My uncle Lars (not his real name) was troubled for much of his life. He had three daughters by two mothers. Well after his daughters were grown, with children of their own, he impregnated a young Mexican woman–let’s call her Elena–and then had her imprisoned on charges that she was harming “his” fetus with substances. I do not know whether or not Elena used drugs or alcohol while she was pregnant. Uncle Lars alleged that she did, and managed have her locked up in a State prison for the duration of her pregnancy, directly in violation of her constitutional rights.
Both my uncle and the State violated her rights by treating her as an incubator, a thing, an object to be used and abused, instead of as a human being with inalienable rights to bodily integrity. Such action pretends to protect the fetus, that some people inaccurately describe as an “unborn child,” but actually protects only the unjust domination of women. 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 this assault.
US courts have frequently ruled in favor of men’s constitutional rights to bodily integrity, but not women’s. 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 needed it in order to live. The court ruled that the man was an “embodied subject” and allowed the cousin to die of aplastic anemia. In a similar case, a Seattle woman who pressed the court to force the father of her leukemic child to donate his bone marrow was denied. His right to bodily integrity overruled the dying child’s need.
As Susan Border argues in a well-known essay, “Are Mother’s Persons?” (in Unbearable Weight: Feminism, Western Culture, and the Body, Berkeley, UC Press, 1993) in these cases the law 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.
The law states that no person should be treated as “mere body” — as an incubator, for example. The doctrine of informed consent holds that even when another person’s life is at stake, the “embodied subject” has the right to resist medical risks and procedures of any kind.
Unfortunately, this doctrine has been applied differently to men than to women. Women, especially non-white, poor, or non-English-speaking women 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, medically 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 Caesarean operations 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: A poor San Diego woman was charged with criminal neglect for failing to follow medical advice during her pregnancy.
- 1989: A Florida court sentences a poor, 23 year-old woman to 15 years probation upon her conviction of delivering illegal drugs via the umbilical cord to her two babies. The Supreme court overturned the decision.
- 1990 A Wyoming woman was charged by the police with the crime of drinking while pregnant and prosecuted for felony child abuse.
- 1992: A 28 year-old homeless, pregnant, Native American woman, 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.
- 2008: A SC court jails a poor woman, 21 years old, on the grounds that she had “murdered” her stillborn infant by using cocaine during her pregnancy. The conviction was overturned only after she served 8 years in prison.
- 2015: The State of Indiana sentences Purvi Patel who had a legal abortion to 20 years. The sentence was overturned in 2016.
- 2015: Georgia prosecutors charge a Black woman with murder after giving birth to an infant who died.
- 2015: A Long Island woman is convicted of manslaughter because she was not wearing her seatbelt while pregnant during a car crash. The confused judge asked, ““Does it matter if it’s impossible to commit this crime?”
- For more incidents, see this article in the Journal of Health Policy, Politics, and Law.
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 women 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. As Bordo explains,
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.
Anti-abortion crusaders attack not just women’s reproductive rights, but women’s status as subjects, embodied persons with inherent rights to say what can and cannot be done to them. 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 singular, unitary individuals that Locke, Hobbes, Descartes and others envisioned? Bordo suggests 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. Nevertheless, 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.
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.