Reconceiving Pregnancy: Expressive
Choice and Legal Reasoning
Erin Nelson*
the
is a theoretical
The author discusses
issue of medical
intervention in pregnancy, and suggests that what is
missing from the present discourse on pregnancy and
the law
framework for choice or
decision-making in pregnancy. It is suggested that the
inability to formulate an adequate mode of reasoning
about the problem of medical intervention in pregnancy
has to do with the way in which decision-making in
pregnancy is characterized. The author provides an
overview of contributions made to the legal academic
literature by feminist theorists of varying persuasions
and notes that the debate, as framed by feminist writing
on the issue, is largely about choices, rather than
choice. The author outlines the underpinnings of a new
approach to the question of choice in pregnancy, based
on an expressive theory of choice, and considers the
contribution that such a theory might make to the
complex legal and ethical dilemmas that can arise when
a pregnant woman refuses medical treatment proposed
for the benefit of the fetus.
durant
trace
les
la grossesse. Selon
L’auteure discute de la question de l’intervention
m6dicale durant la grossesse, et sugg~re qu’il manque,
dans le discours actuel sur la grossesse et le droit, un
cadre th6orique pour analyser le choix et la prise de
d6cision
l’auteure,
l’incapacit6 A formuler un cadre de rdflexion adapt6 au
problme de l’intervention m6dicale durant la grossesse
r6sulte de la mani~re dont est caract6ris6e la prise de
d6cision durant la grossesse. L’auteure propose une
revue des littdratures juridiques f6ministes de toutes
all6geances sur la question, et constate qu’elles ont
tendance a parler de plusieurs choix plutft que du
choix en g6n6ral. D’apr~s l’auteure, la conception
lib6rale traditionnelle, qui sous-tend ces discours, doit
8tre
lindaments d’une
nouvelle approche
la question du choix dans la
grossesse,
th6orie expressive. Elle
examine ensuite
th6orie
pourrait offrir A la r6solution de dilemmes juridiques et
6thiques complexes auxquels peuvent dormer lieu la
d6cision d’une femme enceinte de refuser un traitement
potentiellement b6n6fique au fRetus.
la contribution que cette
revue. L’auteure
fond6e sur une
* Assistant Professor, Faculty of Law, Research Associate, Health Law Institute, University of
Alberta. This paper was written in partial fulfillment of the requirements for the J.S.D. degree in the
School of Law, Columbia University. I would like to thank Carol Sanger, Bill Sage, Michelle
Oberman, Lorna Davidson, Belinda Smith, Tun Caulfield, Michael Pratt, and Annalise Acorn for
comments on earlier drafts of this paper and for many helpful and patient conversations. I would also
like to thank the anonymous reviewers and the editors at the McGill Law Journal for their thoughtful
comments and suggestions. I would, in addition, like to acknowledge the able research assistance of
Sarah Eadie and Fiona Moore. Finally, I gratefully acknowledge the financial support of the Social
Sciences and Humanities Research Council of Canada, the Alberta Law Society Viscount Bennett
Award Committee, and Columbia Law School.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 593
Mode de r6f6rence : (2004) 49 R.D. McGill 593
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
Introduction
I.
Intervention in Pregnancy
II. Characterizing Decision-Making in Pregnancy:
The Contradictory Legal Language of Choice
A. The Abortion Choice
B. Choice and Medical Knowledge
C. Pregnancy Analogized
Ill. Choice and Theoretical Commitments
A. Feminist Legal Theory and Choice
1. Framing a Feminist Response
B. Reconceiving Choice: Imagining Alternative Ways
of Reasoning About Decision-Making in Pregnancy
1. The Role of Norms: Pregnancy and Motherhood
2. Expressive Choice in Pregnancy
Conclusion
596
598
601
601
607
610
611
611
616
618
622
627
2004]
E. NELSON – RECONCEIVlNG PREGNANCY
Angela Carder was twenty-seven when she died. She had had osteosarcoma as an
adolescent but was in remission when she married and became pregnant. When she
was twenty-five weeks pregnant, she began to have trouble breathing. Angela’s
oncologists discovered that she had developed a large tumor in one of her lungs.
Angela’s doctors felt that her chances of survival were remote, but if she could live
until her fetus reached twenty-eight weeks of gestation, it would have a better chance
of survival. Angela emphasized to her doctors that her main priority was her own
comfort and agreed to a course of palliative treatment. Angela’s condition deteriorated
rapidly, much more rapidly than the doctors had expected. At twenty-six weeks into
her pregnancy, she was sedated and put on a ventilator to assist her breathing,
interventions
that seriously impaired her ability to communicate. The hospital
administrators, without telling her, sought an order to permit delivery of the twenty-
six-week-old fetus by Caesarean section. When Angela was told of the court order,
she initially agreed to the surgery. She revoked her consent half an hour later,
mouthing the words “I don’t want it done. I don’t want it done.” The Caesarean
section was performed. Angela’s “baby girl weighed 1.7 pounds and had fingers the
size of matchsticks. Her lungs were so underdeveloped the doctors could not even
ventilate them artificially.”1 The baby died two-and-a-half hours later. Angela “cried
when they told her.’ 2 She died two days later.
In 1984, a Nigerian woman in Chicago was admitted to hospital for the remainder
of her pregnancy with triplets. The doctors advised that a Caesarean section was
necessary for a safe birth. The woman and her husband refused, as they believed that
a natural delivery would be safe. They also “planned to return to Africa, to an area
where a cesarean delivery might not be possible should they have children later. They
wanted to prevent future complications caused by use of cesarean section.” 3 As the
due date approached, the hospital sought and obtained a court order “granting the
hospital administrator temporary custody of the triplets and authorizing a cesarean
section as soon as the woman went into labor.”4 The woman was not informed of the
court order and was not given an opportunity to seek care elsewhere. When told of the
intended delivery by Caesarean section,
the woman and her husband became irate. The husband was asked to leave,
refused, and was forcedly removed from the hospital by seven security officers.
There are multiple accounts of Angela Carder’s story; this one is taken largely from Tracey E.
Spruce, “The Sound of Silence: Women’s Voices in Medicine and Law” (1998) 7 Colum. J. Gender &
L. 239 at 241. The case referred to is Re A.C., 533 A.2d 611 (D.C. App. 1987); rev’d 573 A.2d 1235
(D.C. App. 1990). The trial judge’s decision to order the Caesarean section was initially upheld on
appeal and then reversed on rehearing by a full panel of the D.C. Court of Appeals.
Spruce, ibid.
3 Lisa C. Ikemoto, “The Code of Perfect Pregnancy: At the Intersection of the Ideology of
Motherhood, the Practice of Defaulting to Science, and the Interventionist Mindset of Law” (1992) 53
Ohio St. L.J. 1205 at 1243.
4 Janet Gallagher, “Prenatal Invasions & Interventions: What’s Wrong with Fetal Rights” (1987) 10
Harv. Women’s L.J. 9 at 9 [Gallagher, “Prenatal Rights”].
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The woman became combative and was placed in full leathers, a term that
refers to leather wrist and ankle cuffs that are attached to the four comers of a
bed to prevent the patient from moving … the woman continued to scream for
help and bit through her intravenous tubing in an attempt to get free. 5
Introduction
These are stories of anguish and of rage. They may be among the most shocking
accounts of forced obstetrical intervention, or they may be typical of reports about
intervention in pregnancy.6 They are narratives about intervention in pregnancy but
they are also stories about how it might feel to be a competent, autonomous adult and
to suffer bodily invasion at the hands of health care providers whom you had trusted
to respect your wishes.
The past two decades can be thought of as an upswing (on the autonomy side) of
the pendulum that oscillates between the values of autonomy and beneficence as
paramount in health care ethics.7 Despite the apparent ascendance of autonomy in
health care ethics and law,8 we continue to see instances of medical intervention in
pregnancy.9 This is a problem that resides at the intersection of astonishing progress in
medical technology 10 on the one hand, and regressive attitudes about the rights and
responsibilites of pregnant women on the other.’1
‘ Ibid. at 10.
6 As Rachel Roth points out, “[i]t is impossible to determine the full extent of court-ordered medical
intervention in the lives of pregnant women”; we should consider the incidents we are aware of as
“only the tip of the iceberg” (Making Women Pay: The Hidden Costs of Fetal Rights (Ithaca, N.Y.:
Cornell University Press, 2000) at 94-95).
71 borrow this metaphor from Bill Sage.
8 See infra, Part ll.B. and II.A.
9 See Roth, supra note 6 at 131, referring to intervention in pregnancy as “state-sanctioned violence
against women”.
10 See Janet Gallagher, “Collective Bad Faith: ‘Protecting’ the Fetus” in Joan C. Callahan, ed.,
Reproduction, Ethics, and the Law: Feminist Perspectives (Bloomington: Indiana University Press,
1995) 343 at 347 [Gallagher, “Collective Bad Faith”]. See also Nathan Stormer, “Seeing the Fetus:
The Role of Technology and Image in the Maternal-Fetal Relationship” (2003) 289:13 J.A.M.A.
1700; Sozos J. Fasouliotis & Joseph G Schenker, “Maternal-Fetal Conflict” (2000) 89 Eur. J. Obstet.
Gynecol. & Reprod. Biol. 101; Barbara Duden, Disembodying Women: Perspectives on Pregnancy
and the Unborn, trans. by Lee Hoinacki (Cambridge, Mass.: Harvard University Press, 1993) at 11-
15, 51-52; Rosalind Pollack Petchesky, “Fetal Images: The Power of Visual Culture in the Politics of
Reproduction” (Summer 1987) 13 Fem. Stud. 263; Krista L. Newkirk, “State-compelled Fetal
Surgery: The Viability Test Is Not Viable” (1998) 4 Win. & Mary J. Women & L. 467; John A.
Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton:
Princeton University Press, 1994) at 177-180 [Robertson, Children of Choice], Deborah Mathieu,
Preventing Prenatal Harm: Should the State Intervene?, 2d ed. (Washington, D.C.: Georgetown
University Press, 1996) at 102-22; Ron Beal, “‘Can I Sue Mommy?’ An Analysis of a Woman’s Tort
Liability for Prenatal Injuries to Her Child Born Alive” (1984) 21 San Diego L. Rev. 325; Deborah
M. Santello, “Maternal Tort Liability for Prenatal Injuries” (1988) 22 Suffolk University L. Rev. 747;
2004]
E. NELSON – RECONCEIVlNG PREGNANCY
There is a wealth of legal commentary concerning intervention in pregnancy, 12
but no clear answer to the problem that is consistent with the values our liberal society
purports to hold, such as autonomy and respect for bodily integrity, and with women’s
equality. In particular, what is missing from the extensive body of writing about
pregnancy and the law is a theoretical framework for choice, or decision-making, in
pregnancy.’ 3 I suggest that, in part, the inability to discover an adequate mode of
reasoning about the problem of intervention in pregnancy has to do with the way in
which decision-making in pregnancy is characterized.
After defining intervention in pregnancy for the purposes of this article (Part I), I
examine some themes that emerge in choice-based reasoning about intervention in
pregnancy (Part 11). The unhelpful legal constructs that animate such reasoning
Douglas E. Carroll, “Parental Liability for Preconception Negligence: Do Parents Owe a Legal Duty
to Their Potential Children?” (1986) 22 Cal. W. L. Rev. 289; Ikemoto, supra note 3 at 1286; Timothy
Caulfield & Erin Nelson, “Winnipeg Child and Family Services v. D.EG: A Commentary on the Law,
Reproductive Autonomy and the Allure of Technopolicy” (1998) 36 Alta. L. Rev. 799 at 807-808.
11 See e.g. Janet Gallagher, “Fetus as Patient” in Sherrill Cohen & Nadine Taub, eds., Reproductive
Laws for the 1990s (Clifton, N.J.: Humana Press, 1989) 185 [Gallagher, “Fetus as Patient”); Barbara
Katz Rothman, Recreating Motherhood: Ideology and Technology in a Patriarchal Society (New
York: Norton, 1989) at 40-41 [Rothman, Recreating Motherhood]; Laura R. Woliver, “Reproductive
Technologies, Surrogacy Arrangements, and the Politics of Motherhood”
in Martha Albertson
Fineman & Isabel Karpin, eds., Mothers in Law: Feminist Theory and the Legal Regulation of
Motherhood (New York: Columbia University Press, 1995) 346 at 346, 354-57; and Vangie Bergum,
A Child on Her Mind: The Experience of Becoming a Mother (Westport, Conn.: Bergin & Garvey,
1997) at 58. Fasouliotis & Schenker, supra note 10 at 101, refer to the pregnant woman as the fetal
“host” and as the “opaque environment” in which we find the fetus.
12 Collections of essays and books on the topic include: Callahan, supra note 10; Fineman &
Karpin, ibid.; Julia E. Hanigsberg & Sara Ruddick, eds., Mother Troubles: Rethinking Contemporary
Maternal Dilemmas (Boston: Beacon Press, 1999); and Duden, supra note 10. For articles on point
see George J. Annas, “Forced Caesareans: The Most Unkindest Cut of All” (1982) 12:3 Hastings
Center Report 17 at 45; Nancy K. Rhoden, “The Judge in the Delivery Room: The Emergence of
Court-Ordered Cesareans” (1986) 74 Cal. L. Rev. 1951; Nancy Ehrenreich, “The Colonization of the
Womb” (1993) 43 Duke L.J. 492; Eric M. Levine, “The Constitutionality of Court-Ordered Cesarean
Surgery: A Threshold Question” (1994) 4 Alb. L.J. Sci. & Tech. 229; F.C. DeCoste, “Winnipeg Child
and Family Services (Northwest Area) v. D.EG: The Impossibility of Fetal Rights and the Obligations
of Judicial Governance” (1998) 36 Alta. L. Rev. 725; Cheryl E. Amana, “Maternal-Fetal Conflict: A
Call for Humanism and Consciousness in a Time of Crisis” (1992) 3 Colum. J. Gender & L. 351;
Laura Shanner, “Pregnancy Intervention and Models of Maternal-Fetal Relationship: Philosophical
Reflections on the Winnipeg C.ES. Dissent” (1998) 36 Alta. L. Rev. 751 [Shanner, “Pregnancy
Intervention”].
13 The theoretical fiamework I am referring to is distinct from theoretical ideas about women’s
experiences of the pregnancy relationship (as set out by, for example, Bergum, supra note 11, and
Shanner, “Pregnancy Intervention”, ibid). What I am concerned about is not only how women
experience pregnancy, but also how the law imposes understandings of pregnancy and decision-
making in the course of pregnancy. An important issue that I leave for future work is the extent to
which a theoretical framework for decision-making in pregnancy should make normative judgments
about women’s decision-making in pregnancy. I agree with Linda McClain that “there is an important
role for normative judgment and critical evaluation of … women’s lives, choices and circumstances”
(“‘Irresponsible’ Reproduction” (1996) 47 Hastings L.J. 339 at 444).
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require a feminist response that re-examines a defining feature of legal thinking about
pregnancy intervention: the notion of choice.
