Unbearable Weight: Feminism, Western Culture, and the Body (14 page)

Just five years later, this landscape no longer seems so futuristic. Although the Supreme Court has banned employers from adopting "fetal protection" policies that would bar women of childbearing age from hazardous jobs, this decision seems almost anomalous in the contemporary zeitgeist, within which the protection of fetal rights has burgeoned into a national obsession. Prosecutions and preventive detentions of pregnant women for fetal endangerment, once a rarity, are becoming more and more common. Since the Pamela Rae Stewart case of 1985, in which Stewart was charged with criminal neglect of her child for failing to follow medical advice during pregnancy, such cases have multiplied. In 1989, a Florida judge sentenced twentythreeyearold Jennifer Johnson to fifteen

years' probation on her conviction of delivering illegal drugs via the umbilical cord to her two babies. A Massachusetts woman who miscarried after an automobile accident in which she was intoxicated was prosecuted for vehicular homicide of her fetus. A Connecticut woman was charged with endangering her fetus by swallowing cocaine as police moved to arrest her. A Washington judge sent Brenda Vaughan to jail for nearly four months to protect her fetus, because a drug test, taken after she was arrested for forging a check, revealed cocaine use.
34
In 1990, a Wyoming woman was charged by the police with the crime of drinking while pregnant and was prosecuted for felony child abuse. In South Carolina, a dozen women have been arrested after the hospitals they went to for maternity care tested them for cocaine use and turned them in to the police for fetal abuse.
35

In some ways even more disturbing than these legal actions are changes in the everyday attitudes of people. In March 1991, two waiters were fired from their jobs when they tried to persuade a ninemonthspregnant customer not to order a rum daiquiri because drinking alcohol could harm her fetus.
36
Soon after, they appeared on the "Oprah Winfrey" show, where many members of the audience indicated their strong support for the waiters' action. As might be expected, the customer's action was construed as reckless and "selfish," even though it is highly unlikely that one drink at her advanced stage of pregnancy could affect the fetus's health. Audience members were insistent, as was columnist Cal Thomas, that pregnant women who engage in
any
activities that have even the
slightest
risk are behaving "selfishly" and that others are only acting responsibly in pointing this out to them. In Thomas's condemnation of the customer, all distinctions—between levels of harm, between fetuses and children, between prohibitions that affect the deployment of the mother's own body and those that do not—are effaced:

What if the woman had come in a month from now with her newborn child and ordered two drinks, one for her and one to put in the baby's bottle, because the child had been crying and the mother thought this was a good way to get it to sleep? Would the waiter have been justified in refusing service to the baby because it is underage? Of course. Then what's the difference between wanting to protect a child that is newly born and one that is about to be born?
37

Once again the specter of the evil mother looms large. The biting injustice is that pregnant women are in general probably the Best Samaritans of our culture. The overwhelming majority will suffer considerable personal inconvenience, pain, risk, and curtailment of their freedom to do what their doctors advise is in the best interests of their fetuses. As one obstetrical surgeon put it, most of the women he sees ''would cut off their heads to save their babies."
38
In the specific case of the customer who ordered the daiquiri, by her own account she had been extremely careful throughout her pregnancy and thought hard before ordering the drink:

I was a week overdue . and I thought it would be safe to have just this one drink, which I ordered with dinner I've always made it a point to read everything I could find about alcohol in pregnancy. I felt guilty enough as it was for ordering the drink They tried to make me feel like a child abuser.
39

