The Consent Model of Pregnancy:
Deadlock Undiminished
Mary Ford*
adjudicating maternal/fetal
In this article, the author examines what is
perhaps the most comprehensive attempt so far to
discover an alternative to the orthodox conflict model
of
issues: Eileen
McDonaghs consent model of pregnancy. This
model is essentially a refined version of the orthodox
model, but is remarkable in that it claims to provide a
legal justification for abortion rights while conceding
the issue of fetal personhood. Referring to the diverse
criticisms of other commentators and adding her own
analysis from the perspective of United Kingdom law,
the author asks whether it is possible, as McDonagh
claims it is, to adopt a purely legal approach to fetal
personhood that is capable of sustaining a framework
for adjudication without collapsing into the problematic
metaphysics of personhood.
Dans cet article, lauteure se penche sur ce qui
constitue peut-tre ce jour la tentative la plus exhaustive
de proposer une alternative au modle traditionnel
consistant dcider des questions maternelles/ftales en
se basant sur le conflit : le modle du consentement
la grossesse dEileen McDonagh. Ce modle est
essentiellement une version perfectionne du modle
traditionnel, mais il est digne dattention en ce quil
prtend fournir une justification au droit lavortement
tout en concdant la question de la personnalit du ftus.
En
rfrant aux critiques diverses dautres
commentateurs et en ajoutant sa propre analyse base sur
le droit en vigueur au Royaume-Uni, lauteure se
demande sil est possible, comme
le revendique
McDonagh, dadopter une approche purement lgale de
la personnalit du ftus qui soit capable de soutenir un
cadre dcisionnel sans semmler dans la complexe
mtaphysique de la personnalit.
se
* Lecturer in Law, University of Nottingham, UK. The author wishes to thank Professor Derek
Morgan of Cardiff University, Professor Tamara K. Hervey of the University of Nottingham, and Dr.
Silvre Lefvre of Cardiff University for reading and commenting on earlier drafts of this article.
Their input has been invaluable. All errors remain solely the responsibility of the author.
Mary Ford 2005
To be cited as: (2005) 50 McGill L.J. 619
Mode de rfrence : (2005) 50 R.D. McGill 619
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Introduction
I. McDonaghs Consent Model
A. Causation and the Separation of Pregnancy from
Sexual Intercourse
B. Consent
C. Wrongful Pregnancy and Self-Defence
D. The Politics of Consent
II. Advantages of the Consent Model
III. Difficulties for the Consent Model
A. Self-Defence
1.
2.
Is Pregnancy an Invited Attack?
Is Pregnancy a Sufficient Attack to Justify the
Use of Deadly Force?
Is Pregnancy Really an Attack at All?
Is the Fetus Entitled to Legal Due Process?
Is Pregnancy a Unique Case?
3.
4.
5.
6. A Better Analogy?
B. Causation
Is the Fetus Really the Cause of Pregnancy?
1.
2. Fathers Rights and Responsibilities
3.
Implications for Wrongful Pregnancy
C. Consent
1.
Is Pregnancy the Kind of Intrusion to Which the
Law Would Permit Consent?
Is Consent to Pregnancy Really Possible?
2.
3. The Problem of Legitimation
D. Miscellaneous Criticisms
1. Late Abortions
2. Womens Well-Being
3. Masculinization of the Fetus
Conclusion
2005]
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Introduction
In her groundbreaking book Breaking the Abortion Deadlock: From Choice to
Consent,1 Eileen McDonagh claims that the analysis of abortion rights that she
proposes resolves the troublesome question of the moral status of the fetus by
focusing not on what the fetus is, but rather on what the fetus does in pregnancy.2
McDonaghs first major claim is that the fetus causes pregnancy when it implants in
the womans uterus.3 McDonagh uses this as a starting point from which to claim that
the right to abortion is not, as has traditionally been thought, simply an example of a
womans right to decisional autonomy; while decisional autonomy is certainly an
element of the right, McDonagh claims, the key element in abortion rights is the right
to bodily integrity.4 Thus, for McDonagh, abortion rights are important not only
because they are an example of a womans right to make autonomous decisions about
her life, but also, and more centrally, because the right to seek an abortion is essential
in order to protect womens bodily integritythe control they have over what
happens to their bodies. In other words, for McDonagh, the abortion issue is not only
about choice; it is primarily an issue of consent.
The fatal error that has dogged the abortion debate thus far, according to
McDonagh, has been a failure to identify the fetus as the coercer in pregnancy.5 It is
the fetus that actually makes the woman pregnant when it implants itself in her uterus.
Abortion is not, therefore, about expelling the coercive imposition of masculine force
on the body of a woman; rather, what is rejected and expelled in the act of abortion is
fetal force, since the fetus is the coercive agent: A woman seeking to terminate her
pregnancy does not wish to expel the coercive imposition of a man on her body. On
the contrary, she seeks to expel the coercive imposition of the one and only agent
capable of making her pregnant: the fetus.6
McDonagh claims that the fetus is the direct cause of pregnancy, whether or not
the act of sexual intercourse that preceded the pregnancy was consensual. In other
words, if a woman consents to having sexual intercourse with a man and subsequently
becomes pregnant, the direct and immediate cause of pregnancy is not the act of
sexual intercourse but the fetus implantation in her uterus. Accordingly, neither the
woman nor the man can be said to have caused her to become pregnant. Similarly,
if pregnancy occurs after an act of nonconsensual intercourse (a rape), the rapist has
not caused the womans pregnancy on McDonaghs model: he has inflicted a grave
harm on her, but the additional harm of any resulting pregnancy is not his
1 Eileen L. McDonagh, Breaking the Abortion Deadlock: From Choice to Consent (New York:
Oxford University Press, 1996) [McDonagh, Breaking the Abortion Deadlock].
2 Ibid. at 5-6.
3 Ibid.
4 Ibid. at 6.
5 Ibid.
6 Ibid.
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responsibility, but that of the fetus. Clearly, in such circumstances, the woman cannot
be held responsible at any stage of the sequence of events from conception to
implantation, certainly not on McDonaghs model and arguably not on any other.
McDonagh writes:
[Vol. 50
[F]ounding abortion rights on the conditions under which sexual intercourse
occurs prior to pregnancy misses the point. The fetus is the direct cause of
pregnancy, and if it makes a woman pregnant without her consent, it severely
violates her bodily integrity and liberty.7
McDonaghs second and third major claims, respectively, are: (1) that pregnancy
constitutes a massive intrusion on a womans body, even where the pregnancy is
medically normal (i.e., not subject to any of the additional medical risks that may
accompany pregnancy); and (2) that women have a right to state assistance in
exercising their right to refuse consent to such an invasion of their bodies. On the
harm associated with medically normal pregnancies, McDonagh writes:
Even in a medically normal pregnancy, the fetus massively intrudes on a
womans body and expropriates her liberty. If a woman does not consent to this
transformation and use of her body, the fetuss imposition constitutes injuries
sufficient to justify the use of deadly force to stop it.8
Of paramount importance here is the point McDonagh makes about the use of deadly
force. The severity and scale of the intrusion that pregnancy represents entitles
women to take extreme measures to bring it to an end, even where the only way to do
so is by killing the fetus/intruder. McDonagh claims that in so arguing, she is simply
regarding the fetus the way any other intruder would be regarded, even those
intruders who are, irrefutably, persons:
Since no born people have a right to intrude massively on the body of another,
… to the degree that the state stops people from harming others by intruding on
their bodies and liberty, including the mentally incompetent or those in dire
need of the body parts of others, similarly the state must stop fetuses that
intrude on womens bodies without their consent.9
This, according to McDonagh, is how her thesis is able to break the abortion
deadlock: she is prepared to concede the issue of fetal personhood to the anti-
abortion lobby, believing that she can construct an argument for abortion rights that
holds good even if we accept, for the sake of argument, that fetuses are persons and
ought to be treated by the law in the same way that born persons are treated. Even if
the fetus were a person, she writes, a woman is justified in killing it because of what
it does to her when it imposes wrongful pregnancy.10 This is so because [e]ven if the
fetus is constructed to be a person, it gains no right to take over a womans body
7 Ibid.
8 Ibid. at 7.
9 Ibid. at 9.
10 Ibid. at 10.
M. FORD THE CONSENT MODEL OF PREGNANCY
2005]
against her will. And if and when it does, she has a right to say no, whatever might be
her reasons for activating that right.11
623
The fundamental liberty at stake in all of this, according to McDonagh, is the
right of a woman to consent to any pregnancy relationship she might become
involved in.12 Throughout, McDonaghs focus is on what the fetus does, not what the
fetus is.13 It is the fetuss action in causing pregnancy that justifies the right of a
woman to terminate its life in order to put an end to its intrusion/violence.14
McDonagh suggests that the reason this right has been ignored, both historically and
more recently in the legal and political debates over abortion rights, is that our culture
has traditionally reserved norms of self-defence for men, while simultaneously
ascribing norms of self-sacrifice to women,15 such that the extreme physical
subjugation and coercion that pregnancy represents has been normalized and not
recognized for what it is: a massive violence justifying the use of deadly force in self-
defence.
I. McDonaghs Consent Model
Having briefly introduced McDonaghs arguments, I now propose to draw out
certain strands in order to subject her claims, and the counterclaims of her critics, to
critical analysis. It is helpful to observe here that McDonaghs argument is reducible
to two broad stages: in the first stage, she claims that women have a right to consent
to the pregnancy relationship; in the second stage, she claims that the state should
intervene to protect women from the massive intrusion of nonconsensual pregnancy.
These stages provide the basis for McDonagh to argue that women have a
fundamental right to abortion, based on the right to bodily integrity, as well as a
fundamental right to state assistance (primarily in the form of funding) to enable them
to exercise the first right, based on (indeed, an example of) the right to self-defence.
Before considering the main advantages and disadvantages of the consent-based
approach, as articulated by McDonagh and her critics, however, I will give a fuller
account of certain more specific claims McDonagh makes, under the following
headings: Causation and the Separation of Pregnancy from Sexual Intercourse;
Consent; Wrongful Pregnancy and Self-Defence; and finally what McDonagh
calls the Politics of Consent.
