Fetal Politics and False Dilemmas
Under the impact of "fetal personhood" ideology, women’s autonomy in pregnancy and decisions related to it has been subjected to new kinds of challenges in workplaces, clinics, and courts. These have included (1) employer actions to exclude women from jobs where there may be substances hazardous to reproductivity, (2) medical "advances" that treat the fetus as "patient" and the pregnant woman as the "maternal environment," and (3) "custody" suits in which the husband or male partner seeks recognition as an equal party in the abortion decision. Employers, doctors, and potential fathers have claimed "relationships" with the fetus that conflict with the pregnant woman’s and preempt her claim to autonomy. In this effort, they have drawn support from the idea that the fetus is a "separate person" with an existence independent of the pregnant woman. Behind this ideology, what is going on here is a struggle, not over the contents of the womb, but over the meaning of maternity and the competence of adult women to exercise judgment.
Employers in the auto, steel, chemical, and rubber industries, which have traditionally employed primarily men and have been severely affected by plant shutdowns and layoffs, began in the late 1970s to adopt a policy of excluding women workers from jobs that involve substances, such as benzene and lead, known to be hazardous to the developing fetus.73 A highly publicized case involved five women chemical workers at an American Cyanamid plant in West Virginia who were sterilized in 1979 when the company’s managers told them their only other alternatives were to be transferred to low-paying janitorial jobs or to be fired.74 This and similar cases raised fundamental questions, not only about "choice" or "consent," but also about the relationship between women and pregnancy and the uses of "fetal personhood" ideology to restrict the social mobility of women.
The pretext for excluding all women of childbearing age who are fertile, not just those who are actually pregnant or might expect to be, is an ostensibly "protective" one: that potential harm to the fetus may occur in the early weeks of pregnancy, before a woman knows she is pregnant. General Motors, DuPont, Goodyear, Firestone, and Allied Chemical, among others, have stated two motives for imposing such wholesale (and sex-discriminatory) "protection," both related to the idea that the fetus exists as a "person" independently of the pregnant woman.
One motive is legal, the alleged concern about employer liability for damaged offspring and future lawsuits by them or on their behalf. The other is "moral/’ the alleged concern with "protecting the unborn child" from harm.75 Of course, as labor and feminist activists opposed to such exclusionary policies have emphasized, the actual motive is to shift the costly burden of reducing workplace hazards from the companies onto the employment status of working women. But it is important to see how this evasion of corporate responsibility to provide a safe and healthy work environment for all workers draws legitimacy from the idea of the fetus as a separate "person" with rights and standing in the courts. Thus, according to reports in 1971 and 1977 by the National Council on Radiation Protection, a private, nongovernmental organization that helps to set radiation exposure levels:
The need to minimize exposure of the embryo and fetus is paramount. It becomes the controlling factor in the occupational exposure of fertile women. . . . For conceptual purposes the chosen dose limit [of radiation] essentially functions to treat the unborn child as a member of the public involuntarily brought into controlled areas.76
Opponents of female-exclusionary "protection" as an approach to the problem of reproductive hazards in workplaces have revealed many arbitrary and discriminatory aspects of the policy. First, it is highly selective, focused on female employment in heavy industry but so far totally unconcerned with the reproductive hazards to women in traditional, often risky occupations (e. g., hospital work, laundries, and clerical work involving radioactive computer terminals).77 This underscores that at least one aim of the policy is to eliminate gains in employment made by women under Title VII in "nontraditional" job sectors and to reinforce sex segregation in production.
