Diving Deeper into Human Rights: An Interview with Langdell Professor of Law Martha Field

HULR conducted an interview with Martha Field, the Langdell Professor of Law at Harvard Law School. Field currently teaches Constitutional Law: First Amendment at the Law School. In an interview focused on civil rights, we learned more about Martha Field’s experience and her own thoughts on policies ranging from abortion law to disability law. The following interview is paraphrased version of Field’s responses to an interview.

Harvard Undergraduate Law Review (HULR): Before we begin, could you give a brief introduction about yourself, your experience before becoming the Langdell Professor of Law at Harvard Law School, and an overview of your work?

Martha Field (MF): I attended Radcliffe College and later the University of Chicago Law School. After attending the University of Chicago, I clerked for Justice Fortas at the US Supreme Court, which was before he was named Chief Justice. During that time, there were only two clerks per justice, so we were able to have greater personal connections with each other, which was quite nice. I later taught at the University of Pennsylvania for criminal law and evidence, and after that Constitutional law and criminal procedure. Now, I’m at HLS teaching Constitutional law and federal courts, as well as the 1st amendment and disability law.

HULR: Thank you for that rundown. It’s visible within your works focusing on disabled individuals, surrogacy, abortion, and testing for AIDS, you strongly focus on social advocacy and justice, can you discuss what specifically triggered this interest in civil and human rights?

MF: Well, I lived in the Deep South when I was 10 or 11. Actually, I was there during Brown v. Board of Education. Through that, I was able to see for myself this way of life and a clear sense of the racism around me. I was horrified by the way the people in the South reacted: separate days in the park, separate toilets, etc. It undercut the Southern way of life… I can recall that when I was younger, my grandma always wondered why our maid would go to the garage so often. It turns out it was because she was going to the bathroom. With “the Help”, you were really able to see just how the lifestyle was back in the day. But when I was younger, I began to participate in voter registration activities and protests on inclusivity. And then, that was eventually followed by being under Judge John Minor Wisdom of the 5th circuit during my second year of law school.

HULR: To turn the topic towards our Harvard community, currently, there is a class at Harvard College called First Nine Months, which alongside highlighting the scientific development of a fetus, also centers on medical and legal dilemmas regarding the development of a baby. One concept recently discussed by the class is the difference between wrongful-birth suits, which are cases brought by parents against physicians for the birth of a disabled child that could have been avoided by termination, and wrongful-life suits, cases brought by, or on behalf of, a disabled child for a miserable life “not worth living”. Could you talk a bit about these types of cases and your own thoughts?

MF: Well, with wrongful life suits, you probably aren’t going to get much anywhere. Maybe the jury could rule for them if they were really sympathetic, or in a case of being extremely disabled, but I don’t see much progress from wrongful life suits. With wrongful birth suits, honestly, a lot of people don’t like them, especially those who care about disability rights. Occasionally, they can be successful if the doctor was extremely negligent. But, in most cases, the law doesn’t like to get behind the case that “someone should not be alive.” It’s more about the extra expenses involved, and not about whether a person should be alive or not. Of course, this differs state by state, and is not really a question under federal law. Most people believe that the thought of having a child not be there is not very attractive to the parents, and certainly not to the child themselves. Essentially, you are saying the child should not have been born, and the court is not going to decide that; they’d rather not say that about anyone. In a way, it’s a bit anti-disability to be going for a wrongful life suit case. It’s increasing resentment towards people who do not think they should be born, instead of trying to make life as accessible as possible to them instead. Essentially, for a judge to declare something as “miserable,” I just don’t see that happening.

HULR: Further, in your work Surrogate Motherhood, you bring to light how surrogacy can create a transactional relationship, even leading to the exploitation of surrogate mothers. What do you believe are the main legal improvements regarding surrogacy since 1990, and what do you believe still needs to be done?