11 Ibid.
12 Ibid. at 18.
13 Ibid. at 15.
14 Ibid. at 17.
15 Ibid. at 19.
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A. Causation and the Separation of Pregnancy from Sexual
Intercourse
McDonagh describes the association between pregnancy and sexual intercourse
as virtually a cultural icon,16 implying that it is a mere construct born of our
traditional ways of thinking about gender and reproduction. She notes that the US
Supreme Court has maintained the view that sex causes pregnancy, or more
specifically,
impregnation of a woman causes her pregnant
condition17a view that, as we know, McDonagh wishes to challenge and replace
with her own view that the direct cause of pregnancy is the fetus, the agent that
causes a woman to become pregnant when it implants itself in her body:
that a mans
Whereas a man can cause a woman to engage in a sexual relationship with him,
a man cannot cause a womans body to change from a nonpregnant to a
pregnant condition; the only entity that can do that is a fertilized ovum when it
implants itself in a womans uterus.18
The action of the man in [m]oving sperm into a womans body during the act of
intercourse, McDonagh affirms, certainly represents one of the factual sequential
links leading to pregnancy.19 She maintains, however, that this action is not the
legal, or most important, cause of a womans pregnant condition. It is merely a
preceding factual cause that puts her at risk for becoming pregnant.20 This is so
because pregnancy is a condition that follows absolutely from the presence of a
fertilized ovum in a womans body.21 This being the case, she continues, we can
identify the fertilized ovum to be the legal cause of a womans pregnancy state.22 In
the eyes of the law, too, therefore, the fertilized ovum should be the legal cause of a
womans pregnancy.23
One of the most striking features of McDonaghs model is her extensive use of
analogy to illustrate and support her claims. She draws one such analogy when she
remarks:
Men and women who contribute to a situation in which it is foreseeable that a
fertilized ovum might be conceived and make a woman pregnant against her
will contribute no more to the womans harm than does a woman who walks
down a street late at night contribute to her own rape … Men and women who
engage in sexual intercourse, therefore, cannot be held as contributing to the
16 Ibid. at 26.
17 Ibid. at 27.
18 Ibid. at 40.
19 Ibid. at 42.
20 Ibid. [emphasis added].
21 Ibid. at 41.
22 Ibid.
23 Ibid. at 43.
2005]
M. FORD THE CONSENT MODEL OF PREGNANCY
625
harm imposed on a woman by a fertilized ovum making her pregnant without
consent.24
However, it is clear that this likening of pregnancy to rape is more than just a useful
analogy for McDonagh. She obviously regards the two scenarios, rape and pregnancy,
as sharing significant factual and legal similarities when she writes that a fetus
making a woman pregnant without consent is similar to a rapist intruding upon and
taking anothers body in pursuit of his own interest, to the detriment of the womans
interests … 25
McDonagh believes that one of the strengths of this approach is that it treats the
fetus as an agent, an individual with an existence separate from that of the pregnant
womana point over which advocates and opponents of abortion rights have
traditionally clashed:
Many advocates for womens reproductive rights stoutly claim that there is no
body other than the womans to consider in the abortion issue. They adamantly
reject depictions of the fertilized ovum as an entity separate from the woman,
much less as an entity with the full status of a person. Their assumption is that
such a construction of the fetus undermines womens autonomy by implying
that fetuses have interests separate from their mothers and that those interests
are grounds for restricting abortion, which destroys the fetus.26
McDonagh points out, however, that the view of the fetus as an entity separate from
its mother, with its own interests, already is solidly embedded in [US] Supreme Court
reasoning about abortion rights.27 She cites the case of Roe v. Wade,28 in which the
court ruled that the fetus is not a born person (but not that it is not a person at all) and
that when a woman becomes pregnant, her privacy is no longer sole, thus granting
the fetus an identity and body separate from the pregnant womans,29 and also the
case of Planned Parenthood v. Casey,30 in which it was held that the state has
legitimate interests from the outset of the pregnancy in protecting the life of the
fetus.31 The case law shows, according to McDonagh, that insofar as the consent
model countenances the possibility of fetal personhood, it does nothing new
constitutionally, since a strong argument could be advanced, on the basis of existing
authority, that a fetus is already effectively a person under the American constitution.
As I shall discuss when I come to consider criticisms of the consent-based model,
McDonagh may have difficulty convincing abortion rights advocates that her model
does not compound what most of them would presumably regard as the
24 Ibid. at 44.
25 Ibid.
26 Ibid. at 47 ×..
27 Ibid.
28 410 U.S. 113 (1973) [Roe].
29 Roe, ibid. at 159, cited in McDonagh, Breaking the Abortion Deadlock, supra note 1 at 47.
30 505 U.S. 833 (1992) [Casey].
31 Casey, ibid. at 2804, cited in McDonagh, Breaking the Abortion Deadlock, supra note 1 at 47.
[Vol. 50
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jurisprudential mistake of treating the fetus as a person, thereby threatening to
entrench a legal view of the fetus that may damage the fundamental liberty at stake
in the abortion debate. McDonagh will also face challenges from others who claim
that her approach treats the fetus merely as a cipher that is burdened with all the
negative features and consequences of personality and individuality, without
attracting any of the positive entitlements or protections that ought to accompany
personhood. Still more criticism will centre on the fact that, by separating pregnancy
from the sexual act, McDonagh severs the connection between men and reproduction,
thereby removing any legal basis for holding them socially or financially responsible
for the children that are genetically theirs. But, as I will show, causation is far from
the only controversial part of McDonaghs thesis.
B. Consent
McDonagh laments that the persistent failure of commentators and judges to
identify the fetus as the cause of pregnancy has meant that the right of a woman to
consent to a pregnancy relationship with a fertilized ovum is [t]he one type of
consent that is completely missing from the abortion debate … 32 Since the notion of
consent to pregnancy is so new to the debate, it requires a definition, and
McDonagh obliges with the following: In the context of pregnancy, consent means a
womans explicit willingness, based on her choice between resistance and assent, for
the fertilized ovum to implant itself and cause her body to change from a nonpregnant
to a pregnant condition.33
One major difference between a consent-based approach and the traditional,
choice-based approach to abortion rights is that whereas choice refers to only one
individual, consent necessarily refers to a relationship between two entities, both of
whom have at least some attributes of a person … 34 However, choice and consent are
complementary, not rival elements in the justification of abortion rights, as
McDonagh acknowledges: Consent is … built on choice. There can be no valid
consent unless there is valid choice; when choices are undermined, so, too, is the
validity of consent.35 In other words, consent must be authentic, and not coerced, if it
is really to protect bodily integrity and sovereignty in the way McDonagh envisages.
So how is consent to pregnancy to be constituted? We must be able to
distinguish between consensual and nonconsenual (wrongful) pregnancy in order to
know when the use of deadly force is justified, so it will be necessary to have a
definition not only of consent, as seen above, but also of its expression. This
definition will be crucial, since without it there is no way to distinguish between
justified and wrongful uses of deadly force in abortion. McDonagh explains that
32 McDonagh, Breaking the Abortion Deadlock, ibid. at 60.
33 Ibid.
34 Ibid. at 62 ×..
35 Ibid. at 64 ×..
2005]
M. FORD THE CONSENT MODEL OF PREGNANCY
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[t]he act of seeking an abortion stands for a womans lack of consent to be
pregnant since abortion is a procedure that terminates pregnancy. A woman
who chooses an abortion, therefore, is not submitting to a pregnancy caused by
a fetus. To the contrary, she is stopping a fetus from making her pregnant by
having an abortion.36
On McDonaghs analysis, then, we need no other evidence than that a woman is
seeking an abortion in order to reach the conclusion that the pregnancy is wrongful
and the use of deadly force is justified. Definitionally, the wish to abort equals lack of
consent, which in turn entails the right to abort. The wish to abort entails the right to
abort for McDonagh because of the way the concept of consent operates in her
analysis. She justifies this by reiterating her analogy between pregnancy and rape:
A woman must have a right to consent to the way in which a man necessarily
intrudes on her body and liberty when he has a sexual relationship with her,
and so, too, must she have a comparable right to consent to how a fetus
necessarily intrudes on her body and liberty when it has a pregnancy
relationship with her.37
Developing her earlier argument that the fetus, and not the act of sexual intercourse, is
the real, direct cause of pregnancy, McDonagh explains what this discovery means
in the context of consent:
Sexual intercourse merely causes the risk that pregnancy will occur, and
consent to engage in sexual intercourse with a man, for any and all fertile
women, implies consent to expose oneself to that risk.
Consent to expose oneself to the risk that one will be injured by a private
party, however, is not a legal proxy for consent to the actual injuries … Consent
to jog alone in Central Park does not stand as a proxy for consent to be mugged
and raped, should others so attack you.38
The view that women who have sex cause their own subsequent pregnancies,
and thereby consent to them, is not only factually wrong, according to McDonagh; it
is also pernicious, a reflection of our puritan heritage or our dominant, bourgeois
middle-class morality, within which the notion of purely recreational sex is
anathema.39 On such a view, she explains, enabling a woman who has consented to
sexual intercourse to have an abortion does nothing more than facilitate her escape
from the utterly just punishment of a subsequent pregnancy.40 Among the advantages
of the consent-based model is that it allows us to free ourselves from this oppressive,
patriarchal view of sexuality.
The nature of the fetal attack in pregnancy is also relevant to the notion of
consent, since McDonaghs approach depends not only on establishing the need for
36 Ibid.
37 Ibid. at 65.
38 Ibid. at 66.
39 Ibid. at 65.
40 Ibid.
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consent, but also on justifying the use of the kind of deadly force that the law permits
us to use in order to repel an attack by a born person. McDonagh describes in some
detail the aggression perpetrated by the fetus upon the woman during pregnancy,
and the extent to which the presence of the fetus alters and debilitates her body, which
is of course compounded if the pregnancy is medically complicated or abnormal.41
This quantitative intrusion would in itself justify the use of deadly force, since the
law would permit citizens to refuse to submit their bodies to such intrusion by a born
person, even where refusal would mean that persons death.42 However, McDonagh
also identifies what she calls qualitative intrusion,43 the way in which even a
medically normal pregnancy curtails the freedom of the pregnant woman. She argues,
in effect, that even without the transformations and intrusions that occur internally,
causing medical risk to the woman, the intrusion constituted by the curtailment of
the womans freedom would suffice equally well to justify the use of deadly force.
Qualitative intrusion means that the fetus
wholly controls her body, her freedom of movement, and her reproductive
services. When a woman is pregnant, as the Court noted [in Roe], her privacy
is no longer sole. She can go nowhere without the fetus; every action she takes
necessarily includes the fetus. The circulation of her blood, her endocrine
system, and her menstrual cycles are now controlled by the fetus. As long as it
maintains a pregnant condition in her body, for up to nine months she is
decidedly not let alone, and she is anything but free.44
McDonagh explains what she sees as the legal significance of this feature of
pregnancy by way of another analogy: If a woman does not consent to pregnancy,
the fetus has intruded on her liberty in a way similar to that of a kidnapper or slave
master.45
Continuing the slavery analogy, McDonagh tells us that [w]ithout consent, the
totality of the fetuss appropriation of a womans body for its own sake is …
involuntary servitude if not enslavement … [I]t becomes the master of her body and
her liberty, putting her in the position of its slave.46
Because the harms and intrusions inherent in pregnancy are ongoing
throughout the gestation of the fetus, the consent required to render pregnancy
benign, rather than wrongful, must also be ongoing. Thus, on the consent-based
account of abortion rights, not only does the right to consent enable a woman to
41 Ibid. at 69-73.
42 See Judith Jarvis Thomson, A Defense of Abortion (1971) 1 Phil. & Pub. Affairs 47. This is the
celebrated violinist article, in which Thomson argues that just as we have the right to be bad
Samaritans and refuse to donate our bodies to sustain other born individuals, women have a similar
right to refuse to sustain a fetus.
