2007).

3 Evelyn McDonnell, Mama Rama: A Memoir of Sex, Kids, & Rock ‘n’ Roll (2007).

4 Peggy Orenstein, Waiting for Daisy: A Tale of Two Continents, Three Religions, Give Infertility Doctors an Oscar, an Atomic Bomb, a Romantic Night and One Woman’s Quest to Become a Mother (2007).

5 Third-wave feminists define themselves as feminists “whose birthdates fall between 1963 and 1973.” Leslie Heywood & Jennifer Drake, Introduction to Third Wave Agenda: Being Feminist, Doing Feminism at 4 (Leslie Heywood & Jennifer Drake eds., 1997). See also Lisa Jervis, The End of Feminism’s Third Wave, Ms., Winter 2004/2005, at 57 (“I was born in 1972, right smack in the demographic that people think about when they think about the third wave.”). I was born in 1969.

6 Rebecca Walker, Becoming the Third Wave, Ms., Jan./Feb. 2002, reprinted in Ms., Spring 2002, at 86.

7 Baby Love at 5.

8 Baby Love at 47.

9 Baby Love at 8.

10 Baby Love at 8.

11 Baby Love at 75-76.

12 Baby Love at 187.

13 Baby Love at 187.

14 Mama Rama at 170.

15 Mama Rama at 182 (“As a kid, I was a shirtless tomboy running through sprinklers. As a young woman, I marched down Fifth Avenue for top-freedom. As a mama, I sat bare-breasted in restaurants, malls, and even one work meeting. Nothing was going to stop me again from suckling my child.”).

16 Baby Love at 137.

17 Baby Love at 35-36.

18 Baby Love at 53.

19 Baby Love at 72.

20 Baby Love at 138.

21 Baby Love at 132.

22 Baby Love at 50.

23 Baby Love at 54.

24 Mamarama at 204 (“During one of my many discussion with Susie – punk rock photographer extraordinaire and mother of Eli – I decided we needed another word to describe the rock ‘n’ role carnival ride our lives have become. An exclamation meant to convey the excitement and vertigo, the zest and dizziness, of our crammed days popped out of my mouth: mamarama! It’s a smooth-flowing word, a singular (and singing) state of being. But it has two parts. When our kids take over our lives, when we realize we haven’t gotten out of the house in days, when we’re not getting enough brain food or recreation or art, Susie and I say to each other, ‘Need more rama.’”).

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