To argue for fetal status and rights is much more winnable than to argue for women on their own behalf
The summer of 1989 was one big chill for women's reproductive equality in North America. In July, a U.S. Supreme Court decision provided the ice for the future freezing of women's right to abortion. Canada's Supreme Court went into emergency session in August to decide whether a Quebec woman, Chantal Daigle, could be restrained by her abusive former boyfriend, JeanGuy Tremblay, from having an abortion. At the same time, in a U.S. Circuit Court in Knoxville, TN, a divorced couple was fighting over their frozen embryos. On the last day of summer, a Kentucky state court granted temporary custody of seven frozen embryos to Mary Sue Davis, who had produced the eggs, on the grounds that "human life begins at conception." The embryos could be thawed. Women, however, entered the deep freeze of reproductive self-determination.
It is not coincidental that these three cases occurred in tandem. As destructive as the conservative groundswell has been in disassembling Roe v. Wade, there has been another undermining of women's reproductive freedom which, for the most part, has gone unrecognized - the liberal defense of the new reproductive technologies. Over the last five years, many prochoice advocates have argued that we must support new reproductive arrangements such as embryo freezing, in vitro fertilization (IVF) and surrogacy. For example, various reproductive rights groups have included within their list of demands access to reproductive technologies that enable lesbians and infertile people to have children. To oppose the development and legalization of these reproductive "options," and to limit access to them, they maintain, undermines women's reproductive freedom and ultimately women's right to abortion. What we witnessed in the "iced embryos" dispute, however, is the exact opposite of this theory. As these new technologies develop and enter litigation, they help chip away at women's right to reproductive freedom and control.
Consider the opposite - that to support the development of and access to these new reproductive technologies undermines women's reproductive freedom and thus women's right to abortion. I believe that technologies such as IVF, embryo transfer and embryo freezing are extremely invasive to women's bodily integrity and require women to adapt to painful and debilitating procedures; situate women on a reproductive treadmill; medicalize not only the processes of pregnancy and birth but women's very lives; are experimental and treat women as raw material for reproduction; and beg the question of why women are channeled, at such cost to themselves, into reproducing. In this article, I underscore the fact that these technologies focus medical, legal and media attention on the status and rights of fetuses and men while rendering the status and rights of women at best incidental and at worst invisible.
To support the development of and access to these new reproductive technologies undermines women's reproductive freedom and thus women's right to abortion.
For one thing, these new reproductive arrangements give a technological boost to the prominence of paternity and "fathers'" rights that is fast growing in other contexts. Men's right to gender equality is becoming a new legal and media preoccupation and is shifting the focus of equal opportunity from women to men. In the U.S., we have seen this happen in child custody disputes and in child sexual abuse cases where fathers are increasingly given legal custody of children, and mothers are penalized, in some instances with indeterminate jail sentences, for trying to protect their children from male abuse. The same shift is occurring in reproductive conflicts. Here, the very concept of fatherhood is being extended to include sperm donors, as if by fertile ejaculation a man becomes a father. In the frozen embryos dispute, many experts argued that Mary Sue Davis's right of privacy, as articulated in Roe v. Wade, did not hold because the embryos were outside her body. Hardly anyone, including Mary Sue Davis, argued her right to what issues from her body - thus her right to gender equality. Instead, some "experts" reasoned that both parents had equal rights to the embryos by virtue of their genetic contributions. Unfortunately, the legal claim of Mary Sue Davis was based on the rights of embryos as "preborn children," not on her greater contribution to the embryos, nor on her repeated attempts at implantation and gestation, and considerable bodily investment.
In contrast, Junior Davis, the sperm donor, was not shy about asserting his rights to gender equality. He maintained that the embryos should not be born because this would violate his right to control his reproduction. In stronger language, he contended that he was being "raped of [his] reproductive rights." In what sounded like a new male entitlement to abortion, Junior Davis argued that he would be forced into fatherhood if these embryos were implanted and carried to term, even though he wouldn't be doing the physical, emotional, or financial "carrying."
Maintaining that his self-interest in not becoming a father was paramount in preventing his ex-wife from thawing their frozen embryos, Junior Davis sued for veto power over the embryos' use. Testifying at the trial, John Robertson, legal champion of "procreative liberty," argued that the case should be decided in favor of Mr. Davis because he would be hurt worse by losing. In what can only be interpreted as callous ignorance of the invasive and interventionist procedures that women must go through in order to engender frozen embryos, Robertson argued that Mrs. Davis could try another in vitro fertilization program if she lost the case, which would be "less of a burden" on her than unwanted fatherhood on Mr. Davis.
