Michele Bratcher Goodwin,
"Reproductive Carrots and Sticks"
(page 2 of 9)
Ironically, ARTs, which are virtually unregulated at state and
federal levels, can pose far greater risks to a fetus as the failure
rate is at least 66% (and higher in older women), and the dangers
associated with the procedures include premature birth, multiple
gestations, low birth weight babies, miscarriages, and higher incidences
of cerebral palsy, hearing impairment, and cognitive delays in the
newborns than in the general population. In cases involving fetal
crowding resulting from multiple gestations, babies might survive in
utero, but die after birth. In some cases, the fetuses do not survive
to delivery. Legislators overlook the health risks associated with
these types of pregnancies, despite the known medical complications
associated with aggressive fertility cocktails that often accompany ART
therapies. Serious child and maternal health problems can result from
ARTs. Indeed, the intense fertility drugs, combined with the choice to
implant multiple embryos can be directly linked to multiple gestations
and low birth weight babies.
Perhaps legislators and prosecutors focus their attention on
crack and methamphetamine users because they believe that babies exposed
to these substances in utero are far more at risk of serious health
problems than other babies. But, this view of fetal health lacks
empirical support. In recent years, medical organizations such as the
American Medical Association, and others, have dismissed the
"crack baby" phantom child as a myth. Indeed, reputable peer-review
medical journals such as the Journal of the American Medical Association
(JAMA) and the New England Journal of Medicine (NEMJ) now refuse to
publish articles using the term "crack baby." The decision made by
these esteemed medical journal editorial boards to retire the term
"crack baby" was not based on appeals or petitions from activist
organizations representing institutionalized mothers. Rather, empirical
research published in JAMA revealed that the so called "crack baby" does
not exist.[2]
More than a decade ago, a study sponsored by the National Institute
of Health indicated that the effects of cocaine use during pregnancy
were not as severe as depicted in media accounts. In a compelling study
published in JAMA, Deborah
Frank and her colleagues reviewed thirty-six studies and determined that
the risks of exposure to crack during gestation are not as severe or
long-ranging as researchers and media pundits claimed two decades ago.
The authors suggest that other known indicators of human growth and
setback, ranging from poverty to other drugs, may play as much if not a
greater role in determining the health outcomes in
children.[3]
Nevertheless, FDLs are also over-inclusive, as they call for the criminal
prosecution of drug-afflicted pregnant women who carry babies to term
whether or not the baby suffers an adverse consequence linked to the
mother's drug dependence.
This paper conceptualizes the new fetal drug law movement as the
struggle between the use of carrots and sticks in regulating women's
reproduction. Such laws undermine Constitutional law principles as they
focus exclusively on maternal conduct, destabilizing the law's aim to
achieve equal protection between the sexes. Fetal drug laws hold women
to a different standard than men as achieving a pregnancy is not an
asexual function. And within the gendered space, FDLs often place poor
women at an even more vulnerable status. The paper argues that the
stick (criminal) approach to regulating women's pregnancies lacks
political rationality and leads to unjustifiable externalities in a
civil society as well as extra-legal punishments resulting in
stigmatization, shame, humiliation, and stereotyping.
This project offers an alternative framework for analyzing fetal drug
laws. It examines the reasonableness and rationality of such laws both
from the perspective of the legislative enactments and the
reasonableness of pregnant women's conduct. At the core of this project
looms an alternative lens through which to assess rationality and
reasonableness of drug-dependent women. For example, is it rational
for a drug-dependent woman to attempt to bring a baby to term? Equally
as important, should a drug-dependent woman's pregnancy be evaluated any
differently than that of any other woman? Should drug-dependent
pregnant women enjoy legal protections to bring a baby to term?
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