43 McDonagh, Breaking the Abortion Deadlock, supra note 1 at 73.
44 Ibid. at 74-75.
45 Ibid. at 75.
46 Ibid. at 76 ×..
M. FORD THE CONSENT MODEL OF PREGNANCY
2005]
refuse consent upon the initial discovery that she is pregnant; it also entails an
ongoing right to withdraw her consent at any stage during the pregnancy.47
629
The many criticisms of McDonaghs analysis of consent, her contrasting of
consensual/benign and nonconsensual/wrongful pregnancy, and her various analogies
will be discussed fully later. At this point I will address only the problem that
McDonagh herself has anticipated with the operation of consent in her model, namely
the claim that the womans right to withhold or withdraw her consent to the
pregnancy relationship is undermined by the existence of a duty of care owed to the
fetus. Her pre-emptive response begins with the persuasive point that, [t]hough
parents do have a duty to care for their children, that duty does not include the use, or
taking, of a parents body.48 A parent could not, for example, be compelled by law, on
the basis of his or her parental duty, to donate a kidneyor even to give bloodin
order to save the life of one of her children; such an intrusion on the parents body, if
coercive, could not be legitimate, even for such a worthy cause. Accordingly,
McDonagh argues, [a] woman is thus not bound by parental duty to give the kind of
care that includes donating her body to a fertilized ovum, as its parent, even if the
fertilized ovum is thought to have the same status as a born child.49 McDonagh
concludes from this analogy, that [r]ather than a duty of care, [a woman] has a right
to defend herself against the fetuss serious injury.50
McDonagh complicates her argument unnecessarily when she writes that
[b]efore assessing a womans duty of care, we must first assess whether she has
consented to the pregnancy initially.51 This is an anomalous statement, given that
McDonagh has already posited the right of a woman to withdraw her consent at any
stage during pregnancy. That the latter is McDonaghs true position is corroborated
later, when she writes that [a] woman who initially consents to be pregnant might
change her mind as the pregnancy progresses and she experiences its bodily
alterations.52 If she does change her mind, she can exercise the right to withdraw her
consent at that point, since [e]ven if a woman has consented to be pregnant at one
time, this does not bind her to continue to consent in the future, given the changing
conditions defining the experience of pregnancy.53
As McDonagh formulates the right to consent, therefore, the existence of prior
consent would seem to be completely irrelevant to the question of ongoing
consensuality; if prior consent might imply a duty of care, then the right to withdraw
consent at any time is inevitably undermined. Since the problematic statement is
anomalous, I will take McDonaghs authentic meaning to be that which her arguments
47 See ibid. at 79.
48 Ibid. at 78.
49 Ibid.
50 Ibid.
51 Ibid.
52 Ibid. at 79.
53 Ibid.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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overwhelmingly suggest, namely that pregnancy imposes no duty of care, and that a
previously consenting pregnant woman need simply seek an abortion in order for the
withdrawal of consent to be established and for the right to abortion as self-defence to
be justified.
[Vol. 50
C. Wrongful Pregnancy and Self-Defence
The term wrongful pregnancy is not an invention of McDonaghs; it is already
a well-established legal concept, which usually refers to the imposition of pregnancy
on a woman against her willalthough the defending party is usually a rapist,
sometimes a doctor who has performed a failed sterilization procedure, but never a
fetus. Nonetheless, the US case law on wrongful pregnancy seems to support
McDonaghs claim that the law ought to regard pregnancy as an injury. In the case of
Shessel v. Stroup,54 which involved a failed sterilization, pregnancy was held to be a
legal injury. A Wisconsin rape statute lists pregnancy along with disease as a factor
indicative of the extent of injury suffered as a result of rape.55 Most notably, a series
of California cases upholds the idea that a medically normal pregnancy is sufficiently
harmful to a womans interests to be regarded as a legal injury if it occurs as a
consequence of rape. These cases describe pregnancy variously as great bodily
injury,56 a high level of injury,57 significant and substantial bodily injury or
damage,58 and injury significantly and substantially beyond that necessarily present
in the commission of an act of [rape].59 Elsewhere, pregnancy has been included in a
category of personal injury alongside pain, disease, and disfigurement.60
As mentioned above, all of this case law blames a man, not a fetus, for inflicting
the injury of nonconsensual pregnancy. According to McDonaghs argument on
causation, the law has failed for a long time to identify the fetus as a cause of
pregnancy at all, let alone the direct cause, or the cause of wrongful pregnancy in
particular. McDonagh uses the language of coercion to emphasize the culpability of
the fetus in wrongful pregnancy, referring to what the fetus does to a woman when it
coerces her to be pregnant, and talking of the fetus forcing pregnancy on her against
her will.61 She repeatedly describes lack of consent as the key component of all
injuries and the defining component of all injuries within human relationships,62
adding that, from the legal point of view, the important factor in defining an injury
54 316 S.E.2d 155 (Ga. Sup. Ct. 1984).
55 Wisconsin Rape Shield Law, Wis. Stat. 972.11 (2004).
56 United States v. McIlvain, 130 P.2d 131 at 137 (C.A. 1942).
57 United States v. Caudillo, 146 Cal.Rptr. 859 at 870 (Sup. Ct. 1978).
58 United States v. Sargent, 150 Cal.Rptr. 113 at 115 (C.A. 1978).
59 United States v. Superior Court (Duval), 244 Cal.Rptr. 522 at 527 (C.A. 1988).
60 United States v. Brown, 495 N.W.2d 812 at 814 (C.A. 1992).
61 McDonagh, Breaking the Abortion Deadlock, supra note 1 at 89.
62 Ibid. at 90.
M. FORD THE CONSENT MODEL OF PREGNANCY
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is not so much what is done to one party by another, but whether the other person
consents to it.63
631
Seeking to justify the use of deadly force in self-defence against the intrusion of a
fetus, McDonagh begins by distinguishing between two different types of privacy.
First, there is privacy as decisional autonomy, or freedom from state interference:
As established in Roe, a womans right of personal privacy as defined by
her decisional autonomy is governed and limited by what the fetus is, not by
what it does. As long as the fetus is previable, justification for a womans right
to an abortion rests simply on whether she chooses to have one or not … Once
the fetus is viable, however, a woman no longer has the right to exercise
personal privacy by choosing an abortion, and a state may prohibit her right to
choose one.64
There is another form of privacy, also acknowledged by the Roe court, namely
privacy as self-defence. McDonagh explains this type of privacy as follows:
The law also recognizes the right of people to use deadly force when
threatened with qualitative injuries that intrude on their basic liberty or bodily
integrity even while threatening no objective physical injuries per se, much less
threatening their lives. Thirty-six states explicitly affirm a persons right to use
deadly force when threatened with forcible rape, even when that rape is not
aggravated by physical injuries. Thirty-five states legislatively recognize the
right to use deadly force against kidnapping.65
Whereas the first form of privacy recognized in Roe is limited by the burgeoning state
interest in the fetus as an individual with emerging interests, the second form of
privacy is not:
By contrast [with decisional autonomy], a womans right of self-defense in
relation to the fetus as established in Roe is governed and limited by what the
fetus does, not by what it is. At any point in pregnancy, regardless of whether
the fetus is or is not viable, if what it does imposes a sufficient amount of injury
on the woman, no state may prohibit her from using deadly force to stop it,
even if the state has a compelling interest to protect [the fetus].66
Quoting Justice Rehnquist in his dissent in Roe, McDonagh concludes that women
have always had a right to defend themselves with deadly force when sufficiently
threatened by the intrusion of a fetus.67 The operative phrase here is sufficiently
threatened; although Roe sets a precedent for a right to abortion based upon what the
fetus does to a womans body, the court in Roe only applies this self-defence privacy
right to medically abnormal pregnancy. McDonagh would extend the right to cover all
cases of pregnancy, whether medically abnormal or not, since she believes that even
63 Ibid.
64 Ibid. at 92.
65 Ibid. at 93 ×..
66 Ibid. at 92-93.
67 Ibid. at 96 ×..
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normal pregnancy constitutes a sufficient threat to womens qualitative freedom
insofar as it enslaves them, or at least commits them to involuntary servitude, as we
have seen.
[Vol. 50
By basing abortion rights primarily on consent and the right to defend oneself
against attack, McDonagh believes she has discovered a more secure basis for such
rights than those who would ground them in the ideology of autonomy and freedom
from state interference. This is because the right to be free from state interference is
far from being an absolute right. Although some state interventions have been deemed
excessive by US courts (e.g., forcible stomach-pumping),68 McDonagh reminds us
that
[i]t is constitutional for the state to prohibit ones choice to engage in
homosexual activity, to contract for prostitution services, and to sell ones
organs. In addition, it is constitutional for the state to require people to obtain
vaccinations in order to prevent the spread of disease and to be conscripted for
military service.69
These examples apply equally to the United Kingdom context. On the other hand,
courts affirm that the right of a person to be free from intrusion by another person is
absolute. There are no exceptions.70 Thus, while the state may have limited power to
intrude on a persons body, no private party has such power. Privacy, in the form of
self-defence, defines a sphere of individual dominion into which private parties
may not intrude without consent.71 Such privacy is addressed not to the state, but to
other private individuals, and so it is more wide-ranging in character. As such, basing
abortion rights on the right to freedom from the intrusion of a private party (the fetus)
is preferable to basing them on the more limited right to be free from interference by
the state. Following Roe, there is already a limited element of self-defence in abortion
rights, but it applies only to pregnancies that are medically abnormal. If McDonagh
can successfully extend the self-defence justification to cover all cases of pregnancy,
she would appear to have placed abortion rights beyond the reach of their opponents
by elevating them to the private sphere, and removing the state interest factor, with
all its erosive potential.
In order to establish the right to abortion throughout pregnancy and the right to
state assistance, however, reliance on citing the right to self-defence alone will not
suffice; as McDonagh explains, [i]t is the job of the state to protect victims of
wrongful private acts by stopping the perpetrators. The right of self-defence is meant
to be a fall-back option for those times when the state cannot do its job … [I]t is not a
policy preference.72 She continues, [T]o the degree that it is the job of the state to
protect the fetus as human life, it becomes the job of the state to restrict the fetus as
68 See e.g. Rochin v. California, 342 U.S. 165 (1951).
69 McDonagh, Breaking the Abortion Deadlock, supra note 1 at 100 [footnotes omitted].
70 Ibid. at 103 [emphasis added].
71 Ibid. at 101 ×..
72 Ibid. at 105.
M. FORD THE CONSENT MODEL OF PREGNANCY
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human life from intruding on the bodily integrity and liberty of others.73 The court in
Roe, while acknowledging a womans right to seek abortion in order to defend herself
against the risks and harms of medically abnormal pregnancy, affirmed only her
individual right of self-defence, not any right to assistance from the state.74 This quest
for state assistance takes us into the arena of what McDonagh terms the politics of
consent,75 and under this heading I will examine the basis on which she demands
state assistance for women who seek to exercise abortion rights.
633
D. The Politics of Consent
The argument over state funding for abortion has, according to McDonagh, been
complicated and misleading. Once again, the problem is the failure to identify the
fetus as the cause of pregnancy, coercing women to be pregnant against their will:
[F]ailure to identify what the fetus does to a woman when it causes pregnancy
has resulted in rulings that undermine womens rights by allowing the state to
establish repressive regulations, such as twenty-four-hour waiting periods, and
most serious of all, prohibitions against the use of all public funds, facilities,
and personnel for the performance of abortions.76
Until now, advocates of abortion rights have been unable to justify their demands for
state funding. Judith Jarvis Thomsons famous violinist scenario77 attempted to
establish that
even if the fetus is a person, and even if its life hangs in the balance as a needy
recipient of a womans body, a woman still has the right to be a bad samaritan
by refusing to give her body to the fetus.
This bad samaritan argument for abortion rights still does not go far
enough. It claims only that women have a right to refuse to donate their bodies
to a fetus.78
For McDonagh,
[t]he issue is not merely that women have the right to be bad Samaritans by
refusing to give their bodies to a fetus. Rather, if a woman does not consent to
pregnancy, the issue is that the fetus has made her its captive samaritan by
intruding on her body and liberty against her will, and thus on the womans
right to be free from that status.79
The problem is that the masculinized norm of self-defence is supported by equally
masculinized notions of how self-defence ought to be achieved, i.e., without external
73 Ibid.
74 See ibid. at 163.
75 Such is the title of c. 9 in ibid.
76 Ibid. at 176 ×..
77 See Thomson, supra note 42.
78 McDonagh, Breaking the Abortion Deadlock, supra note 1 at 171 ×..
79 Ibid. at 171-172 [emphasis in original].
[Vol. 50
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help.80 A real man, a good provider is one who can provide adequate protection
for himself and his property (including his sexual partner(s) and their children?)
without recourse to outside agencies. Partly as a result of this masculine ideal,
current abortion-funding policies … strand women in a state of nature, at the mercy
of fetal intrusion of their bodies without the assistance of the state to stop the fetus on
womens behalf from imposing wrongful pregnancy.81 According to McDonagh, the
problem with abortion funding is not that the state is too involved; it is not involved
enough. The state stands by in order to protect the fetus as human life while it imposes
serious injury on the woman.82
McDonaghs argument concerning self-defence can be summarized as follows.