The difficulty lies in framing a feminist response, which is discussed more fully in
Part III. The topic of intervention in pregnancy has been thoroughly canvassed in the
legal academic literature, and notable contributions to this effort have been made by
feminist theorists of varying persuasions, as is elaborated on in Part III. Characteristic
of feminist writing on the issue, however, is that the debate is largely about choices,
rather than about choice. I argue here that what is needed at this time is not further
debate about whether women have choices, which ones they have, or which they
ought to have but do not. Instead, the very understanding of choice that epitomizes
traditional liberal ideals requires re-evaluation. In suggesting that decision-making in
pregnancy needs to be reconceived, and in proposing a starting point for that task, I
hope to lay a foundation upon which questions of boundaries may be answered.
I start from the point of view that intervention in pregnancy, as currently
practiced, is bad public policy. There may be arguments, however, depending heavily
on what is meant by intervention, that intervention might sometimes be desirable. If
we take intervention to mean, for example, the positive involvement of the state in the
lives of pregnant women in seeking out and helping those who need assistance with
prenatal care, addiction treatment, nutrition, care of other children, or protection from
a violent spouse, then there is clearly an important role for intervention. If, on the
other hand, we take it to mean what it seems to mean now-forced obstetrical
treatment, incarceration, detention, or other forms of punishment-my position is that
intervention in pregnancy is misguided and unlikely to further the alleged goal of
healthy mothers and healthy children. 14
I.
Intervention in Pregnancy
State intervention
in pregnant women’s lives can take a variety of forms,
including: barring women of child-bearing age (pregnant or potentially pregnant
women) from certain occupations due to potential risks to the fetus; restricting or
prohibiting access to contraceptives, abortion or both; and imposing medical care or
other treatment aimed at protecting the fetus where the behaviour of a pregnant
woman is perceived to be adverse to the interests of her fetus. 15 It is this latter form of
intervention that I explore here, and it arises in two situations: (i) where a pregnant
woman refuses recommended medical treatment that is intended to benefit the fetus,
or, in some cases, both herself and her fetus (e.g., Caesarean section, blood
transfusion); and (ii) where a pregnant woman is sought to be detained and/or treated
14 See John Seymour, Childbirth and the Law (New York: Oxford University Press, 2000) at 230,
238; Sanda Rodgers, “The Legal Regulation of Women’s Reproductive Capacity in Canada” in
Jocelyn Downie, Timothy Caulfield & Colleen Flood, eds., Canadian Health Law and Policy, 2d ed.
(Markham, Ont.: Butterworths, 2002) 331 at 354 [Rodgers, “Legal Regulation”].
15 See Rodgers, ibid. at 333.
2004]
E. NELSON – RECONCEIVlNG PREGNANCY
against her will for her addiction to a harmful substance such as alcohol, solvents, or
crack cocaine. 16
I focus here primarily on coercive medical intervention in pregnancy, which
occurs when a woman’s physician, hospital, or health care team seeks a court order
compelling her to undergo a procedure to which she has competently withheld her
consent. Examples of procedures for which orders have been sought in the past
include Caesarean sections, 17 blood transfusions, 18 and intrauterine transfusions. 19
Advance health care directives, or living wills, are in many American states rendered
invalid by operation of law during pregnancy. 20 These statutory provisions also fall
within the scope of coercive medical treatment, as providing treatment in spite of a
clear and relevant advance directive instructing otherwise constitutes treatment
contrary to the patient’s competent refusal.
While the issue of medical intervention in pregnancy is central, I also refer to a
number of cases involving court ordered detention and/or treatment for addiction to
substances thought likely to be potentially harmful to the fetus,21 as these cases entail
16 Ibid.
17 See e.g. Jefferson v. Griffin Spalding County Hospital Authority, 274 S.E.2d 457 (Ga. 1981); Re
A. C., supra note 1; Re Madyun, 114 Daily Washington L. Rptr. 2233 (D.C. Sup. Ct. 1986); Re Baby
Boy Doe, 632 N.E. 2d 326 (Il1. App. Ct. 1994); Pemberton v. Tallahassee Memorial Regional Medical
Center, 66 F. Supp. 2d 1247 (Fla. Dist. Ct). See also Veronica E.B. Kolder, Janet Gallagher &
Michael T. Parsons, “Court-Ordered Obstetrical Interventions” (1987) 316 New England J. Med.
1192; Re Baby R (1988), 53 D.L.R. (4th) 69, 30 B.C.L.R. (2d) 237 (B.C.S.C.). For discussions of the
recent case involving Melissa Rowland who refused to undergo a Caesarean section, see e.g. Katha
Pollitt, “Pregnant and Dangerous” The Nation (8 April 2004), online: The Nation
“Court Cases Revive Childbirth Rights
Debate” CNN.com (29 May 2004), online: CNN.com
18 See e.g. Re President and Directors of Georgetown College, 331 F.2d 1000 (D.C. Cir. 1964);
Raleigh Fitkin Paul Morgan Memorial Hospital v. Anderson, 201 A.2d 537 (N.J. Sup. Ct. 1964); Re
Jamaica Hospital, 491 N.YS.2d 898 (Sup. Ct. 1985); Crouse Irving Memorial Hospital v. Paddock,
485 N.YS.2d 443 (Sup. Ct. 1985); Re Fetus Brown, 689 N.E.2d 397 (I11. App. Ct. 1997).
19 See e.g. Kolder, Gallagher & Parsons, supra note 17.
20 This seems to be a uniquely American phenomenon. I am not aware of similar provisions in any
Canadian advance directive legislation. For discussions of these provisions, see Katherine A. Taylor,
“Compelling Pregnancy at Death’s Door” (1997) 7 Colum. J. Gender & L. 85 and Amy Lynn Jerdee,
“Breaking Through the Silence: Minnesota’s Pregnancy Presumption and the Right to Refuse
Medical Treatment” (2000) 84 Minn. L. Rev. 971.
21 Current research conclusions on the teratogenic effects (in humans) of many substances are
inconsistent. As Emily Jackson notes, fetal alcohol syndrome is relatively rare among the children of
affluent women “who drink heavily during pregnancy but who have other material advantages such
as good nutrition and prenatal care” (Emily Jackson, Regulating Reproduction: Law, Technology and
Autonomy (Oxford: Hart Publishing, 2001) at 159). See also Franqoise Baylis, “Dissenting with the
Dissent: Winnipeg Child and Family Services (Northwest Area) v. G (D.E)” (1998) 36 Alta. L. Rev.
785 at 794; Lisa H. Harris & Lynn M. Paltrow, “The Status of Pregnant Women and Fetuses in US
Criminal Law” (2003) 289:13 J.A.M.A. 1697 at 1698; Dimitris Polygenis et al., “Moderate Alcohol
Consumption During Pregnancy and the Incidence of Fetal Malformations: A Meta-Analysis” (1998)
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similar, though not identical, concerns. Winnipeg Child and Family Services
(Northwest Area) v. D.EG2 2 is a case in point. It is a substance abuse case, but Justice
Major’s reasoning is virtually unlimited in scope,23 and he does not specify that his
proposed test for intervention in pregnancy would apply only to situations of
substance abuse.24
In addition to the coercive practices described above, less familiar potential
threats also exist. As Lisa Ikemoto explains, “[tihe same legal analyses used in the
forced cesarean, forced transfusion, forced cerclage, and forced detention cases could
be used to support other court ordered fetal therapies.” 25 John Robertson claims that
once a woman has chosen to carry a child to term, she assumes obligations to “assure
its well-being”.26 Such obligations,
in his view, are wide-ranging, potentially
requiring a pregnant woman to consent to the performance of “established” therapies
on the fetus, and, in certain circumstances, agree to prenatal screening. 27 Although
such testing is generally voluntary, there are situations in which consent to testing
may not be as free as it first appears.
28
Further, now that medical technology permits surgery on a fetus in utero to repair
certain structural problems, it is conceivable that an order might be sought to compel a
woman to consent to such surgery.29 And, as medical science continues to progress,
20:1 Neurotoxicol Teratol. 61; Antonio Addis et al., “Fetal Effects of Cocaine: An Updated Meta-
Analysis” (2001) 15:4 Reprod. Toxicol. 341 (2001); Cheryl M. Plambeck, “Divided Loyalties: Legal
and Bioethical Considerations of Physician-Pregnant Patient Confidentiality and Prenatal Drug
Abuse” (2002) 23 J. Legal Med. 1 at 11-12.
22 [1997] 3 S.C.R. 925, 152 D.L.R. (4th) 193 [D.EG cited to D.L.R.].
23 Justice Major’s reasons formed the dissenting opinion in the Supreme Court of Canada decision
in D.EG., but they are nevertheless worth responding to, given their superficial appeal. See e.g.
Caulfield & Nelson, supra note 10; Baylis, supra note 21; Bruce P. Elman & Jill Mason, “The Failure
of Dialogue: Winnipeg Child and Family Services (Northwest Area) v. G (D.E)” (1998) 36 Alta. L.
Rev. 768.
24 D.FG, supra note 22 at 229.
25 Ikemoto, supra note 3 at 1251.
26 John A. Robertson, “Procreative Liberty and the Control of Conception, Pregnancy, and
Childbirth” (1983) 69 Va. L. Rev. 405 at 437-50 [Robertson, “Procreative Liberty”].
27 Ibid.
28 See Jackson, supra note 21 at 121-22; see also Carole H. Browner & Nancy Ann Press, “The
Normalization of Prenatal Diagnostic Screening” in Faye D. Ginsburg & Rayna Rapp., eds.,
Conceiving the New World Order: The Global Politics of Reproduction (Berkeley: University of
California Press, 1995) 307 at 314-15. It has also been suggested that so-called “opt-out” prenatal
H1V screening, under which pregnant women are routinely screened for HIV infection unless they
specifically choose to forego testing, may lead to testing even where there has not been true
“informed consent”. See Paul Weinberg, “Pregnant Women Tested for HIV/AIDS Without Consent”
(25 October 2002), online: InterPress Service
I-V Testing” (23 August 2002), online: Canadian AIDS Society
29 See Rothman, Recreating Motherhood, supra note 11 at 167 (discussing the possibility of “fetal
advocates”); Newkirk, supra note 10 at 470-71; Robertson, Children of Choice, supra note 10 at 161-
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E. NELSON – RECONCEIVING PREGNANCY
the possibility of gene therapy may become a reality-we may be able to treat a fetus
in utero to correct or repair the effects of a genetic condition. Once this becomes
possible, coercive medical treatment may be faced by women who refuse prenatal
screening (to determine whether there is a problem) or who refuse therapy once
results of prenatal testing are known.
II. Characterizing Decision-Making in Pregnancy: The Contradictory
Legal Language of Choice
A. The Abortion Choice
In legal writing about coerced medical treatment during pregnancy, women’s
choices to become or remain pregnant are often invoked in support of the legitimacy
In his dissent in D.FG.,32 for example, Justice Major repeatedly
of intervention.
links the existence of an option to obtain an abortion back to the legitimacy of state
intervention in pregnancy for the benefit of the fetus. 3 3 As he puts it:
Once the mother decides to bear the child the state has an interest in trying to
ensure the child’s health. … [The majority’s] approach would entail the state to
stand idly by while a reckless and/or addicted mother inflicts serious and
permanent harm on to a child she had decided to bring into the world.
Having chosen to bring a life into this world, that woman must accept some
responsibility for its well-being … It is not a question of a woman making a
“declaration” of her intentions. Rather, the law will presume that she intends to
carry the child to term until such time as she indicates a desire to receive,
makes arrangements for or obtains an abortion. 34
In Re A (in utero),35 before reluctantly concluding that there was no basis in law
to permit intervention, the judge remarked:
62; Rosalind Pollack Petchesky, Abortion and Woman’s Choice (Boston: Northeastern University
Press, 1990) at 356-57; Maggie Jones, “A Miracle and Yet” New York limes Magazine (15 July 2001)
38 at 39.
30 See e.g. Robertson, Children of Choice, supra note 10 at 160-61. See also Rick Wiess, “Genetic
Therapy Apparently Cures 2: French Team’s Feat Would Be a First” Washington Post (28 April 2000)
A01; “Bubble Boy ‘Saved’ by Gene Therapy” (3 April 2002), online: BBC News
31 See Reva Siegel, “Reasoning from the Body: A Historical Perspective on Abortion Regulation
and Questions of Equal Protection” (1992) 44 Stan. L. Rev. 261 at 350, n. 362.
32 Supra note 22.
33 Another example from Justice Major’s reasons: “The mother’s continuing ability to elect an
abortion and end her confinement makes the intrusion of her liberty relatively modest when weighed
against the child from birth being seriously and permanently impaired” (ibid. at 241).
14 Ibid. at 228, 237.
” (1990), 75 O.R. (2d) 82, 72 D.L.R. (4th) 722 (Ontario Unified Family Court).
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It … seems to me that the mother, having opted to give life to the foetus, and
having raised it to full term, has a duty to ensure that the balance of her prenatal
care and the child’s birth be effected in a proper manner having regard to her
apparent medical problems. This is simply a reflection of the mother’s natural
duty in such circumstances. 36
In Planned Parenthood v. Casey, Justice Day O’Connor explains that the rule that
states may restrict access to abortion after the point of fetal viability contains “an
element of fairness.” 37 In her view, “[i]n some broad sense, it might be said that a
woman who fails to act before viability has consented to the State’s intervention on
behalf of the developing child.’ ’38 For John Robertson, a prolific and influential
contributor to the legal literature on procreative liberty, the matter can be concisely
summarized as follows: “Although [a woman] is under no obligation to invite the
fetus in or to allow it to remain, once she has done these things she assumes
obligations to the fetus that limit her freedom over her body.”39
As Robertson explains, the fact that “a pregnant woman’s actions may affect the
child that the fetus, through her own choice, will become’ 4 implies that she may owe
a duty to avoid harming the fetus. Robertson goes on to argue that the woman’s
choice to become pregnant (or to not avoid conception, or at a minimum, to carry the
pregnancy to term) leads to the conclusion that she is duty bound to accept medical
intrusions for the sake of the fetus: “She is responsible for the child’s medical need by
choosing to continue the pregnancy and giving birth to a child whose suffering could
be averted by prenatal medical intervention., 41
In United States v. Vaughn, the judge who sentenced Brenda Vaughn to a prison
term of 180 days for a first offense, which would normally lead to probation, or a
sentence served on weekends, 42 said, “[b]ut Ms. Vaughn became pregnant and chose
to bear the baby … Arguably Ms. Vaughn should have demonstrated even greater
responsibility toward her child.’ 43 And, in a more recent case involving a petition for
habeas corpus by a pregnant woman detained in a proceeding concerning whether her
viable fetus was a child in need of protection or services, the court noted that “this
case is about consequences: first, the consequences of Angela’s choice under Roe; and
36 Ibid. at 728.
37 Planned Parenthood v. Casey, 505 U.S. 833, 870 (1992).
38 Ibid.
39 Robertson, “Procreative Liberty”, supra note 26 at 438; see also Robertson, Children of Choice,
supra note 10; John A. Robertson, “Reconciling Offspring and Maternal Interests During Pregnancy”
in Cohen & Taub, supra note 11, 259. See also Margery W. Shaw, “Conditional Prospective Rights of
the Fetus” (1984) 5 J. Legal Med. 63 at 88 (“The mother’s duties to protect the fetus from harm also
increase because she has foregone her right to choose abortion”).