Second, the policy ignores the fact that harmful mutagenic and teratogenic agents may be transmitted to the fetus through the male’s sperm, or may render him sterile; thus, as "protection" for the fetus or for reproduction, sex-exclusive policies are bound to be partly ineffective.78 This too suggests that the main purpose of the policy is to exclude women rather than to protect "the unborn," but there is an additional reason why the effects of reproductive hazards on men as well as women are overlooked in corporate policy. Because of the gender bias built into reproductive biology and medicine, "scientific studies have focused largely upon the placental transmission of harmful substances." The male role in reproduction is treated as though it did not exist; thus there is little "scientific evidence" to show the harmful effects through exposure of male workers.79
Above all, the treatment of all "fertile women" as potentially pregnant and potentially vulnerable both resurrects the patriarchal ideology of women’s destiny as childbearers and constructs the issue of reproductive hazards as one in which women’s employment rights and the "rights of the fetus" are diametrically opposed. That construction is false because it ignores that male workers too may transmit and be damaged by hazardous substances; because it disregards various arrangements whereby workers (both male and female) and their offspring might be protected without losing their jobs or seniority;80 and because it ignores the fact that most working women at any one time are not pregnant, have no intention of becoming pregnant, and in fact use reliable birth control regularly to make sure that they do not become pregnant. The real issue is that, once again, the woman’s capacity to evaluate risks, make judgments, and exercise care is being maligned; she cannot even be "trusted" to know whether she is likely to be at risk of pregnancy.81 It is worth pointing out that such an assumption is bolstered by a context in which abortion is not considered a ready option; in which full, thorough disclosure of hazards to workers is not a usual practice; and in which some reasonable job transfer or leave in case of pregnancy is not available. The focus on excluding all women from jobs involving harmful exposure evades the reality that no women, and no men, wish to have their offspring or potential offspring exposed to hazardous substances; but neither do they wish to lose decent jobs. It is an untenable dilemma.
The medical profession, along with corporations, has begun to assert a "protective" relationship to the fetus, both clinically and legally. This too is an ambiguous area. For couples who desire a child, the possibility of medical interventions to cure fetal defects in utero may be extremely heartening. What is far more problematic is the use, by doctors or social workers, of child abuse statutes to stop abortions or impose on pregnant women certain forms of prenatal care, and the use of court orders to force women into cesarean sections without their consent "because physicians testified that a vaginal delivery would endanger the fetus."82 An article in a 1981 issue of Obstetrics and Gynecology describes the case of a Colorado welfare mother, pregnant with her third child, who refused to undergo a cesarean section. The hospital called in a judge, a psychiatrist, and two lawyers—one to represent the fetus. Under this pressure, the woman finally acquiesced. Defending the hospital’s position, the authors claim
. . . that the state had… a duty to protect the children within its jurisdiction—including an unborn child—notwithstanding the wishes of the parents. . . that the state has an obligation. . . to intervene… to ensure that a child, even while unborn, is given the necessary medical treatment to protect its life over the unreasonable objection of the parents.83
The growing tendency of ob-gyn practitioners to view the fetus as their "patient" independently of the woman who carries it may, like corporate exclusionary policies, reflect fears of potential lawsuits, in this case for malpractice, by or on behalf of deformed children. But one senses that such fears are only part, perhaps an insignificant part, of the story. "Fetal surgery" is clearly becoming a new and heroic frontier of medical conquest, despite its enormous risks and costs. Although to date surgeons have rarely succeeded in saving a defective fetus, intricate techniques for removing the fetus from the uterus, treating it, and replacing it, or for catheterizing or operating on it in utero, are now considered "feasible," and some are widely available. "Any trained obstetrician with an ultrasound machine and a long hollow needle is entitled to try to treat a fetus."84
These technologies by their very existence seem to "deprivatize" the womb; it is no longer a woman’s "private space," and she is no longer the only or even the main patient in an obstetrical situation.85 The application of the techniques seems to give concrete reality to the idea of the fetus as "person," even as that idea is used to promote the prestige and heroism of the techniques. But this relationship is a purely symbolic or apparent one. The existence of medical technology that can treat the fetus in utero is no more evidence of the fetus’ "personhood" or "viability" than is the existence of maternity leaves; nor does it tell us when and whether the technology ought to be used and who should decide. Whether it is beneficial or unduly risky in any given case, it is currently being used ideologically to discredit or circumvent the decision-making autonomy of pregnant women, in consultation with doctors, about whether to carry through a pregnancy and through what medical means. It is a pretext for denying women’s capacity to consent and defining them as merely the biological vessels of the "unborn." Here again, women are put into an impossible dilemma: If the damaged fetus can be treated, does that mean it must be? Is the woman guilty of "neglect" if she refuses and complicit in denying her own autonomy if she doesn’t?