Most poignant about this quote is the woman's internal sense of transgression, which I interpret as an indication, not of her recognition of the
actual
threat of one drink to her fetus's health, but of the extraordinary levels of vigilance now expected of and taken upon themselves by pregnant women. Yet at the same time as supererogatory levels of care are demanded of the pregnant woman, neither the father nor the state nor private industry is held responsible for any of the harms they may be inflicting on developing fetuses, nor are they required to contribute to their care. Fathers' drug habits, smoking, alcoholism, reckless driving, and psychological and physical treatment of pregnant wives are part of the fetus's "environment," too—sometimes indirectly, through their effect on the mother's wellbeing, but sometimes directly as well (through the effects of secondhand smoke and crack dust in the air, physical abuse, and alcohol's deleterious effect on the quality of sperm, to give a few examples). But fathers are nonetheless off the hook, as is the health system that makes it so difficult for poor women to obtain adequate prenatal care

and for addicted mothers to get help.
40
As Katha Pollitt points out:

Judges order pregnant addicts to jail, but they don't order drug treatment programs to accept them, or Medicaid, which pays for heroin treatment, to cover crack addiction—let alone order landlords not to evict them, or obstetricians to take uninsured women as pa

tients, or the federal government to fund fully the Women, Infants, and Children supplemental feeding program, which reaches only twothirds of those who are eligible. The policies that have underwritten maternal and infant health in most of the industrialized west since World War II—a national health service, paid maternity leave, direct payments to mothers, governmentfunded day care, home health visitors for new mothers, welfare payments that reflect the cost of living—are still regarded in the United States by even the most liberal as hopeless causes, and by everyone else as budgetbreaking giveaways to the undeserving, pieinthesky items from a mad socialist's wish list.
41

While public service announcements on television target the smoking and alcohol habits of pregnant women as though they were the sole causes of low birthweight and infant disability, a task force commissioned by the government concluded that "if we just delivered routine clinical care and social services to pregnant women, we could prevent onequarter to onethird of infant mortality." As things now stand, one out of every three pregnant women gets insufficient prenatal care (a situation that is not helped, of course, if drugaddicted mothers avoid seeking medical help, for fear they will be turned in to the police). Among other improvements, the task force recommends a public information campaign and a "nurturing approach" to pregnant women's needs, with home visits by nurses, social workers, and other counselors. The Bush White House, however, acted on none of this, withholding most of the report from Congress in the interests of preserving "the confidentiality of the deliberative process" in the Executive branch.
42

Only the pregnant woman, apparently, has the "duty of care."
43
Indeed, according to the construction examined in the first section of this essay, this is her essential function. That it is framed, moreover, in entirely mechanistic terms—as fleshy incubator—is revealed by the exclusive attention given to her physiological state. The facts that a drink now and then might relax and soothe her, and that continual vigilance over the "environment" she is providing (if not the threat of public scrutiny and condemnation itself) may make her perpetually tense and worried, and that such factors may also affect the wellbeing of the fetus are not considered. Rather, a crudely mechanistic portrayal of her bodily connection with the fetus prevails. One daiquiri taken by the mother is imagined as equivalent to serving the fetus a cocktail. This image is so distasteful

that it is then easy to leap to the further equation: one drink = fetal alcohol syndrome.

Sometimes the womb is described not as incubator but as prison. "The viable unborn child is literally captive within the mother's body," argued the dissenting judge in the appeal of the Carder case. Antichoice spokesperson Barnard Nathanson describes the fetus as "bricked in, as it were, behind . . . an impenetrable wall of flesh, muscle, bone and blood."
44
Perhaps such images can be dismissed as those of an ideologue. Michael Harrison's description, then, will serve as an example of the increasing
subjectification
of fetal being. For, strikingly, as the personhood of the pregnant woman has been drained from her and her function as fetal incubator activated, the subjectivity of the
fetus
has been elevated:

The fetus could not be taken seriously as long as he remained a medical recluse in an opaque womb; and it was not until the last half of this century that the prying eye of the ultrasonogram rendered the once opaque womb transparent, stripping the veil of mystery from the dark inner sanctum, and letting the light of scientific observation fall on the shy and secretive fetus The sonographic voyeur, spying on the unwary fetus, finds him or her a surprisingly active little creature, and not at all the passive parasite we had imagined The fetus has come a long way—from biblical "seed" and mystical "homunculus" to an individual with medical problems that can be diagnosed and treated, that is, a patient.