Let us take a closer look at this "lesser burden." Mary Sue Davis underwent five tubal pregnancies resulting in the rupture of one fallopian tube and the tying of the other before entering the in vitro fertilization program in Knoxville. This is common of many women who resort to in vitro fertilization. They have already been through numerous pregnancy failures and painful interventions such as fertility treatments and infertility work-ups, which often include blowing out their tubes with gas. Then they take on the interventions of an in vitro fertilization program - fertility drugs, laparoscopies to extract the eggs and, most often, failed implantations of the eggs after external fertilization in a petri dish (Mary Sue Davis had two unsuccessful implantations).
Furthermore, Mary Sue Davis wanted no parental support or responsibility from her ex-husband. She elected to raise the child, if born, on her own. To this, Junior Davis responded that he did not want a child of his - the child he did not want born but yet wants to control - reared in a single parent household. Adding another dimension of "fatherright" to the legal picture was that of the medical progenitor, Dr. I. Ray King, who runs the in vitro program used by Davis. King said that he would not consent to Mary Sue Davis using donated sperm for additional IVF attempts after her divorce and, further, would not allow a single woman into the program.
The medical "fathers" are asserting their own rights in another frozen embryo dispute that has not received as much publicity as the Davis case. In 1986, Risa and Steven York joined the in vitro fertilization program at the Jones Institute in Norfolk, VA. After Risa York underwent three failed implants, the couple decided to freeze the resulting embryos. They have now been on ice for 24 months, drawing near to the longest recorded freezing time for a successful implantation - 28 months. The couple is moving to California and want their frozen embryos shipped to the Good Samaritan Hospital in Los Angeles where Risa York will undergo another implantation under the supervision of Dr. Richard Marrs. But Howard Jones, of the Norfolk Clinic, has refused the transfer, saying that the Yorks have no rights to the embryos outside his institute's jurisdiction. A federal judge has ordered that the case be tried by jury. In what has become a turf dispute among the various medical men involved, Richard Marrs takes aim at his competitors: "When a physician starts owning embryos and making decisions for his patients, there'll be no stopping anyone who has anything to do with pregnancy from getting involved." The point seems lost on Marrs that the whole history of reproductive technologies thus far has been for the physician to take more and more decisions about pregnancy and birth from women.
In the embryo freezing dispute, the focus was on the rights of sperm donors, so-called "fathers," and medical "fathers." Nobody was talking about women's rights - not even Mary Sue Davis. Instead, Jay Christenberry, her lawyer, argued that the embryos are "pre-born" children. He enlisted the testimony of a French geneticist who declared that life begins at conception because that is when the human genetic blueprint is fixed.
And then came the decision. On September 21, 1989, Judge Dale Young, concluding that the frozen embryos were in fact "human beings existing as embryos," awarded custody of the embryos to Mary Sue Davis. One is tempted to say that the right conclusion was reached for the wrong reason. But this would be too simplistic. Mary Sue Davis won this battle by arguing that the embryos were persons, an argument recommended by lawyers who sensed the political climate and took advantage of it. They gambled that fetal personhood and rights stood on more secure legal ground than women's personhood and rights. Women, like Mary Sue Davis, are now catching on that to argue for fetal status and rights is more winnable than to argue for women on their own behalf. One lesson of the Davis case is that women and women's rights are considerably diminished by these new reproductive "options." Mary Sue Davis's victory was no victory for women. Fetal rights are almost always set in opposition to women's rights. More and more, however, fetal rights are becoming a thin disguise for so-called fathers' rights. As the new reproductive technologies become part of the medical and legal landscapes, the focus is on fetuses and a new breed of "ejaculatory fathers." It is fatherhood, not motherhood, which is expanded by the new reproductive techniques. What we see repeated in litigation involving new reproductive technologies is another version of what Mary O'Brien, author of The Politics of Reproduction: Reproducing The World, has termed "ejaculatory politics." Ejaculation confers father-right. This is not metaphor but grossly material, if you will, and it played in the Quebec abortion case. Here, Jean-Guy Tremblay argued that his self-interest in becoming a father was paramount in preventing his former girlfriend, Chantal Daigle, from having an abortion and thereby protecting the fetus. He went to great lengths to insure his paternity, even ordering her to stop using contraceptives when they tentatively planned marriage. Tremblay himself testified that he substituted other tablets for Daigle's birth-control pills when she refused to stop taking them.
Tremblay's own "self-interest" in becoming a father, however, was transformed into the state's interest in defending the fetus. Jean-Guy Tremblay's lawyer showed an antiabortion film to the court portraying the fetus as a human being with all the rights of a person. Robert Francis, the attorney, said that "The Supreme Court decision of the United States gave us all hope." Meanwhile, Jean-Guy Tremblay had written a will, leaving his property to the fetus. Jean-Guy maintained that stealing his lover's contraception was O.K.; abusing her while pregnant was O.K.; but abortion is not O.K. because the fetus has the right to protection. As fetal rights begin to dominate the reproductive agenda of the 21st century, we must examine the ways in which men's rights are articulated under the heading of fetal rights and women's rights to gender equality diminished under this same banner. Fortunately, the Supreme Court of Canada struck down the lower court's injunction prohibiting Daigle from having an abortion. The Court was unanimous in concluding that the injunction could not be upheld. Before the decision was promulgated, however, Daigle's lawyer announced that she had proceeded with the abortion despite the injunction. One disturbing factor in this case is that the injunction issued to prevent Daigle from having an abortion was upheld by two lower courts before it reached Canada's Supreme Court. By that time she was 23 weeks pregnant. There are also at least three other men who have obtained injunctions in provincial courts to stop their lovers from having abortions.