First, we need to get beyond the masculine notion of privacy as the right to be left
alone. Roe is an example of legal authority for the view that privacy also includes the
right to self-defence, and specifically, for the view that abortion rights are based at
least in part on this second type of privacy. Second, when considering privacy-as-
self-defence, we must be aware that that right, too, is commonly understood in a
masculinized way, as the right to defend oneself without assistance. Establishing an
ideological basis for state funding of abortion requires us to understand that self-
defence entails the state duty to intervene positively to prevent or diffuse attacks by
one private party upon another. McDonagh explains this point in the following way:
If a man is raping a woman or a mugger is inflicting a severe beating on
someone or one private party is killing another, of course the victims have a
right of self-defense to try to stop that injury themselves, but they also have a
right to state assistance to stop the private parties on their behalf … When a
fetus seriously injures a woman by imposing a wrongful pregnancy, therefore,
of course she has a right to stop it from injuring her, but she also has a right to
state assistance in stopping it on her behalf.83
II. Advantages of the Consent Model
The consent model affirms the widely held notion that the fetus is a morally
valuable entity, without treating the issue of moral status as decisive, as the Roe court
did. This allows McDonagh to avoid dehumanizing the fetus. For those who claim the
right to seek abortion on the basis of autonomy and choice, a necessary element of the
justification for the right is the contrasting of the fact that the woman is a person
whose freedom of choice ought to be protected with the claim that the fetus is a
nonperson and has no legal rights. While McDonagh also claims that the fetus has no
legal rights, she justifies her claim without needing to resort to claims about the moral
status of the fetus. This means that we can acknowledge and protect abortion rights
without having to regard the fetus as something other than human, a view that would
80 See ibid. at 179.
81 Ibid. at 183.
82 Ibid. at 182.
83 Ibid. at 105.
M. FORD THE CONSENT MODEL OF PREGNANCY
2005]
run contrary to common sense and would require us either to ignore, or to dismiss as
mere fantasy, the narratives of women who experience trauma or grief, and who feel
that in having an abortion, they have lost something of value, or even killed a human
being. As such, this approach is more consonant with the actual experiences of real
women.
635
Moreover, by contrast with the individualistic notion of choice, consent is
relational: it focuses on both the woman and the fetus (although as will be seen when
I come to consider the disadvantages of the approach, it excludes the possibility that
relationships between men and pregnant women, or even men and their fetuses,
may be relevant). Such a relational approach is better able to avoid criticisms that it is
too individualistic or atomistic, criticisms often levelled at the rights talk so
prevalent in the rhetoric of choice. By focusing not only on individual rights
(important as these are for the consent-based approach) but also on relationships,
accounts like McDonaghs can accommodate notions such as caring, hospitality, and
community, which are often regarded as being either irrelevant or even threatening to
a rights- or choice-based argument. According to McDonaghs model, abortion does
not contravene the ethic of carethe notion that women are, by nature, nurturers
and caregiverssince what abortion prevents is not the giving or bestowing of care
by women, but the taking of womens bodies, their freedom and their care without
their consent.
McDonagh acknowledges that her model is at odds with current social
assumptions about abortion; for most people, to contemplate fetal personhood (even
just for the sake of argument) is to throw grave doubt on the moral and legal validity
of the practice of abortion. McDonagh does not, however, take this discrepancy to be
indicative of any problem with her argument; rather, she is confident that it arises
because our current social norms, particularly those relating to women and
reproduction, derive from our cultural heritage of patriarchy, and in particular, from a
combination of puritanical and bourgeois morality that reserves norms of self-defence
for men while imposing norms of self-sacrifice on women.
III. Difficulties for the Consent Model
There are many criticisms of McDonaghs consent-based justification of abortion
rights, and it will be helpful to categorize them under several headings. First, I will
consider problems with the notion of self-defence as it operates in McDonaghs
account. I will then consider those criticisms that challenge her use of the concepts of
causation and consent, respectively. Finally, I will address some miscellaneous
criticisms and difficulties.
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A. Self-Defence
1.
Is Pregnancy an Invited Attack?
Neville Cox points out that McDonagh could be challenged on the basis that
consent to sex constitutes an implicit consent to all the natural and foreseeable
consequences thereof including pregnancy,84 and that as such, a woman who
becomes pregnant following consensual sexual intercourse has invited pregnancy,
or to borrow McDonaghs terminology, has invited the fetus to make her pregnant.
Cox disagrees with this criticism:
This argument is, however, rather strained. In the case, for example of a woman
who has used birth control yet through some mischance has become pregnant
and who seeks an abortion as soon as she becomes aware of her condition,
everything in her actions indicates that she does not consent to pregnancy and
any presumption to this effect has been thoroughly rebutted.85
McDonagh would also reject the argument that pregnancy is an invited attack; as
we have seen, she regards the action of a woman having consensual sexual
intercourse merely as putting oneself at risk of pregnancy, and insists that the
acceptance of a risk does not necessarily entail any acceptance of the actual injuries,
should they occur. Just as a jogger who chooses to run alone through Central Park
accepts a degree of risk but does not consent, by any stretch of the imagination (or the
law) to be mugged or raped, a woman who engages in consensual sexual intercourse
accepts the risk of pregnancy, but does not consent to the actual attack of a fetus or the
injury it perpetrates by invading her body and later, by effecting ever more drastic
changes upon it throughout the gestational process. Although whether or not someone
uses contraception may hint at their intentions regarding pregnancy, or indicate that
they are willing to accept a greater or lesser degree of risk, McDonagh would argue
that, whatever degree of risk they accept, they are not consenting to the actual injury
of pregnancy itself.
McDonaghs claim that a womans consent to sexual intercourse, and acceptance
of the attendant risks, does not entail consent to pregnancy is problematic because the
concept of risk covers a wide spectrum of possibility. At one end there is the
situation where it is possible, although highly unlikely, that certain consequences will
occur if a certain action or course of action is undertaken; at the opposite end of the
spectrum of risk, there is the scenario wherein, if a person behaves in a particular way,
certain consequences will almost inevitably follow. For example, if a man walks along
a pavement, it is possible, although highly unlikely, that a car will mount the
pavement and kill or injure him. If he crosses a busy road using a designated crossing-
place and paying reasonable attention to the traffic, it is more likely, but still unlikely,
that he will come to harm. There are of course varying degrees of risk associated with
84 Neville Cox, Causation, Responsibility and Foetal Personhood (2000) 51 N. Ir. Legal Q. 579 at 581.
85 Ibid. at 581-82 [emphasis in original].
637
M. FORD THE CONSENT MODEL OF PREGNANCY
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walking on or near roads. If the same man were to jump out on a major motorway in
front of a car approaching at seventy miles per hour, we can say with some confidence
that he is likely to be hurt or killed. It is still not a certainty, since any number of
outlandish events could intervene to rid the danger; he is still only at risk of harm.
But on McDonaghs analysis, we must nonetheless say that he has not consented to
the actual harm he will almost inevitably sustain. This is a philosophical point; of
course, the law would take a quite different view on who was responsible for the harm
in such a case. What about a man who steps in front of an express train with the
intention of committing suicide? His death is not guaranteed; again, unlikely events
could intervene to thwart his plan. According to McDonagh, he would still be putting
himself at risk of injury and death, and would not have consented to any injury he
sustains as a result of his actions. Moreover, if he clearly intended to bring about his
own death, yet survived, horribly injured, he could claim quite plausibly, on
McDonaghs logic, that he certainly did not consent to be so injured.
The differences between these examples and the pregnancy scenario are clear.
First, pregnancy can be undone, which makes it more meaningful to talk about
consent or lack of consent in the pregnancy context than to argue about consent in the
context of an action whose consequences are irreversible. If I become pregnant
despite my intention to avoid pregnancy, I can invoke the language of consent, or cite
the absence of consent, in support of my claim that I ought to be able to remedy my
pregnant state. I cannot seek to return to a living or intact state if I have been killed or
maimed as a result of my risk-taking. Another difference is that, at least according to
McDonagh, pregnancy involves the commission of a wrongful act by another party,
whereas my examples do not. Is this difference relevant to the way we treat the issue
of risk?
I would argue that it is possible to separate the actions of the two agents in
McDonaghs modelthe first partys (i.e., the parents) assumption of risk, and the
second partys (i.e., the fetuss) wrongful actsince although the wrongfulness or
harmfulness of the fetal attack becomes relevant when we come to consider other
issues under the heading of self-defence, it is not important to the question whether
the pregnant woman has invited the fetus into her body. If we accept this, we can
use the above analogies to argue that one weakness of McDonaghs theory is her view
of how an assumption of risk relates to responsibility for subsequent injury. In the
above hypothetical examples, McDonagh would be compelled to absolve both the
man on the motorway and the man who steps in front of a speeding train of any
responsibility for their subsequent injury or death. She is unable, on the basis of what
she proposes in Breaking the Abortion Deadlock, to distinguish between different
degrees of risk, and is thus unable to ascribe responsibility to those who assume the
level of risk found at the higher end of the spectrum while admitting that some levels
of risk are very low and ought to entail no legal responsibility for consequences. It is
very difficult to imagine a scenario in which a human agent, in performing an action,
could actually guarantee a particular result, since almost nothing is certain and there is
always the possibility, however slight, that unplanned events will intervene and alter
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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the outcome. This being the case, all we can ever do is place ourselves at risk of a
given outcome, so that if risk and outcome are separated as they are in McDonaghs
model, we could never hold anyone even partly responsible for any wrongs or injuries
that they suffered.
[Vol. 50
Regarding McDonaghs discussion of risk and responsibility, Robin West asks,
[I]s it really the case that consent to the risk of pregnancy does not entail consent to
the pregnancy?86 Clearly, West believes that the matter is by no means settled:
In contract law, clearly, consent to an assumed risk does imply consent to the
risked event; if it didnt, no contract would be secure … In criminal contexts, by
contrast, McDonaghs argument looks sound; consent to a risked criminal
event does not by any means imply consent to the crime … [I]n tort, the
situation is complicated and conflicted; consent to a risk might or might not
constitute assumption of the risk, and hence consent to the risked event.87
Obviously, if we could categorize abortion under one of these headings, we would
have a clearer idea of how the law would treat the assumption of risk inherent in the
abortion context. Unfortunately, none of these areas of law seems to completely
accommodate the circumstances of pregnancy and abortion. Clearly, it would make no
sense to categorize the attack of pregnancyeven wrongful, nonconsensual
pregnancyas a criminal offence, since the fetus (the direct cause of pregnancy,
according to McDonagh) cannot be held criminally responsible. Moreover, as West
notes, an attack by a born person … threatens the peaceand hence threatens the
statein a way that the invasion of a woman by an unwanted fetus does not.88 This
being so, another reason for criminalizing certain kinds of behaviournamely the
states duty to maintain public order and deter offendershas no application in the
context of wrongful pregnancy, since the fetus does not threaten public order
(although it threatens the pregnant womans internal physical and psychological order
as well as the order of her social functioning) and cannot be deterred from causing
pregnancy by the threat of sanctions.
