74 Am. U. L. Rev. 367 (2024).
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Abstract
“Pro-natalism” is a term that has been variously used to describe any and all government policies that favor birth, babies, children, families, and population growth, as well as more focused laws that incentivize childbirth; burden, ban, or criminalize abortion and/or contraception; and otherwise disfavor the childless. Whether and to what extent U.S. law is or should be pro-natalist is central to current and ongoing debates about reproductive rights and the deeply vexed question of when life begins. A robust legal feminist literature has aimed to identify and critique pro-natalist law and policy, particularly in forms that constrain the autonomy of those who may become pregnant. Some such laws may even amount to compulsory maternity. This literature has also explored the relationship between pro-natalism and gender- and sex-based inequality more broadly.
This Article breaks new ground by identifying pro-natalism in a completely different area of law: the law of decedent’s estates. Rather than incentivizing reproduction as such, pro-natalism in probate law undermines autonomy through rules that privilege and naturalize the parent-child relationship as the proper site of post-mortem property transfer. Prior literature has explored the misuse by probate courts of both formalities law and the law of undue influence to favor dispositions within the family and disfavor less traditional plans. This Article, drawing on cases and statutes from more than forty states, focuses both more narrowly, on the parent-child relationship specifically, and more widely, taking in several aspects of the law of both intestate succession and wills. Intestate succession is an estate plan by default, not chosen by the decedent; but in the law of wills, testamentary freedom and autonomy are loudly proclaimed. Yet a review of interested witness purging statutes, the law of testamentary capacity, rules for resolving ambiguous language in wills, anti-lapse statutes, the law of pretermission, and the undue influence case law, reveals deep and pervasive pro-natalist bias. Taken together, these familiar components of probate law codify and perpetuate ideas about the connections between parents and their children that are also central to current debates about reproductive freedom and autonomy in intimate life. Uncovering pro-natalism in probate law is therefore part of the larger project of understanding how pro-natalism undermines autonomy in areas of law apparently far removed from reproductive rights.
* Adjunct Professor of Law, Pepperdine Caruso School of Law and Loyola Law School (Los Angeles). A.B. Harvard College, J.D. UCLA School of Law, LL.M. (taxation), University of San Francisco School of Law.