One of the strategies of groups seeking to outlaw abortion in Canada is to secure rights for prospective fathers. The rights of sperm donors, however, are closely linked with the rights of fetuses. Antiabortion agitators have increased efforts to conduct demonstrations and have won places on governing boards of hospitals; the latter are credited with preventing a number of abortions in British Columbia. The spectre of this summer's events confirms that abortion and the new reproductive technologies are inextricably linked. I would maintain that North American women are once again confronting the issue of abortion, in part, because the advent of and publicity given to the new reproductive technologies has created a social context and perception in which the rights of sperm donors and fetuses become paramount. Why is this the case?
What we have seen in the unfolding panoply of new reproductive technologies is the separability and severability of the embryo/fetus from the woman. The broader ethical, legal and policy debates were focused, in the Davis case for example, on the "rights of frozen embryos." Playing word games, doctors, ethicists and legal experts also spotlight the fetus / embryo when, for example, they try to shift the moral focus by terming a less-than-14-day embryo, a "pre-embryo." Whether in the womb or outside the womb, attention is riveted On the fetus as an individual entity - patient, person, or experimentee. The new reproductive technologies position the fetus as isolated and independent from the mother but not from the sperm donor, the doctor, or the state.
These technologies render women as spectators of, rather than primary participants in, the whole reproductive process. More and more they reduce women to the status of vehicle for the fetus. In fact, in the Davis case, commentators like John Robertson did not even acknowledge the interventions and pain that women must endure in procedures such as IVF, much less focus on the rights of the women involved. If there is no acknowledgement given to what the technology imposes on women, there will certainly be no acknowledgement of the right of women to reproductive self-determination.
As the new reproductive technologies increasingly separate and sever the fetus/embryo from the woman, the medical progenitors create an adversarial relationship between woman and fetus. If the fetus is still in the womb, doctors often become police officers who report alleged abusive behavior on the part of pregnant women - alcohol and drug intake, refusal to submit to a caesarian - and intervene accordingly in the reproductive process. They become the monitors of any female activity that is judged harmful to the fetus - not any medical interventions that might harm the pregnant woman. And the woman is expected to submit to any directives or any invasive, painful and unnecessary technology that they judge necessary to improve the quality of the fetus. Since July, 1988, when the U.S. Supreme Court gave the states broader authority to limit abortion, at least 10 fetal abuse cases have been filed against women in the U.S.
Disputes like the Davis case, in which embryos are frozen, not only situate the fetus in its own right but more, the sperm donor as well. The ground is then fertilized for the growth of the reproductive rights of sperm donors under the banner of gender equality. As Charles Clifford, the lawyer for Junior Davis, phrased it: "If we are ever to make men truly equal partners, you can't just say that because she is female, she has greater rights." This preempts the reproductive self-determination of the woman. The extent to which the rights of women are diminished in abortion policy and litigation, when the fetus is part of the woman's body, should make us seriously question the extent to which they will be further diminished as the fetus is removed from the female body.
Questions abound. Are the "choices" offered by many reproductive technologies ones that women have fought for? In the aftermath of the frozen embryos case, can we continue to argue that these technologies expand women's reproductive choices? The embryos got thawed, but most women got frozen out.
Can we keep paying lip service to reproductive choice while bypassing the control that these technologies bring into women's lives? Do these reproductive technologies really offer women substantive choices, or are they new forms of social control? Reproductive technologies give birth to an ever expanding nursery of options including in vitro fertilization, embryo transfer and freezing. They don't gestate the means of gender justice.
Let's start questioning the slippery slope which claims that to oppose new reproductive technologies is to endanger women's right to abortion. Let's challenge the access argument that includes many reproductive technologies as part of the prochoice platform. Access to what? There's a big difference between demanding artificial insemination for lesbians and infertile women, for example, and in vitro fertilization and surrogacy for the same groups. The latter reduce women to reproductive material or breeders, and they violate women's bodily integrity. If the events of last summer proved anything, it is that abortion rights for women are seriously undermined by the increasing prominence of the fetus and sperm donor in the new reproductive technology scenario. And the fallout of this centrality for both fetuses and sperm donors is the backstaging of women's rights.
Janice Raymond is Professor of Women's Studies and Medical Ethics at the University of Massachusetts, Amherst. She is associate director of the Institute on Women and Technology, a public policy, research and activist organization, founded to assess technologies and public policies that affect women.