(no subject)
I. INTRODUCTION: FETAL RIGHTS, VIOLENCE AGAINST WOMEN & WOMEN’S EQUALITY
This paper examines the relationship between violence against women and attempts to curtail women’s reproductive autonomy by foregrounding the fetus and its “rights,” both as social and legal phenomena. These two seemingly disparate areas are connected in myriad ways, many of which are not fully recognized or understood: for example, domestic violence is causally related to poor pregnancy outcomes. Nevertheless, when considering the “rights” of the fetus, courts and medical professionals have placed an unequal burden on pregnant women for ensuring the health of the fetus, without regard to men’s role (or society’s role) in determining pregnancy outcomes. Both domestic violence and the politics of fetal rights exacerbate women’s economic inequality with men, shrink women’s freedom and erode women’s equal standing as citizens. Consideration of the relationship between domestic violence and fetal rights brings to light the triangle of interaction between the medical profession, state authorities and women. It is common for discussions of fetal rights to elide the role of domestic violence. These two disparate areas need to be brought together in order to give an honest picture of how law and public policy relating to reproduction fails to reflect important social realities and health determinants. This incongruity appears in sharp relief particularly where criminal law powers are invoked to punish women for conduct during pregnancy that is harmful to the fetus, particularly abuse of alcohol or illegal drugs. Often in such cases, addiction is presented as a choice and as the sole cause of fetal ill-health, even in situations where violence during pregnancy is documented. Thus, it is essential to consider the interaction between fetal rights and domestic violence, both in terms of framing public policy and in terms of a more abstract analysis of the requirements of justice.
The central premise of this paper is that legal and other policy initiatives must make women’s health, and not fetal health, the focus on their attentions. Violence during pregnancy is considered in relation to fetal health (and survival), but the focus, above on, is its relation to women’s health and well-being. I implore those who are concerned with fetal health to approach the problem in relation to the question of women’s health and maternal health in general. It is important not to separate the fetus from the woman who bears it, as past discourses have done. This separation, in practice, has been damaging to women’s health and social status, and also to the health and well-being of their fetuses and their children. Finally, attempts to eliminate or minimize violence during pregnancy are only one part of an overall program to benefit women’s health in general. The broader social context of health, including the pervasiveness of violence against women generally, should not be forgotten. By focusing on the unity of interests between pregnant woman and fetus, a broader picture of maternal and fetal health emerges.
A debate currently exists as to whether women or fetuses should be the proper subject of public policy considerations. Violence against women remains endemic, and studies show that pregnant women are disproportionately victims of violence. Levels of domestic violence have been show to rise during pregnancy. As a result, some lawmakers contemplate changes to the criminal code which would create a new offence, feticide, where an assault on a woman results in miscarriage. Such laws would reify the fetus into a separate legal person (allegedly for the limited purposes of the particular legislation). Others propose imposing harsher penalties for an assault against a pregnant woman that results in a miscarriage, without defining the fetus as a person. Such laws may benefit women by discouraging violence against pregnant women and by acknowledging the extra loss suffered when a woman loses a fetus as the result of an assault.