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Controlling the Woman to Protect the Fetus

Published online by Cambridge University Press:  29 April 2021

Martha A. Field
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Even many women who view reproductive capabilities not as a detriment but as an important source of joy in their lives recognize that women's reproductive capabilities have long been used to oppress them. The ability to reproduce has been an important factor in women's loss of control over their own lives, contributing to their being controlled by chance, by government, and by other people—husbands, boyfriends, parents. In the past, to the extent that reproduction has not been left to chance, the woman herself has often not been the decision-maker. Husbands have often coerced women into producing and raising offspring when they did not want to, and societal attitudes have had the same effect of encouraging marriage, then motherhood. Historically, state governments have participated in coercing childbirth as well, some by prohibiting or restricting birth control and all states by prohibiting abortion.

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Article
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Law, Medicine and Healthcare , Volume 17 , Issue 2 , Summer 1989 , pp. 114 - 129
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Copyright © American Society of Law, Medicine and Ethics 1989

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References

The same possibilities for actual decision-making power, as opposed to legal decision-making authority, do not exist for decision-makers other than the mother—for the state, for example, or for husbands—because the mother as childbearer could avoid many restrictions even if an outsider were given legal decision-making power. If, for example, the legal rule were that a wife could not obtain an abortion without the consent of her husband but a pregnant married woman wanted an abortion, she might simply not inform her husband that she was pregnant and in seeking an abortion she might not inform the doctor that she was married.Google Scholar
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Obviously some births always will take place away from the hospital, accidentally as well as intentionally, but a legislature could attempt to prohibit deliberate home births by imposing fines on women for willfully failing to report for hospitalization when their labor commenced, or by punishing doctors, midwives and others for agreeing to assist at a home birth.Google Scholar
One writer would utilize a reporting system as part of the enforcement mechanism, and would intervene to prevent the home birth, as well as threatening criminal punishment and removal of the infant under child or fetal abuse laws. See Bross, Donald, “Court-Ordered Intervention on Behalf of Unborn Children,” Children's Legal Rights Journal, 7 (1986): 11–15, at pp. 13–14.Google Scholar
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The language concerning fetuses in the statute had been added in 1925, when the statute applied only to fathers, and it was intended to impose liability upon the father-to-be who refused to provide support to the woman he had impregnated. Later the statute was amended so that it applied to mothers as well as fathers. The effect, however, according to the court's ruling, was to make women as well as men financially responsible for the expenses of pregnancy, but not to impose upon women an obligation to obey doctors' orders. See generally, Note, “Maternal Rights and Fetal Wrongs: The Case Against Criminalization of ‘Fetal Abuse,’” Harvard Law Review 101 (1988): 994–1112, note 1.Google Scholar
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The prosecutor might have found it difficult to prove that these activities were responsible for the condition of the baby when born, and not earlier events or conditions.Google Scholar
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Most forced cesareans have been performed on women who were poor and were members of racial minorities; many of the women did not speak English and had beliefs and attitudes about childbirth that their doctors did not share. See Kolder, Gallagher, Parsons, , supra note 22, at p. 1195.Google Scholar
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The only way states could treat the mother and father equally would be for the state itself to adopt a preference for or against abortion: For example a rule that abortion was permissible only if both parents consented to it (a preference for childbirth) or alternatively a rule that childbirth was permissible only with the consent of both (a preference for abortion). Today such rule would be unconstitutional under Danforth, even though in other contexts the Supreme Court has permitted government to make “a value judgment favoring childbirth over abortion… .” Maher v. Roe, 432 U.S. 464, 474 (1977). See Harris v. McRae, 448 U.S. 297 (1980). And even if they were not unconstitutional, either rule would pose extreme problems of workability. See note 1 supra.Google Scholar
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If the state can control the pregnant woman's behavior, why cannot the husband come to court to force on his wife behavior that best comports with the well-being of the fetus, as the husband tried to do in Taft v. Taft, 446 N.E.2d 395 (Mass. 1983)? Nothing in Danforth would prevent the state from allowing the husband to initiate decisions to control the wife's behavior over decisions that are within the state's regulatory power.Google Scholar
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Another instance of women being treated as fetal containers is evident from the traditional exceptions to prohibitions of abortion for cases of rape and incest. It is difficult to explain such exceptions from a right-to-life perspective, since the fetus's origins are not the fetus's fault. Nor is the explanation that the woman is invariably “faultless” in these situations and not in others, for she may have consented to incestuous acts. The only correlation is with the fault of the father, whom the exceptions punish by not permitting him to use the woman to perpetuate his genes.Google Scholar
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