The Criminalization of a Woman's Body

Clarice Feinman

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317992004
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This groundbreaking book addresses the ominous trend of introducing and passing laws and court decisions regulating the actions of women and the control of their bodies. One of the few books published on the criminalization of women's bodies, this timely book takes a serious look at the effect these laws would have on women and the threat to their autonomy, privacy, and control; their bodily integrity; control over reproductive capacities; and their constitutional rights. From ancient literature to the literature and law of contemporary society, a woman's value has often rested on her fulfilling expected roles as wife and mother. The lack of respect for women inherent in this predominantly male-oriented line of thinking is reinforced in this new trend of legislation and court decisions attempting to regulate women's behavior and reproductive capacity. The Criminalization of a Woman's Body thoroughly discusses these special laws governing women's personal choices and the threats these laws and court decisions pose to women's autonomy and constitutional rights. Scholars from Israel, Italy, and the United States provide a multidimensional discussion of the problem facing women in many, if not all, countries. Contributors represent various disciplines including, law, philosophy, medicine, political science, sociology, women's studies, and criminal justice. Articles analyze sensitive issues surrounding abortion and its impending criminalization in several countries; controversial topics on contract motherhood; the power of administrative agencies to control and informally criminalize pregnant women and new mothers; policies meant to protect the fetus from pregnant women who deviate from medically, socially, and legally sanctioned behavior which may deter women from seeking any medical care; and the destruction of families due to the criminalization of pregnant women and new mothers and the consequent removal of their children and placement into foster care. Professors, students, librarians, agency workers dealing with women's issues, and women and men in the general public will find this important book a helpful tool in sorting through the complex issues on criminalizing women's bodies.

Contract Motherhood: Social Practice in Social Context

Mary Gibson

Mary Gibson, PhD in Philosophy from Princeton University, is Associate Professor at Rutgers, the State University of New Jersey. She is the author of Workers’ Rights and a member of the Task Force on Reproductive Practices of the New Jersey Commission on Legal and Ethical Issues in the Delivery of Health Care.

An earlier version of this paper was presented at the American Philosophical Association Eastern Division meetings, Washington, DC, December 1988. I am deeply indebted to the commentator. Iris Young, for her patience and encouragement as well as her constructive and insightful comments. I also want to thank the participants in the discussion at that session. I have benefitted from discussions with and comments by many people, including the participants in a faculty/guest discussion group that met regularly during the Spring 1988 semester at Rutgers, New Brunswick; participants in a graduate seminar on Feminist Ethics and Reproductive Practices I conducted at Rutgers in the Fall 1988 semester; the members and staff of the Task Force on Reproductive Practices of the New Jersey Commission on Legal and Ethical Issues in the Delivery of Health Care (the Task Force met approximately once a month from Spring 1988 through November 1990); participants in the Center for the Critical Analysis of Contemporary Culture, Rutgers University, 1988–89; and the participants in a presentation/discussion October 1990 in the Rutgers Philosophy Department’s Colloquium series. The Rutgers University Research Council provided a grant that covered some photocopying and telephone costs associated with this project. Individuals (some in the above-mentioned groups and some not) I especially want to thank are Barbara Andolsen, Adrienne Asche, Sarah Boone, Martin Bunzl, Mary Sue Henifin, Nancy Holmstrom, Helen Holmes, Alison Jaggar, Howard McGary, Anne Reichman, Fadlou Shehadi, Lee Silver, Nadine Taub, Alan Weisbard, Bruce Wilshire, and Linda Zerilli.

SUMMARY. This paper begins with an account of, and location of the author’s (socialist feminist) approach within, the feminist debate about contract or “surrogate” motherhood. Contract motherhood must be seen not simply as a transaction among individuals, but as a social practice arising in a particular social context. After exploring the social context, objections to the practice on grounds of exploitation, commodification, alienation, and autonomy are discussed and defended. The author concludes that commercial contract motherhood should be prohibited and brokering criminalized, and that all motherhood contracts, paid or unpaid, should be void and unenforceable.

INTRODUCTION

There is very broad consensus among feminists concerning the need to protect women’s access to safe, legal abortions, and more generally to protect women from governmental interference in our reproductive lives. Yet, there have emerged deep and difficult divisions concerning the appropriate stance with respect to contract motherhood.¹ These difficulties arise, at least in part, from the fact that the issues it raises intersect two more general ongoing debates among feminists that are seen, correctly in my view, as having enormous theoretical and practical/strategic import. These two larger debates may be termed (1) the debate over the priority of the individual or the social, and (2) the debate over the meanings and relative importance of equality and difference both between and among women and men (the equality vs difference debate). Both debates involve metaphysical/ontological, methodological, and political/strategic dimensions. The theoretical and the practical/strategic aspects are, of course, closely but complexly related.