40 Robertson, Children of Choice, ibid. at 179.
41 Ibid.
42 Debra Cassens Moss, “Pregnant? Go Directly to Jail: Suits Hit Prenatal Care for Women
Inmates” (1 November 1988) 74 A.B.A.J. 20.
43 United States v. Vaughn, Daily Washington L. Rptr., 7 March 1989, 441 at 447.
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E. NELSON – RECONCEIVlNG PREGNANCY
603
second, the consequences of Angela’s conduct which has placed her viable fetus at
risk of serious physical harm or death.” 44
“Choice” is a word of enormous power within legal discourse. It connotes the
ability to exercise one’s autonomy; in some ways, the notion of choice can be equated
with that of freedom.45 Choice is also a word with powerful resonance in feminist
discourse around sexuality, motherhood, and bodily integrity.46 How has the idea of
choice in pregnancy-whether the choice to become pregnant in the first place
(assuming that this is a choice, made consciously) or the choice to continue an
existing pregnancy–come to have such power in legal thought? What does it mean
when a judge or legal scholar insinuates that in choosing to lend her body to a
pregnancy, a woman has foregone her ability to make later choices about whether she
will accept physical invasions of her person for the benefit of the fetus?
In light of the importance that the law ascribes to choice, it should not be
surprising that this language has powerful intuitive appeal. It makes sense to us that
people should be bound by their choices. But, upon close examination of choice-
based legal language in the context of pregnancy intervention, the contradictory
nature of the language becomes apparent. The importance of observing the use of
choice language in legal writing around pregnancy is twofold. First, it allows
consideration of the problematic underpinnings of this language, which will be
elaborated upon below. Second, as will be discussed at length in Part 1II, it throws
into sharp relief the fact that choices may signify something quite different from what
we assume they do.
In order for a woman’s choice to carry a pregnancy to term to have meaning in
the pregnancy intervention context, she must also have the option to terminate the
pregnancy. 47 Undue importance is, in this way, placed upon the abortion choice.48 As
Carol Sanger has pointed out,
44 State ex rel. Angela M.W. v. Kruzicki, 197 Wis. 2d 532 at 550 (Ct. of Appeals of Wis. 1995) (the
conduct referred to is cocaine use). The decision was later reversed: State ex rel. Angela M.W v.
Kruzicki, 209 Wis. 2d 112 (Supreme Ct. of Wis. 1997).
45 Examples of the law’s focus on choice abound in the law of contract (e.g., the whole foundation
of contract law as the idea of obligations freely chosen, as well as the idea that we will not recognize
such obligations if we think they were not undertaken freely; hence such doctrines as undue
influence, mistake, etc.). Tort law also contains examples of situations in which choice-how an actor
chooses to behave-plays a role, including the volenti defence and the duty to rescue. Finally, the
notion of choice plays an important role in the criminal law context, particularly with respect to the
imposition of criminal responsibility.
46 Indeed, the “feminist” position on abortion has been identified as the “pro-choice” position. See
Joan Williams, “Gender Wars: Selfless Women in the Republic of Choice” (1991) 66 N.Y.U. L. Rev.
1559 at 1574-77.
47 A woman’s apparent decision not to terminate her pregnancy may not be an exercise of her
choice. See infra notes 56-63 and accompanying text.
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The legal theories that secured the right to abortion developed within a
framework of privacy that focused on a woman’s right to control her
trimestered body. That analysis necessarily diverted attention from a woman’s
interest in controlling her post-pregnant, child-now-out-of-body life.49
That same analysis has also diverted attention from a woman’s interest in controlling
her body while she is pregnant and making a decision that is not related to abortion.
The shades of the questions that can arise during pregnancy are obscured by the
apparent availability of the abortion option-if the woman chooses abortion, the
matter is at an end. The state is free to express its dismay at and disapproval of the
choice, but there is nothing more to be done. The woman’s choice is final.” What
the law misses in constructing the issue in this way is that the abortion decision is
only the sole decision if the woman decides to have one. The law, in fixing its gaze on
the existence of the abortion choice, constitutes this option as a barrier to more
meaningful consideration of the unique nature of pregnancy52 and of decision-making
therein. 3
This focus on the abortion choice, and the relevance of it not being chosen, is in
large measure biologically driven. This is not surprising, given the attraction of
science as a basis for legal decision-making. 54 And science, with its apparently neutral
48 See Siegel, supra note 31 at 341, n. 331. See also Molly McNulty, “Pregnancy Police: The
Health Policy and Legal Implications of Punishing Pregnant Women for Harm to Their Fetuses”
(1987-88) 16 N.Y.U. Rev. L. & Soc. Change 277.
49 Carol Sanger, “M Is for the Many Things” (1992) 1 S. Cal. Rev. L. & Women’s Stud. 15 at 23
[Sanger, “M Is for the Many Things”].
50 Planned Parenthood v. Casey, supra note 37 at 872-73, 877; Webster v. Reproductive Health
Services, 492 U.S. 490 at 511 (1989).
51 The American cases make it very clear that the states are free to create policies that discourage
abortion, but are prevented from outright prohibitions (at least in the first trimester): see e.g. Planned
Parenthood v. Casey, ibid. at 883.
52 See infra notes 96-100 and accompanying text. Catharine A. MacKinnon, “Reflections on Sex
Equality Under Law” (1991) 100 Yale L.J. 1281 at 1313-18 [MacKinnon, “Reflections”]. Others have
described the pregnant woman as “not-one-but-not-two” (see Isabel Karpin, “Legislating the Female
Body: Reproductive Technology and the Reconstructed Woman” (1992) 3 Colum. J. Gender & L.
325; Seymour, supra note 14; Jenny Morgan, “Foetal Imaginings: Searching for a Vocabulary in the
Law and Politics of Reproduction” (2000) 12 Can. J. Women & L. 371), or the fetus as being “in and
of’ the pregnant woman. See Lynn Smith, “An Equality Approach to Reproductive Choice: R. v.
Sullivan” (1991) 4 Yale J. L & Feminism 93.
53 This is particularly true of the US jurisprudence: see e.g. Roe v. Wade, 410 U.S. 113 (1973);
Planned Parenthood v. Casey, supra note 37; Webster v. Reproductive Health Services, supra note 50;
Doe v. Bolton, 410 U.S. 179 (1973); R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385. See
also Elizabeth Reilly, “The ‘Jurisprudence of Doubt’: How the Premises of the Supreme Court’s
Abortion Jurisprudence Undermine Procreative Liberty” (1998) 14 J. L. & Pol. 757 at 776-77;
Ehrenreich, supra note 12 at 567.
54 Ibid. See also Caulfield & Nelson, supra note 10 at 801-804; Ikemoto, supra note 3 at 1285-90;
Michael Thomson, Reproducing Narrative: Gender, Reproduction and Law (Aldershot, England:
Ashgate, 1998) [Thomson, Reproducing Narrative]; Rodgers, “Legal Regulation”, supra note 14 at
342.
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E NELSON – RECONCEIVING PREGNANCY
and objective point of view, has particular appeal for those trying to draw difficult
lines.55 In Roe v. Wade, the Court deferred completely to medical knowledge in
crafting the abortion right and the state’s interest in both women’s health and prenatal
life, in the following terms:
With respect to the State’s important and legitimate interest in potential life, the
“compelling” point is at viability. This is so because the fetus then presumably
has the capability of meaningful
life outside the mother’s womb. State
regulation protective of fetal life after viability thus has both logical and
biological justifications. 56
As Alta Charo points out, the case law relies on the biological concept of viability as a
substitute for a legal conclusion:
Even if the definitions were precise, it remains to be shown why “life” or
“viability” represents the appropriate moment to recognize the advent of legal
rights. A mosquito and my liver are alive, but neither have legal rights.
Conversely, neither a ventilator-dependent quadriplegic nor a baby is viable
without the active assistance of other persons or elaborate equipment, yet both
clearly possess legal rights. Clearly, the demarcation point for legal rights is
based on more than merely biological criteria. 57
The assertion that the failure to obtain an abortion amounts to a positive choice to
carry a pregnancy to term conflates a biological fact with legally significant action. If
we observe that a woman is pregnant, we are entitled to assume that she has made a
positive decision to remain pregnant. 58 Implicit in this argument are some ideas that
are obscured by the reasoning. First, we are required to assume that the physical
reality of pregnancy has some relationship to the “chosenness” or “wantedness” of
that pregnancy and, second, we have to deem the choice to become or remain
pregnant to mean something well beyond what we might normally assume about other
decisions that go to the core of bodily integrity.
Connecting the decision not to terminate a pregnancy to a woman’s other
decisions during pregnancy is particularly inapposite where the failure to have an
abortion is a product of the woman’s circumstances and not a positive decision to
continue the pregnancy. The very real limitations on choices about abortion faced by
some women reveal the invalidity of relying on such choices as justification for
55 See e.g. Caulfield & Nelson, supra note 10; Duden, supra note 10; Mary C. Segers, “Can
Congress Settle the Abortion Issue?” (1982) 12:3 Hastings Ctr. Rep. 20; Caroline Morris,
“Technology and the Legal Discourse of Fetal Autonomy” (1997) 8 U.C.L.A. Women’s L.J. 47 at 56-
57; Daniel Callahan, “How Technology is Refraining the Abortion Debate” (1986) 16:1 Hastings Ctr.
Rep. 33.
Tex. J. Women & L. 265 at 277-78 [footnotes omitted].
56 Roe v. Wade, supra note 53 at 163.
57 R. Alta Charo, “Biological Determinism in Legal Decision Making: The Parent Trap” (1994) 3
58 In D.EG., Justice Major explains that under his test for intervention in pregnancy, the law will
presume that a pregnant woman has decided to carry the pregnancy to term until she indicates
otherwise, arranges for, or has an abortion (supra note 22 at 229).
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intervention in pregnancy. Some women do not know that they are pregnant until a
late enough point in the pregnancy that abortion is no longer realistically available.59
Many women in abusive relationships legitimately fear for their safety, or are
threatened with violence by their partner should they terminate the pregnancy.6
0
Finally, choice can be constrained by strongly held personal or religious beliefs. It is
inappropriate and objectionable to consider the failure to obtain an abortion in
situations like these as synonymous with choosing pregnancy.61
A particularly significant and often overlooked difficulty many women face is
basic access to abortion. 62 In one Canadian province there are no hospitals that will
perform the procedure, thus requiring that a woman travel outside her home province
in order to avail herself of an abortion. 6 3 Further, the provincial health care insurance
plan will reimburse a woman’s out-of-province ex enses only where certain statutory
criteria are met, one of which is medical necessity.64 Even for women who are able to
travel (i.e., who do not have child care, work, or other obligations that prevent or
constitute substantial obstacles to travel), the financial burdens imposed by this
scheme may be insurmountable. Access issues also arise in the US; as in Canada, one
problem is the lack of availability of abortion providers. 65 There are numerous
additional legislative obstacles in many states, including mandatory waiting periods of
one to twenty-four hours, parental consent or notification requirements for minors
seeking abortions, and statutory restrictions on private insurers’ coverage of the
abortion procedure. 66
59 See e.g. Baylis, supra note 21 at 788; “Facts in Brief: Induced Abortion” (2002), online: Alan
Guttmacher Institute
of abortion providers declined by II per cent between 1996 and 2000; that 87 per cent of all US
counties lacked an abortion provider in 2000, and that, while 86 per cent of all abortion facilities
provide services at 12 weeks of gestation, the numbers drop sharply after that point, with only 13 per
cent of providers offering abortion services at 24 weeks); Laura Eggerston, “Abortion Services in
Canada: A Patchwork Quilt with Many Holes” (2001) 164:6 C.M.A.J. 847. See also Sanda Rodgers,
“Winnipeg Child and Family Services v. D.EG: Juridical Interference with Pregnant Women in the
Alleged Interest of the Fetus” (1998) 36 Alta. L. Rev. 711 at 718 [Rodgers, “Winnipeg”]; Rodgers,
“Legal Regulation”, supra note 14 at 343.
60 Baylis, ibid.
61 A number of other issues raise further questions about the availability of abortion as a “choice”
for many women. See Baylis, ibid. at 787-90; Rodgers, “Winnipeg”, supra note 59 at 718.
62 See sources listed in supra note 59. See also “Protecting Abortion Rights in Canada” (2003),
online: CARAL
63 Baylis, supra note 21 at 788; CARAL Report, ibid.
64 Baylis, ibid., citing Prince Edward Island, Department of Health and Social Services, “Policy
017: Criteria for Payment of Approved Therapeutic Abortions”, in Policy and Procedures Out of
Province Referral Program (effective date April 1, 1995, revised and approved December 23, 1997).
This is also true of the Nunavut Territory, meaning that women must be flown to Ottawa or Montreal
to obtain an abortion (CARAL Report, ibid.).
65 See supra note 59.
66 The Alan Guttmacher Institute, “State Policies in Brief: Mandatory Waiting Periods for Abortion”
Institute
Minors’ Abortions” (1 June 2003), online: The Alan Guttmacher Institute
Insurance Coverage of Abortion” (1 June 2003), online: The Alan Guttmacher Institute
67 See e.g. R. v. Morgentaler, supra note 53; Roe v. Wade, supra note 53; Planned Parenthood v.
Casey, supra note 37.
68 Thanks to Michelle Oberman for the suggestion that pregnancy may be best conceptualized as a
time in a woman’s life calling for a series of important decisions to be made; see also Jackson, supra
note 21 at 116.
69 See sources cited at supra note 48.
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woman has conceived. These
to assert
knowledge which is perceived as more quantifiable, more valid, than the
woman’s experiential knowledge. 0
… allow medicine
technologies
One very obvious effect that evolving technology has had on the medical
profession is the perception that there are two patients in each pregnant woman: the
woman herself and the developing fetus.7 As a result, physicians are often unsure
72
how to respond when pregnant women refuse recommended medical interventions.
Jeffrey Phelan expresses these sentiments in setting out a fictional scenario in which a
pregnant woman “adamantly refuses” a Caesarean section “without reason or
explanation” in spite of obvious fetal distress as registered by an electronic fetal
monitor. In Phelan’s fictional scenario, the woman’s refusal leads to the death of her
fetus. Phelan asks the reader to imagine that he or she was the doctor or nurse, and
inquires:
What would you have done? The life of Jane Doe’s unborn child could easily
have been saved by a cesarean … should the physicians and nurses have stood
idly by until the fetal monitor finally registered the death of her fetus? What if
the fetus did not die but was born permanently brain damaged? … [T]he
physicians could have obtained a court order to grant or deny them permission
to intervene on behalf of the unborn child and thereby insulate themselves from
73
potential liability.
