Whether and how to value caretaking is one of family law’s intractable questions. The California Court of Appeal in Borelli v. Brusseau provides one well-known and widely-taught answer: “even if few things are left that cannot command a price, marital support remains one of them.”1 Borelli refuses to uphold an oral contract alleged by Grace Brusseau to take care of her husband at home after he suffered a stroke, in exchange for certain property. The court reasons that the contract lacked consideration because the duty of mutual support undergirding the marital relation meant she was already required to provide such care.2 Thus, the personal services Grace furnished “for the decedent in his home, for the duration of his illness, thereby avoiding the need for him to move to a rest home or convalescent hospital” were rendered for free.3 “[I]n the majority’s view,” Justice Poché details in dissent, the spouse “had a pre-existing or pre-contract nondelegable duty to clean the bedpans herself.”4
Borelli’s outcome is largely unexceptional. The law routinely undervalues, if not entirely devalues, care provided in the context of an intimate, familial relationship.5 As it turns out, this is not unique to family law. Yiran Zhang’s article, The Care Bureaucracy, cogently shows how endemic the undervaluation of care is, despite beginning from a different premise – namely, that caretaking is work, the economic value of which the government has recognized through Medicaid, “the largest payer in long-term care” and “the most significant driver of the recent trend toward home-based long-term care.” (Pp. 11-12.) That is, even where there is some consensus that the provision of care is necessary and compensable, and even where that care might be undertaken by a non-family member, current regulation falls woefully short in capturing its full extent and assessing its value. The Care Bureaucracy covers a wealth of topics, including issues related to poverty law, employment law, and health care law; this family law Jot focuses on the paper’s intricate, pragmatic, and imbricated discussions of how care is regulated – to the detriment of those who give and receive it.
Care is a capacious term, often used to signal a general class of activities, which means that it can also be a vague term. Zhang, however, relies on “historical and ethnographic scholarship[] as well as regulations, guidelines, audit reports, and public hearing records related to Medicaid Home and Community Based Services (HCBS) programs” (P. 9), to ground her piece in accounts of what the day-to-day work of care entails. It requires helping an individual to “‘dress, bathe, use the toilet, or get in and out of his bed . . . not to mention the household tasks of cooking, shopping, or cleaning.’” (P. 4.) It requires preparing soft foods and allowing a patient to walk around, while following carefully and unobtrusively, behind. (P. 21.) Ultimately, it requires a dynamic between caretaker and care recipient that is “flexible, holistic, and relational.” (P. 22.)
To manage and assist with the provision of such care, the government relies on what Zhang identifies as the “care bureaucracy,” a term that is both descriptive and critical. The care bureaucracy converts the “integral care relationship into a list of physical tasks, meticulously quantifies the value of care work through procedures enforced by medical professionals and requires exacting documentation to repetitively prove the need and occurrence of the care work.” (P. 4.) These requirements affect the patients and caretakers in various ways, which the piece conveys from their perspective, in their own words. Patients bristle at the invasion of their privacy and autonomy, explaining that they–of course–mind that their caregivers have to keep a running record of them “in [ ] pajamas all the time.” (P. 59.) Care workers, in turn, describe the “‘level of anxiety’” the demands of the bureaucracy create, as they balance adhering to its rules and fulfilling their patients’ needs. (Pp. 55-56.)
Accounting for the work of care seems to be one of the benefits of the bureaucratic approach, which “provides a language to turn invisible, fluid care into a list of digestible quantifiable work.” (P. 31.) Zhang shows, however, that the bureaucracy of care nonetheless continues to keep much of this work invisible. At the most basic level, whatever fails to make it into the documents required by Medicaid– when, for example, a particular service is not approved by a recipient’s care plan – does not count as work worth compensating. (P. 27). Someone, however, still has to do that work. So, when the Medicaid plan allows only for a limited set of services, the rest falls, inevitably, on what the caretakers or family members are willing to do at their own expense, without compensation. (Pp. 27-28.)
Perhaps the most glaring example of caretaking that receives no recognition is the work of managing the bureaucracy itself. Users must “continuously navigate and comply with the bureaucracy to maintain eligibility and access care service or care payment” (P. 57), while caretakers must adhere to the bureaucracy’s numerous technical requirements, which can “interfere[] with the delivery of their care” (P. 58.). This work is, Zhang explains, “invisible” given that it does not amount to “a recognizable care task that the Medicaid program authorizes . . . or even mentions.” (P. 58.) As such, it is unpaid.
