By Pat Brewer
Are all the activities of a pregnant woman to be scrutinised for potential damage to the foetus? Is a woman to be held legally responsible for foetal damage through contact with infection, substances consumed, dangers in her living and working environment and even her continued sex life? Is her life during pregnancy to be forcibly limited if her activities can be construed as potentially dangerous to the foetus? And do such considerations extend beyond the pregnancy, to the whole span of a woman's potential for child-bearing?
These aren't questions pertaining to some vision of science fiction. They concern a reality more and more impinging on the lives of women.
In the USA, some of these questions have already been answered in a way that puts the protection of the foetus ahead of the rights of the woman. Increasingly, the foetus is being treated as the person and the woman as merely its container.
Women have been legally ordered to enter hospital for several months because of a doctor's opinion that otherwise they would not physically bring the child to birth.
In Washington, a woman with cancer was given a court-ordered Caesarean against her wishes and those of her husband, her parents and her doctors, despite evidence that the procedure might be life threatening. Both mother and unviable foetus died as a result.
In California a woman was warned by her doctor not to have sex and to stay off street drugs. When she failed to follow this advice and gave birth to a child who then died, she was charged with failing to deliver support to a child.
The Sydney Morning Herald reported on September 14 that there have been 60 criminal cases in the US since 1987 against pregnant addicts. The charges included child abuse, assault and manslaughter. In 1990 a Florida woman was convicted of drug supply, the method of "supply" being the umbilical cord.
Australian precedent
While the legal system here is different than that of the US, "foetal rights" are being raised in a number of ways.
On August 2, a decision by in the Lynch v Lynch case, in which a mother was found guilty of negligent driving, causing a car accident which led to cerebral palsy in her unborn child, Justice Groves said that a foetus had legal personality.
Previous legal decisions have held that, once a child is born it can sue for injuries caused by negligence before birth; the right to sue accrued to when the child was born. What is new in the Lynch ruling is the idea that the foetus has legal rights.
The decision could open the way, as in the US, for pregnant women to face criminal charges for contact with dangerous substances or endangering behaviour, however these may be defined. It might also be ansmitted in pregnancy, and, presumably inherited genetic defects according to the foetal rights logic.
Pregnant women with drug dependencies or with HIV would become even more vulnerable than they already are. In NSW there already exists a precedent of criminal charges for knowingly passing on the AIDS virus. It could easily be applied to the foetus.
Jobs
A second broad area now at issue is working conditions and their safety for pregnant women. Pregnancy or its potential has a long history as the excuse to move women out of or deny them access to jobs. Feminists have fought against this with some success over the last 20 years.
Now there are moves to exclude women from certain jobs on the basis merely of their potential pregnancy — their fertility. The Sydney Morning Herald reports "Worksafe Australia, the tripartite body which recommends national work safety standards, has now been struggling for three and a half years with the issue of women working in lead ... Its aim is to decide whether fertile women should be banned from working with lead, a metal connected with birth defects."
The lead industry would be the test case for many other industries and potentially dangerous products. In the US, the Equal Employment Opportunity Commission has estimated that as many as 20 million jobs could be closed to women through foetal protection policies.
And it isn't just banning during pregnancy that is up for grabs. Ken Parks, general manager of the biggest lead factory in the world, the BHAS plant in Port Pirie, argues that the number of unplanned pregnancies makes it necessary to ban all fertile women from work involving exposure to head.
Already in the US women have had themselves sterilised in an attempt to keep their jobs on the lead production line.
The third area in question involves the stepped-up attacks on women's access to legal abortion. The Fred Nile bill in NSW aims to extend the South Australian of limiting abortion to certain public hospitals. At a time of cutbacks to public hospitals and longer waiting lists, this would increase the medical dangers from late abortions.
The fourth pressure point comes from the developments in reproductive technology. In Victoria, the medical ethics committee has put forward a new set of guidelines for consideration extending experiments on embryos from the present 24 hours to 14 days. This makes possible testing for genetic defects and would facilitate IVF procedures for parents with inherited defects/disease problems.
But while welcome from that standpoint, unfortunately the guidelines appear to choose the 14-day cut-off on the argument that this is the start of "human life" — a definition that the Right to Life forces have been advocating in their anti-abortion crusade.
Blame the individual
"Foetal rights" advocates argue that they are defending the basic human rights of the unborn. This ignores the rights of women and the social context in which rights operate. It assumes a human potential not real until after birth.
The debate has largely focussed on the individual rather than the social situation. There is no valid reason to put the whole question in terms of pregnancy, but the way the debate has developed, you'd think that immaculate conception was the norm. Exposure to various chemicals in the workplace can also cause genetic changes in sperm.
And what about living in harmful conditions? What about those who have inadvertently lived on top of toxic waste dumps? What about air pollution by noxious gases? Are the individuals who breathe to be held responsible for the effects on themselves and/or their offspring?
The whole focus on the individual is a diversion. In many cases, it's a case of blaming the victim; in a sexist and discriminatory society, such a focus reinforces existing inequalities. The questions being tackled in the foetal rights debate are questions that can be really answered only at a social level. The welfare of potential future human beings can be guaranteed only by socially controlled improvements to the living and working conditions of existing people.
What is the point, after all, of protecting a foetus until the moment it is born, and then subjecting it to a bombardment of hazardous chemicals — in food, in the air, in its home and in its workplace — for the rest of its life? The problem is not how to guarantee rights for the foetus, but how to give reality to the nominal rights of existing human beings. If there was a real right to earn a living without being poisoned, for example, there would be no need to debate the relative merits of the "rights" of the foetus versus the "right" of a woman — or man — to work in a poisonous occupation.
The present reality is that women's rights in regard to health and reproduction are quite limited because they are made matters of individual, rather than social, responsibility. The current right-wing focus on "foetal rights" aims to burden women even more by forcing them to take on, individually, responsibility for the health of the next generation in a situation where they have no control over the factors that will really determine that health.