The woman’s refusal of treatment places the physician in a situation of potential
“conflict” between what he or she thinks best for the fetus and what the pregnant
woman will accept by way of medical intervention. 74 Once this conflict arises,
physicians often turn to the law for support. 75
In the past two decades, traditional medical paternalism has largely given way to
a robust conception of patient autonomy in medical decision-making. The notion
70 Thomson, Reproducing Narrative, supra note 54 at 213.
71 Jeffrey P. Phelan, “The Maternal Abdominal Wall: A Fortress Against Fetal Health Care?” (1991)
65 S. Cal. L. Rev. 461 at 464; Frank A. Chervenak & Asim Kurjak, Current Perspectives on the Fetus
as a Patient (New York: Parthenon, 1996). See also Stormer, supra note 10; Fasouliotis & Schenker,
supra note 10; Joelyn Knopf Levy, “Jehovah’s Witnesses, Pregnancy, and Blood Transfusions: A
Paradigm for Autonomy Rights for All Pregnant Women” (1999) 27 J. L. Med. & Ethics 171.
72 Fasouliotis & Schenker note that when a woman refuses to comply with recommendations made
by her physician, which the physician believes to be in the best interests of the fetus, the “physician
may be frustrated and offended by the woman’s non-compliance” (supra note 10 at 102).
73 Phelan, supra note 71 at 461-62 [emphasis added]; Levy, supra note 71 at 171.
74 See sources cited at supra note 72; see also Michelle Oberman, “Mothers and Doctors’ Orders:
Unmasking the Doctor’s Fiduciary Role in Maternal-Fetal Conflicts” (2000) 94 N.W.U. L. Rev. 451.
75 Kolder, Gallagher & Parsons, supra note 17.
76 In Canada, see Starson v. Swayze, [2003] 1 S.C.R. 722, 2003 SCC 32; Malette v. Shulman (1990),
72 O.R. (2d) 417, 67 D.L.R. (4th) 321 (C.A.); Fleming v. Reid (1991), 4 O.R. (3d) 74, 82 D.L.R. (4th)
298 (C.A.); Rodriguez v. B.C. (A.G), [1993] 3 S.C.R. 519, 107 D.L.R. (4th) 342; Ciarlariello v.
Schacter [1993] 2 S.C.R. 119, 100 D.L.R. (4th) 609; Nancy B. v. H6tel Dieu du Quibec, [1992]
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that the physician knows best has largely been supplanted by the idea that decisions
about health care-even those about life and death-are best made by patients,
insofar as they are competent to do so. 77 Even the right of a patient to set out her
wishes for medical treatment in advance has become firmly ingrained in North
America, as is evidenced by the widespread adoption of living will or advance
directive legislation. 78 In spite of this shift toward patient autonomy in health care
decision-making, we still see physicians attempting to coerce pregnant women to
accept unwanted medical care for the benefit of the fetus. 79
Paternalistic tendencies on the part of physicians are not unprecedented, whether
motivated by fears about liability or by the notion that it is acceptable to subordinate
the wishes of the patient for her own good (or, as the case may be, for the good of her
fetus).8 But what is novel, and particularly troubling, is reliance on the patient’s own
choice to justify paternalistic and coercive practices. Jeffrey Phelan argues that in
certain circumstances, a refusal of treatment by a pregnant woman should be
overridden after she has elected to continue her pregnancy. In his view, the fetus
should be entitled to medically necessary care once this “election” has been made.81
Imputing the need for coercive medical treatment back to the woman’s own choice
disguises the violence and intrusiveness of forcing medical treatment on a competent
patient who has clearly articulated her wish to refuse it.
R.J.Q. 361, 86 D.L.R. (4th) 385 (S.C.). The US cases are: Re Quinlan, 355 A.2d. 647 (1976)
(U.S.S.C.) and Cruzan v. Director Missouri Department of Health, 497 U.S. 261 (1990).
77 See e.g. S. Elizabeth Wilborn Malloy, “Beyond Misguided Paternalism: Resuscitating the Right
to Refuse Medical Treatment” (1998) 33 Wake Forest L. Rev. 1035 at 1038. See also Taylor, supra
note 20; Timothy Caulfield & Gerald Robertson, “Eugenic Policies in Alberta: From the Systematic to
the Systemic?” (1996) 35 Alta. L. Rev. 59; Alberta Law Reform Institute, Advance Directives and
Substitute Decision-Making in Personal Healthcare: A Joint Report of the Alberta Law Reform
Institute and the Health Law Institute, Report No. 64 (Edmonton: Alberta Law Reform Institute,
1993).
78 See e.g. Personal Directives Act, R.S.A. 2000, c. P-6; Representation Agreement Act, R.S.B.C.
1996, c. 405; Advance Health Care Directives Act, R.S.N. 1995, c. A-4.1; Substitute Decision Act,
S.O. 1992, c. 30, s. 46 and Health Care Consent Act, 1996, S.O. 1996, c. 2, Sch. A; The Health Care
Directives and Substitute Health Care Decision Maker Act, S.S. 1997, C. H-0.001; Consent to
Treatment and Health Care Directives Act, S.P.E.I. 1996, c. 10; Health Act, S.Y. 1989-1990, c. 36. For
American state statutes, see Roth, supra note 6 at 223-28.
79 See April L. Cherry, “The Free Exercise Rights of Pregnant Women who Refuse Medical
Treatment” (2002) 69 Tenn. L. Rev. 563 at 564, where the author notes that Lori B. Andrews has been
cited as reporting that “one California obstetrician stated that he obtained 49 out of 50 court orders he
sought for cesarean section surgeries for non-consenting pregnant women, and that the doctor’s
record exceeds all published accounts of forced cesearean sections in law and medical journals.” See
also Levy, supra note 71 at 171.
80 See e.g. Susan Sherwin, No Longer Patient: Feminist Ethics and Health Care (Philadelphia:
Temple University Press, 1992) at 137 [Sherwin, No Longer Patient].
81 Phelan, supra note 71 at 489.
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C. Pregnancy Analogized
Resort to the language of choice suggests the incorporation of other areas of law
whose enforcement indeed depends on choice and consequent legal obligations into
legal thinking about pregnancy. More specifically, it appears that what underlies the
use of choice language is the intimation that in some way, or at least for some
purposes, decision-making in pregnancy can be analogized to something like a
contractual relationship. 83 As Justice Day O’Connor put it in Casey, “there is an
element of fairness” here, in that the “woman who fails to act before viability has
consented to the State’s intervention on behalf of the developing child., 84 Or, as
Robertson claims: “Although [a woman] is under no obligation to invite the fetus in
or to allow it to remain, once she has done these things she assumes obligations to the
fetus that limit her freedom over her body.”85
Clearly,
the use of the
language of choice does not
indicate explicit
acknowledgement that pregnancy is being viewed as a contract; there are not two
parties between whom a contract could be formed, no terms are specified, and there is
no consideration. 86 The examples of choice language cited throughout this paper
evoke contract logic in that they suggest that consent to a specific act, such as a
particular medical
the existence or
continuance of the pregnancy. The obligations to which Robertson refers are legal in
nature, 87 and contract is a good approximation of the notion of choice (to invite the
fetus in or to allow it to remain) and consequent legal obligations.
in pregnancy, is manifested by
treatment
Aside from doctrinal difficulties with applying choice-based relationships to the
maternal-fetal relationship, there are gender implications to this type of reasoning. In
any relationship involving consensual obligations there must necessarily be two
persons between whom obligations are owed. Thus, the notion of consensual
obligations owed by a woman to her fetus is, on its face, unsatisfactory from a
82 See MacKinnon, “Reflections”, supra note 52 at 1313-18 (discussing the law’s treatment of the
maternal-fetal relationship).
83 For an interesting discussion of the source of duties owed to children, see Gregory A. Loken,
“Gratitude and the Map of Moral Duties Toward Children” (1999) 31 Ariz. St. L.J. 1121.
84 Planned Parenthood v. Casey, supra note 37 at 870.
85 Robertson, “Procreative Liberty”, supra note 26 at 438. This language of “inviting the fetus in” is
interesting in and of itself. From where does the woman “invite” the fetus in? This language denies
the woman’s role in gestation, much like historical ideas about fetal development. See Julia Epstein,
“The Pregnant Imagination, Fetal Rights, and Women’s Bodies: A Historical Inquiry” (1995) 7 Yale J.
L. & Hum. 139 at 154-55.
86 Jennifer Nedelsky asserts that the mother-child relationship is emphatically not like a contract:
“part of the wonder of having a baby is that … one experiences a kind of relationship whose
possibility is subtly but relentlessly denied by the pervasive market mentality of negotiated self-
interest as the fountain of human affairs” (“Dilemmas of Passion, Privilege and Isolation: Reflections
on Mothering in a White, Middle-Class Nuclear Family” in Hanigsberg & Ruddick, supra note 12,
304 at 310).
87 Robertson, “Procreative Liberty”, supra note 26; Robertson, Children of Choice, supra note 10.
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feminist point of view and is inconsistent with the law.88 Many feminists would also
reject this notion out of hand because of its reliance on liberal individualistic ideas of
separateness and autonomy and its refusal to acknowledge interconnectedness-
especially the interconnectedness between a woman and her fetus. 89
In pregnancy, in fact and in law, there are temporarily two beings in one person. 9
The law must acknowledge the unique nature of pregnancy and find a new way of
reasoning that takes this uniqueness into account.9′ That the law is capable of
recognizing the singular and complex nature of pregnancy is demonstrated by cases
that have done so. In Dobson, for example, the Supreme Court of Canada stated that
“[t]he unique and special relationship between a mother-to-be and her foetus
determines the outcome of this appeal. There is no other relationship in the realm of
human existence which can serve as a basis for comparison.” 9 In Stallman v.
Youngquist, the Superior Court of Illinois made much the same point:
0
The relationship between a pregnant woman and her fetus is unlike the
relationship between any other plaintiff and defendant. No other plaintiff
depends exclusively on any other defendant for everything necessary for life
itself. No other defendant must go through biological changes of the most
profound type, possibly at the risk of her own life, in order to bring forth an
adversary into the world. 93
III. Choice and Theoretical Commitments
A. Feminist Legal Theory and Choice
Intervention in pregnancy is an issue that falls at the confluence of different
theoretical commitments. The notion and meaning of choice is central to liberal
88 See e.g. Tremblay v. Daigle, [1989] 2 S.C.R. 530, 62 D.L.R. (4th) 634, Roe v. Wade, supra note
53; Dobson v. Dobson (Litigation Guardian of), [1999] 2 S.C.R. 753, 214 N.B.R. (2d) 201 [Dobson];
D.EG, supra note 22.
89 See e.g. Robin West, “Jurisprudence and Gender” (1988) 55 U. Chi. L. Rev. 1 at 2; Mary B.
Mahowald, “As If There Were Fetuses Without Women” in Callahan, supra note 10, 199 at 200-201.
For discussions of women’s experiences of pregnancy, see Iris Marion Young, Throwing Like a Girl
And Other Essays in Feminist Philosophy and Social Theory (Bloomington, Ind.: Indiana University
Press, 1990) at 160-74; Bergum, supra note 11; Shanner, “Pregnancy Intervention”, supra note 12.
For articulations of the maternal-fetal relationship from an explicitly legal point of view, see Smith,
supra note 52; Karpin, supra note 52; Morgan, supra note 52; Seymour, supra note 14.
90 See e.g. Tremblay v. Daigle, supra note 88; Roe v. Wade, supra note 52.
91 See MacKinnon, “Reflections”, supra note 52. See also Marie Ashe, who describes pregnancy as
… a state of being that is neither unitary nor dual, exactly; a state to which we can apply no number
known to us. Pregnancy discloses the truth of paradox” (“Law-Language of Maternity: Discourse
Holding Nature in Contempt” (1988) 22 New Engl. L, Rev. 521 at 551).
92 Supra note 88 at 12.
9′ 531 N.E. 2d 355 at 360 (1988).
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philosophy; indeed, autonomous choice is at the very foundation of liberalism.94
Traditional liberal ideals of autonomy and bodily integrity play a crucial role; in fact,
the inroads that have been made with respect to autonomous choice and refusal of
treatment in medical care have been built on liberal ideals. 95 These same ideals
presumably support the right of pregnant women to refuse unwanted medical
interference, yet in a society conmmnitted to liberal notions of justice, we have the
problem of medical intervention in pregnancy. Although liberal principles are a
central factor, alone, they do not hold a solution. They take us as far as autonomy in
medical decision-making but do not go the extra distance to unequivocally protect
women’s decisional autonomy in pregnancy. Perhaps this is inevitable, given that the
pregnant woman does not conform to the paradigmatic example of the liberal
individual; instead, “we have in every pregnant woman a walking contradiction to the
segmentation of our lives … In pregnancy the private self, the sexual, familial self,
announces itself wherever we go [as] … the embodied challenge to liberal philosophy
,,96
The idea of autonomy centres on the separate individual. Pregnant women are the
“embodied challenge to liberal philosophy” in that they are at once self and other; the
woman as discrete individual is temporarily displaced by her pregnant self. Through
pregnancy, the woman does not become a different individual (although her life is
likely to change dramatically), yet she is not the same. She is, as Isabel Karpin puts it,
“not-one-but-not-two”. 97 The pregnant woman is at once self and somehow more than
self. She is all there, but, as Catharine MacKinnon describes, “she is not all that is
there.”,98 The fetus is in the pregnant woman’s body, “but it is also ‘of’ her in that it is
interconnected with her in many intricate and intimate ways.”99 The transformative,
interconnected nature of pregnancy is contrasted with liberal thought respecting the
typically separate, atomistic liberal individual. As Susan Bordo argues:
Ontologically speaking, the pregnant woman has been seen by our legal system
as the mirror-image of the abstract subject whose bodily integrity the law is so
determined to protect. For the latter, subjectivity is the essence of personhood,
94 See e.g Williams, supra note 46 at 1561, who states that “[tihe rhetoric of choice stems from
liberal imagery of autonomous individuals making choices in their own self-interest.”
95 The doctrine of informed consent to medical treatment is based on autonomy in health care
decision-making. See e.g. Rhoden, supra note 12; Bernard M. Dickens, “Informed Consent” in
Downie, Caulfield & Flood, supra note 14.
96 Rothman, Recreating Motherhood, supra note 11 at 59.
97 Karpin, supra note 52.
98 MacKinnon, “Reflections”, supra note 52 at 1316 ×..
99 Smith, supra note 52 at 123 (from para. XXLH of the LEAF factum in R. v. Sullivan, reproduced
in its entirety in Smith’s article). See also Karpin, supra note 52 at 329, who envisions the maternal-
fetal unit as “not-one-but-not-two”.
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not to be sacrificed even in the interests of the preservation of the life of
another individual.’ 00
Robin West’s comments about liberal notions of choice and their disjunction with
women’s experiences are interesting in this context.10′ As she notes:
The descriptive account of the phenomenology of choice that underlies the
liberal’s conceptual defense of the moral primacy of consent may be wildly at
odds with the way women phenomenologically experience the act of consent.