Any attempt to regard pregnancy as a contract, for example a contract for services
between the pregnant woman and the fetus, would founder on the absenceindeed,
the impossibilityof mutuality.89 By a process of elimination, we arrive at tort law
and this area of law does seem best able to accommodate McDonaghs account of
pregnancy, since she characterizes pregnancy as a harm, but not a criminal assault. As
West comments, the relationship between risk and responsibility is unclear in tort law;
consent to a risk might or might not imply consent to the risked harm. At the very
least, then, we can say that it is by no means clear, in law, that consent to risk does not
86 Robin West, Liberalism and Abortion (1999) 87 Geo. L.J. 2117 at 2130.
87 Ibid. at 2130-2131.
88 Ibid. at 2126.
89 Although pregnancy may be the subject of a surrogacy contract, such contracts are currently
unenforceable in United Kingdom law, and are anyway contracts between the pregnant woman and
the commissioning couple (or individual); at any rate, contract cannot apply to wrongful pregnancy.
M. FORD THE CONSENT MODEL OF PREGNANCY
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imply consent to be harmed. This raises serious doubts about one of the main
premises on which the consent model of abortion rights is built.
639
2.
Is Pregnancy a Sufficient Attack to Justify the Use of Deadly
Force?
As Robin West observes, [P]regnancy, even when nonconsensual, does not
typically threaten death, lasting bodily injury, or even an immediate disruption of the
womans life plans and projects the way a violent assault by a born person most often
does.90 Because of this, some commentators have raised the issue of whether the
attack represented by pregnancy is sufficiently serious to justify the use of deadly
force in self-defence. Neville Cox rebuts this charge as follows:
It has been suggested that the defence of self-defence cannot apply because
of the nature of the attack within pregnancy. In order to justify use of self
defence it must generally be shown that an attack was immediate and
threatening … [H]ence, because pregnancy does not have the appearance of an
immediate threat, the use of self defence principles does not apply to this
situation. This argument may be rejected, however, both because McDonagh
would say that pregnancy is a nine month immediate threat, and also because
the inexorable nature of the harm involved means that requirements of
immediacy may be dispensed with.91
As Cox points out, moreover, McDonagh cites rape and kidnap as examples of
instances where deadly force may be used in self-defence even where there is no
immediate threat to life. For West, however, the seriousness of the attack inherent in
pregnancy does not consist solely in the threat of physical harm, either immediate or
remote, or even in actual physical harm. She remarks that, although McDonagh
catalogues in elaborate detail the physical effects of both medically normal and
abnormal pregnancies, she risks missing entirely the psychic harms such pregnancies
occasion.92 West argues
the
nonconsensual assault, threatens not so much to end your life from the outside, so to
speak, but to take over your life from the inside. The fear is not that my life will end
but that my control over its course will end.93
that the nonconsensual pregnancy, unlike
The danger West describes constitutes an immediate threat not to a womans life,
but to what is often regarded as being important about her life, the womans
personhood. This should be of particular concern to those states that regard
themselves as (or aspire to be) modern liberal democracies since, as West reminds us,
one of the central lessons of liberalism has been to establish the notion that [a] free
moral person … is someone who freely decides to undertake moral action. It is hard to
avoid the conclusion that the woman who has no choice but to remain pregnant
90 West, supra note 86 at 2127 [emphasis in original].
91 Cox, supra note 84 at 582 ×..
92 West, supra note 86 at 2128.
93 Ibid.
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against her will is, from a liberal perspective, something considerably less than
human.94 In other words, our moral personhood, on the liberal account, depends
upon our capacity to exercise moral autonomy in our relationships with other moral
agents. To be forced into a moral relationship seems to contravene this ideal: The
woman who is pregnant against her will embodies nonfreedom, because she embodies
the very actunwilled sacrifice of ones body for the life of othersthat is freedoms
antithesis.95
[Vol. 50
As such, we can (and it would seem that liberals must) take wrongful pregnancy
seriously enough to warrant deadly force in self-defence even where the pregnancy
poses no immediate threat to life or health. However, this argument is unlikely to
persuade nonliberals (many of whom ascribe moral value to unchosen projects and
relationships),96 and will not necessarily persuade those liberals whose liberal beliefs
are grounded in consequentialist, rather than Kantian, philosophies.
3.
Is Pregnancy Really an Attack at All?
This criticism centres on the claim that McDonaghs characterization of
pregnancy as a fetal attack is mistaken for several reasons. First, the fetus, far from
perpetrating a deliberate attack, is innocent, both in the sense that it is innocent of any
wrongful intention and in the sense that it is not criminally competent. Second, and
more important, is the claim that it is impossible to separate what the fetus is from
what the fetus does.
Recall that McDonagh has claimed that one of the main advantages of her thesis
is that it corrects the previous error of focusing on what the fetus is (usually by
debating its moral status) and focuses, instead, on what the fetus does to a woman
when it makes her pregnant without her consent. If it is impossible to separate the two
conceptually, two consequences follow: first, if McDonagh wishes to maintain her
claim that previous commentators and judges were in error, she must find new
grounds for her criticism; second, and related to the first point, McDonagh has
achieved nothing by refocusing the debate away from the nature of the fetus and
onto its behaviour, except perhaps to invent a false and confusing distinction.
Is it possible, then, to separate fetal nature from fetal behaviour? Cox contends
that it is not:
[W]hatever the impact of pregnancy, the foetus is doing nothing apart from
involuntarily staying alive in the ordinary way and hence the attack for self
defence purposes comes in the form of simple foetal existence. But self defence
94 Ibid. [emphasis in original].
95 Ibid.
96 See e.g. Michael J. Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge
University Press, 1982) at 33-34, 69.
2005]
M. FORD THE CONSENT MODEL OF PREGNANCY
641
law does not entitle me to kill another if my health or life or bodily integrity is
threatened by his or her simple existence.97
This last point concerning the application of the law on self-defence to a threat posed
by anothers mere existence is somewhat precarious, since the situation rarely, if ever,
arises wherein one persons health, life, or bodily integrity is threatened by the mere
existence of another.98 It is for precisely this reason that pregnancy is so often
described as being a completely unique condition.99 As mentioned above, Judith
Thomson wrote a famous article that claimed the exact opposite of what Cox is
saying, namely that if my life or bodily integrity is threatened by another born person,
even in the course of doing what he or she must do simply to continue to exist, then
the law ought to allow me to be a bad Samaritan and defend myself by withdrawing
the support on which that person depends for his or her survival.100 Cox anticipates
this argument, and responds by pointing out that
[Thomson] accepts the personhood of the foetus for the purposes of argument
while insisting that a foetal right to life does not include a right to use its
mothers body for support through the vehicle of pregnancy. But without such
a sub-right, the principal right becomes illusory.101
He puts the point slightly differently elsewhere when he says that
when the law recognises rights it does so in the knowledge of the context in
which they will operate. Thus it would not recognise a right to live while
rendering the act of breathing or eating a criminal offence, because the latter
rule would render the former right meaningless.102
One obvious problem with Coxs response is that McDonagh is not proposing a
fetal right to life; although her model tolerates the notion of fetal personhood for
arguments sake, she does not regard it as entailing any positive legal right to continue
existing. This is so because the brand of personhood she ascribes to the fetus is
comparable to the kind of purely legal personhood that companies and other such
entities possess, without having any right to exist. The difficulties inherent in this
purely legal notion of fetal personhood will become even more apparent during
consideration of the next question.
97 Cox, supra note 84 at 582 ×..
98 The case of Re A (Children) (Conjoined Twins: Surgical Separation), infra note 115, might be
considered analogous. See Part III.A.6, below, for further discussion of this case.
99 See Part III.A.5, below, where I consider the claim that the genuine uniqueness of pregnancy
invalidates much of McDonaghs heavily analogical approach.
100 Thomson, supra note 42.
101 Cox, supra note 84 at 586 ×..
102 Ibid. at 583.
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4.
Is the Fetus Entitled to Legal Due Process?
Judith Scully points out that if a fetus is a human being, it might be entitled to a
legal hearing and legal counsel prior to being aborted.103 If the fetus can be regarded
as an agent or a legal person, as McDonagh is prepared to assume for the purposes of
her model, then it could indeed be claimed that such an entity ought to be entitled to
due process of lawa least where the pregnancy is medically normal (i.e., where it
poses no immediate threat to a womans life or health). Failing to recognize such an
entitlement, it may be argued, is to treat the fetus as a legal person only in the
negative sense.
It is helpful here to distinguish between two possible understandings of fetal
personhood in McDonaghs model. The first possible understanding can be
summarized as follows: the fetus has no capacity to possess rights or owe
responsibilities; nevertheless, it can be an agent of injury and cause harm to women in
the pregnancy context. This understanding treats the fetus as the legal equivalent of an
animal, and if this is all McDonagh means by fetal personhood, it is difficult to see
how her model improves upon traditional discourse about abortion. Such an
understanding of fetal personhood would hardly be capable of breaking the abortion
deadlock. On the second possible understanding of fetal personhood, the argument
proceeds as follows: the fetus is a person, involved in a private pregnancy relationship
with the pregnant woman. If the relationship is non consensual, it constitutes
wrongful pregnancy and the woman is entitled to use deadly force to defend herself
against the unwanted intrusion. This understanding does not differentiate between the
fetus and a born person; it is a stronger version of fetal personhood, and on the face of
it, much more promising. This seems to be closer to what McDonagh means when she
analogizes the fetus to a rapist, and claims that deadly force is permitted in self-
defence even where the attacker is a person.
This second, more promising way of understanding what McDonagh means by
fetal personhood, however, also causes problems for McDonaghs model. Use of
deadly force against born persons is only authorized in emergency situations;
otherwise, the person presenting the alleged threat is entitled to due process of law.
Medically normal pregnancy is not a gunman situation where deadly force may be
used without due process. However great the intrusion that any pregnancy represents,
emergency usually implies some immediate threat to life or health, so that where
pregnancy is medically normal and there is no immediate threat, it seems
inappropriate to speak of an emergency situation. Where pregnancy is medically
abnormal and places the life or health of the woman in danger, this is already
regarded as an emergency under current law, and abortion is authorized in such cases
as a matter of medical necessity. There is no need to resort to the legal right to self-
defence.
103 Judith A.M. Scully, Book Review of Breaking the Abortion Deadlock: From Choice to Consent
by Eileen McDonagh (1997) 8 UCLA Womens L.J. 125 at 145.
M. FORD THE CONSENT MODEL OF PREGNANCY
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A key problem for McDonaghs thesis is, therefore, that it ultimately fails to
break the abortion deadlock. What opponents of abortion advocate is the ascription
of moral personhood to the fetus, and McDonagh, by offering this purely legal notion
of personhood, is debating at cross-purposes rather than proving why their argument
fails even if the issue of fetal personhood is conceded. The fetus is treated as a
person only as a heuristic device, in order that concepts such as assault and self-
defence can be applied without obvious absurdity; a closer examination reveals the
personhood of the fetus to be a mere cipher.
643
5.
Is Pregnancy a Unique Case?