Finally, attempts to secure spousal consent and notification requirements for abortion, and court judgments supporting a "father’s" right to veto his wife’s abortion decision (thus far all unsuccessful), have extended the "fetal protection" banner to individual husbands. In one recent case in Maryland, apparently a test case brought by "prolife" forces, a circuit court judge upheld a husband’s argument that the Maryland Equal Rights Amendment (1972) gave husbands an equal say in decisions to terminate a pregnancy and granted an injunction against the wife’s abortion.86 (The wife in this case got the abortion anyway during a brief period while the injunction was stayed by an appeals court; the case is being heard on appeal.) The idea of the "father’s right to decide," though not definitively granted in the courts, is similar to the recent tendency of judges to apply "sex-neutral" child custody statutes in favor of fathers when custody is disputed.87 In both situations the concept of women’s "equality" is used as a device to reduce women’s control, in a way that is analogous to judicial repudiation of "protective" minimum wage laws for women in the backlash period of the 1920s.88 This is in interesting contrast to the "protective" strategy used in regard to reproductive hazards and women’s employment at the moment, indicating that both "equality" and "protection" can be turned into political weapons to deny women the conditions of autonomy. In both the custody and the abortion situation, the actual inequality in women’s and men’s long-term and socially defined responsibilities for children and in their access to the means of support is disregarded in assigning legal rights.
This is not to say that potential fathers may never have any moral claim to be consulted about an abortion. But under what circumstances does such a claim arise; what makes it valid? It should be evident that a feminist-humanist morality, which opposes biological determinism, cannot support a view that gives the male a legal or a moral right of consent or notification on the basis of his genetic connection to the fetus alone or the biological contribution of his sperm. Nor can the "marriage bond" be the basis for such a claim without implying a kind of ownership of the woman’s body and its procreative capacity inherent in patriarchal authority. The only basis for such a claim to have moral weight is through the social relationship established between the man and the pregnancy—the actual demonstration of care and involvement and responsibility in the situation, or in prior coparenting experiences. For the experiences of everyday life tell us that the potential for further socializing, further humanizing, the pregnancy process and the fetus’ development within it is very large. Some men mourn deeply the loss of a wanted pregnancy in a spontaneous or therapeutic abortion; they may participate in the reciprocal sensory and emotional consciousness I described earlier, feeling the fetus’ movements and integrating a sense of its being and potential "personhood" into their own identity. Similarly, they may share, out of their understanding of the immediate conditions enveloping a pregnancy, in the moral judgment prompting an abortion decision. That this is so simply confirms that the process of bringing-into-consciousness or selfhood that we call "nurturance" or "maternity" is not mainly a biological but a social one. But the presumed right of the man to be informed or consulted should not override the woman’s right to make the final decision; it should not be exercised as a veto because there remains a biological dimension of this process that is irreducible. Apart from the question of social responsibility for children after they are bom, pregnancy is a condition specific to women; the consequences, at least during the period between conception and delivery, and the contingent rights are not and cannot be equalized.
If we concede that male partners have certain contingent (but not equal) rights in the pregnancy experience, although those rights cannot preempt the woman’s, can they be legally enforced? Like parental consent and notification rules, those regarding spouses have to be seen in the context of existing social and power relations. A court-enforced system requiring consent or notification of the husband when a woman seeks an abortion would be redundant and unnecessarily invasive in the case of couples who have a cooperative and loving relationship; it would become a means of punitive surveillance over women’s sexual behavior in the case of those who do not. In fact, such proposals are intended by their right-wing sponsors as a deterrent to both abortion and "illicit" sex. Paternal claims "to protect the life of the child he has fathered in his wife’s womb" rest not only on the ideological premise of "fetal person – hood"—that the fetus exists and has rights independently of the pregnant woman—but also on a traditional proprietary interest in the wife’s body and its progeny.
