Queer Technologies and Reproductive Rights

The issue of Zoe’s Law (2) remains unresolved. Three sessions of parliament have passed where the issue has been debated. I was a member of the audience in that parliament for the last two, along with a large contingent of protesters against the motion.

One of the issues that has come up around my participation was why I felt this issue was a queer issue. I thought I would take the time to explain myself on that. While I think that these matters are primarily an issue for women, they are part of a broader narrative of queer resistance against the medicalisation of bodies and bodily autonomy. For a really good contemporaneous example of this conflict, I would refer you to the opposition against medical intervention of intersex children – it is a similar refrain that homosexuals fought to have their sexuality declassified from being a mental illness 30 years ago.

Women should hopefully find allies on this issue within the queer movements, and I encourage women to embrace this issue as an intersectional one, to oppose the medicalisation of sexual bodies.

Queer Technologies

So much of the history of the queer movement has been around challenging medicalised notions of sex, sexuality, and gender, and shifting them more towards a framework that is about actualisation. By this, I mean that these struggle seek to make the experience of personality superior to the experience of embodiment, and using a variety of technologies to help change, control, and remodel our physically lived experiences to suit the designs of our personality. While the most obvious example of this relates to the use of hormones and surgery to assign and reassign sex, issues that relate to the regulation and control of reproductivity are also part of that broad spectrum.

In many ways, this struggle is directed towards the way we understand the practice of medicine, and various technologies within its purview. It seeks to move medical practice away from normalising bodies towards a position of liberating those bodies instead. That is, so much of queer resistance is against a medicalisation of sex, sexuality, and gender. It is against the co-option of medicine and science to construct our bodies in a manner that is useful only to patriarchy and heteronormative ideas.

[Queer Resistance] seeks to move medical practice away from normalising bodies towards a position of liberating those bodies instead.

Reproductive technologies are a subset of what I consider queer technologies because of the way they remove the constraints of biological determinism. They challenge traditional notions of sex, gender, and sexuality. They reconfigure them from serving reproduction, to serving a broader range of agendas, including identity, pleasure, and power.

For women, intersex people, and trans people (amongst others), queer technologies are granting autonomy over our bodies, that they might be shaped in a way that conforms with their desired experience of that body. Thus, I consider the pill as one of the world’s first queer technologies, because it helped precipitate the sexual revolution by granting women control over their reproduction.

The Medicalisation of Bodies

Medicalisation is a process that uses medical expertise and knowledge to render phenomena of living down to its basic biology and physiology.

Medicalisation is a process that uses medical expertise and knowledge to render phenomena of living down to its basic biology and physiology. Our distinctiveness is described less in the context of social characteristics, and more in terms of anatomical and biological ideas. In doing so, medicalisation tends to view difference and variation in a very pathological manner, because definitions of ‘health’ refer frequently back to standard and normal models. Consequently, medicalisation is actually counterposed with legal notions of personhood, because it actively seeks to move away from social predicates of being towards medical ones.

That is, the law is itself a social construction. It is limited by an issues called the fact-value distinction, which means that any issue before the law must distinguish between empirically observed matters (facts) and what those facts mean for society (values). Because it is almost impossible to determine what we ought to do based on what has been observed, the law must refer to social values to give those facts meaning. Thus the law is a fabric of social values, which gives meaning, agency, and power to a variety of things and interactions that happen around us.

More importantly, the law must reduce complex ideas down into simpler ones. The law is inherently reductive because it struggles to cope with ambiguities. Not only can thousands of dollars depends on an interpretation, but judges are required to return a definitive interpretation. Leaving room for ambiguity only serves to undermine a piece of legislation. Check out my Beyond Binaries policy brief for how many of these issues play out, even under a legal framework that seek to be actively inclusive.

The Carriage of Personhood

In the instance of foetal personhood, the above-mentioned issues are doubly troublesome. On one hand it personifies a foetus, and on the other hand it medicalises a mother. That is, it gives a foetus the status of a personality, and it reduces a mother to her caricature as a uterus. She is no longer a mother, but a carriage for another person.