In the course of her argument, McDonagh draws many analogies between
pregnancy and other events or conditions:
The fetus … is analogized to a born person for purposes of making out the
original right of self-defense, to a natural phenomenon to highlight the
irrelevance of the arguable assumption of risk involved in the original act of
intercourse of the right to self-defense, and then, finally, to a criminally insane
assailant to illustrate the irrelevance of the fetuss lack of agency to the
womans right to state assistance.104
[A]t some point, Robin West observes, the multiplicity of analogies start to work
against each other.105 Furthermore, as McDonagh herself acknowledges elsewhere,
[a] possible objection to situating women who suffer harm resulting from a
fetus with other victims of harm is that pregnancy is a unique condition; thus,
when a fetus attacks a womans body, it does not situate her similarly with
anyone else whom the state protects from harm.106
Such an objection is raised by Nancy Davis, who argues that the uniqueness of
pregnancy as a condition is such that it is impossible even to characterize the issue as
one where competing rights are being balanced.107 Davis writes, If the relationship
between the woman and the fetus is thought to be in itself a special one, then this
undercuts the force of arguments by analogy.108 This is potentially a very damaging
criticism, given the centrality of analogical reasoning to McDonaghs model.
McDonagh responds as follows:
The flaw in this objection is the assumption that any one situation can be
wholly different from another; all situations involve some similarities and some
104 West, supra note 86 at 2130.
105 Ibid.
106 Eileen L. McDonagh, My Body, My Consent: Securing the Constitutional Right to Abortion
Funding (1999) 62 Alb. L. Rev. 1057 at 1110 [McDonagh, My Body, My Consent].
107 Nancy Davis, Abortion and Self-Defense (1984) 13 Phil. & Pub. Affairs 175 at 184-85.
108 Ibid. at 181.
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differences. It is a matter of judgment, therefore, to what degree situations
should be considered similar or different in relation to each other.109
She continues:
If the fetus were considered a person, for example, its location within and
attachment to the body of another person might be considered unique to
[fetuses] as a class, but the harm resulting from the fetus is not unique, since
harm often results from one persons effect on another person. Under state
protection, if the fetus is considered to be a living entity that is not a person,
then harm resulting from it also is not unique, since harm often results from
living entities that are not people. Thus, whether the fetus is a person or a
nonperson, it similarly situates a woman with others who are harmed.110
This is, in my opinion, a disappointing and somewhat clumsy response, which fails to
get to the heart of the uniqueness objection. When critics claim that pregnancy is
unique, they are not necessarily claiming that it is unique on the basis of the status of
the fetus as a person or a non-person. Rather, they are making the claim that the whole
set of circumstances associated with pregnancy is unique, particularly with regard to
the operation and exercise of individual rights. While I ultimately agree with
McDonagh that the objection from uniqueness must fail, I prefer Wests explanation
of why this must be so.
Although West notes that McDonaghs liberal insistence on the analogical
similarity between the nonconsensually pregnant woman and the assaulted victim
misses the substantial payoff of a pregnancy, namely a healthy human baby,111 she
also observes that [e]quality and liberty both, from a liberal perspective, are
dependent upon the recognition and the equal treatment accorded our universality.112
As West explains, liberal legalism requires a rule of law that … treats likes alike.
Thus, the overpowering need for analogical thinking.113 In other words, before we
can promote equality, a key value in liberal social and legal systems, we must have
some method of determining which cases are alike in the relevant sense, so we can
then treat like cases alike. As such,
[e]qual regardthe heart of liberalismrequires that pregnant women be
treated similarly to those with whom they are similarly situated. The imperative
of equal treatment at the heart of liberal legalism animates the need to locate
those to whom she is similarly situated and, therefore, the search for analogous
conditions.114
According to West, then, although it may be difficult to find situations that are like
pregnancy, it is necessary to draw parallels whenever possible, in order to be able to
109 McDonagh, My Body, My Consent, supra note 106 at 1110.
110 Ibid. at 1110-1111.
111 West, supra note 86 at 2128-2129
112 Ibid. at 2124.
113 Ibid.
114 Ibid. at 2125.
M. FORD THE CONSENT MODEL OF PREGNANCY
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attain, insofar as is possible, the liberal ideal of treating like cases alike. As
McDonagh points out, the practical implementation of this ideal will inevitably
involve subjectivity, since judgments will be required regarding the degree to which
certain sets of circumstances exhibit relevant similarities. The fact that treating like
cases alike will be necessarily and intrinsically subjective in practice, however, does
not mean that we should not attempt to find as close an approximation to the ideal as
we are able to find for any given case. The most basic tenets of liberal legal theory
demand as much.
645
6. A Better Analogy?
The British legal scholar Vanessa Munro has identified parallels between
pregnancy and the comparatively recent British case of Re A (Children) (Conjoined
Twins: Surgical Separation).115 In that case, the English Court of Appeal had the
unenviable task of determining the interdependent fates of infant conjoined twins
Jodie and Mary. Having referred to Re A, Munro writes that
[m]aternal-foetal relations represent another relational context characterized by
ambiguous bodily boundaries within which the laws attempt to super-impose
the highly abstract and individualist framework of rights analysis has proven
manifestly inadequate.116
The case of the conjoined twins corresponds to McDonaghs model of nonconsensual
pregnancy in a number of important respects. Jodie (the stronger twin) was involved
in a nonconsensual physical relationship with the weaker twin, Mary; Jodie was
suffering physical harm and facing certain death as a result of Marys physical
dependence on her body, and Jodies only possible defence against the harm would be
the removal of Mary, which would end the nonconsensual relationship and inevitably
cause Marys death. The relationship was beneficial only to Mary, and harmful only to
Jodie, making it more similar to McDonaghs pregnancy model than to other more
symbiotic twin conjoinments. Another similarity to McDonaghs model is that both
of the twins in Re A were deemed to be persons in law. It is therefore instructive to
examine the case for evidence of how the UK courts might approach a right to
abortion based on the right to self-defence.
The court in Re A allowed the surgical separation to proceed. The rationale for
this decision was complex, but can be summarized by saying that the judges, faced
with a choice between saving the life of one twin or losing both, preferred the option
that saved the greater number of livesa quantity of life calculus, in effect. By this
logic, if both twins would have survived in their conjoined state, it would seem that
the court would not have sanctioned the deliberate killing of Mary. While such killing
was considered permissible in order to save one life instead of none, it would not
115 [2000] 4 All E.R. 961 (C.A.) [Re A]; Vanessa Munro, Square Pegs in Round Holes: The
Dilemma of Conjoined Twins and Individual Rights (2001) 10:4 Social & Legal Studies 459.
116 Munro, ibid. at 472.
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appear, on the logic of Re A, to be justified if the choice is between one life of high
quality or two lives of inferior quality. The implication of this for the model proposed
by McDonagh is that, unless the life of the pregnant woman was actually threatened
by the pregnancy, the killing of the fetus (viewed as a legal person) would be
impermissible.
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While the facts of Re A do not represent a perfect analogy with pregnancy, this is
not in itself a reason to dismiss it as irrelevant; it seems to be at least as strong as any
of the interchangeable analogies offered by McDonagh herself. Moreover, as noted in
Part III.A.5, above, analogies (even if imperfect) are necessary, since to treat
pregnancy as completely legally unique is to embrace a kind of particularism that is
incompatible with coherent legal regulation and with the philosophical justifications
underpinning the liberal legal system itself, such as non-discrimination and legitimate
expectation.
B. Causation
1.
Is the Fetus Really the Cause of Pregnancy?
Neville Cox presents a compelling challenge to the notion that the fetus ought to
be regarded as the only cause of pregnancy. He begins by pointing out that
as the American Supreme Court noted in the seminal case Roe v Wade, there is
no clear consensus as to when life or indeed pregnancy begins. If it begins at
implantation or later then McDonaghs argument that the fertilised ovum
causes pregnancy may stand a chance of working. If on the other hand, it is
seen to begin at the point of fertilisation then her arguments fail immediately
because unless she aims to imbue sperm with personhood (and the anti-
abortion movement does not make this argument) then she would have to
accept that pregnancy is caused by the sexual act which led to fertilisation.117
In other words, if we take pregnancy to begin at fertilization or conception, as many
do, then the fetus cannot be regarded as the cause of pregnancy, since it cannot be the
cause of an event at which it comes into being. For those who take pregnancy to begin
at this earliest of stages, then, McDonaghs arguments about causation are a non-
starter. Logic precludes the possibility that the fetus is the cause of pregnancy unless
we take pregnancy to begin at a point, such as implantation, when the fetus is already
in existence. McDonagh herself seems to take implantation as the onset of pregnancy,
stating as she does that the fertilized ovum causes pregnancy when it implants itself
in a womans uterus.118 Her position is not always crystal clear, however, since on the
very next page, she describes pregnancy as a condition that follows absolutely from
the presence of a fertilized ovum in a womans body,119 thereby implying that as soon
117 Cox, supra note 84 at 587 [footnotes omitted, emphasis in original].
118 McDonagh, Breaking the Abortion Deadlock, supra note 1 at 40 ×..
119 Ibid. at 41.
M. FORD THE CONSENT MODEL OF PREGNANCY
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as the fetus exists, the woman is pregnant (the view that precludes the fetus as a cause
of pregnancy).
647
Leaving aside this apparent confusion in McDonaghs definition of when
pregnancy begins, however, it is obvious that we must address the possibility that
pregnancy begins with implantation in the uterus, and that it is therefore logically
possible that the fetus is the cause of pregnancy. Cox levels two arguments against
this possibility. First, he contends:
McDonagh is so concerned to find a generic cause of pregnancy, that she fails
to recognise that what is actually relevant for legal purposes is the cause of the
particular pregnancy in any case. … Most sexual acts may not result in
pregnancy, and pregnancy may result from actions other than sex. But, for most
women seeking abortions, their specific individual pregnancies did result from
a sexual act.120
This is a problematic point, since it seems to suggest that in cases where pregnancy
has not resulted from sexual intercourse, McDonaghs argument that the fetus causes
pregnancy may hold good. But this cannot be what Cox means to imply, since the
nonsexual means by which pregnancy can occurartificial insemination and embryo
transferare, if anything, more deliberately aimed at bringing about a pregnancy than
is the act of sexual intercourse. Sexual intercourse may be engaged in for recreation,
as an act of intimacy, or for procreation, but people engaging in artificial insemination
and embryo transfer invariably do so for the purpose of reproduction, not pleasure. As
such, in cases where pregnancy does not follow from intercourse, the claim that
pregnancy has been caused by the actions of the parents is an even stronger one,
since intention can be established with considerably less difficulty.
