Reproductive Carrots and Sticks
This essay is a shortened reflection from an
earlier work, "Prosecuting The Womb," published by the George
Washington Law Review. That project was presented at The Scholar & Feminist Conference 2009,
"The Politics of Reproduction: New Technologies of Life," held on
February 28 at Barnard College in New York
City, as part of the panel discussion "Marginality and Exclusivity in ART Practices."
of Professor Goodwin's presentation.
Listen to a podcast
of "Marginality and Exclusivity in ART Practices."
Nowhere is the geography of a woman's body more contested than in the
reproductive sphere and space. Nowhere else across her body has there
been an internecine struggle (of Constitutional proportion) to determine
whether that space deserves a right of privacy or is subject to public
regulation and social scrutiny. Within that space there are two
approaches to categorize potential state response to vulnerable,
drug-dependent, and drug-using pregnant women: the carrot and the stick.
Not surprisingly, the carrot-based approach includes rehabilitation,
counseling, and empathy. Alternatively, the stick approach uses a
different set of values: it embraces disincentives, deterrence, and
punishment to discourage not only drug use, but also sex and
In the 21st century, reproductive freedom translates differently
across race and class lines. On one hand, reproductive freedom
translates into a multi-billion dollar assisted reproductive technology
(ART) industry. In that sphere, a woman's reproductive possibilities
resemble a candy store of options: freedom to purchase ova and sperm in
her local community or across the country and world, in vitro
fertilization, pre-implantation genetic diagnosis, intracytoplasmic
sperm injection (ICSI) of ova, embryo grading, cryopreservation of ova,
assisted hatching, embryo transfer, day five blast transfers, and more.
Increasingly, some of the options can be facilitated from the comfort of
a woman's home; with the click of a computer button, she can purchase
sperm, rent a womb, buy ova, and select a clinic to help build a baby.
For wealthy women (infertile or not) reproductive privacy and freedom
are tangible concepts in uninterrupted operation.
But the 21st century reveals another reproductive space, one that is
far less celebratory and attractive, with fewer options, and the threat
of punishment overarching pregnancies and compromising the
physician-patient relationship. In this alternate reproductive realm,
public regulation trumps expectations of privacy. In this space,
pregnant women's reproductive options are deeply constrained and
contested. For example, a woman's poverty and drug consumption during
pregnancy could result in severe legal consequences, including
incarceration and even shackling during labor depending on the state in
which she resides. In this space, a woman determined to carry a
pregnancy to term could be subject to criminal prosecution,
incarceration, and giving birth while in prison, sometimes without the
appropriate aid of hospital physicians and staff.
The gulf dividing the reproductive statuses and freedoms afforded
women who use ARTs as compared to those who are poor drug users might
seem instinctively reconcilable, if not justifiable and rational. For
example, legislators claim that they enact fetal drug laws (FDLs)
because states have an interest in protecting fetuses from in utero
harm. Critics argue that such laws are far too selective, primarily
focusing on poor women who seek treatment at public medical centers.
Critics also point to the gendered dynamic of such laws. Ironically,
FDLs often explicitly focus only on women, overlooking a well-vetted
empirical literature on domestic violence against pregnant women, which
also threatens fetuses.
But taken at their value, FDLs suffer from other serious flaws.
These laws are under-inclusive in that they perceive risks of fetal harm
as resulting only from maternal use of illegal drugs. This notion of
pregnancy and gestation misreads a persuasive and well-vetted scientific
literature indicating that poverty—as an isolated indicator—has far
greater detrimental impact on health outcomes for babies and children
than does a mother's ingestion of crack during pregnancy. Other
factors, such as obesity, smoking cigarettes, paternal age, and even
drinking lemon-based non-alcoholic drinks during pregnancy, can impact
whether a baby is born healthy or not.
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