The Fetus Fetish & the Erosion of Reproductive Rights in the USA

Rennie Gibbs, a 15 year old girl from Missisippi, has been charged with murder for the fol­lowing reasons: her baby was born dead, and she ap­par­ently took co­caine during preg­nancy. A direct causal link between the drug use and the still­birth was not es­tab­lished. In sim­ilar vein, the state of Utah re­cently pro­posed le­gis­la­tion to crim­in­alise mis­car­riage, if the mother can be proven to have caused the fetal death. What does this hardening of the concept of maternal-​fetal com­pet­i­tion in pre­dom­in­antly (but not ex­clus­ively) Christian-​right, con­ser­vative ideo­lo­gies mean in legal and cul­tural terms? What types of ma­ternal and fetal bodies are cre­ated and en­vis­aged by such pun­itive risk-​focused laws? It will be my ar­gu­ment here that the mother ac­cused of ‘pre-​birth killing’ through neg­lect or tox­icity to the fetus is caught in the paradox of what Lauren Berlant in The Queen of America Goes to Washington City (1997) calls the ex­cessive Western ‘focus on the isolate body and the to­tality of its own polit­ical con­di­tion’. This para­dox­ical ef­fect is achieved in two main ways: firstly, the mother’s body be­comes con­strued as uniquely dan­gerous in and of it­self to the fetal body con­tained within it, in a way which dis­counts other risks and dangers. Secondly, the ‘isolate body’ priv­ileged in terms of vic­tim­isa­tion and con­sequent rights is that of the fetus, which en­tirely dis­places the mother’s.

An es­tim­ated 2% of preg­nan­cies end in still­birth, and at least 15 – 20% in miscarriage.The ac­tual cause of any fetal death being in most cases dif­fi­cult to pin­point to one factor, this is clearly a move to both punish the ‘un­ruly’ mother (to use Rebecca Kukla’s (2005) term) for an in­creas­ingly broad range of ac­tions deemed dan­gerous to the fetus, and to bol­ster up the legal per­son­hood of the fetus it­self. What we are seeing is the cre­ation of new fetal legal ‘rights’ which over­bear the mother’s. The US states which have cre­ated new laws to pro­tect fetuses (Texas, South Dakota, Georgia, Kansas, to name but a few) already heavily pro­scribe ac­cess to abor­tion, al­though they cannot en­tirely ban it, since the Fourth Amendment pro­tects the rights en­shrined in Roe v Wade (1973). Maternal pun­ish­ment for neg­lect or tox­icity to the fetus re­in­forces the doc­trine of fetal per­son­hood from con­cep­tion. However, given that the ‘crime’ may be proven merely by the fact of fetal death and failure to show com­plete lack of in­volve­ment in it, ma­ternal pun­ish­ment is in fact achieved through fetal fet­ish­isa­tion– the cre­ation of the fetus as an ob­ject or, in­deed, person ac­know­ledged as having a sub­lime value unique to it­self, which op­er­ates to shut down ar­gu­ment or de­bate. The fetal fetish is per­haps the most vis­ible, emotive sign of the way cer­tain forms of con­sumerist in­di­vidu­alism and risk-​focused thinking focus per­sonal and legal at­ten­tion on the (faulty) con­duct and bodies of mothers. And through its dis­torting lens, all women of child­bearing age are in­vas­ively viewed as po­ten­tial mothers, whatever their per­sonal re­pro­ductive plans or histories.

The per­sistent risk-​analysis per­vas­ively ap­plied to all Western preg­nan­cies has pro­duced a new reg­u­lative fic­tion, the ‘pre-​pregnant’ body. In mental health prac­tice, for instance, certain drugs such as so­dium val­proate, which car­ries around a 0.1% risk of fetal mal­form­a­tion, are not pre­scribed to any woman of child­bearing age re­gard­less of the po­ten­tial pos­itive ef­fects of the drug. The woman is simply not al­lowed to choose that risk for her­self, re­gard­less of her per­sonal feel­ings about chil­dren, sexual pref­er­ences or con­tra­ceptive prac­tices. In a dif­ferent con­text, cor­porate in­ter­ven­tions aimed at fetal pro­tec­tion have dis­qual­i­fied women of child­bearing age from ‘risky’ jobs, as Michael Thomson’s (Reproducing Narrative, 1997) work ex­plores. The fic­tion of a fe­male body ever-​ready to pro­duce a (patho­lo­gical) preg­nancy is a hys­ter­ical one, and we see this hys­teria in its most malevolent form if we listen to Kansas state rep­res­ent­ative Pete de Graaf, who in a de­bate about health in­sur­ance cov­erage, re­cently ar­gued that abor­tion should not be covered even in cases of rape and in­cest. He ar­gued that women should see the risk of preg­nancy through rape as some­thing to ‘plan ahead for’. Images of the body as prop­erty that the good fe­male cit­izen would not put at risk echo some of the uglier meta­phors of the con­tem­porary rape de­bates, such as ‘don’t leave your front door open if you don’t want to be burgled’. (DeGraaf ex­pands: ‘I have a spare tire on my car… I also have life in­sur­ance. I have a lot of things that I plan ahead for.’)

