Michele Goodwin · September 2008
76 GEO. WASH. L. REV. 1411 (2008)
In May, 2008, shortly before the publication of this Article, the South Carolina Supreme Court, in a unanimous decision, reversed the conviction of Regina McKnight, five years after upholding her conviction on a controversial drug conviction. Ms. McKnight, an indigent Black woman, was sentenced for “homicide by child abuse,” in 2003, and became the first woman to be prosecuted and convicted in the United States for giving birth to a stillborn baby. McKnight had no prior convictions, but her drug use during pregnancy violated a recently enacted South Carolina law. The statute was enforced almost as a strict liability rule; prosecutors never proved that McKnight’s drug use actually caused the miscarriage. The State simply showed that there was one dead baby. If the state’s interest was to protect babies from being born dead, surely there were many more babies to rescue and mothers to convict. But the state’s zeal to incarcerate Ms. McKnight evinces other motives. For example, the State continued to pursue the prosecution despite the fact that miscarriages and stillbirths are caused by any number of factors ranging from assisted reproduction and alcohol abuse to obesity and secondhand smoke. Recent studies demonstrate that even a father’s age influences whether a baby might be born alive or dead. According to a study published in the Archives of General Psychiatry, increased paternal age is also linked to autism and other disabilities.
Recent high tech, high-publicity births, including that of Brianna Morrison’s sextuplets, raise an interesting point of comparison to the womb policing taking place in states across the country. In June of 2007, Ms. Morrison gave birth to six babies after using fertility drugs, including Follistim. These drugs help to stimulate the ovaries and have been linked to risky multiple births. When it became clear during the gestation that the fetuses were at serious risk, Morrison’s doctors encouraged her to selectively reduce. By selective reduction her doctors expected that most of the fetuses would survive to viability, but without the procedure, it was clear that some if not all would die. Morrison and her husband refused to follow her doctor’s advice, saying that their situation was a miracle, and in God’s hands. “For us,” Ryan Morrison said, “there’s no difference between a fetus that’s undeveloped and a baby.” Each was in critical condition after birth, subject to a battery of medical tests, treatments, and living with the aid of respirators and feeding tubes. Six weeks after their births, all but one had died.
For Ms. Morrison, there were prayers, interviews, blogs devoted to every update about her children’s health status, websites, many donations, and sympathy. For Ms. McKnight, there was only a twenty-year prison sentence. Are the women so different? Didn’t they both take risks, knowing that their fetuses might be affected by their behaviors, specifically the drugs they consumed?
The difference between McKnight’s traumatic story and that of other couples, such as the Morrisons that utilized ART, might seem obvious at a glance: one woman was arrested and incarcerated because she violated a criminal statute, while the other woman was simply desperate to become a mother, so desperate that the measures she took resulted in the deaths of her five children. But on deeper inspection, there is a persistent question that arises from the juxtaposition of these stories, a question that relates to power, privilege, and the rational relationship between the state’s legislation and its enforcement practices. If what states care about is ensuring the health of fetuses and promoting their development to birth, then why focus only on pregnant drug addicts like McKnight? Multiple birth ART babies are eight times more likely (in South Carolina) to be born low birthweight, and low birthweight babies are forty times more likely to die during the first few months of life. If the health and birthweight of babies is what underlies state motivations to prosecute mothers who consume drugs during gestation, why are women like Morrison allowed to pursue these risky therapies with virtually no state interference?
This Article argues that the reproductive policing efforts of the past twenty years are consistent with a communitarian approach to reproduction. The Article sheds light on the inconsistencies of this approach to behavior policing, which tends to disfavor (or treat in a more punitive manner) the less sophisticated, less powerful members of society—in this case, drug-addicted, poor women of color—and yet ignores the risks posed to fetuses by wealthier would-be parents who use sophisticated, expensive reproductive technologies in their attempts to reproduce.
At the heart of the critique this Article offers is the observation that the right and access to parenting may be deeply unsettled and over a sustained period was deeply contested. The writing of this Article happens to coincide with the hundredth anniversary of the first eugenics legislation in the United States and recent legislative apologies for eugenics. Part I provides a brief critique of communitarian rulemaking. This Part argues that the draw of communitarianism is equally its undoing. Part I also argues that, as appealing as aspects of communitarian philosophy might be, there are dangers, including a fundamental flaw in how people are perceived as well as the notion that democracy can better be served by group proxies.
In Part II, I suggest that a communitarian approach to fetal health protection, which focuses exclusively on drug choice, seems erratic and arbitrary. That type of pregnancy policing ignores the many ways in which fetuses are harmed by behavior other than drug usage, whether legal or illegal. This Part explores the racialized impact of FDLs, and draws from earlier examples of communitarian policing to demonstrate that vertical hierarchies are reified rather than destabilized by communitarian rulemaking. Part III unpacks the historical roots of treating women’s reproductive capacity as communal property. It illumes the darker side of reproductive policing advanced during slavery and the eugenics laws of the twentieth century.
By way of contrast, Part IV scrutinizes what these dynamics mean in the realm of assisted reproduction. In this Part, I examine how race, wealth, and religion influence our normative understandings of mothering, and shape our notions of who qualifies as an appropriate mother. Section B of this Part examines the risks to fetuses resulting from assisted reproduction technologies. Part V analyzes the normative implications that emanate from selectively monitoring, policing, and prosecuting women based on gestational conduct. Part VI concludes with some brief reflections.
