Cornell Law Review

This article questions the sufficiency of contemporary parental policies in undermining the gendered division of care-work at home. It reveals that despite the optimistic expectations that accompanied the enactment of gender-neutral leave legislation such as the FMLA, and the provision of equal care opportunities for men, a marked gap separates the law’s target of equal parenting from the persistence of a maternal reality in most families. Moreover, because women remain responsible for family caregiving much more than men, the stereotype that women are less competent workers continues to thrive, and gender bias and discrimination still shape women’s experiences in the workplace. This discriminatory reality is often masked by legal narratives presenting the rise of egalitarian and choice-based patterns of parenting as actual products of contemporary parental policies. Gendered patterns of care and work are thus legitimized as reflecting the individual lifestyle preferences of both women and men in a world in which equality and choice shape these preferences. The article suggests naming this problem “the maternal dilemma” and calls for re-evaluation of current male-centered policy solutions designed to address it by encouraging men to assume more care-taking responsibilities at home. It adds a comparative analysis to illustrate that the maternal dilemma is not a unique American problem, with its very “thin” model of parental supports, restricted to narrow and primarily negative protections. The maternal dilemma prevails also under more progressive regimes of parental supports that provide additional incentives for men to assume greater care-taking responsibilities at home. Building on comparative lessons as well as on the scope and significance of the maternal dilemma in the American context, the article argues that in their efforts to recruit men to the task of care-taking at home, feminists, legislators and policy makers have neglected an additional and equally important set of issues relating to the structures and forces that shape women’s decision to remain the primary caretakers at home.In deliberating these issues the article suggests acknowledging that gendered patterns of care-work at home are not simply the product of women’s subordination. They also reflect the complex relationship between women’s disempowering experience in the labor market and the historical and contemporary significance of motherhood in their lives. Restoring the focus to women and addressing their specific needs and concerns are thus crucial for moving forward. Naming this problem the maternal dilemma serves as a reminder of where the core of the problem is; it also signals that the path to gender equality might require more than gender-neutrality and similar treatment.

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