The labor of bureaucracy, and the work of care, is done mainly by women. The family member who provides caregiving is disproportionately female (P. 59), while the caretaking the Medicaid system relies on is performed by poor women (P. 14), specifically “low-income women of color and immigrant women” (P. 7). Medicaid remains a program for low-income families and over half of the workers themselves are on public assistance. (Pp. 37-38.) The consequences of extracting additional labor without compensation directly impacts communities who are already marginalized, who already have difficulty accessing material goods, and who do not have the political clout to change the way their work is recognized. It is also a reason why the care they provide is undervalued in the first instance.6 Zhang locates the care bureaucracy somewhere in-between the coercive and punitive state experienced principally by poor families of color, and the general lack of support the state provides to families overall. But she expressly situates Medicaid’s means-tested system in its welfare origins, with which it shares a basic distrust of its participants – both the care workers and the recipients. These factors help to explain the ubiquitous concerns over fraud that plague it, which are part and parcel of the larger infrastructure that hyper-regulates and polices poor families of color. (Pp. 38-42.) Significantly, the concerns over fraud exacerbate the one-way ratchet towards undervaluing care, and the audits that take place to ferret out the fraud are exclusively concerned with catching “false positives of overpayment.” (P. 48.) By definition then, this frame ignores the under-provision of care, and fails to address the plight of those “patients and families who would qualify for and significantly benefit from the public care program [but who] are kept out of it.” (P. 48.) It also extends the “surveillance and punishment tools” the care workers already habitually experience. (P. 51.)
Care work further suffers from its associations with the family, and the kinds of assumptions Borelli enshrines. The care workers receive little to no standardized training, which reinforces the notion that their work is unskilled; they also occupy an “outsider status” in that they are neither considered medical professionals nor, for many purposes, employees. (Pp. 50-51.) The professional and the familial have porous boundaries, though. Many care workers enter the field after having personally cared for a family member; these experiences increase a person’s willingness to pursue it as a job. (P. 63.) Once engaged as caretakers, they regard the autonomy they possess, along with the creation of kinship, even if “‘fictive,’” as important reasons to remain. (P. 61.) Family and family-like ties co-exist with professional ones, mostly to the detriment of the care workers and family members. The public care system relies on the availability of unpaid care provided by family members to function (P. 28), and family caregivers are less likely to enroll in the public care system, which would enable them to receive compensation for their work. (P. 60.) Rather than crowd out altruistic behavior, the commodification of care depends on its continued presence.
The devaluation of care work is not inevitable. Zhang concludes her piece by discussing the existing Program of Comprehensive Assistance for Family Caregivers (PCAFC), which she describes as having a more flexible structure for managing the dynamic relationship between need and care. Zhang is quick to acknowledge the many differences between Medicaid and PCAFC, and the ways that PCAFC, which is specifically set up for veterans and their family members, is not a viable blueprint for reforming Medicaid. Nor does PCAFC necessarily correct the inequities in terms of who gives care, or who is expected to give care. Rather, she offers it as an example of a different model of state-run care – as “a continuous, intimate, and stable relationship between two parties whose well-being is closely related” (P. 66) – which the same government is capable of implementing. Importantly, it also complicates a vision of the state that is either purely coercive on the one hand, or wholly inadequate on the other. The paper does not have the space or time to present a comprehensive reform agenda, nor should it, given its focus. But this means I can look forward to learning about what models of care Zhang thinks might actually succeed in future work.
- Borelli v. Brusseau, 12 Cal. App. 4th 647, 655 (1993).
- The majority did not find that Grace Brusseau was lying, or that the contract as alleged did not exist – it held that the law could not recognize such a contract because it lacked consideration and was against public policy. Id. at 652.
- Id. at 651 (internal quotation marks omitted).
- Id. at 655 (Poché, J., dissenting).
- See, e.g., Albertina Antognini, Nonmarital Contracts, 73 Stan. L. Rev. 67, 104 (2021) (describing how case law refuses to uphold express contracts that involve services provided in the course of a nonmarital relationship for various reasons, including “determining that the contract was based on sex and therefore illicit; that it was based on love or affection and therefore unenforceable; or that services rendered inhered in the relationship itself and are therefore insufficient to impose any obligations on the other party”).
- See Dorothy E. Roberts, The Value of Black Mothers’ Work, 26 Conn. L. Rev. 871, 873-75 (1994) (discussing the devaluation of the care provided by Black mothers and explaining how “[m]aternalist rhetoric has no appeal in the case of Black welfare mothers because society sees no value in supporting their domestic service”).