Much more convincing is Coxs argument that McDonagh has erred in failing to
accurately distinguish between the factual cause and the legal or proximate cause of
pregnancy.121 According to Coxs account, the first step in determining legal cause is
to ask what is the factual cause of the event. This entails asking the question: But for
x, would the event have occurred? If the answer is no, then x is a factual cause. This
process is of course limited by the doctrine of novus actus interveniens (new
intervening act). The law then decides to which of the factual causes it will attach
responsibility. As Cox explains, at this stage, the test is a commonsense-based
analysis of whether a particular factual cause has contributed appreciably to the
coming about of the events in question.122 The problem with McDonaghs model, he
says, is that she looks for the legal cause of a result with the implication that at law
there can only be one such cause. This is incorrect.123
120 Cox, supra note 84 at 588 ×..
121 Ibid. at 589.
122 Ibid.
123 Ibid. at 590 [emphasis in original].
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Even if we leave aside the question of when pregnancy really begins, and accept
that the fetus comes into existence before that point, the fetus can only be regarded as
one of the factual causes of pregnancy; even on this construction of the beginning of
pregnancy, all pregnancies are caused by the implantation of a fetus in the uterus only
in the same way that all human deaths are ultimately caused (in the most immediate
sense) by lack of blood to the brain. This does not necessarily mean that it is this
cause to which the law will attach responsibility, however. When deciding the cause
of death, the law will not merely conclude that the relevant cause is lack of oxygen to
the brain; rather, determining the legal cause of death involves looking beyond the
immediate, scientific cause to the surrounding circumstances, to factors such as
dangerous driving, assault, and so on.124 As Cox says, If A stabs B, and fatally
wounds him, then we may say that As action is the cause of death, and the lack of
blood to Bs brain is a non-coincidental and natural subsequent condition following
As action.125
Cox offers his own view of the causes of pregnancy, claiming that the move of
the foetus to implantation is an involuntary reaction to an earlier action of its
parents.126 His argument runs as follows:
[O]n normal causation rules, if A causes B to do something in involuntary
fashion (for example when A throws B with such force that B strikes C) then
As action is still the cause of the harm to C. Put another way, an involuntary
reaction of B to As earlier action does not break the chain of causation between
action A and result C. Indeed Hart and Honor suggest that in such
circumstances when we speak of Bs behaviour, we can hardly speak of an act
at all … If A causes B to move in such a way that B collides with him, then A
will be deemed to be the cause of his own injuries.127
Applying this principle to pregnancy, Cox continues: The parents have caused the
foetus involuntarily to implant itself, therefore the chain of causation between their act
and the result (pregnancy) is not broken.128 Here, Cox attempts to establish: (1) that
the fetuss actions, insofar as they are actions at all, are involuntary; and (2) that the
actions of the parents in having intercourse (or otherwise mixing gametes) create the
fetus and so cause its involuntary and inevitable effect on the womans body .
However, Coxs account suffers from the same chronological problem as the assertion
that the fetus causes pregnancy, where pregnancy is taken to begin at fertilization,
since it is doubtful whether we can regard the parents as having caused a fetus
(which did not exist at the time of their actions) to do anything at all. Could not the
coming-into-existence of a fetus constitute the kind of new intervening act that would
break the chain of causation? Cox wants to answer in the negative, saying that the
chain of causation between the parents act of intercourse and the fetuss act of
124 Ibid. at 588.
125 Ibid. at 592 [emphasis in original].
126 Ibid. at 591 ×..
127 Ibid. at 591-92 [footnotes omitted, emphasis in original].
128 Ibid. at 592.
M. FORD THE CONSENT MODEL OF PREGNANCY
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implantation remains intact. In terms of the example he has given, the parents
behaviour simultaneously creates the fetus and throws it into the womans uterus. This
is a rather strained interpretation of the facts, however. I believe that Coxs conclusion
can more plausibly be reached, and the underlying intuition more adequately
captured, by starting from the claim that it is impossible to separate what the fetus is
from what it does; from this, it follows that when the parents engage in an act that can
foreseeably create a fetus, they are engaging in an act that can foreseeably cause a
fetus to implant (since what it is and what it does are conceptually inseparable).
649
Notwithstanding the theorizing above, how then would the courts actually decide
on the legal cause of pregnancy? Cox observes that questions of causation are
answered substantially by policy considerations,129 and identifies
two reasons for assuming that it would be likely that the sexual act … could be
deemed to be the legal cause of pregnancy. First, because the result is a
reasonably foreseeable consequence of the action (whether or not the mother
consents to it) and secondly, because it is likely to be seen as good policy in the
legal order to which McDonagh refers, namely one in which the personhood of
the foetus is afforded legal recognition.130
I believe that the most valuable part of Coxs analysis of causation is his account of
the difference between legal and factual causes. Of particular value is the analogy he
draws between legal causes of death, which are never taken to be simply the most
precise and immediate scientific cause (i.e., lack of oxygen to the brain), and the legal
causes of pregnancy, as well as the associated claim that the law would not treat what
is arguably the biological definition of pregnancy (implantation) as being its legal
cause.
2. Fathers Rights and Responsibilities
Many feminist commentators have complained, rightly in my view, that
theorizing about pregnancy, and in particular, the rhetoric of the fetal-rights debate,
has traditionally marginalized women to the point of invisibility. Such has been the
focus on the emerging person of the fetus and its welfare that the pregnant woman
and her interests can be forgotten, or at least suspended until after she has given
birth.131
One of McDonaghs aims in Breaking the Abortion Deadlock is to redress this
injustice by providing a framework for theorizing, legislating, and adjudicating about
129 Ibid. at 590.
130 Ibid. at 593.
131 See e.g. Rachel Roth, Making Women Pay: The Hidden Costs of Fetal Rights (Ithaca, N.Y.:
Cornell University Press, 2000); Cynthia R. Daniels, At Womens Expense: State Power and the
Politics of Fetal Rights (Cambridge, Mass.: Harvard University Press, 1993); Lynn M. Morgan &
Meredith W. Michaels, eds., Fetal Subjects, Feminist Positions (Philadelphia: University of
Pennsylvania Press, 1999).
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abortion rights that places the pregnant woman squarely at its centre. While she
certainly succeeds in refocusing attention and concern on the experience and interests
of women, McDonagh achieves this mainly by eliminating men from the landscape of
pregnancy and childbirth. McDonagh would, of course, argue that men ought not to
be regarded as being involved in the pregnancy relationship anyway, since it is, by
definition, a relationship between the pregnant woman and the fetus. Indeed, she
argues that it is precisely because we have failed, in the past, to characterize
pregnancy in this way (as a bilateral relationship between a woman and a fetus) that
policy-makers and judges have allowed external interests (e.g., the interest of the state
in the continuation of fetal life) to limit the right of a woman to terminate an
unwantedor to use McDonaghs term, nonconsensualpregnancy. By re-
characterizing pregnancy as a bilateral relationship, according to McDonagh, we are
able to resist such limits on this right.
There is another, less welcome consequence of this bilateralism, however. As
discussed above, in order to regard pregnancy as an attack to which consent may be
given or withheld (an understanding pivotal to McDonaghs argument as a whole), it
is necessary to first sever the connection, both in cultural iconography and in the law,
between an act of sexual intercourse and any subsequent (resulting) pregnancy.
Unless we abandon the notion that sex causes pregnancy, we cannot embrace the
proposition that the cause of pregnancy is the fetus, exercising its coercive influence
to change a womans body from a nonpregnant to a pregnant state in pursuit of its
own self-interest. I have already identified some ontological and epistemological
problems with the notion that the fetus can plausibly be regarded as causing
pregnancy, but this element of McDonaghs theory also encounters a more practical
problem, namely that treating pregnancy as anything other than a consequence of
sexual intercourse impairs (perhaps fatally) the ability of the law to attribute
responsibility for the pregnancy, and even more importantly, for the resulting child, to
the genetic father:
[B]y separating the man/woman sex relationship from the foetus/woman
pregnancy relationship, she is drawn to the inexorable conclusion that the man
has no legal responsibility for pregnancy, not having caused it in the legal
sense. Despite this, however, she is prepared to require that the man owe a duty
to the foetus in the sense of being required to provide financial and other
assistance.132
I suspect that, in fact, McDonagh regards the duty of the man as existing not
toward the fetus, but rather toward the born child. To understand why, it is necessary
to consider that McDonagh recognizes three different sorts of parenthood: genetic
parenthood, pregnancy parenthood or gestational parenthood, and social
parenthood.133 She argues that [w]hile men are critical to reproduction, their role
132 Cox, supra note 84 at 588 [footnotes omitted].
133 McDonagh, Breaking the Abortion Deadlock, supra note 1 at 58-59.
651
M. FORD THE CONSENT MODEL OF PREGNANCY
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does not extend over all phases.134 So, although men cannot be gestational parents,
they can be genetic and social parents, and are therefore not excluded from the
parenting function on her model. The problem, she contends, is that the law is prone
to elevate genetic parenthood above all other types of parenting,135 whereas in her
own view, [of] all the ways to be a parent, none is more significant and important
than producing the social bonds of care and nurturing, or social parenthood.136 Since
men share this ability with women, [s]eparating sex from pregnancy in no way
impinges upon mens interest in their empowerment as progenitors.137 Rather than
undermining the parental responsibility of men, maintaining a distinction between sex
and pregnancy helps highlight mens roles as genetic and social parents and
underscor[es] the relationship between the fetus and the woman during pregnancy
parenthood.138
For McDonagh, the necessity of separating sex from pregnancy arises from the
need for a woman to be able to say that although she may have consented to the act of
sexual intercourse that preceded her pregnancy, she nonetheless refuses to consent to
the presence of the fetus in her body. Turning this on its head, however, a man could
invoke the language of consent and the separation of sex from pregnancy to claim that
while he consented to engaging in sexual intercourse with a woman, he did not
consent to becoming either a genetic or a social parent. If having sex should not lead
to legal obligations for a woman, why should it for a man? Why should a man be
obliged by law to provide financial or other support for a child that, on McDonaghs
analysis, he did not cause or create? Why should a woman, by consenting to a
pregnancy relationship with a fetus, be able thus to impose legal obligations on a man,
regardless of his consent to parenthood? McDonagh responds to this objection rather
weakly: The flaw here is the failure to recognize that the [US] Constitution allows
the state to intrude upon a persons economic assets with greater latitude than upon a
persons bodily integrity and liberty.139
This is wholly unsatisfactory as an answer, however, since state intrusion must
always have some form of justification in a liberal democracy. McDonaghs insistence
that the fetus is the only legal cause of pregnancy divorces the fathers sexual act from
any subsequent pregnancy and child, thereby denying the state any justification for
impinging on his finances, since no legal link exists between the man and the
pregnancy, or between the man and any child that may eventually be born.
Why insist, then, that a womans consent is necessary before her legal
relationship with the fetus (and later the child) can be established, if a fetus, by
134 Ibid. at 59.
135 Ibid. at 58. See the case of Leeds Teaching Hospitals NHS Trust v. A, [2003] EWHC 259 (QB),
for evidence that this may also be true in the UK.
136 McDonagh, Breaking the Abortion Deadlock, supra note 1 at 59.
137 Ibid.
138 Ibid.
139 McDonagh, My Body, My Consent, supra note 106 at 1107 ×..
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implanting itself in the uterus of a woman, may coerce a man into a legal relationship
with it? The problem here is that whereas McDonagh identifies three types of
parenthood, she only recognizes the relevance of consent in the context of pregnancy,
or gestational parenthood. Consent is not an issue in the two sorts of parenthood that
may apply to men. Following an act of consensual sexual intercourse, on
McDonaghs model, women have the ongoing ability to withdraw their consent, and
avoid the responsibilities of parenthood; men, by contrast, have no corresponding
opportunity to consent, or refuse to consent, to become a parent. As such,
McDonaghs model is discriminatory and endows women with the power to decide,
for men, whether or not they will become parents. This power incorporates both the
right to prevent a man from developing a relationship with a child he wants, and the
right to force parenthood on a man who does not wish to be a father.
Returning to McDonaghs claim that the law elevates genetic parenthood above
gestational and social parenthood, it is now possible to respond that, at least for the
purposes of attaching parental responsibility, genetic parenthood is the only stage at
which both men and women can be held to have consented to become parents,
without discriminating unfairly between the genders by endowing women with power
over mens parental identity.
3.
