Making Women Pay: The Hidden Costs of Fetal Rights (review)

Making Women Pay: The Hidden Costs of Fetal Rights. By Rachel Roth. Ithaca and London: Cornell University Press, 2000.

The treatment of women considered by the courts and in public policy as carriers of fetuses is the subject of this well-argued and well-documented book.

Claims about fetal rights figure in a number of important issues beyond the usual debate about abortion. These claims have led to fetal protection policies in the workplace, forced Caesareans and other interventions in the medical care setting, and government restrictions or punishment of women for conduct during pregnancy. Focusing on these three areas, the author offers a careful and convincing analysis of fetal rights claims and argues persuasively that the concept of fetal rights, as it has been constructed legally and socially, has a heavy negative impact on women and the prospects for gender equality in this country. Women are assigned almost total responsibility for assuring the health and well-being of fetuses; and it is women, Roth shows, who pay the cost of fetal rights policies. Exactly how these policies undermine the position of women and why they are unnecessary makes for interesting reading.

Roth's thesis is not a surprising one, and the topics she discusses will be familiar to many readers. What she adds to the literature is a clearly written narrative offering insights into the way the rights claims have been developed both by the rhetoric and the specific decisions of the courts. For example, while many pro-choice feminists object to referring to a fetus as a child, noting how this biases the abortion debate, Roth carries the analysis a step farther. She cites the case of In re Madyun, a Muslim woman who refused a Caesarean section, claiming on religious grounds the right to "decide between her health and body and that of the fetus" (93). The court equated the fetus with a child and referred to the pregnant woman as a mother, thus allowing the court to override her refusal, just as courts regularly will override parents' religion-based objections to life-saving treatment for their children.

The book begins with two chapters on fetal protection policies in the workplace. Roth characterizes such policies as corporate risk management, detailing how women were excluded from good-paying jobs that involved exposure to lead in order to protect the company from lawsuits or high medical insurance costs in case they later gave birth to babies with serious birth defects. This example well illustrates Roth's contention that the responsibility for health and welfare of fetuses is placed solely on women, where alternative solutions are perfectly possible. Legislation or courts could instead require that the workplace be made safe for everyone, including pregnant women, or that companies offer temporary transfer to a non-hazardous job to workers, women or men, planning a pregnancy, or offer guaranteed paid leave. Policies such as these are already in effect in Quebec and in the European Union (84).

Roth offers a particularly compelling argument in the chapter on forced medical interventions. There is a clear tradition in the law of respect for bodily integrity, as evidenced in the widely recognized requirement for informed consent in medical decision-making, with autonomy and the right to refuse treatment presumably afforded to all competent adults. Yet, courts have deferred to medical authority, even in cases of uncertainty, and have weighed the woman's right to consent against the needs of the fetus. Refusing to respect a woman's refusal of medical interventions, Roth notes, imposes a unique obligation on women to assist others. Nowhere else under the law does one person have a legal claim to someone else's body, nor does the law recognize a general duty to rescue.

Although Roth does not cite it, her point here is reminiscent of Judith Jarvis Thomson's classic argument about abortion. Thomson asks us to imagine waking up one day to find a famous violinist's body...