Monday, November 25, 2013

Miller vs. McKenna. Who Owns The Baby? Do Women Own Their Bodies?

This particular child custody feud is well worth feminist analysis.  Here are the basic facts (which ignore Miller's behavior, however):

When Bode Miller, the Olympic ski star known for daring Alpine racing, met Sara A. McKenna in San Diego last year through the high-end matchmaker Kelleher International, they were both professing interest in finding a marriage partner, she recalls.
The relationship did not last long — but she did become pregnant. And now the skier, 36, and Ms. McKenna, 27, a former Marine and firefighter who is attending Columbia University with G.I. Bill support, are locked in a cross-country custody fight that has become not only tabloid fodder but also a closely watched legal battle over the rights of pregnant women to travel and make life choices.
In December, when she was seven months pregnant and already sparring with Mr. Miller about their future relations, Ms. McKenna moved to New York to start school. Mr. Miller accused her of fleeing to find a sympathetic court, and a New York judge agreed, castigating Ms. McKenna for virtually absconding with her fetus. This allowed a California court to subsequently grant custody of the baby, a boy, to Mr. Miller and also set off alarm bells among advocates for women’s rights.
But on Nov. 14, a five-judge appeals court in New York said Ms. McKenna’s basic rights had been violated, adding, “Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.”
The appeals court also ruled that jurisdiction belonged in New York.
On Monday, a New York City Family Court will start proceedings that could switch custody of the boy, now nine months old, back to Ms. McKenna.

The bolds are mine.  Note that leaving the fetus behind isn't quite the solution that Ms. McKenna could have employed.  This means that a pregnant woman moving, for whatever reason, was accused by the original New York judge (last spring), Fiordaliza Rodriguez as being roughly the same as kidnapping a child in utero:

Referee Fiordaliza Rodriguez slammed Miller’s ex-girlfriend, Sara McKenna, for moving to New York while pregnant and as custody proceedings were underway in California.
“While (McKenna) did not ‘abduct’ the child, her appropriation of the child while in utero was irresponsible, reprehensible,” wrote Rodriguez.

It doesn't matter, for the point I'm making, that Miller initially didn't want the child to be born at all or that he married someone else very soon after McKenna became pregnant, or that his interest in getting custody of the child soon seemed to include things like changing the child's name.  And it doesn't matter for that point, either, whether McKenna moved for her studies or for getting into a jurisdiction where her chances to keep the child are better.

Because the point worth making is that the original Rodriguez opinion is a clear consequence of the right-wing forced-birthers' attempts to turn the fetus into a separate legal being from conception, one that is perhaps "imprisoned" inside a pregnant woman, or at least one which temporarily lives in a particular aquarium and that aquarium should stay put.  One logical consequence of that is limits based on the pregnant woman's rights to move, to work and so on.

But the case also has a second central point, and that is about the relative parental rights of mothers and fathers.  Rodriguez tried to extend the putative fathers'  rights  to the time of pregnancy.

This is what seems wrong about the parental rights aspect of this case:  If we are going to limit the rights of movement of pregnant women or custodial parents, we should equally limit the rights of movement of putative fathers and non-custodial parents.   After all, the former might want to sue the latter for changes in custody arrangements or something similar, and the latter could move to escape paying child maintenance or (in the cases of putative fathers) to avoid being declared as the biological father of the child or to just find a court more likely to be in their side.