The problem here is that this law is conflating personification with the ascription of personhood. Personification is understandable, because mothers and parents are neurologically wired to bond with their children, and humanity has historically inscribed human characteristics onto all manner of things. Even babies are capable of recognising faces, revealing that it is something of an innate skill.

However, the reason that personification must be distinguished from personhood is because one has significant social consequence. Personhood imputes agency through entitling an entity with a suite of legal rights. Agency is a crucial component of the law, because it relates to actions and agendas, not merely philosophies. To grant personhood is to grant agency to an entity. It means that that entity has the capacity to impact upon and interact with the law.

Children are given increasing amounts of agency as they mature, until they are recognised by law as being responsible for their own choices. This is another reason why it is important to allow personhood to be dependent on birth, not merely the appearance of humanity. Children may be dependent on their parents socially speaking, but a foetus is dependent for its very existence on its mother. A society can remove an infant from the custody of its mother if it deems it to be in the best interests of that child. However, the law only permits medical intervention to remove a foetus from a mother in situations that are medically justified.

Bodily Autonomy

This brings us back to my original position. These shifts Zoe’s Law (2) proposes would carry the unintended consequences of medicalising mothers and personifying foetuses. Moreover, granting personhood to a feotus grants them agency that would contrast that of the mother’s.

This is incredibly insidious, by medicalising the mother and personifying the foetus it increases the ambit around what justifies medical intervention. We have already seen one instance where a mother’s was entirely reduced to her capacity as a uterus, completely disregarding her status as a person. Moreover, external forces had to act as proxies for the feotus in order to act in this way. For these reasons, and for all the reasons I previously articulated, no law should recognise the personhood of a feotus.

Women should hopefully find allies on this issue within the queer movements, and I encourage women to embrace this issue as an intersectional one, to oppose the medicalisation of sexual bodies.

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Cutting the Umbilical Cord Between Church and State

AngelusProtesr

This Thursday, I will be participating in a protest before the NSW State Parliament, where a bill is being proposed that would make amendments to the Crimes Act, called the Crimes Amendment (Zoe’s Law) Bill 2013 (No. 2). It is euphemistically called Zoe’s Law (2) because it refers to the tragedy of the posthumously named Zoe, and is the second time a variant of this bill has been introduced to NSW Parliament. The substantive feature of this law would be the recognition of legal personhood of a foetus. This shift in legal definitions has a number of effects, which would significantly impact women’s rights, particularly around issues of child-birthing and bodily autonomy.

Although this is an issue I am profoundly passionate about, I had until now refrained from commenting. Partly because I do not identify as a woman, but also because far better women commentators were already weighing in on the issue and I feel I have an obligation to hear their view points before I formulate/refine my own.

However, the protest is drawing nigh and I was roused to significant anger this morning when it seemed that NSW Parliament were going to debate the bill today (until it wasn’t). To that end, I wanted to comment on the matter, not from viewpoint of being a feminist (even though I count myself as one), but as a legal scholar. I therefore seek to address the fundamental question at the heart of this challenge, which depends on the point at which the law recognises a subject as a legal person.

Ultimately, my objections refer back to the significance of legal personhood, and the immense problems that arise in extending that status onto any entity that does not have a separate existence from its mother. While it is incredibly understandable that a mother would want to have some manner of public recognition for being deprived of a child, doing so through a criminal process is one with far too many social consequences.

Outline of Zoe’s Law (2)

To outline exactly what the law would do, I refer to statements made in the Bill’s first reading, as introduced by Mr Chris Spence MP, as well as a statement provided by the mother of the eponymous Zoe.

The object of the bill is to amend the Crimes Act 1900 to recognise the existence of the foetus of a pregnant woman that is of at least 20 weeks gestation so that proceedings for certain offences relating to grievous bodily harm may be brought against an offender who causes the unlawful destruction of or harm to any such foetus as proceedings for grievous bodily harm to the foetus rather than proceedings for grievous bodily harm to the pregnant woman.

The above is the opening paragraph of Mr Spence’s first reading of the bill. He goes on to note that the bill as introduced is a refinement of the original bill submitted by Fred Nile, in that it would exempt any offences that would occur in the “course of a medical procedure, including medical treatment or anything done by or with the consent of the pregnant woman that causes harm to or the destruction of a foetus” and does not intend to impact upon a woman’s right to choose.