MF: Overall, surrogacy is fairly widely accepted. There are not very many protections for surrogate mothers, which is what concerns me the most. However, as long as everyone is okay, then I feel it is alright. I feel like the main big change in terms of surrogacy is new technological developments. Before, it was only the man using a surrogate to create a biological baby and then the baby going back to him and his wife. Now, you can implement both the sperm and the egg in the surrogate now, so in a way, the surrogate is no longer biologically related to the child, so both parents are the natural parents of the child. Some people should believe that based on those changes, there should be new changes to the rules. I personally haven’t written anything regarding that, but I don’t think anything should be changed. If anything, the main problem is the potential exploitation of surrogates. Some people believe that surrogates aren’t really harmed any more, but people are still being hired from all parts of the world to be surrogates. I feel like that is a way of just using people, which differs from having your relatives or friends help you with surrogacy. It’s a form of commercial transaction. But, of course, I definitely know people that have children because of surrogates.

These days, I haven’t followed up much with any changes regarding policy or law for surrogates. But overall, I would say greater protections for surrogates are needed, whether it be protection in general or adequate pay. What makes the situation on surrogates difficult is you can see the benefits for surrogates and the parents, but there are also those potential harmful effects.. If we set it up so surrogates are not exploited, we would not need to worry much about surrogates in the US. However, there are still industries in other countries where one would pay less to have a surrogate, surrogates are living in set dormitories while being surrogates prevents them from living at home, etc. There are just so many potential ethical problems.

HULR: One of your works on abortion law was published in 1993, and a lot has changed since then, including the overturn of Roe v. Wade. Could you talk about your thoughts on this action taken by the US Supreme Court and what you think should be done now?

MF: Well, even after Roe v. Wade, the process of abortion was also pretty hard. There would always be changes in the length of the waiting period or trimesters in regard to abortion. With every case, it felt like they would continually cut back on the progress with Roe v. Wade. There was this one instance from Kennedy where he said something along the lines of women not really knowing what they were doing, and they’d feel bad about what they were doing after. Of course, this is not necessarily accurate and is fairly patronizing. The law used to be that if it was going to hurt the women to go through the birth, then it was enough to allow for the abortion, but then to extend others’ sentiments, they would say that there was nothing really bad about having the woman suffer a bit as long as it’s not too bad. But overall, they’re continually chopping away from Roe v. Wade. For instance, it’ll go from 24 weeks to 20 weeks, to 15 weeks, and now in some places, no right to abortion.

In my opinion, the court’s methodology and willingness to just change this law is not the most judicial way of doing this, and that’s part of the alarm of those who don’t agree with the conservatives of the court. It’s just a lack of choice: regardless of what you choose, it’s not right for the court to have a rule per se that it’s murder. It’s embodied within some religions to not favor abortion, but now it’s being enforced on everyone . I don’t expect this ruling to last forever. It’s funny that Ireland has actually recently allowed abortions despite being a fairly Catholic country, while the United States has switched.

HULR: Culminating everything you’ve talked about, what do you consider to be the most effective way to address systemic inequalities in the legal system, and what steps can be taken to advance this approach? This can be in general or for any specific oppression of marginalized groups you want to address.

MF: In my opinion, I believe that disability rights need the most advocates. There is not much content taught about disability law at Harvard Law School. Also, it’s a fairly technical field – it’s not as easy since it is not as controlled by the Constitution compared to statutes. If people wanted to be advised what to study, it’s a good area to help other people. The Supreme Court has been using procedures and cutting back on civil rights statutes, whether it be employment, nondiscrimination, title IX, etc. There was this recent disability case in which you could not get punitive damages in disability cases. Punitive damages are damages for the person doing something wrong, in addition to compensatory damages. Lots of disability and civil rights cases only had damages that were punitive. For example, if someone is renting an apartment but the landlord only wants to have white people on their property and turns other people away, those who want to rent probably most likely would not want to live there, but inherently, the landlord is not allowed to discriminate this way. You should be able to sue based on discrimination. Punitive damages are likely to follow gender discrimination laws, not just disability laws. Most instances of discrimination are de facto, since we often discriminate without being consciously aware of what we are doing. However, the legal system only focuses on purposeful discrimination. We’re essentially undercutting civil rights laws

HULR: Thank you for taking the time to talk with me about your work and your opinion on civil rights. Can you speak about any future projects or research you are currently working on? MF: I’m not working on anything right now. I’m currently just working at HLS as the Langdell Professor of Law.