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3 Colum. J. Gender & L. 495 (1992-1993)
The Law of Legitimacy: An Instrument of Procreative Power

handle is hein.journals/coljgl3 and id is 501 raw text is: THE LAW OF LEGITIMACY: AN INSTRUMENT OF PROCREATIVE POWER Mary Louise Fellows* I. INTRODUCTION The purpose of this Article is to explore how inheritance law, through its reliance on the laws regarding legitimacy, affects the construction of sexuality and procreative power' in our society. The crucial importance of female monogamy in a private property regime is well-recognized.2 It is the only means by which a man can assure himself that his wealth will be inherited by his offspring. The enforcement of female monogamy by men enhances a man's procreative power because it provides the basis for his claim of paternity.3 * University of Minnesota. I especially want to thank Beverly Balos, Adrienne Davis and Toni McNaron for their helpful comments on earlier drafts of this Article. Earlier versions were presented at faculty workshops at Indiana University School of Law-Bloomington, University of Minnesota Law School and Vanderbilt University School of Law. I appreciated the opportunity to share these ideas and benefited greatly by the thoughtful comments of the participants at those workshops. I also want to thank the University of Oklahoma Law School for allowing me to present an earlier version of this Article at a public lecture. This Article is a product of thinking I did in connection with a seminar I taught on Feminist Theory of Donative Transfers. I am grateful to the students participating in that seminar for their contributions to the ideas found here. As used in this Article, the term procreative power refers to the construction of human reproduction through biology, law and other cultural norms and values. 2 See Frederich Engels, 22 Works of Marxism-Leninism, The Origin of the Family, Private Property and the State 119-43 (Marxist Libr. ed., 1942); Catharine A. MacKinnon, Toward a Feminist Theory of the State 29-30 (1989). 3 See Adrienne Rich, Of Woman Born: Motherhood as Experience and Institution 119 (10th Ann. ed. 1986). Enforcement of female monogamy, i.e., ensuring that a woman has only one male partner for life, or at least at any one time, takes many forms and operates in complex and interlocking ways across abilities, class and race/ethnicity. Cultural norms that prize female virginity and motherhood, romanticize marriage and assail women in prostitution are some of the means by which society polices women's sexuality and men control women's sexuality for the purpose of reinforcing hierarchical differences based on abilities, class, gender, race/ethnicity and sexual orientation. Although the cultural norms may be shared across a broad range of the society, that does not mean that they do not reflect the interests of those persons in dominant positions within the society. Evidence of the domination is found in the answer to the question: For whose benefit do the cultural norms operate? Economic discrimination in the public workplace, along with the sexual harassment women are forced to endure in that workplace, is another way that female monogamy is enforced. Workplace discrimination effectively encourages women to marry and to stay married because marriage appears to be the means by which women are able to

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