The contract motherhood debate illustrates the significance of the difference between focussing on individual choices and acts on one hand and on social practices in social context on the other. It shows how one’s choice of individual or social focus is likely to influence one’s stand on the equality vs difference debate. At the same time, it challenges us to make clear the implications of divergent interpretations of difference.

Many liberal feminists, who see the ultimate defense of women’s reproductive freedom in terms of individual rights to privacy and personal choice, respect for the autonomy of each woman as an individual and related notions, tend to see these same considerations as providing, indeed entailing, a defense of women’s right to engage in contract motherhood. In their view, to deny women this right is not only to violate their privacy (as well as that of the person(s) who might wish to engage their services); it is to treat gestation and birth, capacities unique to women, as fundamentally different from other human capacities that are routinely contracted and paid for in our society, and to treat women, in their exercise of this capacity, as less than fully rational or responsible, that is, as less than equal. If women may be denied this reproductive choice on such grounds, what is to prevent their being denied all reproductive freedom on the same grounds? Thus liberal feminists tend to come down on the individual side of the individual vs social focus debate and on the equality side of the equality vs difference debate.

Others, socialist feminists for example, while recognizing both the importance of these considerations and the strategic necessity often to press the case for reproductive freedom in terms of rights to privacy and choice (individual rights being the “coin of the realm”), have been concerned to recognize and articulate the limitations of this approach. As socialist feminists see it, the tendency of most contemporary liberal Western moral theory to concentrate primarily on individual acts, and the attendant tendency to separate ethics (conceived of as concerned with the behavior, intentions, and motives of individuals) from social/political theory² severely limit the capacity of these theoretical approaches adequately to deal with issues that have profound socio-political as well as personal implications. Thus socialist feminists have been working to develop less individualistic approaches more attuned to the interaction and interdependence of the personal and political.³ In these approaches, the actual existing social, historical circumstances, including the potential for development or change in various directions, assume a degree of primacy, in that specific conceptions of rights, privacy, and autonomy are seen as shaped and conditioned by them. There is no given, historical realm of privacy, for example, that can fix appropriate limits of governmental/societal concern and intervention. For socialist feminists, the actual and potential impacts of existing and proposed social practices and policies on various social groups, particularly oppressed or subordinated groups, play a fundamental role in determining theoretical and practical principles and priorities. Socialist feminism, then, denies the inherent priority of either the individual or the social, regarding them as inextricably interdependent, and insisting that individual acts and relationships be considered in their social context.

In this paper, I employ such an approach in examining and assessing the practice of contract motherhood. For, in my view, it is crucial to a theoretically adequate understanding of contract motherhood, and hence to morally and politically acceptable resolutions of the issues it raises, that it be viewed, not simply or even primarily, as an interpersonal transaction among individuals, but as a social practice arising from particular institutional, structural, and ideological conditions within a particular social context and having particular meanings and implications constructed and conferred by that social context. A social practice may be constituted by constellations of individual acts, but the practice is not reducible to the acts that constitute it. For the acts are the particular acts they are, incorporating the intentions and beliefs and eliciting the understandings and responses they do, largely in virtue of the social context in which they occur, including the existence of the practices they help constitute.⁴

This is not, of course, to suggest that all socialist feminists would agree with all aspects of either the discussion or the policy proposals presented here. One place we often diverge is at the strategic or policy level of the equality vs difference debate. Socialist feminists hold that, while differences are real, their significance is socially constructed and conferred. Thus, disputes arise about whether and in what ways feminists should insist that women be treated the same as men, even where the significance of difference is great (in an attempt to deconstruct, or at least not reinforce its significance), and when we should insist that we be treated differently in recognition of the real disadvantages we otherwise suffer given the pervasiveness and persistence of societal practices, institutions and attitudes that constitute the impacts of gender on every aspect of our lives. Thus some socialist feminists are persuaded that the consequences for women in our society of prohibiting or severely restricting the practice of contract motherhood would be worse than the consequences of permitting and regulating it.

For better or worse, the approach is sufficiently open-ended, the issues raised by contract motherhood sufficiently complex and multi-faceted, and the empirical judgments concerning the likely effects of various policies sufficiently speculative as to leave room for some variation in conclusions, even among persons who share the basic approach and assumptions. At the same time, for those of us who favor prohibiting at least commercial contract motherhood, there is the uncomfortable fact that our policy proposals on this matter are substantially in line with those of some feminists and many non-feminists or even anti-feminists with whom we profoundly disagree on some (in the latter cases, virtually all) basic assumptions.