If it is-if women “consent” to transactions not to increase our own welfare,
in this
but to increase the welfare of others-if women are “different”
psychological way-then the liberal’s ethic of consent, with its presumption of
an essentially selfish human (male) actor and an essentially selfish consensual
act, when even-handedly applied to both genders, will have disastrous
implications for women. For if women consent to changes so as to increase the
happiness of others rather than to increase our own happiness, then the ethic of
consent, applied even-handedly, may indeed increase the amount of happiness
in the world, but women will not be the beneficiaries.’ 0 2
West’s claim speaks to the potential error in applying liberal choice language to
women’s experiences in pregnancy and to the moral and legal significance of the act
of becoming pregnant or the choice not to terminate the pregnancy. Even if she is
mistaken in her assertion that the ethic of consent is wrong as applied to women (in
other words, even if the notion of moral primacy of consent is not wildly different
from women’s phenomenological experience of the act of consent), this does not
necessarily mean that the ethic of consent is appropriately applied in the context of
pregnancy. How is the notion of consent, when the consent is to a continued
pregnancy, to be characterized as “an essentially selfish consensual act”? 10 3 Generally
speaking, the opposite “choice”-that of abortion-is what is characterized as
selfish. This-more than West’s argument-the problem with viewing pregnancy
through the lens of liberal autonomy and consent. The liberal choice paradigm that
constitutes our traditional understanding of consent and its legal consequences is
based on a model of a self-interested actor, making self-interested choices, for self-
interested ends. This could not be more different from the situation in pregnancy;
surely, pregnancy must be the opposite of selfishness. 0 5 West’s point helps to
100 Susan Bordo, Unbearable Weight: Feminism, Western Culture and the Body (Berkeley:
University of California Press, 1993) at 79.
101 See also Barbara Katz Rothman, The Tentative Pregnancy: Prenatal Diagnosis and the Future of
Motherhood (New York: W.W. Norton & Company, 1986) at 180-81, 189 [Rothman, The Tentative
Pregnancy].
102 Robin L. West, “The Difference in Women’s Hedonic Lives: A Phenomenological Critique of
Feminist Legal Theory” (1987) 3 Wis. Women’s L.J. 81 at 92.
103 Ibid.
104 See e.g. Sally Sheldon, Beyond Control: Medical Power and Abortion Law (London: Pluto
Press, 1997) at 35; Reilly, supra note 53 at 790-93.
105 Women may become or remain pregnant for any number of reasons, some of which might be
considered selfish, but the physical, emotional, and psychological reality of pregnancy itself is my
concern here. See e.g. Morgan, supra note 52; Shanner, supra note 12.
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highlight that even if we apply the idea of consent fairly, that is, we respect the
consent of women as much as we respect the consent of men, and we require consent
from women in the same situations that we require it from men, we are left with an
idea that may well be incongruous in relation to pregnancy. The challenge posed to
liberalism by pregnancy
is fundamental: can liberal philosophy understand a
relationship defined by connection as opposed to separateness?106
the
intersection of so many issues important
Feminist theory is also central to questions of decision-making in pregnancy.
Intervention in pregnancy is a peculiarly problematic issue for feminists, in that it lies
at
the
medicalization of women’s bodies, 10 7 issues of women’s autonomy and bodily
8 questions about women’s social roles, 19 the need for support for
integrity, 1
0
caregivers,’10 and the recognition that “woman” and “mother” or “caregiver” are not
identical.”‘ Adding complexity to the issue is the analysis of choice-based legal
in this paper. For many feminists, 112 liberal philosophical
language presented
principles are themselves a central feature of women’s oppression. Not surprisingly,
to feminism,
including:
106 See e.g. Jennifer Nedelsky, “Reconceiving Autonomy: Sources, Thoughts, and Possibilities”
(1989) 1 Yale J.L. & Feminism 7. The feminists who critique the “atomistic” nature of liberalism
acknowledge that they draw on the work of communitarians such as Michael J. Sandel, Liberalism
and the Limits of Justice, 2d ed. (Cambridge, U.K.: Cambridge University Press, 1998); Alisdair
Macintyre, After Virtue, 2d ed. (Notre Dame, Ind.: University of Notre Dame Press, 1984); Roberto
Mangabeira Unger, Knowledge and Politics (New York: Free Press, 1975); Charles Taylor,
“Atornism” in Alkis Kontos, ed., Powers, Possessions and Freedom: Essays in Honour of C.B.
Macpherson (Toronto: University of Toronto, 1979) 39. See also Linda C. McClain, “‘Atomistic
Man’ Revisited: Liberalism, Connection, and Feminist Jurisprudence” (1992) 65 S. Cal. L. Rev. 1171
at 1176.
107 See Sherwin, No Longer Patient, supra note 80 at 179; Kathryn Pauly Morgan, “Contested
Bodies, Contested Knowledges: Women, Health, and the Politics of Medicalization”
in Susan
Sherwin, ed., The Politics of Women’s Health: Exploring Agency and Autonomy (Philadelphia:
Temple University Press, 1998) 83 at 96-97 [Sherwin, Politics]; Siegel, supra note 31 at 284.
108 See Susan Sherwin, “A Relational Approach to Autonomy in Health Care” in Sherwin, Politics,
ibid at 19; Bordo, supra note 100 at 71-97; Julia E. Hanigsberg, “Homologizing Pregnancy and
Motherhood: A Consideration of Abortion” (1995) 94 Mich. L. Rev. 371 at 381-90.
109 See Siegel, supra note 31 at 323-79.
110 See Martha Albertson Fineman, “Cracking the Foundational Myths: Independence, Autonomy,
and Self-Sufficiency”, 8 Am. U. J. Gender, Soc. Pol’y & L. 13 (2000) [Fineman, “Cracking the
Foundational Myths”]; Martha T. McCluskey, “Subsidized Lives and the Ideology of Efficiency”
(2000) 8 Am. U. J. Gender, Soc. Pol’y & L. 115; and Linda C. McClain, “Care as a Public Value:
Linking Responsibility, Resources, and Republicanism” (2001) 76 Chi.-Kent L. Rev. 1673.
11 See e.g. Sanger, “M
the Many Things”, supra note 49 at 31-40; Sanger,
“Separating from Children” (1996) 96 Colum. L. Rev. 375 at 431-33 [Sanger, “Separating from
Children”].
is for
112 ‘Me most notable example being Catharine MacKinnon.
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this leads to a reluctance to focus on the notion of choice that fits so neatly into the
liberal individualistic paradigm.1 3
that
For feminists, the threat of intervention in pregnancy raises the question of how
best to protect women’s decisional autonomy. Different branches of feminism
approach this concern in distinct ways. Dominance feminists argue that women are
not autonomous,
they cannot be autonomous under conditions of male
domination. As a result, women either do not have options, or the options that they do
have are constrained to such a degree that they simply choose what they are told they
want by patriarchy. Women will not be able to become autonomous, to make
authentic choices until they have more power, which can only occur when existing
gendered hierarchies are dismantled. Pregnancy, like other reproductive rights issues,
is a sex equality issue.1 14
Liberal feminists, on the other hand, assert that women are autonomous agents.
They see women’s subordination as stemming from unequal distribution of choices,
rather than of power. 115 In order to solve the problem of women’s choices, we need
only provide women access to the same options that men have always had. For these
writers, traditional liberalism is quite obviously flawed as it deals with women’s
choices, but some liberal ideals, such as autonomy and decisional privacy, are
essential, particularly in the context of women’s reproductive decision-making. The
problem lies in determining how to ensure that women retain authority and autonomy
with respect to their pregnant bodies and, at the same time, to avoid the labelling of
everything to do with pregnancy (especially domestic violence related to pregnancy)
as “private” and therefore beyond government intervention. 116 For both liberal and
dominance feminists, the bottom line is the same: the pregnant woman must be the
one to decide what will be done with and to her body.”7
113 For an interesting argument that the liberal notion of privacy is not an individual right at all, but
a relational right, see Radhika Rao, “Reconceiving Privacy: Relationships and Reproductive
Technology” (1998)45 UCLA L. Rev. 1077.
114 See Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge, Mass.:
Harvard University Press, 1989) at 246.
115 This is, of course, an oversimplified recitation of the liberal feminist position, to the extent that
such a position can be said to exist. Many feminists advocate liberal solutions to problems caused by
women’s subordination, but do so recognizing that the dominance feminist critique gets a lot of things
right.
116 Of course, simply adopting an important role for privacy in decision-making does not mean that
libertarian ideals of non-interference by government must necessarily go along. See e.g. Linda C.
McClain, “Reconstructive Tasks For a Liberal Feminist Conception of Privacy” (1999) 40 Win. &
Mary L. Rev. 759; Anita L. Allen, “The Proposed Equal Protection Fix for Abortion Law: Reflections
on Citizenship, Gender, and the Constitution” (1995) 18 Harv. J. L. & Pub. Pol’y 419 at 421; Anita L.
Allen, “Coercing Privacy” (1999) 40 Win. & Mary L. Rev. 723.
17 This brief discussion does not begin to do justice to the feminist literature on women’s decisions
around child-bearing and child-rearing. For example, Martha Fineman advocates for the wholesale
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An important question remains: is the liberal commitment to individualism at the
root of the law’s problems with pregnancy, or is the law’s apparent inability to cope
with pregnancy a result of patriarchal (but not necessarily liberal) constructions of
women and women’s social roles? 1 8 If it is the former, then liberalism cannot hold a
solution. In any case, any response to the problem of pregnancy intervention, liberal
or otherwise, must be a feminist one. This seems intuitively correct, in that pregnancy
is a potentially transformative experience 19 that a majority of women will themselves
undergo. But more importantly, a feminist response is imperative because no theory
having to do with pregnancy can be legitimate unless it is attentive to women’s
experience.’
20
1. Framing a Feminist Response
121
Pregnancy has long been a popular topic for feminist writers, but to date none has
sketched out a theoretical framework for dealing with decision-making in the context
of a pregnancy that will be carried to term. This stems in part from the fact that for the
past several decades, the issue for feminism with respect to pregnancy has been
abortion. A more recent reason for feminist neglect of the question of decision-
making in pregnancy is the ongoing technological revolution in reproduction. The
increased availability of technologies to assist in various aspects of the reproductive
process (as well as the genetics issues that have arisen concurrently) have given rise
to myriad concerns for feminist legal scholars. 122 This, therefore, is where feminist
writers have concentrated their efforts in relation to reproductive rights.
In addition, feminists have been reluctant to take on the question of decision-
making in pregnancy where the decision in question is not whether to have an
abortion, because of the underlying uneasiness that if we are going to think about a
pregnancy that will not be terminated, we must also think about intrauterine life, 123 an
reconceptualization of family law: The Neutered Mother, The Sexual Family and Other Twentieth
Century Tragedies (New York: Routledge, 1995) [Fineman, The Neutered Mother].
118 See e.g. Siegel, supra note 31.
119 Nedelsky, supra note 106.
120 The importance of defining pregnancy in relation to women’s experience is discussed further in
section II.B., below, with respect to the role of externally imposed norms on the pregnancy
relationship.
121 See e.g. Sanger, “M Is for the Many Things”, supra note 49 at 23-24 (suggesting that the focus
of feminist legal writing on abortion and child custody has circumscribed discussion of motherhood
in feminist literature).
122 These concerns include the routinization of prenatal diagnosis, medicalization of pregnancy,
issues in gestational motherhood, and embryo donation. See generally Callahan, supra note 10;
Hanigsberg & Ruddick, supra note 12; Gallagher, “Fetus as Patient”, supra note 11; Rothman,
Recreating Motherhood, supra note 11; Woliver, supra note 11 at 346; Rayna Rapp, Testing Women,
Testing the Fetus: The Social Impact of Amniocentesis in America (New York: Routledge, 1999)
[Rapp, Testing Women].
12 Hanigsberg suggests this term for two reasons: first, to include both embryonic and fetal stages
of development and, second, to “complicate the analysis of pregnancy without falling into the rhetoric
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issue from which feminist legal scholars have largely recoiled. As Julia Hanigsberg
articulates, the refusal by feminists to engage on the question of the value and
meaning of intrauterine life has meant that we have ceded the moral “high ground” to
the pro-life side of the debate. 124 It is also troubling because it denies the way that
life.’ 25 Finally, the
many women-including feminists-feel about
academic debate among feminist scholars with respect to procreative autonomy has
focused on how women’s decisional authority during pregnancy is best safeguarded
(i.e., by privacy doctrine, equality rights, or, as some have argued, both1 26) and not
about how it is best described.
intrauterine
Both liberal and dominance feminism make insightful contributions to the
question of decision-making in pregnancy. These contributions are not without
problems, however. There is an important limitation of the feminist work on
pregnancy: it fails to consider how decision-making in pregnancy unfolds. From a
broader feminist perspective, there are two distinct problems related to the language
of choice. The first is how to ensure that women have choices. The second problem,
which is not addressed in the literature, is what we understand by “choice” in the first
place. Both the liberal and radical streams of feminism, in arguing about how to
secure women’s choices, are talking about choice in the same way that traditional
liberalism conceives of it: the notion of rational action in relation to commensurable
goods. It seems that in order to come up with a framework for decision-making in
pregnancy, we need to look at choice in an entirely different light. In order to discredit
the language of choice and its intuitive appeal, 127 we must recognize its use and the
themes that provide a foundation for it. More significantly, we must begin to talk
about what we mean by choices, not just about whether women do or do not have
enough of them.
of the ‘pro-life’ movement and its emphasis on the rights of the ‘fetus’ … as static and immutable”
[citation omitted] (supra note 108 at 371, n. 3).
124 Ibid
125 That this must be the case seems apparent from the number of women that feel absolutely
committed to the right of a woman to choose abortion, but who feel strongly that abortion would not
be the right choice for them personally. Moreover, most women grieve when they miscarry and often
when they abort, regardless of the reasons motivating their decisions. See e.g. Rothman, The Tentative
Pregnancy, supra note 101; Rapp, Testing Women, supra note 122 at 3-4; Leslie Bender, “Genes,
Parents, and Assisted Reproductive Technologies: Arts, Mistakes, Sex, Race, & Law” (2003) 12
Colun. J. Gender & L. 1; lana Hurwitz, “Collaborative Reproduction: Finding the Child in the Maze
of Legal Motherhood” (2000) 33 Conn. L. Rev. 127.
126 Allen, supra note 116 at 421. See also Morgan, supra note 52; Smith, supra note 52.
127 There is a tension in this argument, that runs throughout the paper, in regard to the simultaneous
critique of choice language and its use. When I talk about discrediting the language of choice, I mean
the language as used to justify intervention in pregnancy. An interesting question for future
consideration is how best to deal with this tension.
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B. Reconceiving Choice: Imagining Alternative Ways of Reasoning
About Decision-Making in Pregnancy
I have argued that it is time to abandon (at least temporarily) arguments about the
quantity and quality of women’s choices and to reflect instead on the notion of choice
itself, on what we mean when we speak of individuals making choices. In Value in
Ethics and Economics,128 Elizabeth Anderson has posited what might be termed a
relational model of choice.’ 2 9 She labels her theory an “expressive” theory of rational
choice. This theory looks promising as a framework through which we can reason
about decision-making in pregnancy, both because of what it has to say about our
understandings of choices and what they mean to the “chooser”, and because of its
emphasis on the role of social norms in relation to the expression of choice.