Yet there is a troubling problem here. How are men to exercise greater responsibility and care in the processes of reproduction if women insist on exclusionary control? Increasingly, male partners voice complaints about feeling excluded, by both female partners and clinic personnel, from the abortion decision and the procedures surrounding it.89 Meanwhile, feminists criticize the gender bias in reproductive health care and its persistent definition as a "woman’s" problem. Responding to these pressures, some abortion and family planning clinics have opened their counseling sessions to male partners and even allowed the male to accompany the woman throughout the procedure. But the reality is that this supportive role is not forthcoming from many men.90 Even the nurturant, sharing behavior of some men receives little enforcement from the dominant culture and reproductive politics. If women sometimes act to reinforce gender divisions around reproduction, concealing their pregnancies and their abortions and taking on all the responsibility, they do so in a larger social framework in which women are still blamed for both unwanted pregnancy and abortion. It is a culture in which male supportiveness and shared responsibility in any aspect of maternal work are still considered exceptional and noble rather than a matter of course. Current legislative and judicial measures challenging women’s "right to choose" in the name of paternal rights are not in the least motivated by a spirit of support for women or shared responsibility but by an adversary posture in which the woman is pitted against the fetus and its "protective father." There is no intention by the right or the state of questioning the existing arrangements whereby primary responsibility for most aspects of reproduction and the care of children remains with women. Nor is there concern about the implications that involuntary pregnancy and childbearing may have for a woman’s life and that of a prospective child. Perhaps we are left to conclude, then, as Margaret Sanger did in 1920:
In an ideal society, no doubt, birth control would become the concern of the man as well as the woman. The hard, inescapable fact which we encounter today is that man has not only refused such responsibility, but has individually and collectively sought to prevent woman from obtaining knowledge [and resources] by which she could assume this responsibility for herself.91
Again, we return to the principle that morality cannot be separated from the social conditions and concrete situations in which moral judgments take place. As long as pregnancies occur in women’s bodies, change their bodies, and restructure their lives, there can be no conditions in which women will not need access to safe abortions and the ultimate right of decision. In a different world, in a different set of social arrangements where men’s care and responsibility for children are a matter of customary practice and public policy and women have a full measure of power in the political economy, then a social dialogue about men’s relation to the abortion (and birthing and childrearing) process will have a different and fuller meaning. In the meantime, on the levels of both personal relationships between women and men and public policy, we seem locked into the dilemma with which this book began: How do women negotiate between the social (yet personal) need to extend responsibility for reproduction to men and the state and the personal (yet social) need to defend their control over the terms and conditions of reproduction? How do we create radically new arrangements of shared responsibility for children, including the power over whether they are bom, in a world where women still have power over little else?
This arouses in us an awareness of the "injustice in the very occurrence of the dilemma."92 We must, finally, take a moral stance that is also a political stance: to refuse the terms of the dilemma, to reject being caught between unviable "choices." This is very different from demanding the "right to choose." We are saying that we reject the choices: We reject a system of production in which childbearing and jobs with decent pay are incompatible, and in which workers have no control over the health hazards to which they are subjected. We reject a medical-care system in which it is possible or thinkable for physicians to treat fetuses as separate, and adversary, medical subjects from pregnant women and to evade the woman’s right to informed consent on that ground.93 We reject a dominant sex-gender system in which men assert power over women and children without being obliged to learn the painstaking, ambiguous discipline of "maternal thinking," while women’s practice of that discipline, however flawed, is never rewarded with social power (as participation, not domination). In short, making authentic moral judgments about abortion and having choices that are real involve changing the world.