In the first category are essentialist and some cultural feminists⁵ with whom we agree that the severing of the relationship between birthmother and child is one of the worst aspects of contract motherhood and that there should be a strong presumption in favor of the birthmother in the event of a custody dispute arising out of a contracted birth. We are in agreement on both the urgent need to protect and expand reproductive freedom for women and the danger that societal developments that appear to enhance such freedom in individual cases may in fact diminish it by increasing medical, technological, judicial, and other forms of societal control over reproductive options, choices, and experiences.

We do not, however, agree with what we see as a tendency on the part of these feminists to romanticize and mystify the mother-child connection, based on gestation and birth, and to privilege this over all other relationships.⁶ Such an essentialist view of the meaning of motherhood, and hence of the significance of the difference in reproductive roles of women and men, strikes us as dangerously close to the views of those who, on religious or other grounds, regard women’s nature and purpose as bound up with our presumed reproductive capacity in such a way as to justify restricting or eliminating entirely our reproductive choices, as well as prohibiting or controlling other activities that might interfere with our “natural” reproductive function. These, then are the strategic stakes in the equality vs. difference debate.

For these reasons, one of the most difficult aspects of this topic, for me and for many other feminists struggling with it,⁷ is to find an appropriate and tenable ground between treating gestation and birth as nothing (merely a reproductive service, incubation) and treating it as everything (the most profound and creative human act, giving rise to the deepest and most valuable of human relationships). Indeed, many discussions of the topic seem to presuppose that one must choose between glorification and nullification of pregnancy and childbirth. Glorification stresses the uniqueness and importance of gestation at the risk of reducing women to our (presumed) reproductive role and hence encouraging compulsory motherhood. Nullification minimizes gestation, refusing to privilege it over the male contribution to reproduction, in order to stress that, like men, women are more than our (presumed) reproductive capacities. It risks denying the substantial difference between the involvement of women and men in the process of reproduction and hence ignoring the potential impact of this difference on relative advantage and disadvantage in other pursuits. Nullification also encourages dismissing the uniqueness and the profound importance to many women and children of the relationship that often does develop between woman and fetus/infant during the processes of gestation, birth, and nursing.

We cannot afford to choose between the options so conceived, for the dangers perceived in each are very real, and they do not function as counterweights, but rather as complements to one another: on one hand, women are equated with our presumed role in reproduction, and on the other, women’s role in reproduction is equated with men’s. Women are thus reduced to reproducers and diminished as reproducers. Feeding either head nourishes the same beast.⁸ We must insist both on the importance and uniqueness⁹ of gestation and on the fact that women are more than their (presumed) gestational capacity and can be whole persons without having or expressing that capacity.

SOCIAL CONTEXT

As the practice of contract motherhood has emerged in our society, the most typical situation giving rise to it is that of a traditional, heterosexual married couple (the intended receiving parents) who want to have one or more children but are unable to because the wife is infertile, that is, unable to conceive and/or to sustain a pregnancy. In the “standard” case, the contract mother is artificially inseminated with the sperm of the intended receiving father, conceives, gestates, gives birth to an infant, delivers the infant into the custody of the receiving couple, and renounces all rights to a parental relationship with the child.

Although infertility is by no means a necessary condition for contract motherhood,¹⁰ many people regard the pain experienced by infertile couples as a compelling reason to welcome, or at least permit, contract motherhood as a procreative option. Indeed, there are some who would restrict it to such couples.¹¹ In this context, it is relevant to consider the incidence and the causes of infertility in the United States.

The most recent data available on the national incidence of infertility are from 1982.¹² At that time, an estimated 2.4 million married couples (8.5%) were infertile.¹³ The causes of infertility are not fully known, and several factors may be involved in a given case. Among the currently known causal factors are the following: pelvic inflammatory disease, often resulting from sexually transmitted diseases such as gonorrhea and chlamydia; iatrogenic causes, including drugs such as DES, devices such as IUDs, and infections resulting from operations such as D and Cs and appendectomies...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Introduction
• Abortion Approval as a Ritual of Symbolic Control
• Decriminalization or Legalization? The Abortion Debate in Italy
• Unwanted Pregnancy, Due Process of Law and Justice White
• Contract Motherhood: Social Practice in Social Context
• Surrogate Motherhood and the Morality of Care
• Prenatal Harm as Child Abuse?
• Punishment and Welfare: Crack Cocaine and the Regulation of Mothering
• Women and Fetus: The Social Construction of Conflict
• Mothers and Children, Drugs and Crack: Reactions to Maternal Drug Dependency