France, Luxembourg and Italy continue an ancient tradition whereby a woman can enter a hospital; give her name as X, indicating that she does not wish to reveal her identity; give birth; and leave her child in the hands of the authorities.[425] In Odievre v France,[426] the European Court of Human Rights, by a majority of ten to seven, upheld the provisions of the French Civil Code which enable anonymous birthing. Although the issue in that case is presented in terms of a right of access to information about one’s origins, it can be represented as a case concerned with the autonomy of the birthgiver. It is estimated that a current 400,000 French persons were born to anonymous mothers.[427] Pressure groups exist to change the French legislation, but, whilst it has been modified, the woman’s right has been maintained. The history of the French legislation has been documented elsewhere.[428] The focus here is on the construction of this right in the language of autonomy.

One approach to autonomy might argue that a woman who carries a child to full term and gives birth is not autonomous, for she is encumbered, confined, and analogous to the person portrayed in communitarian classics.[429] Even if this argument is acknowledged, it does not preclude the recovery of autonomy once confinement is over. In the French discourse of accouchement sous X, giving birth anonymously is positioned as a woman’s right.[430] This position was upheld by the European Court of Human Rights, although the rationale for the decision was more in terms of welfare than autonomy.

In the judgment of the majority of the Court, various interests had to be weighed. Article 8 of the European Convention on Human Rights has been interpreted to cover identity rights. The interests of the applicant, now an adult, in knowing her origins and the identity of her biological mother are placed against the interests of the birthgiver, ‘in remaining anonymous in order to pro­tect her health by giving birth in appropriate medical conditions’.[431] Further con­siderations are the general interest of protection of health of both child and birthgiver and the avoidance of abandonment of a child at birth. These interests are presented as the right to life under Article 2 of the Convention. The Court observed that the competing interests between applicant and her biological mother ‘do not concern an adult and a child, but two adults, each endowed with her own free will’.[432] This is the only suggestion of autonomy. It is noteworthy that, in justifying the decision, the right to life is trump, with welfare and health as the best suit.

Criticisms of the judgment are based on the identity rights of the child, recognised by international conventions, and come largely from France.[433] Other jurisdictions, such as Belgium and Hungary, provide a way for mothers to give birth discreetly. Some German Lander have already instituted baby boxes, where babies can be left anonymously, and legislation allowing anonymous births is under active consideration.[434] The language of justification in these jurisdictions is of protection of the life and development of the child. Thus, despite a growing trend in giving birth discreetly, it is only in France, Italy and Luxembourg that the political justification for anonymous birthing is couched in terms of women’s rights. Steiner comments on this: ‘One has to place the French legislation relating to anonymous birth in the wider context of parenthood, a concept in French family law at the heart of which has always existed an adult-centred individual­istic philosophy of freedom of choice.’[435] To a degree, the concept of parenthood in French law is a question of volition.

Examination of the French discourse surrounding accouchement sous X reveals a variety of arguments. Although the antiquity of the woman’s right involved goes back to the French Revolution, utilitarian arguments based on welfare and vulnerability and the characteristics of the women concerned are also used. Against the child’s identity rights, the right to life is positioned as trumps. Yet beneath these arguments lie legal and cultural attitudes to the mother-child dyad.

Could it be that becoming a mother in the new century requires a different form of self-abnegation from that of the past? This is the thesis that is advanced in popular literature from the United States:

Central to the new momism, in fact, is the feminist insistence that women have choices, that they have autonomy. But here’s where the distortion of feminism occurs. The only truly enlightened choice to make as a woman, the one that proves, first, that you are a ‘real woman’, and second that you are a decent worthy one, is to become a ‘mom’. Thus the new momism is deeply contradictory. It both draws from and repudiates feminism.[436]

Conclusion

Arguments about the self seem to turn into arguments about liberalism, agency and autonomy. Although liberalism may stand accused of denying ‘the centrality of relationships in constituting the self’,[437] an emphasis on each person as deserving equal concern and being of equal worth is valuable. This includes regarding women as of worth in themselves, rather than as reproducers and care givers. The trick is said to be to hold respect for choices alongside a web of connections that have moulded identity.

As feminists, we can fight against specific events, such as rape or abuse, and against structural conditions in the economy and social provisions that lead a woman to give up her child. But do we want to deny her the choice to do so? She may be making the best decision she can, for herself and her child. To stigmatise such a woman is wrong. Much of the post-liberal literature, with its emphasis on authenticity, suggests that choices are conditioned by socialisation, and that decisions can be inauthentic. We must be careful that such language does not hide coercion and a stereotypical idea of what it means to be a woman. Losing our analysis of the coercive nature of structures that limit lives has left feminist analy­sis at the mercy of the twin peaks of ‘autonomy’, as fleeting and only rarely exercised,[438] and socialisation, as restricting or even eliminating self-determination. Feminists must continue to fight for women’s freedom to be and to become. In the meantime, recognition that decisions about motherhood are made within structures and constraints, both diffuse and direct, should not lead us to deny the ability to make them.