Anderson rejects consequentialist models of rational choice and practical reason
on the basis that such theories, unlike her expressive model, do not permit recognition
of the plurality of goods and the ways in which we value them. As she explains:
People experience the world as infused with many different values. Friendships
can be intimate, or merely convenient, charged with sexual excitement, or
mellow. A subway station can be confining, menacing and dumpy, or spacious,
welcoming and sleek. When people attribute goodness or badness to some
thing, person, relationship, act or state of affairs, they usually do so in some
respect or other: as dashing, informative, or tasty, delightful, trustworthy or
honorable, or as corrupt cruel, odious, horrifying, dangerous, or ugly. Our
evaluative experiences, and the judgments based on
them, are deeply
30
pluralistic.1
According to Anderson, goods, and the ways in which we value them, are also
incommensurable, not comparable in an ordinal fashion. In other words, goods and
our ways of valuing them are qualitatively, not just quantitatively, different. Anderson
also argues that our valuations are socially mediated, in that they are dependent on
social norms. In order to value something, we have to participate in a social process of
valuation; this process is governed by norms that guide the sensible (i.e., sensible to
others) expression of our valuations.
128 This brief discussion of Anderson’s theory draws on the ideas set out in the first four chapters of
Value in Ethics and Economics. See Elizabeth Anderson, Value in Ethics and Economics (Cambridge,
Mass.: Harvard University Press, 1993) at 1-90.
129 Anderson’s theory is relational in the sense that it sees relationships as central, as forming the
context within which values are expressed.
130 Anderson, supra note 128 at 1. As Gillian Hadfield notes,
Anderson argues that we value things or states of affairs in multiple ways. Love is a
way of valuing something or someone; respect is another; revulsion another. These
modes of valuation are not merely poetic terms for “more” and “less.” Rather, they
relate to distinctive human experiences and, importantly, to social concepts of valuation
(Gillian K. Hadfield, “An Expressive Theory of Contract: From Feminist Dilemmas to
a Reconceptualization of Rational Choice in Contract Law” (1998) 146 U. Pa. L. Rev.
1235 at 1258).
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619
Anderson claims that an expressive theory of rational action defines rational
action as that which adequately expresses “one’s rational attitudes [or valuations]
toward the people and things one cares about.”‘ 31 Things are valuable if it is rational
for people to value, or assume a favorable attitude toward them. Adequate valuation
of things involves the expression of one’s valuations in a social way; thus, a publicly
intelligible vehicle is needed through which to express one’s rational attitudes. When I
value something, or have an “evaluative attitude toward” it, I, in turn, govern the way
I act in order to express that value through social norms that communicate meaning to
others.
Because of the focus on acting in accordance with social norms, Anderson notes
that her theory might be called conventionalist (i.e., it defines appropriate action based
on consistency with prevailing norms). She says that this is not the case-her theory
does not necessarily endorse all existing norms; rather, it allows for criticism of norms
where they do not provide adequate vehicles for expression of attitudes. Her point in
emphasizing the importance of social norms is that the theory is “anti-individualist”,
as it claims that individuals need a social context in which to express their attitudes. 132
If society lacks norms that allow its members to express their attitudes adequately,
then the solution is to invent and institute such norms.
The expressive theory of rational action, unlike consequentialist theories, 13 3
distinguishes between two kinds of “ends”: first, the people, animals, and things it
makes sense for us to value in and of themselves (intrinsically valuable things) and
second, the states of affairs we hope to bring about by our actions. Usually, states of
affairs are only extrinsically valuable; that is, they have value to us only because of
some effect they will have in relation to intrinsically valuable goods: people, animals,
and things that we value in and of themselves. The main task of a rational choice
theory is to select the action it makes the most sense for a person to perform.
Consequentialist theories would define this in terms of the end of realizing a valuable
state of affairs; choices are rational when they bring about valued states of affairs.
From a consequentialist point of view, if a woman wants to have a child, the decision
to become or remain pregnant is rational. The state of affairs she desires (having a
child) will be achieved through the decision to become pregnant. For the woman who
desires to have a child, the rational thing to do is attempt to conceive. Conversely, it
would be irrational-because it would not bring about the desired state of affairs-
to
continue to use birth control.
131 Anderson, ibid. at 19. By intrinsically valuable, Anderson means people, animals, or things that
we value in and of themselves. She contrasts intrinsically valuable goods with extrinsically valuable
goods, which are things (like states of affairs) that we value because of their meaning in relation to a
particular intrinsically valuable good.
132 /bid at 18.
133 In this paper, I use the phrase “consequentialist theories” to refer to consequentialist theories of
rational choice, not consequentialist theories generally.
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Anderson’s expressive theory, by contrast, gives an alternative basis for ranking
actions besides the value of their consequences, as it recognizes that rational action
has dual ends: (i) it brings about states of affairs and (ii) it can be done for the sake of
people and things we rationally care about. From Anderson’s point of view, there are
explanations for attempting to become pregnant other than the desire to have a child.
A woman might become pregnant for the straightforward reason that she desires a
child, or she might become pregnant for a variety of other reasons. 34 Consequentialist
theories are not interested in these other reasons, but the expressive theory is.
Gillian Hadfield has built upon Anderson’s expressive theory of rational action
and has argued that the theory calls into question some foundational assumptions in
contract law.135 Hadfield understands Anderson’s theory to be a basis on which choice
in contract law, and contractual obligation itself, can be reconceptualized. Anderson’s
theory admits of a possibility quite foreign to conventional contract logic-that the
“chooser” based her assessment of the options not on what future state of affairs each
might secure, but on what the choice would express.1 36 Conventional logic would
view a choice to enter into a contract at this point in time as necessarily indicating a
choice among future states of affairs. For Hadfield, Anderson’s theory shows that
what the chooser has really done is indicate a preference among current states of
affairs. The choice has future consequences only to the extent that the law assigns
them. As she explains:
Analytically, Anderson’s challenge to conventional rational choice theory
raises a question that conventional contract logic thinks it has answered,
namely, why does a person’s choice at one point in time determine her legal
obligations at another point in time? Why does a choice in contract have legal
significance? It cannot be, after Anderson, simply because the law is a neutral
arm of the state, handing out to contractors what they have asked for.137
Although I have argued that pregnancy cannot and should not be analogized to
consent-based relationships recognized by the law, such as contractual relationships,
Hadfield’s discussion of expressive choice in the contract context is useful here
because it provides a clear illustration of issues that arise from law’s views on the
binding nature of choice and of the problems with these traditional views as
highlighted by a feminist critique.
Hadfield builds on Anderson’s theory in relation to the feminist dilemma of
choice, or “the conflict between promoting women’s autonomy and freedom of choice
134 See notes 185-87 and accompanying text.
135 Hadfield, supra note 130.
136 Ibid. at 1237.
137 Hadfield notes that this implies that legal reasoning in contract must identify reasons “beyond
the bare fact that a choice to enter a contract has been made, for attaching legal significance to this
particular exercise of choice” (ibid. at 1238). She then goes on to identify these additional reasons as
the protection of reasonable reliance interests and the importance of protecting an instrumentally
valuable convention.
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on the one hand, and protecting women from the harmful consequences of choices
made under conditions of inequality on the other. ‘ 38 The significance of Anderson’s
theory is that it provides a way out of the feminist dilemma “by providing a foothold
to a contract logic that does not see the decision to refrain from implementing a
person’s earlier choice as a failure to respect her autonomy.”‘ 39 Hadfield’s account of
choice, unlike that of traditional contract
the complexity of
contractual choice. She wonders:
law, recognizes
Who are these people who populate the economist’s … imaginatio[n], who
calmly assess the alternatives available according to a stable set of internally
consistent preferences and proceed to select
the obvious choice, who
apparently feel no passion or emotion, who do not worry about whether they
are choosing well, who never feel trapped by their choices, and who never
discover over time more about themselves and their understanding of their
choices? Where is love, duty, fear, self-doubt, and power?’ 4
Hadfield is addressing contract law, but her description of the materiality of choice
and of the individual peculiarities that inform our choices seems well-suited to
consideration of decision-making in pregnancy. Choices made in the context of
pregnancy, far more than choices made in most contractual contexts, 141 involve
women’s most fundamental and closely-held values, and implicate the notion that our
understandings of our choices and our selves change over time. 142 A pregnant woman
is engaged in the process of bringing new and dependent life into the world, a life for
which she will in all likelihood bear primary responsibility. 143 In the course of
pregnancy, women’s bodies and psyches are both transformed. 144 It might be less odd
to think that a woman’s self-perception and understanding of her choices will be
radically altered during pregnancy than to assume that they will remain static.
In light of the significance that choice has for the law, Anderson’s theory has
relevance in relation to the use of choice language in law beyond the sphere of
contract. The expressive choice model seems particularly apposite as a tool through
138 Ibid. at 1238.
139 Ibid. at 1258.
140 Ibid. at 1257.
141 Nevertheless,
the contexts Hadfield describes–surrogacy contracts, marital separation
agreements, and spousal guarantees–do share some of the complexity that characterizes decision-
making in pregnancy.
142 Such choices in pregnancy are also far more public than are most exercises of contractual
choice. The public nature of pregnancy is another important reason why women’s choices come
under scrutiny in the media and in popular culture: see Duden, supra note 10 at 50-55. For a
discussion of the interplay of popular culture and abortion rhetoric in the late 1970s and early 1980s,
see Celeste Michelle Condit, Decoding Abortion Rhetoric: Communicating Social Change (Urbana,
111.: University of Illinois Press, 1990) at 123-46.
143 See e.g. Williams, supra note 46 at 1595-99; Sanger, “M Is for the Many Things”, supra note 49
at 25; Sanger, “Separating from Children”, supra note 111 at 483.
14 See Adrienne Rich, Of Woman Born: Motherhood as Experience and Institution (New York:
Norton, 1986) at 63-64, 67.
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which choice in pregnancy can be explored, and perhaps understood. In addition, the
expressive theory’s emphasis on the social nature of valuation is key with respect to
societal perceptions of both pregnancy and pregnant women. As Anderson explains,
rational choice, in the expressive theory, requires vehicles for the expression of
choice; these vehicles are social norms. Anderson is careful to point out that her
theory does not call for unreflective devotion to norms. Where existing norms are not
adequate as modes for expression of rational attitudes, the theory allows for criticism
of social norms. Few relationships are marked by such injurious norms as those that
surround pregnancy.
1. The Role of Norms: Pregnancy and Motherhood
As previously stated, part of the reason for the law’s difficulty in dealing with
pregnancy is its inability to fit pregnancy neatly (or at all) into an existing legal
category. One response
to this problem has been to conflate pregnancy and
motherhood. Rather than refer to a pregnant woman, the law refers to a mother. This
is nowhere more remarkable than in the abortion regulation cases. Even in referring to
women who are making the choice not to become mothers, the courts adopt this
language.145 The abortion cases are not the only example, however, as Hanigsberg
explains:
No rhetorical differentiation is made between the pregnant woman’s status
before and after birth … In [so-called fetal protection cases] courts have
referred to having nothing stand between a fetus and its “mother” but a scalpel;
they have expressed a willingness to infringe upon the “mother’s” “wishes” to
benefit the “child”; they have described transfusions as being given to the
“mother” in the case of a woman who was 18 weeks pregnant; and they have
described the actions of a pregnant woman that a court deemed to be dangerous
to the intrauterine life as the “mother’s” conduct.’ 46
Constitutive of the problem that has led to state intervention in pregnancy is
society’s unwillingness to trust women to make appropriate procreative choices. 147 In
Justice White’s dissenting reasons in Doe v. Bolton,148 he claims that the court’s
abortion jurisprudence demonstrates that “[djuring the period prior to the time the
fetus becomes viable, the Constitution of the United States values the convenience,
145 See Hanigsberg, supra note 108 at 394, n. 101. In R. v. Morgentaler, supra note 53, the decision
that struck down the Canadian Criminal Code provisions prohibiting abortion, the Canadian Supreme
Court did not, for the most part, refer to the pregnant woman as “mother”. In Tremblay v. Daigle,
supra note 88, a case questioning the right of a “father” to enjoin a pregnant woman from obtaining
an abortion, the only places the word “mother” appears is in the headnote to the decision (added by
the legal editors at the Court) and in quoted passages.
146 Ibid. at 394-95 [footnotes omitted]. An interesting and complicating factor here is that many
pregnant women consider themselves to be mothers, and view their choices in pregnancy as
mothering choices.
147 Reilly, supra note 53 at 799. See also Petchesky, supra note 10.
148 Supra note 53.
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whim, or caprice of the pregnant mother [sic] more than the life of the fetus.’ 49
Referring to this comment, Elizabeth Reilly notes the “vicious but effective attack on
women as decisionmakers … No one challenges the presumption that women are bad
decision makers unless they are fulfilling the role of self-sacrificing mother.”” 50
In order to resolve the problem of intervention in pregnancy, it is essential to first
reveal the law’s failure to respect women’s capacity to make procreative decisions.
Society (and hence the laws that reflect its views) does not trust women to make
appropriate decisions in the context of procreation. 151 This is the problem at the root
of the perceived need for legal intervention; because pregnant women are constructed
as mothers, hospitals, health care providers, and judges at a very fundamental level
distrust women’s decisions, unless those decisions accord with fulfillment of the role
of “self-sacrificing mother”.
Anderson makes explicit in her theory the centrality of norms as vehicles for the
expression of value. Any attempt to argue that Anderson’s theory provides a credible
model through which to understand pregnancy must therefore concern itself with the
norms surrounding pregnancy. And the norms of pregnancy supply substantial cause
for concern. 52 As numerous feminist writers have illustrated, the norms that prescribe
behaviour in pregnancy have developed out of patriarchal (and racist) ideas about
pregnancy 153 and women’s roles. 54 These norms are found at the convergence of
those relating to gender status, age, race, class, and motherhood. 155 The multiple
sources of idealized pregnant behaviour serve to immeasurably complicate societal
ideas about how pregnant women ought to behave. The ideal pregnant woman, 156 like
149 Ibid. at 221.
150 Reilly, supra note 53 at 778 [footnotes omitted]. See also Roth, supra note 6.
151 This is not the law’s only problem with pregnancy. As Barbara Katz Rothman points out, the law
assumes that it is dealing with “atomistic, isolated” individuals, and pregnancy clearly belies this
assumption. See Rothman, Recreating Motherhood, supra note 11 at 59.
152 It is worth mentioning that the very act of identifying that women’s behaviour is measured
against norms is key. As Kathryn Abrams comments in “From Autonomy to Agency: Feminist
Perspectives on Self-direction” ((1999) 40 Win. & Mary L. Rev. 805 at 825-26), we need first to
figure out that the norms we need to redefine are in fact norms that are transmitted to us through
social institutions and practices, and not simply part of our own attitudes or self-definition.
153 Ikemoto, supra note 3 at 1209-22. See also Dorothy E. Roberts, who asserts that the contours of
the notion of “motherhood” are cast on the basis of race and gender: “Patriarchy does not treat Black
and white motherhood identically” (“Racism and Patriarchy in the Meaning of Motherhood” (1993) 1
An. U. J. Gender & L. 1 at 6 [Roberts, “Racism and Patriarchy”]).
154 Siegel, supra note 31.
“‘ Siegel, ibid. at 279, 372. See also Hanigsberg, supra note 108 at 374, 391-92.