However, the very specific aspect of the amendment is schedule 1 [2] of the bill, which states:

For the purposes of the proposed section, an unborn child that is taken to be a living person for the purposes of applicable offences, is defined as a foetus of at least 20 weeks gestation or, if that cannot be reliably established, a foetus that weighs at least 400 grams (proposed section 8A (1) and (2)).

It specifically states that the intention of the amendment is to enable the law to recognise an unborn child as a living person, for the purpose of a range of applicable offences. Mr Spence claims that it would not create new categories of crime, but rather focus on the crimes of grievous bodily harm that are currently relevant to injury toward a foetus.

There have been some preliminary responses from a variety of legal experts who have expressed concern and dissent to these intentions of the bill. Roughly speaking, a variety of legal organisations and experts (except for lawyers known for being anti-abortion) have been consulted and come to an opinion that it is something of a Trojan horse for women’s choices. There is a legal conceit in Zoe’s Law (2), in that while it allows for exemptions from medical procedures that women choose to undergo (such as the termination of a foetus), the passing of this bill would nonetheless establish the legal category of “foetal personhood”. It would instate that foetus with a series of protected rights that would potentially come up by virtue of the fact that this foetus is now viewed as a separate legal entity.

One of the comments regarding this conceit is that because this entity would not technically have a category until the passing of the bill, it has not been included in any of the pre-bill analysis of the bill’s proponents. It is this exact same pattern that equivalent bills in the USA used to be passed as legislation. It is why such bills are being advocated for by anti-choice veterans like Fred Nile and current Attorney-General and former ‘Right To Life’ president Greg Smith. Among those, I would direct you to the responses written up in this article by Jabour in the Guardian.

For a good grounding in the background of the current legislative provisions as they apply around the legal recognition of the personhood of children being born, and how they intersect with crimes like manslaughter, I refer you to the review by the Judicial Commission of New South Wales.

Donegan’s Appeal and Legal Reasoning

One of the things that is seen as particularly compelling in this case is the public appeal by Brodie Donegan, which is regarded as convincing because Donegan is a self-professed pro-choice mother. In her view (and as articulated in the amendment), the provisions of the amendment would still protect women’s choices.

Rather than refer to specific passages of Donegan’s appeal, I will simply outline that it describes the way that Donegan experienced a highly traumatic event, and that Donegan ‘s experience of the still birth was one akin to having lost a fully realised child. A lot of her language speaks to visceral memories that are undoubtedly painful and extremely difficult to reconcile. That this loss has taken place in the context of an accident would likely exacerbate those memories and experiences. To these I can only sympathise with, even while I have no significant frame of reference to empathise with.

However, as a legal scholar, I am required to step back from these subjective experiences and ask whether these experiences should formulate a dimension of criminality. The important question being asked is not whether there is validity to Donegan’s claim or experiences, but whether these experiences speak to a significant truth or aspect of our society as a generalisation. While this bill would not directly seek to create new crimes, per se, it does expand the way existing criminal legislation interacts with unborn children.

The reason I treat this issue with some measure of skepticism is because to consider an issue before law it is necessary to identify what the relevant questions of fact are, as well as those questions of law. In the account detailed above by Donegan we see references being made to the fact these events occurred on Christmas Day, the interactions between the unborn child and he potential sister. All of these are appeals to emotion, designed to qualify the experience beyond a tragic accident where an unborn child was stillborn. If they are relevant facts, than any law that is made in response to them would need to include ‘happening on Christmas Day’ or ‘the unborn child had siblings’ as conditional aspects before the law became relevant. They are understandably personally relevant to the family in question, but legal reasoning must remain agnostic to them.

My argument against this amendment does not depend on this fact, because it would be disingenuous to do so. Clearly the arguments for this bill do not entirely turn on these issues, but they add an undercurrent personalisation that I think only serve to muddy the discussion. These are incredibly significant issues and cannot be resolved through emotional appeals.

The Autonomy of Being

The substantive basis for these types of claims, and in fact the point to which Donegan points to as the point at which this law should kick into effect, relates to the fact that currently levels of medical technologies can enable a foetus at 23 weeks to become a viable baby outside the womb. Proponents of the law will point to the status of a foetus at 20+ weeks, to indicate that they should be reasonably recognised as a separate body (see this video as an example).

