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.”1
Watch video 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 reproduction.
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.
- 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 Barnard College in 2009, and inspired considerable conversation. Part of that conversation continues in this essay and the comments provided by my esteemed colleagues in this special issue. See Michele Goodwin, “Prosecuting the Womb,” George Washington Law Review 76 (2008): 1657. [↩]
