My uncle Lars (not his real name) was troubled for much of his life. He had three daughters by two mothers. Well after all of them had children of their own, he took up with a much younger woman, “Elena”, and got her pregnant with a fetus that turned out to be male. He would have a son and was determined to name him after himself. Now, I do not know whether or not Elena used drugs, but he claimed that she did and managed to have her locked up in a State prison for the duration of her pregnancy. Whether a blood test was administered or not I cannot say. But I do believe that my uncle and the State violated her rights.
Why was he wrong? Because taking a woman’s autonomy away from her on the grounds that she is endangering her fetus treats her as though she herself is nothing more than a vessel, an incubator, a thing, an object to be used and abused. Such action pretends to protect the “unborn child,” the fetus, but actually serves the interests of those who take control of the expectant mother. In this case, my uncle’s interests overwhelmed Elena’s, and the State sanctioned this takeover. The fact that Elena was Mexican and poor, in addition to being female, made it harder for her to resist their assault.
In a well-known essay entitled, “Are Mother’s Persons?” (in Unbearable Weight: Feminism, Western Culture, and the Body, Berkeley, UC Press, 1993) Susan Bordo examines legal precedents and gendered attitudes toward the idea of a person as an embodied subject. She argues that men are allotted constitutional rights to bodily integrity that women are denied in our country.
For example, in the case of McFall v. Shimp (1979), the court protected the bodily integrity of a man who refused to donate his bone marrow to his cousin, who would certainly die of aplastic anemia without it). In fact, his cousin did die. In a similar case, a Seattle woman who pressed the court to force the father of her leukemic child donate his bone marrow was denied. The law sanctions these refusals on the grounds that a person is an embodied subject. Thus, as Bordo explains, the law of the land insists that,
the body can never be regarded merely as a site of quantifiable processes that can be assessed objectively, but must be treated as invested with personal meaning, history, and value that are ultimately determinable only by the subject who lives ‘within’ it. According to the doctrine of informed consent, even when it is ‘for the good’ of the patient, no one else–neither relative nor expert–may determine for the embodied subject what medical risks are worth taking, what procedures are minimally or excessively invasive, what pain is minor.
That is the theory of the embodied subject and informed consent. In practice, this doctrine has not been applied equally. Women, especially non-white, poor, or non-English-speaking women (women like Maribel), have been treated differently. As Bordo puts it, “the pregnant poor woman (especially is she is of non-European descent) comes as close as a human being can get to being regarded, medially and legally, as “mere body.”
Again and again the court has forced women to give birth against their will, or have forced women to have Caesareans in spite of their clearly stated, religious objections to the procedure. Women, particularly women of color, have been sterilized without their knowledge or consent. Consider these cases:
1985: Pamela Rae Stewart was charged with criminal neglect for failing to follow medical advice during her pregnancy.
1989: Jennifer Johnson, 23 years old, is sentenced to 15 years probation upon her conviction of delivering illegal drugs via the umbilical cord to her two babies.
1990 A Wyoming woman was charged by the police with the crime of drinking while pregnancy and prosecuted for felony child abuse.
1992: A 28 year-old homeless, pregnant, Native American woman, Martina Greywind, mother of six and addicted to paint fumes, is jailed for recklessly endangering her fetus by inhaling vapors. She is also sentenced (ironically) to 9 months on a State prison farm. She eventually won her release
from jail and had an abortion.
A Massachusetts woman who miscarried after an automobile accident in which she was intoxicated was prosecuted for vehicular homicide of her fetus. (Bordo)
2008: A SC court overturns a conviction of Regina McKnight, who had already served 8 years in prison on the grounds that she had “murdered” her stillborn infant by using cocaine during her pregnancy. Source: Alternet
Does the State go after fathers for their drug habits, smoking, alcoholism, reckless driving, physcial and psychological abuse of pregnant women? No.
A recent study
at the University of Bristol concludes that there is no evidence that a woman who drink moderately during their pregnancy endanger their fetuses.
Anti-abortion campaigns routinely ignore the personhood of the mother, arguing increasingly that the fetus, even at the zygote state, has more subjectivity than the woman in whose body it is lodged. In other words, “as the personhood of the pregnant woman has been drained from her and her function as fetal incubator activated, the subjectivity of the fetus has been elevated” (Bordo).
In other words, it is not only women’s reproductive rights that are being challenged, but women’s status as subjects, embodied persons with inherent rights to say what can and cannot be done to them, that are being threatened by the anti-abortion crusaders. These opponents of women’s autonomy have launched an assault against the personal integrity of women, whom they would reduce to fetal containers of beings whose rights exceed their own.
What makes pregnant women different than the kind of individuals that Locke, Hobbes, Descartes and others envisioned, is that women have the capacity to contain within the “other” within them. When we are pregnant we are not singular, and certainly we have a responsibility as ethical human beings to nurture the beings we intend to bring into the world. But we do not lose our bodily integrity and rights to self-determination the moment we become pregnant.
It is wrong to compel women to incubate a zygote or fetus that she does not wish to mother. It is also wrong to force her, with force, imprisonment, or other coercive measures, to behave in a way that others do not consider acceptable during her pregnancy because that denies her right to self-determination.
To finish the story, a few years after the birth of Lars Jr., my uncle committed suicide. No one knows where Elena took her son, who is my first cousin and the brother of my uncle’s three daughters. I don’t know why Lars killed himself, or whether Elena left him before he did so. There is a tragic justice to her disappearance. Why would she want to be associated with the family of a man who turned her into the police and had her jailed until she delivered “his” baby? I hope she returns to us. I would love to know her and welcome my unknown cousin to the fold.