By Jennifer Hendricks, author of Essentially a Mother: A Feminist Approach to the Law of Pregnancy and Motherhood
When the Supreme Court overturned Roe v. Wade and abolished the right to abortion, the court trivialized pregnancy and its impact on women’s lives. Nowhere in its opinion did the court discuss the physical burdens and risks of gestation and childbirth. Instead, the court suggested that women should be forced to carry pregnancies to term in order to increase the “domestic supply” of adoptable infants.
This trivialization of pregnancy is not new: it pervades the law of pregnancy. My new book, Essentially a Mother, shows how courts and legislators have been downgrading the importance of gestation and childbirth for decades. Pregnant people have not only lost their right to bodily autonomy, they have lost the law’s respect for their relationships with the children they create. In addition to abortion, the book discusses cases like these:
After a long struggle with infertility, Mina Kim at last had a successful course of in vitro fertilization and became pregnant with twins. But shortly after their birth, a court took them away and placed them in two separate homes—not because Mina had abused or neglected them but because the fertility clinic she used for her IVF had made a mistake. Instead of the embryos made from Mina’s eggs and her husband’s sperm, the clinic had given her embryos that came from two other couples. In the eyes of the law, she was not the boys’ mother, only a surrogate, albeit an involuntary one.
Haley Thornton was one of the few: a fourteen-year-old girl who reported her rape, testified against her rapist, and saw him convicted of the crime. But after she gave birth to a child conceived from the rape, her rapist sued her for paternity rights. The courts held that because he was genetically the child’s father, he had the same rights as any other father, including the right to seek full or partial custody of the child. Haley would thus be tethered to her rapist as her co-parent for the next eighteen years.
Tiana Baca agreed to serve as a surrogate mother for Christine and Peter Miller. She became pregnant through IVF using Peter’s sperm and a donated egg. During the pregnancy, Christine told Tiana that the surrogacy contract entitled the Millers to control her life, and she was only allowed to say “yes, ma’am.” Christine also called Tiana the n-word in an email, and Peter used racial slurs and profanity in talking about Tiana’s husband on Facebook. Because of these incidents, Tiana decided late in her pregnancy that she would refuse to give the baby to the Millers. The courts, however, considered the Millers’ behavior irrelevant to Tiana’s contractual obligations and forced her to hand the baby over to them.
Each of these stories was a real legal case, although I’ve given the people fictional names because their real names were kept out of the public court records. The thread that connects them is that the legal system doesn’t think gestating a child matters much when it comes to parental rights. The United States Supreme Court has described pregnancy and childbirth as amounting to nothing more than being “present at the birth,” and courts across the country equate a man’s ejaculation with a woman’s nine-month labor. Even more infuriatingly, they do so while claiming to act in the name of sex equality, and feminist lawyers and scholars have handed them the tools for this rationalization.
In writing Essentially a Mother, I wanted to connect the dots between the seemingly disparate laws that govern pregnancy in the context of abortion, surrogacy, parental rights, and reproductive technology. To make those connections, I argue for reviving relational feminist theory as a functional—rather than essentialist or identity-based—tool for analyzing law. Relational feminism shows how thoroughly the Supreme Court has refused to incorporate women’s humanity into constitutional law and is thus a vital tool for changing course.