This is not just a US issue, clearly: the fet­ish­isa­tion of the fetus is taking place across the Western world. No country with ac­cess to ul­tra­sound visu­al­isa­tion tech­no­lo­gies can avoid the im­agery of the fetus, view­able during all ‘normal’ preg­nan­cies and even on ad­vert­ising bill­boards. Nonetheless, fetal fet­ish­isa­tion is most clearly il­lus­trated in the Republican Southern and Mid-​Western states of America. Take for ex­ample the 2011 Georgia pren­atal murder bill, which out­laws mis­car­riage or still­birth with ‘human in­volve­ment’. This broad term would clearly cover a woman who de­lib­er­ately in­jures her­self, for ex­ample by throwing her­self down the stairs (al­though many would argue that a woman in these cir­cum­stances needs sup­port rather than crim­in­al­isa­tion for such a dev­ast­ating act of self-​harm ), but could clearly also cover preg­nant women who drink, smoke, eat ‘junk’ food, drive fast, or work long hours in stressful jobs. US fed­eral law has sent a clear mes­sage about fetal per­son­hood through the Unborn Victims of Violence Act (UVVA), en­acted in 2004. This al­lows for the per­pet­rator of a vi­olent crime against a preg­nant women to be charged with crime against the fetus too. As Jeanne Flavin writes in Our Bodies, Our Crimes: The Policing of Women’s Reproduction in America (2008):

The Unborn Victims of Violence Act ex­pli­citly states that nothing in the act “shall be con­strued to permit the pro­sec­u­tion … of any woman with re­spect to her un­born child.” But state stat­utes have used nearly identical lan­guage (… only after hard-​fought battles to get the lan­guage in­cluded in the first place) and then have gone on to pro­secute preg­nant women for their drug use in what has been called a “le­gis­lative bait and switch.” (As quoted in on­line blog RH Reality Check).

The state rules re­cently cre­ated to in­hibit abor­tion are le­gion: 24 hour man­datory ‘con­sid­er­a­tion periods’ be­fore treat­ment, ob­lig­atory par­ental con­sent for women under 18, com­pulsory coun­selling (often with anti-​abortion ‘scripts’ and/​or held in specially-​equipped centres de­signed to help the mother to ‘bond’ with her un­born). In February this year the State of Texas passed a pre-​abortion ul­tra­sound law in which a woman seeking abor­tion will be com­pelled to view sono­grams de­scribed by a doctor be­fore the24-​hour ‘waiting period’. (This is cur­rently under chal­lenge by the Center for Reproductive Rights (CRR) wich has filed a class ac­tion law­suit chal­len­ging the law on be­half of Texas med­ical pro­viders per­forming abor­tions and their pa­tients).

The com­pulsory viewing of the fetus is a par­tic­u­larly clear in­stance of the use­ful­ness of fetal per­son­i­fic­a­tion as an in­stru­ment to limit re­pro­ductive choice. Since visu­al­isa­tion tech­no­lo­gies re­vealed the womb’s con­tents to the screen, it has proven dif­fi­cult to see the pub­licly lauded fetus as con­tained within the mother. The ul­tra­sound pic­ture is now al­most uni­ver­sally ac­cepted as the first in­stance of ‘bonding with’ and pub­licly an­noun­cing a ‘baby’. As such, we may un­der­stand the newly-​enacted Texan law to be a dis­cip­linary form of the medical-​social ritual which now con­firms most Western preg­nan­cies around the 12 week mark. The law il­lus­trates the prin­ciple that the per­ceived right of the fe­male in­di­vidual to con­trol over her own re­pro­ductive pro­cesses re­duces with fetal visibility.…