156 See Siegel, ibid. at 328, 342, nn. 333, 335, 343-44, 346-47, 373, 441-42; Ikemoto, supra note 3
at 1221-35; Sanger, “M Is for the Many Things”, supra note 49 at 19, 33, 35-36, 40; Marie Ashe,
“Zig-Zag Stitching and the Seamless Web: Thoughts on ‘Reproduction’ and the Law” (1989) 13 Nova
L. Rev. 355 [Ashe, “Zig-Zag Stitching”].
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the ideal mother, is white, 157 middle class,’ 58 maried, 159 hetero (but not sexual), 16
mature 16 1 yet not middle-aged, and passive.’ The prescription for women’s behavior
in pregnancy-like their behaviour in motherhood-is self-sacrifice: the actions of
the ideal pregnant woman reflect her complete devotion to the potential life she
carries. 163 Departure from this ideal on any metric is less than desirable; departure on
many levels
toward legal
enforcement of the norms. In enforcing behavioural norms in pregnancy, courts are
simply trying to manoeuver the individual pregnant woman before them closer to the
ideal. Those women who are prosecuted, detained, and punished are those who differ
from the ideal. Indeed, it is inevitably those women who depart from the ideal,
especially along race and socio-economic status lines, whose behaviour garners
judicial disapproval.164
is seriously problematic and may
lead to attempts
Historically, the norms of pregnancy required less of women than they do now, and
while potentially the site of social disapproval, they did not subject women to legal
sanctions. 65 As for current ideals, a pregnant woman who seeks to conduct herself in
conformity with such norms will find herself making daily judgments as she
attempts to accommodate her life to the process of making life: choices about
what to eat and drink, about how to exercise, about securing appropriate
medical care, and about negotiating quotidian forms of risk associated with
travel, leisure activities, and the work she performs on the job and at home. 166
The norms of pregnancy do not, to borrow Anderson’s phrase, provide
“adequate” vehicles for expression of attitudes. The first problem is that these norms
permit only one type of attitude toward pregnancy and fetal life-a loving, unselfish
157 See e.g. Roberts, “Racism and Patriarchy”, supra note 153; Dorothy E. Roberts, “Punishing
Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy” (1991) 104
Harv. L. Rev. 1419 [Roberts, “Punishing Drug Addicts”]; Ikemoto, supra note 3.
158 Ibid.
159 Ibid.
160 See Rich, supra note 145 at 183-84. Rich describes one effect of male culture as wedging
motherhood and sexuality “resolutely apart”. In a widely publicized San Diego case, Pamela Rae
Stewart was charged in the death of her newborn son for, inter alia, having sexual intercourse with
her husband: see Gallagher, “Collective Bad Faith”, supra note 10 at 344.
161 Bergum, supra note 11 at 117, 131. Bergum notes that society does not see the teenage years as
an appropriate time for pregnancy.
162 Reilly, supra note 53 at 802.
163 And, because of the physical dependency of the fetus on the pregnant woman, the norms
arguably require more restrictions on the behaviour of pregnant women than of mothers. For example,
mothers who drink alcohol “responsibly” are not criticized as much as pregnant women who drink at
all.
164 See e.g. Roberts, “Punishing Drug Addicts”, supra note 157; Lynn M. Paltrow, “Punishment and
Prejudice: Judging Drug Using Pregnant Women” in Hanigsberg & Ruddick, supra note 12; Susan C.
Boyd, Mothers and Illicit Drugs: Transcending the Myths (Toronto: University of Toronto, 1999) at 9
(arguing that poor women and women of colour are especially excluded from the motherhood ideal).
165 See Epstein, supra note 85 at 145.
166 Siegel, supra note 31 at 373.
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625
one. The second is that they look to an exceptionally restricted list of behaviours as
conforming to modes of properly expressing that type of value. There is no room in
the norms of pregnancy (or motherhood,’ 6 7 with which pregnancy is identified) for a
woman to feel anything other than unconditional and selfless love toward her
potential offspring. 168 But even the woman who does feel that way toward her fetus is
caught by the norms of pregnancy: we assume that if a pregnant woman truly values
her fetus, she will act in accordance with the norms. But because the norms of
pregnancy are so unforgiving, there is much room for a pregnant woman to love,
respect, and otherwise positively value her fetus and yet not behave
in the
normatively prescribed manner. When a pregnant woman is faced with a choice
between consenting to a risky medical procedure that she opposes for deeply-held
religious reasons, and risking the life or health of her fetus, the clear expectation is
that she will opt for the former, whatever its cost to her.169 If she fails to meet this
expectation, falls to live up to the norms of pre nancy, she is accused of being selfish,
irrational, or ambivalent about the pregnancy.
The norms of pregnancy are harmful for a number of reasons. The first is the fact
that they are essentializing, 171 in that they take for granted the fact that there is one
167 See generally Rich, supra note 144 at 21-40.
168 Pregnancy, for most women, is an emotionally and physiologically intense time, which leaves a
lot of room for them to be ambivalent about how they feel, perhaps afraid to connect strongly with the
fetus too early on, recognizing that it cannot be taken for granted that the end result of pregnancy is
always the birth of a healthy child. See e.g. Bender, supra note 125; Hurwitz, supra note 125;
Sherwin, No Longer Patient, supra note 80 at 101-102.
169 As Janet Gallagher remarks, most women do act in this manner; it is rare for women to refuse
medical treatment for the benefit of the fetus, even at a risk to themselves. Gallagher notes that
physicians often have to discourage women from seeking out unproven procedures: Gallagher,
“Prenatal Rights”, supra note 4 at 13. See also Rhoden, supra note 12 at 1959.
170 Phelan, supra note 71 at 462-63: “The reasons for maternal refusal vary, but can include an
underlying fear of surgery … religious grounds, inadequate cesarean facilities in the woman’s country
of origin, or latent reasons such as an unplanned pregnancy” [emphasis added]. See also Annas,
supra note 12; Flora Scrimgeour, “Seth” in Jane Haynes & Juliet Miller, eds., Inconceivable
Conceptions: Psychological Aspects of Infertility and Reproductive Technology (Hove: Brunner-
Routledge, 2003) 109. Scrimgeour describes her experience of her pregnancy, which was conceived
via IVF/ICSI using donated eggs from her sister, in the context of her first pregnancy, which led to the
birth of a stillborn daughter. Scrimigeour explains:
I could not commit to this miracle pregnancy fully. I spent the time in a stupid mess,
periodically committing all the crimes of pregnancy-heavy drinking, smoking, eating
forbidden food, etc. This was a pathetic way to behave, but it was a reaction to our
history. I had behaved immaculately during the Dora pregnancy and I was incapable of
doing it again (ibid. at 116).
This is not a story of a woman ambivalent about her pregnancy; it is the story of a woman who had
tried ARTs, with no success for four years, who twice became pregnant spontaneously (the second
pregnancy ended in a miscarriage at twelve weeks) and who simply could not believe that this
pregnancy had the potential to succeed.
171 For a discussion of maternal essentialism, see Sanger, “M Is for the Many Things”, supra note
49 at 31-40.
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right “pregnant” way for all pregnant woman to feel about their fetuses and to act in
expressing their feelings. The norms thus set up a “good” versus “bad” pregnant
woman dichotomy, and define only two modes of action: selfishness or sacrifice.
When a woman acts outside of the norm, she is perceived to express something other
than a positive value toward her fetus. This alone amounts to a failure of the
pregnancy norms as adequate vehicles for the expression of values. They are not
nuanced enough to capture the wide range of attitudes women may have toward
pregnancy itself or the expression of values that they hold in relation to pregnancy
and their potential offspring. That is, women may value pregnancy and fetal life in
different ways and they may also have distinct ways of expressing the same values.
The idealized behaviours reflected in the pregnancy norms embrace none of this
variance.
Second, the norms-at least in terms of how they come to be cast in legal
discourse-lead us to focus too narrowly on the woman. We tend to turn the “legal
gaze” away from the woman’s circumstances in general and look at her behaviour out
of context and in relation only to the fact of her pregnancy at a particular moment in
time. 172 We expect a pregnant woman to obtain appropriate prenatal care and to
ensure that she is getting proper nutrition for the benefit of her fetus; when she does
not, we measure her (inevitable) failure against the norm. Yet we do not inquire
whether she has medical insurance, whether she can afford prenatal care or proper
nutrition, 173 whether her failure to obtain these goods is a result of her life in poverty
and an attempt to deny her own needs in favour of those of her children.’ 74 The
pregnant woman may be caught up in trying to take care of herself, her children, her
spouse, or her parents, 175 she may have limited resources with which to express much
of anything toward the fetus she is carrying. Measured against the norms of
pregnancy, this woman’s choices might fall far short, but that in no way indicates that
the choices she has made (or, perhaps, has had to make) reflect negative valuations of
her pregnancy and her potential child. The defect inheres in the societal attitudes
constitutive of the norms, not in the pregnant woman.
The norms are also injurious because they inappropriately categorize women into
archetypes: good, white, middle class, married mothers versus bad, black, poor,
unmarried mothers. 176 The norms of motherhood are clearly at play here with respect
172 Baylis, supra note 21 at 791.
173 See e.g. Lynn McIntyre et al., “Do Low-Income Lone Mothers Compromise Their Nutrition to
Feed Their Children?” (2003) 168:6 C.M.A.J. 686 at 686 (concluding that low-income single mothers
“compromise their own nutritional intake in order to preserve the adequacy of their children’s diets”).
174 For discussions of mothers and poverty (particularly single mothers and women of colour), see
Paltrow, supra note 164; Fineman, “Cracking the Foundational Myths”, supra note 110; Martha
Albertson Fineman, “Images of Mothers in Poverty Discourse”, in Fineman & Karpin, eds., supra
note 11,205 [Fineman, “Images”]; Roberts, “Racism and Patriarchy”, supra note 157 at 22-29.
175 See e.g. Fineman, “Cracking the Foundational Myths”, ibid., and Fineman, “Images”, ibid.
(discussing the idea of “inevitable dependencies”).
176 See e.g. Ikemoto, supra note 3; Roberts, “Racism and Patriarchy”, supra note 157.
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to pregnant women. 177 These norms seek to direct those who fit the “good” mother
caricature to become mothers and to discourage from becoming mothers-and even
punish-those who fit the “bad” mother nonn. 178 This is made strikingly plain in the
disproportionate overrepresentation of women of colour and poor women in cases of
intervention in pregnancy. 179
At a minimum, Anderson’s theory makes it clear that we need to reconceive
existing norms having
to do with choice and pregnancy. The process of
reconceptualization requires that we acknowledge the existence of these norms, and
that we discredit them, as I have attempted to do here. It is especially important that
policy-makers and lawmakers understand that the norms applied to pregnancy are
inadequate to the task of reflecting the diversity of values that may be engaged by
women’s choices during pregnancy. We need to recognize the pluralistic nature of
these values, and realize that we do not currently have vehicles that adequately
explain what a particular woman means to express when she makes a particular
choice in the context of her pregnancy. We need to afford all women the space to
experience pregnancy in their own way, understanding that pregnancy will be
experienced differently by different women and even by the same woman at different
points in a pregnancy, or in different pregnancies.’ 80 Ultimately, this process will
permit the evolution of new norms that will enable women to express their complex
attitudes toward intrauterine life. Until we are able to reconceive the norms we apply
to women’s behaviour in pregnancy, it will be difficult to succeed in convincing
society that it (and the law) is looking at pregnancy in the wrong way. This is not an
easy project and may not lend itself to consensus, but that in itself should indicate
how completely wrong-headed current attempts at legal regulation are. If we doubt
that women can come to a common understanding about the meaning of choices made
during pregnancy, we must at least recognize that pregnancy is a context in which
women have to be trusted to make their own “mortal decisions”. 181
2. Expressive Choice in Pregnancy
Anderson’s expressive choice theory explains that we need to concern ourselves
with the meaning of choices to the person making them. As has been articulated in the
foregoing section, the meaning of choices made during pregnancy can be obscured by
the inadequacy of the norms applied to the behaviour of pregnant women. Having
177 Hanigsberg, supra note 108.
178 See Roberts, “Punishing Drug Addicts”, supra note 157; Roberts, “Racism and Patriarchy”,
supra note 153; Paltrow, supra note 164; Ikemoto, supra note 3.
supra note 17.
179 Ibid. See also Rodgers, “Legal Regulation”, supra note 14 at 354; Kolder, Gallagher & Parsons,
180 Shanner, supra note 12.
18 Ashe, “Zig-Zag Stitching”, supra note 156 at 383: “I want a law that will let us be-women.
That, recognizing the violence inherent in every regulation of female ‘reproduction,’ defines an area
of non-regulation, within which we will make, each of us, our own ‘mortal decisions.”‘
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observed how the norms work, or more accurately, fail to work, we must look behind
them in order to consider the complexities of the decisions pregnant women make. In
other words, the problem of choice in pregnancy, seen through the lens of Anderson’s
theory, is multilayered, entailing an attempt to attend to what the particular choice
means to the particular pregnant woman making it, as well as recognition that because
we do not have adequate vehicles through which women may express their choices,
what we think a woman means might not be what she intends to express in making a
given choice.
Contract law, in its conventional form, is concerned with instrumental choices;
choices directed at particular ends. As Hadfield points out, Anderson’s theory requires
a shift in focus away from explanation of choices solely in relation to their
instrumentality, toward the broader dimensions of the choice. Specifically, the theory
directs our attention to the meaning of the choice to the chooser, as opposed to the
consequences that the chooser may (or may not) desire to result from the choice. 182 In
other words, following Anderson’s ideas, we must think differently about the reasons
for making a particular choice. It could be that the choice was made because of its
known and desired consequences, or it could be that the choice was made because of
what the act of choosing expressed, or meant to the chooser. The notion of choice in
pregnancy has an added dimension: even if the choice to become or remain pregnant
is instrumental, in that the reason for the choice, and its desired outcome, is the birth
of a child, it does not necessarily follow that another consequence (the socially and
sometimes legally required one)-that the woman will give herself over entirely to the
needs of her potential child, that she will accept medical treatment with respect to
which she has significant reservations-is equally desired.
In this light, Hadfield’s observations, albeit intimately related to contract law, are
relevant to pregnancy. As she explains, Anderson’s theory shows us that “[r]espect for
the multiplicity of frames in which a decision to contract can be made often entails
looking beyond the fact of choice to the complexity of what it means to choose.”” 83
This is particularly important in the context of pregnancy, itself a profound event in a
woman’s life. We need to ask: why does (or why should) the prior choice (in this case,
the choice to become pregnant, or to reject abortion) have legal significance in
connection to a later, unrelated choice? By focusing on the instrumental nature of
choice, we can easily overlook the fact that the consequences of a choice are legal
consequences, and not natural or biological consequences. The legal “consequences”
of the “not abortion” choice-the forced Caesarean section or blood transfusion (or
possibly, prenatal diagnostic test or fetal therapy)–exist only if the law says they do.
This is what the Anderson/Hadfield model can help us to understand.
The expressive theory of rational choice requires us to ask not just whether a
woman has chosen to become or remain pregnant, but what it means to her to have
182 Hadfield, supra note 130 at 1265.
183 Ibid. at 1285.
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629
done so. Did she become pregnant because of the demands of her religious beliefs?