In a first glance, it might make common sense to regard these entities as living persons. They share all of the apparent characteristics of babies, and can be made as a viable separate entity. It is around this particular test that the idea of the ‘born alive rule’ emerges, which is the legal test applied to births to determine whether the birth should be recognised as having personhood. It currently holds that a birthed human being becomes a legal person when they are able to breath independently from the mother, even if that breathing is machine assisted.

It is to this idea that the challenge of Zoe’s Law is levelled, reasoning that since technology can enable a foetus to survive at increasingly earlier stages, we should recognise earlier stages as being potentially viable. This is a false equivocation, because the born alive rule is a test applied after birth, irrespective of the period of gestation. Its premise is to identify viability after the fact, not seek to pre-empty viability in potential. For an extremely excellent academic response to this kind of challenge, I would refer you to Kristen Savell’s article in the Sydney Law Review.

She concludes that:

“the law should resist pressures to enlarge its understanding of personhood on the basis of some straightforward analogy between late-term foetuses and newborn infants. The comparable intrinsic properties of late-foetuses and newborns is not alone sufficient to warrant the ascription of legal personhood to foetuses. The conditions that make late-term foetuses resemble persons certainly include intrinsic properties but, until the foetus achieves separation, they also include the investments and attachments of the mother. Foetuses cannot become actively embedded in a social matrix and, to the extent that the foetus becomes situated in a web of relationships, this is only achieved through its mother. However, after birth the baby can become actively embedded in a social matrix irrespective of its mother. It is in this sense that the experience of individuated embodiment has substantive significance.”

What this means, and what I wholeheartedly agree with is the rebuttal that just because a foetus has the outward appearance of a natal child does not mean it should be entitled with the full suite of human rights. What I find inherently troubling by this particular line of reasoning is that it attributes personhood towards a body, but this says nothing about the really thorny question of whether that foetus has consciousness, or bears many other signifiers of socialisation that are also intrinsic qualities of being human. To ascribe those social qualities onto a foetus before it has become actualised as an independent person is premature (please excuse the pun, but I cannot find a better synonym).

Legal Construction of Personhood

From a much more broader theoretical perspective, I am deeply troubled by some of the implications of recognising personhood for any foetus that has not yet achieved independent existence from its mother. This is largely due to the way that the legal system interacts with medical bodies of knowledge, particularly around matters that have criminality attached, but are often insulated from sociological considerations, which specifically investigate questions of identity and personhood in terms of its meaning to society.

The very notion of legal personhood is a rather difficult one, because the legal system has taken what we consider to be rather essential elements of being and framed them into highly discreet categories. The problem is that our lived experiences and the realities of being a full actualised human are not able to be reduced so easily. Personhood is actually a complex of various socio-legal boundaries, each of which circumscribes a certain kind of social space with legal provisions. Each boundary represents some ideal of personhood or individuality, which is then framed as some kind of real thing. While I describe four spheres of personhood in this model, I will mention only the inner-most two as I consider they are the ones truly relevant when discussing this matter.

The innermost sphere describes those qualities of personhood we might regard as the ego, and here the Anglo-American tradition of law protects our rights to hold beliefs and ideas, and otherwise protect against psychological injury. The second boundary is effectively equated our body, and while the body encompasses the ego, the laws relevant to this boundary protect individuals against unlawful medical intervention, battery, and other violations of our bodily autonomy. There are other dimensions beyond this, which relate to matters like privacy, property, and other areas of our civil and legal personhood, but since most of those are not relevant for this discussion I won’t detail them. Suffice it to say, the notion of personhood is already mutable, and recognising the existence of a legal person that still exists within and is dependent upon another person for their existence causes a direct conflict of rights that is incredibly difficult to reconsile.

Ultimately, my objections refer back to the significance of legal personhood, and the immense problems that arise in extending that status onto any entity that does not have a separate existence from its mother. While it is incredibly understandable that a mother would want to have some manner of public recognition for being deprived of a child, doing so through a criminal process is one with far too many social consequences.

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