Although he cannot make an appointment and seldom complains, this patient will at all times need a physician.
45

The gender ideology that permeates this quotation is various and obvious, and need not be belabored here. Here, I need only highlight the duality Harrison constructs between the "opaque," impenetrable womb, a territory itself bereft of the light of consciousness, a cave, a place merely to sleep, and the psychologically complex, fully personified fetus, at once "shy and secretive" and vitally "active." (And, of course, unlike his mother, he "seldom complains"—an ideal "patient''!) Ruth Hubbard notes, as well, the remarkable arrogance of the assumption that before developments in ultrasound, "we" had imagined the fetus to be a "passive parasite." Who is this "we"? she asks. "Surely not," she points out, "women who have been awakened by the painful kicks of a fetus!"
46
Those women, of course, have been rendered metaphorically unconscious by Harrison; only their inert, shrouded wombs remain.

Of course, the increasingly routine use of ultrasound
has
made the fetus seem more of a person, both to the doctor and to the mother.
47
Because of such changes in the perception of the fetus's status, combined with the advancing technologies that enable the doctor to treat the fetus directly, as an autonomous patient, doctors have come to feel confused, angry, and, perhaps, morally outraged when mothers refuse a recommended treatment. I can understand their discomfort and frustration. But the disturbing fact remains that increased empathy for the fetus has often gone hand in hand with decreased respect for the autonomy of the mother.
48
And, in general, the New Reproductive Technology has been a confusingly mixed bag as far as the subjectivity of women is concerned. On the one hand, women now have a booming technology seemingly focused on fulfilling
their
desires: to conceive, to prevent miscarriage, to deliver a healthy baby at term. On the other hand, proponents and practitioners continually encourage women to treat their bodies as passive instruments of those goals, ready and willing, "if they want a child badly enough," to endure however complicated and invasive a regime of diagnostic testing, daily monitoring, injections, and operative procedures may be required. Thus, one element of women's subjectivity is indeed nurtured, while all other elements (investment in career, other emotional needs, importance of other personal relationships, etc.) are minimized, marginalized, and (when they refuse to be repressed) made an occasion for guilt and selfquestioning.

One of the most disturbing examples is presented by Dr. Stefan Semchyshyn. Semchyshyn argues for an extremely aggressive approach to the prevention of miscarriage, dismissing the (generally accepted) belief that many early miscarriages are the inevitable result of genetic defect and ought not to be rigorously prevented. He reassures readers that genetic testing (amniocentesis and ultrasound) will pick up those defects at the beginning of the second trimester, when the women can still elect to have an abortion.
49
Semchyshyn is, I presume, aware of the physical pain and (well documented) psychological trauma involved in a secondtrimester abortion; yet, apparently, these factors are too trivial for him to mention even as possible considerations.
50
In our present cultural context, the New Reproductive Technologies
do
cater to women's desires (that is, to the desires of women who can afford them), but

only when they are the
right
desires, desires that will subordinate all else (even in the face of technological success rates which continue to be very discouraging) to the project of producing a child.

Gradually over the last century, and steeply accelerating over the decade of the 1980s, the legal status of the fetus has been greatly enhanced as well.
51
For over half a century, the
Dietrich
rule (1884), which established that damages (for instance, accidental death or injury) incurred on a fetus were not separately recoverable, because the fetus was "a part of the mother," prevailed.
52
Then, in 1946, in what has been described as "the most spectacular abrupt reversal of a well settled rule in the whole history of the law of torts,"
53
a federal district court in
Bonbrest v. Kotz
held that there may be recovery for injury to a viable fetus subsequently born alive.
54
Nelson points out that even this change, however, did not recognize the fetus as a person with full legal rights; the point of the ruling was to allow damaged
born
persons in need of special medical treatment, schooling, and so forth to be compensated for injuries wrongly suffered when they were not yet legal persons.