It is dif­fi­cult not to in­ter­pret the new US state laws as brutal ex­ten­sions of the risk-​focused philo­sophy of con­tem­porary preg­nancy. Western preg­nancy lit­er­ature already pre­scribes a lim­ited, careful diet and ‘low stress life­style’ to the good and caring fu­ture mother. There is now a ‘ca­non­ical’ good preg­nancy (as noted by Rebecca Kukla in Mass Hysteria (2005)) and a norm­ative public fetus, with which all preg­nant women are en­cour­aged to identify them­selves and their un­born ba­bies. Maternal pun­ish­ment for faulty be­ha­viour in preg­nancy is not ne­ces­sarily a direct means of so­cial con­trol, since the woman in ques­tion is rarely helped to reg­u­late her own health in preg­nancy and may well find her­self re­stricted by poverty, un­treated ad­dic­tion, or per­sonal cir­cum­stances; rather, her pun­ish­ment serves as a de­terrent, in­forming all women that they had better be hy­per­vi­gilant about the con­tents of their wombs, even if they are do not (yet) plan to fill them. The le­gis­la­tion max­im­ally in­tens­i­fies the gen­er­ally ac­cepted point that in preg­nancy ‘your’ body is no longer yours, and your en­tire life must adapt to pro­duce a safe baby. For the self-​disciplined woman who may slip up once or twice, eat un­pas­teur­ised cheese or take a sip of wine, the ‘pun­ish­ment’ (for now, at least) will simply be un­ease or guilt re­garding her re­spons­ib­ility for the health and wel­fare of the fetus. For the women crim­in­al­ised for fetal murder, such re­tri­bu­tion is dealt out by the law, given sym­bolic and dis­cip­linary shape. As such, we may see the pre­dom­in­antly poor and young, white or black/​Hispanic women pro­sec­uted for crimes against the fetus as per­forming a dis­cip­linary so­cial func­tion for the en­tire preg­nant, and pre-​pregnant, pop­u­la­tion of women: fail to follow the rules of preg­nancy, and you, not just your baby, will suffer the consequences.

The sheer polit­ical ir­ra­tion­ality and coun­ter­pro­ductivity of laws which dis­courage 15 year old girls from seeking treat­ment for drug use since they will face pro­sec­u­tion if dis­covered, after making abor­tion un­af­ford­able and lo­gist­ic­ally near-​impossible to ob­tain, fol­lowing state failure to provide ac­cess to af­ford­able con­tra­cep­tion (not to men­tion sex edu­ca­tion) is breath­taking. This re­duc­tion of women to ever-​ready womb com­bines old-​fashioned miso­gyny with the risk-​based thinking which im­plic­ates the un­ruly (usu­ally fe­male, but also black, or col­on­ised, or any other way ab­ject) body in all so­cially prob­lem­atic events.

Rebecca Kukla and Barbara Duden (1993) have shown that the concept of fetal in­di­vidu­ation and sep­ar­a­tion from the mother has been in pro­gress since the Enlightenment ex­alted the concept of the bounded in­di­vidual, in con­stant (self-​) de­vel­op­ment. As com­pulsive in­di­vidu­alism has ac­cel­er­ated, the fet­ish­isa­tion of the fetus/​hero has en­tirely nor­m­al­ised maternal-​fetal com­pet­i­tion. The fetus ‘him’self in ‘his’ public por­traits (such as the famous 1965 pho­to­graphs by Lennart Nilsson) ex­ists in an ap­par­ently self-​contained world; the bound­aries of the womb do not ap­pear to limit him. Living chil­dren, post-​birth, shrink in stature com­pared to the glowing fetus in his per­sonal space. Babies, by con­trast, dis­turb the so­cial world with their noisy wants and de­mands. It has be­come clear that the most likely ‘remedy’ for the ef­fects of poverty and un­wanted­ness in life of the dis­ad­vant­aged post-​birth American is in­car­cer­a­tion. A polit­ical system which can only con­tem­plate in­di­vidual rather than any form of col­lective re­spons­ib­ility for the health and wel­fare of chil­dren (and mothers) must pri­or­itise the pun­ish­ment of the un­ruly mother at whatever cost to her or her living chil­dren. Such a system is less about the pro­tec­tion of life than the ex­pres­sion of in­tense anxiety about, and hatred for, those bodies which threaten the fetish of whole­some fetal perfection.

A 1984 piece by Zoe Sofia, ‘Exterminating Fetuses’, as­sesses the icon­icisa­tion of the fetus as a means to block out and den­ig­rate the ‘messi­ness’ not only of the fe­male body, but of the ma­terial world it­self: she ex­plores the al­legory of the world-​eating fetus (as visu­al­ised in the iconic final se­quence of 2001: A Space Odyssey) with the mother rep­res­enting pol­luted and ex­ploited Earth. Her dra­matic vision, written in the con­text of the Cold War, now looks proph­etic. Fetal ‘ex­tra­ter­restri­alism’ mir­rors the de­structive activ­ities of a neo­lib­eral agenda: a race to the bottom where the rights of living be­ings to bodily autonomy and a fair share of the things of the earth are eroded in fa­vour of a myth­o­logy of self-​reproducing life, floating somehow beyond the wombs in which they are really con­tained. We must thus see the fetal fetish as some­thing more than a re­pro­ductive rights issue, al­though it is cer­tainly that. It is about the dan­gerous and in­human denial of re­pro­ductive and per­sonal com­plexity, set­ting a falsely per­fected, ‘pre-​born’ fetal bubble against the per­meable real­ities of human bodies and their environment.

Ruth Cain is a Lecturer in Law at the University of Kent

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