Perhaps her choice was a way in which she could express her love for her partner,1 84
prove her value as a daughter or daughter-in-law, attempt to feel worthy as a
woman, 185 express her desire to be depended upon, to be responsible for another
life,’ 86 or because she thinks that raising children will bring her unparalleled joy.
When we consider these possibilities, along with the myriad other beliefs that might
motivate a woman to become or remain pregnant, we can begin to observe the
specious nature of the arguments that claim that in choosing not to terminate her
pregnancy, a woman has acquiesced to a set of legal duties to ensure that her child is
born as healthy as is possible. 87 If legal duties are to be imposed on pregnant women,
whether they entail refraining from consuming alcohol or consenting to a Caesarean
section, then we need to be honest about the fact that these duties exist because the
law says they do, and not because of the woman’s decision to bear a child.’ 88 “We, as
a community, cannot evade these difficult questions by foisting the answer off on the
[woman’s] choice.”” 89
Considering decision-making in pregnancy from an expressive choice point of
view emphasizes both the unique and enigmatic nature of the relationship of woman
to fetus, and of the pregnancy experience itself. Analyzing specific decisions in the
context of pregnancy-for example, the decision whether or not to consent to prenatal
testing-can help to tease out some of this complexity. Choices respecting prenatal
testing provide a good example of the nuances involved in decision-making in
pregnancy, because they are difficult, complicated, emotionally wrought decisions’ 90
and because, at least arguably, in most cases they involve the actual exercise of
choice.
Maternal serum screening (“MSS”), a blood test that can indicate increased risk
‘ is offered to most pregnant women in
for certain heritable or genetic conditions, 9
184 Or to attempt to shore up a faltering relationship, see e.g. Ellen’s story in Carol Gilligan, In a
Different Voice: Psychological Theory and Women’s Development (Cambridge, Mass.: Harvard
University Press, 1982) at 87-88.
University of California Press, 1975) at 66-68.
185 Kristin Luker, Taking Chances: Abortion and the Decision Not to Contracept (Berkeley:
186 See e.g. Gilligan, supra note 184 at 76; Luker, ibid at 68; McClain, supra note 13.
187 Robertson, “Procreative Liberty”, supra note 26 at 438 ×..
188 As Hadfield puts it in the context of surrogacy contracts where the woman decides she does not
wish to give up the child: “We must determine the implications of her changing choice and accept
responsibility for the consequences imposed on her by the law” (supra note 130 at 1265).
1 9 Ibid.
190 See e.g. Rapp, supra note 122; Browner & Press, supra note 28; and Rayna Rapp, “XYLO: A
True Story” in Rita Arditti, Renate Duelli-Klein & Shelley Minden, eds., Test-Tube Women: What
Future for Motherhood? (London: Pandora Press, 1984) 313.
191 See e.g. Nicholas J. Wald, Wayne J. Huttly & Allan K. Hackshaw, “Antenatal Screening for
Down’s Syndrome with the Quadruple Test” (2003) 361 Lancet 835; James E. Haddow, “Antenatal
Screening for Down’s Syndrome: Where Are We and Where Next?” (1998) 352 Lancet 336; and
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North America as a routine element of prenatal care. 192 The test itself poses no risk to
the pregnant woman or to the fetus, and its purpose is to determine whether further
(diagnostic) testing is indicated. In general terms, if a woman has a “screen positive”
result, she will be referred for amniocentesis, a diagnostic test’ 93 that will indicate
whether the fetus in fact has the genetic condition that the screening test pointed to as
an increased risk. Since there are currently no therapies available to cure these
conditions,’ 94 a woman who has a positive diagnostic result (in other words,
amniocentesis indicates
that the fetus does in fact have the suspected genetic
condition), will face a decision whether to continue with or terminate the pregnancy.
A “screen negative” result means that the woman will not be referred for further
testing. The MSS decision is particularly useful to consider from the expressive
choice point of view, because it involves so many angles. Other prenatal tests, such as
amniocentesis and chorionic villus sampling (“CVS”), 195 involve
the risk of
miscarriage and, possibly, of harm to the fetus, 196 and these risks are likely to be
dominant considerations for women deliberating about testing. MSS, by contrast,
poses no risk of physical harm to woman or fetus, rendering it at first blush a less
difficult decision. But because it gives rise to the possiblity that the woman will
ultimately have to confront a decision about a more invasive test, with all of the
Joanne A. Permaul-Woods et al., “Going the Distance: The Influence of Practice Location on the
Ontario Maternal Serum Screening Program” (1999) 161 Can. Med. Assoc. J. 381-85.
192 According to Dr. Anne Summers, it is likely that all Canadian provinces offer some form of
screening, but the majority do not offer province-wide programs: Personal Communication, Dr. Anne
Summers, Clinical Geneticist, Genetics Program, director MSSIPS programme, North York General
Hospital, North York, Ontario. See also Rapp, supra note 120 at 30-31 and Nancy Press et al.,
“Provisional Normalcy and ‘Perfect Babies’: Pregnant Women’s Attitudes Toward Disability in the
Context of Prenatal Testing” in Sarah Franklin & Helena Ragon6, eds., Reproducing Reproduction:
Kinship, Power and Technological Innovation (Philadephia: University of Pennsylvania Press, 1998)
46 at 47-48.
193 Amniocentesis involves the extraction and chromosomal analysis of amniotic fluid (the fluid that
surrounds the fetus) via the insertion of a hollow needle through the pregnant woman’s abdominal
wall and into her uterus. See Rapp, supra note 120 at 27.
194 See e.g. Timothy Caulfield, “Liability in the Genetic Era: Wrongful Life and Wrongful Birth
Lawsuits” (2000) 23 J. S.O.GC. 143.
195 CVS is a biopsy of the chorion, which is the tissue that will ultimately become the placenta. This
test can be performed in the first trimester of pregnancy (as opposed to amniocentesis, which is
generally not considered to be safe until the second trimester). CVS carries a greater risk of
miscarriage than does amniocentesis. See infra note 197. See B.N. Chordirker et al., “JOGC Clinical
Practice Guidelines, Canadian Guidelines for Prenatal Diagnosis: Techniques of Prenatal Diagnosis”
(July 2001), online: Society of Obstetricians and Gynaecologists of Canada
196 Amniocentesis involves a risk of miscarriage of 0.5 to one per cent; the risk of miscarriage as a
result of CVS is between one and six per cent depending on the method used. There is also a very
minor risk of fetal harm as a result of amniocentesis, but serious fetal injury is rare. CVS is thought to
carry a slightly higher risk of fetal facial or limb abnormalities. See “JOGC Clinical Practice
Guidelines”, ibid.
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complex considerations that invasive testing presents, it is clearly not an easy decision
to make. 97
When a pregnant woman decides not to have MSS, 198 her choice may be based on
any number of reasons. She simply may not be concerned about whether the baby will
be born with a genetic problem, may have no intention of terminating her pregnancy
as a result of a positive diagnostic result, and may therefore feel that the information
the MSS can provide her with is irrelevant. Alternatively, she might be afraid that
learning of a positive screen result will lead to further testing, with its attendant risks
to the fetus,’99 and she is not comfortable taking these risks, so prefers not to know of
her risk assessment based on the MSS result. A woman might also fear that a positive
screen result and diagnostic testing will inform her that the fetus she is carrying does,
in fact, have a genetic problem and this information, in turn, will force her to confront
a decision she cannot imagine making-whether to terminate this (otherwise wanted)
pregnancy. Finally, the testing may come with a price tag, which she may not be able
to afford.
A woman who decides to go ahead with MSS, on the other hand, might do so
because she knows that without the test results, she will worry for the remainder of
her pregnancy about whether something is wrong, and wants the reassurance a
negative screen result will provide. Or, she might agree to the testing because she
feels strongly that she does not want to bear and raise a child with disabilities
resulting from a genetic condition, and so wants to learn what her risk is and whether
further testing is indicated, so that she can go ahead and terminate her pregnancy if
the fetus does have such a condition. Finally, a woman may accept the MSS because it
is risk-free, and she feels that it will provide her the information she needs to go on
and make a more informed choice about whether to have more invasive testing, such
as amniocentesis.
The foregoing sets out some, but certainly not all, of the possible reasons a
pregnant woman might have for declining or accepting prenatal testing, and prenatal
testing is only one decision of many
that women face in relation to pregnancy and
197 Generally speaking, invasive testing such as amniocentesis and CVS are offered to pregnant
women based on their age; traditionally those aged 35 or over are offered such testing. MSS is offered
to all women to determine whether a woman, even under the age of 35 years, should be offered the
diagnostic testing. See B.N. Chordirker et al., “SOGC Clinical Practice Guidelines, Canadian
Guidelines on Prenatal Diagnosis: Genetic Indications for Prenatal Diagnosis” (June 2001), online:
Society of Obstetricians and Gynaecologists of Canada
198 See supra note 192.
199 See supra note 196.
200 And the MSS is only one form of prenatal testing. Other decisions women make during
pregnancy, to name just a few, include: where to give birth-home or hospital; who will be her birth
attendants-physician, midwife, doula, or some combination thereof; other tests such as ultrasound,
gestational diabetes screening, HIV testing; whether to take medications; what foods to eat; what
types of exercise to do; and what form of employment to engage in.
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that could be subject to similar analyses. In examining decisions about prenatal
testing, we can clearly see the trouble with the normative expectations we hold with
respect to choices made by pregnant women. On the one hand, the ideal pregnant
woman accepts unreservedly, and feels nothing but love toward, the fetus she is
carrying-the ideal pregnant woman is not a woman who would terminate her
pregnancy. On the other hand, it might be considered irresponsible for the pregnant
woman not to take full advantage of the technology available for prenatal testing, so
that she does not bring a child into the world that will suffer from a genetic
condition. 20 1 Having considered choices about prenatal testing from the broader
perspective that the expressive choice theory directs us to, we can also clearly see the
problems with resort to choice language. Having looked behind the apparently binary
decision of whether to remain pregnant or terminate the pregnancy, we can no longer
credit the assertion that the woman’s choice to remain pregnant implies the willing
assumption of obligations to her fetus, including consent to all recommended medical
procedures.
Making choices around prenatal testing will obviously not be this complicated for
all women, or for all of the many decisions a pregnant woman must make, but the
important point is that it can be this complicated. Factors specific to each woman’s
life will further confound the analysis, such as: is it a wanted or unwanted pregnancy?
How difficult has it been for this woman to become pregnant? Did she have to seek
out fertility treatment? If so, how many attempts did it take to achieve pregnancy, and
at what cost? Has she had other children? Has she had other pregnancies end in
miscarriage or stillbirth? How does her partner (if she has one) feel about the
pregnancy? How easy would it be for her to become pregnant again were she to
miscarry or abort? How old is she? What is her socio-economic reality? With respect
to treatment refusal in particular, other issues may also arise, related to the realities of
the woman’s life. Is she someone who has had negative interactions with the justice
system in the past? With the health care system? How autonomous does she perceive
201 This raises a number of issues around genetic conditions, discrimination, the experience of
disability, and suffering that are beyond the scope of this paper. For interesting discussions, see
Adrianne Asch, “Prenatal Diagnosis and Selective Abortion: A Challenge to Practice and Policy”
(1999) 89 Am. J. Pub. Health 1649; Marsha Saxton, “Born and Unborn: The Implications of
Reproductive Technologies for People with Disabilities” in Arditti, Duelli-Klein & Minden, supra
note 190, 298; Deborah Kaplan, “Prenatal Screening and Diagnosis: The Impact on Persons with
Disabilities” in Karen H. Rothenberg & Elizabeth J. Thomson, eds., Women and Prenatal Testing:
Facing the Challenges of Genetic Technology (Columbus: Ohio State University Press, 1994) 49. The
argument of disability rights advocates, that prenatal diagnosis and selective abortion is morally
problematic, has led to some interesting explorations of the tensions inherent in advocacy of a
feminist pro-choice position and, at the same time, a discomfort with the use of prenatal diagnosis and
selective abortion to “prevent”
the birth of children with disabilities. See e.g. E. DeVaro,
“Consideration of Context in the Case of Disability Rights Activism and Selective Abortion” (1998)
6:3 Health L. Rev. 12.
2004]
E. NELSON – RECONCEIVNG PREGNANCY
herself to be?2 02 What are her religious or spiritual beliefs that might bear on
decisions about health care?
Decision-making in pregnancy is an exercise that implicates all facets of a
woman’s life. It can be (and probably often is) a tangled, difficult process. As noted
earlier, there are a number of underlying concerns with respect to the use of choice
language in legal reasoning around choices made in pregnancy. But even more than
the narrow focus on the availability of abortion, the concerns about medical
paternalism, and the attempts to analogize pregnancy to other legally regulated
relationships, it is the failure of choice language to give effect to the pluralistic
valuations that such choices entail that is cause for concern. As Elizabeth Anderson
tells us, choices do not always mean what they might superficially seem to, and they
might not always be directed in the way we might expect (e.g., at a set of
consequences). In defaulting to choice language, the depth of the considerations
behind the choices is lost, and it is therefore even more critical that we note the use of
this language and that we discredit it.
It is easy to turn to choice as a justification for intervening in the lives of pregnant
women and easy to declare that once a woman has invited the fetus in or allowed it to
remain her freedom to choose further has been surrendered. The expressive choice
model requires that we come to grips with what choice language obscures-the
complex and often painful decisions that face pregnant women.
What does an expressive choice model tell us about intervention in pregnancy?
That any attempt at regulation must attend to the realities of women’s lives and the
constructed (and often constrained) nature of their choices in pregnancy. As I state
elsewhere in this article, I am of the view that intervention in pregnancy, where it
involves coercive practices such as forced medical treatment, is ill-conceived. But
even where intervention is more positive, in that it involves, for example, providing
universal prenatal care, addiction treatment programs tailored to the needs of pregnant
women, 2
3 or protection of pregnant women from violence at the hands of their
0
partners, it is, as the expressive theory elucidates, crucial that we take into account the
complex nature of decision-making in pregnancy.
Conclusion
The foregoing discussion of choice in pregnancy has raised a multitude of issues
that require further consideration in future work. The main aim of this paper, in
addition to raising these issues, has been to argue that intervention in pregnancy
202 Shanner, “Pregnancy Intervention”, supra note 12. See e.g. Baylis, supra note 21 at 788-89;
Carolyn McLeod, “Women’s Autonomy and the ‘G’ Case” Canadian Bioethics Society Newsletter
(May 1998) 3:2, online: Canadian Bioethics Society
203 Currently, there are shortages of drug treatment programs tailored to pregnant women. See e.g.
Roth, supra note 6 at 138-39 and McLeod, ibid.
634
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denies women’s autonomy and bodily integrity, reinforces traditional and harmful
ideas about motherhood and pregnancy, and elevates medical judgment over the
views and the judgments of pregnant women. In order to prevent these harms from
persisting, we need to reason about women’s choices in a different way, and a theory
that attends to the expressive nature of choice is proposed as a starting point for this
endeavour. Such a theory allows for critique of existing norms around pregnancy and
motherhood and directs attention to consideration of the meaning of choices to the
person making them. Only by finding a new way of reasoning about pregnancy can
we hope to resolve the problem of pregnancy intervention in a manner consistent with
both autonomy and equality for women.