Implications for Wrongful Pregnancy
At present, under United Kingdom law, actions for wrongful pregnancy can be
brought against either a physician who incompetently sterilizes a person or a man
who rapes a woman.140 One consequence of McDonaghs approach is that the current
grounds for wrongful pregnancy actions would be undermined, or even disappear;
neither a man nor a surgeon can be held responsible, legally, for a pregnancy that
occurs subsequent to rape or incompetent sterilization if the fetus alone causes the
pregnancy in the legal sense. It is not available to McDonagh to appeal to the fact that,
in each of these scenarios, the woman has not consented to expose herself to the risk
of pregnancy, since McDonagh elsewhere contends that the fact a woman has chosen
to expose herself to such a risk is irrelevant for the purposes of establishing
wrongfulness of pregnancy.141 As such, while the rapist may be held criminally
responsible for the act of rape, and the surgeon may be liable in civil law for medical
negligence, the ground of wrongful pregnancy will not be available as a basis for any
civil action against either of them, nor will pregnancy be available for consideration
as a factor aggravating the crime of rape. Indeed, no one can be held liable for any
instance of wrongful, nonconsensual pregnancy on McDonaghs account since the
agent that causes every pregnancy, the fetus, lacks mental competence. The fetus may
be destroyed, therefore, but not held responsible. This extinction of responsibility is
140 Ibid. at 1096 ×..
141 See text accompanying note 38.
M. FORD THE CONSENT MODEL OF PREGNANCY
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disconcerting since McDonagh is, on her own analysis, identifying a significant harm,
suffered exclusively by women, for which no party may ever be held responsible.
653
C. Consent
1.
Is Pregnancy the Kind of Intrusion to Which the Law Would
Permit Consent?
As shown earlier, McDonagh discusses at length the nature of fetal aggression
and the justification of deadly force in self-defence. She does not, however, devote
much of her discussion to the question of the nature of consent, namely, what form it
might take, and why consent to pregnancy ought to be possible despite her
characterization of pregnancy as analogous to assault, rape, or slavery.
As McDonagh describes it, pregnancy is an horrific attack. Given that she
characterizes it as an assault, and given the severity that she ascribes to it, we are
entitled to ask whether the law would in fact regard consent to such an act as valid
under any circumstances. If consent is necessary in the context of sexual intercourse,
McDonaghs argument runs, then it must be all the more necessary in the context of
pregnancy, since pregnancy is even more invasive than intercourse in a number of
ways: the physical impact is much more prolonged; the physical changes effected
upon the body of the woman are extensive; and the woman is potentially placed in a
health- or life-threatening situation. However, it is precisely this seriousness and
enormity of effect that raise doubts about whether pregnancy, as described by
McDonagh, is the kind of thing to which consent could reasonably be given.
If, as I will suggest, it is possible to treat all pregnancies, at least initially, as
nonconsensual and therefore wrongful, on McDonaghs model, then it follows that
all fetuses are inescapably rapists, albeit without mens rea. Can an attack analogous
to rape really be validated by ex post facto consent? If pregnancy begins as an
uninvited, intrusive rape, how can the addition of consent transform it into
something benign, even wonderful? These are the questions to which I turn now.
If we take the example of Scottish criminal law, we see that the courts there have
held that consent is no defence to a charge of assault. In Scotland, in the case of Smart
v. H.M. Advocate,142 the court stated:
If there is an attack on the other person and it is done with evil intent that is,
intent to injure and do bodily harm, then, in our view, the fact that the person
attacked was willing to undergo the risk of that attack does not prevent it from
being the crime of assault.143
142 [1975] S.L.T. 65 (H.C.J.).
143 Ibid. at 66.
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Of course, McDonagh recognizes that the fetus possesses no evil intent (as she puts
it, the fetus is innocent … of conscious intentions) and does not suggest for a
moment that we are dealing with criminal conduct.144 Nevertheless, since pregnancy is
characterized in her model as a massive intrusion, it is pertinent to ask whether it is
the type of intrusion that could be rendered benign by the presence of consent.
McDonagh certainly does not consider her model to be incompatible with benign,
good Samaritan pregnancy, or with the moral ideals of nurturing, caring, and
relationships generally. She attempts to demonstrate this possibility of consensual
pregnancy by way of yet another analogy, between pregnancy and live organ
donation.
McDonagh points out that the law permits persons to consent to considerable
physical intrusions that will leave them permanently physically depleted, and that may
also place their health in great future danger, in order to benefit another person.
Although the emotional benefit of knowing one has helped either to save the life of
another person or to improve their quality of life dramatically cannot be ignored,
donating ones kidney to a patient in need of a transplant is, nonetheless,
unquestionably of no physical benefit to the donor. Indeed, such a donor has
endangered him or herself quite considerably in that any future disease or failure of
the remaining kidney will now pose a much greater threat than it might have had he or
she not donated. This analogy is potentially very promising as a support for the idea
that pregnancy can be consensual despite its intrinsically invasive and physically
dangerous nature.
Certainly, if the law permits us, under certain circumstances, to consent to having
our bodies massively invaded and permanently depleted or endangered in order to
provide sustenance to another, it seems likely that the law will also permit women to
consent to donate their bodies to fetuses temporarily. However, this is where the
analogy begins to break down. The law allows one person to consent to an invasion or
harm chiefly for the benefit of another person; but, as has already been shown,
McDonagh has failed to establish that the fetus is really a legal person in the
relevant sense of having the status, rights, and dignity of a person under law. Her
characterization of the legal personality of the fetus undermines her argument because
she has concentrated only on the neutral aspects of fetal personality (how the
personhood of the fetus does not negate the right of the woman to defend herself) and
its negative aspects (how the fetus may plausibly be regarded as an attacker, an
agent of harm). Ultimately, her treatment of fetal personality has not been authentic,
since the legal personhood of the fetus is not central to her thesis, and is not necessary
for the application of the two main premises of her model: the fetus as the cause of
pregnancy; and the right of the woman to refuse her consent to a relationship with the
fetus and to exercise her refusal by the use of deadly force.
144 McDonagh, Breaking the Abortion Deadlock, supra note 1 at 96.
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A development of the organ-donation analogy demonstrates quite clearly how the
lack of authentic fetal personhood in McDonaghs model places the possibility of
consensual pregnancy in grave doubt. A woman may undoubtedly give her consent to
surgery to remove one of her kidneys for donation to her daughter; however, could a
childless woman with a family history of hereditary kidney disease opt to have a
healthy kidney removed and kept in storage in case a future child required a
transplant? It seems highly unlikely that such a procedure would be countenanced by
medical practitioners, or that the womans informed consent would be sufficient to
establish its permissibility. Why? It could be argued that in the former case, there is a
known need for the organ, and compatibility has been established, while this is not the
case in the latter scenario. However, even if we expand the example of the childless
woman such that she knows for certain that (1) she is fertile and intending to become
pregnant, (2) any child she bears will definitely be affected by the hereditary disease,
and (3) she would be a compatible donor, it is still difficult to imagine the law
supporting her desire to have her healthy kidney removed, thereby debilitating herself
and placing her life in danger.
I would suggest that the relevant difference between the two scenarios sketched
above is that in the first scenario, the intended beneficiary is an existing person,
whereas in the second scenario, there is no person yet in existence who could benefit
from the samaritanism being proposed. McDonaghs account of pregnancy is more
analogous to the second scenario than to the first since the fetus is not yet a legal
person in the relevant, positive senses; it is not recognized as a being with a life as
valuable as that of the woman donating her body to it, and thus endangering herself
for its benefit.
My claim here, then, is that although the law will occasionally allow one person
to volunteer to be endangered in order that another person may benefit, this
permission is based on assumptions about the equal value of human lives and the
social valuing of samaritanism when practised between persons. If persons attempt to
engage in purported acts of samaritanism by endangering or disadvantaging
themselves for the benefit of a creature that the law does not regard as the moral
equivalent of a person, then it is doubtful whether this would be regarded as authentic
samaritanism at all. The law cannot, of course, always intervene to prevent people
from risking their lives to save a pet; however, we can be reasonably sure that such
behaviour would not be encouraged. It is likely that people wishing to donate their
kidneys to animals (were that biologically viable), or to children not yet in existence,
would be dissuaded and ultimately thwarted by the refusal of the medical profession
or the courts to support such a sacrifice, despite the presence of clear and authentic
consent. In short, samaritanism must benefit someone, and it is doubtful whether the
fetus would count as someone on McDonaghs model, given the emptiness and
negativity of the personality she ascribes to it.
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Although McDonagh fails in her own attempts to establish the possibility of
benign pregnancy, there are other reasons to suppose that, even if pregnancy is a
massive intrusion, it is the kind of intrusion that can be rendered benign and even
valuable by consent. In the famous British case of R. v. Brown,145 the issue under
consideration was whether consent ought to be recognized as a defence to charges of
assault in respect of injuries inflicted in the course of sado-masochistic sexual
encounters. In his judgment, Lord Lowry opined that it is not in the public interest
that people should try to cause, or should cause, each other actual bodily harm for no
good reason,146 and that [s]ado-masochistic homosexual activity cannot be regarded
as conducive to the enhancement or enjoyment of family life or conducive to the
welfare of society.147 As Lord Templeman noted, however, the courts have accepted
that consent is a defence to the infliction of bodily harm in the course of some lawful
activities.148
In his article Consent, Sado-Masochism and the English Common Law, Brian
Bix discusses the kinds of activity to which, although potentially injurious, consent
may nonetheless be given:
[I]n England, there are a variety of types of physical attacks or intrusions
which, as a matter of common law, cannot constitute a criminal assault, usually
because of some type of consent by the person being assaulted: boxing,
contact sports, surgery, and rough horseplay.149
Bix analyzes the ability of consent to render intrusions lawful by reference to a
number of criteria, the last of which is the moral value or public value of the activity
in question.150 Although Bix cautions that this criterion is [susceptible] to bias in its
application151 and should therefore be considered only at the end, after the strong
presumption in favor of liberty and autonomy [has] been considered,152 he concedes
that it appears frequently in one form or another, in the relevant judicial opinions.153
The public value criterion does seem to go to the very heart of determining
which behaviours will and will not be rendered lawful by consent, despite Bixs
insistence that other criteria should predominate. Monica Pa discusses how the
consent defence operates to privilege certain valuable behaviours over other forms
of activity that are not considered to be of social value:
145 [1994] 1 A.C. 212 (H.L.) [Brown].
146 Ibid. at 254.
147 Ibid. at 255.
148 Ibid. at 234.
149 Brian Bix, Consent, Sado-masochism and the English Common Law (1997) 17 Quinnipiac L.
Rev. 157 at 164 ×..
150 Ibid. at 174.
151 Ibid.
152 Ibid. at 175.
153 Ibid. ×..
2005]
M. FORD THE CONSENT MODEL OF PREGNANCY
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[I]f actual bodily injury occurs, no consent defense is [normally] available
because a breach of the peace occurred, and the State has a compelling interest
in punishing this behavior. The individual cannot consent to an injury inflicted
against the community.
The consent defense is an exception to this general rule where public
policy deems it worthy to protect a socially desirable activity.154
The key element in deciding whether or not something is the kind of activity to which
consent is possible, then, would seem to be the value that society attaches to it. The
judges in Brown regarded such determinations of value as matters of policy for the
legislature to decide.155 The implications for McDonaghs model of pregnancy are
clear. First, consensual pregnancy would undeniably be regarded as conducive to the
enhancement or enjoyment of family life and conducive to the welfare of society,
in Lord Lowrys words. Second, it would certainly be considered to be in the public
interest for women to consent to pregnancy at least some of the time. Third and
finally, given these considerations, we can conclude with some confidence that
Parliament and the courts, having recognized the moral and public value of
pregnancy and childbirth, would be willing to regard a womans consent to pregnancy
as rendering the pregnancy relationship lawful. As such, it is finally possible to refute
the objection that McDonaghs model, in characterizing pregnancy as an attack,
leaves no scope for consensual, benign instances of pregnancy.
However, all of this means only that pregnancy could be benign if consent were
actually possible, practically speaking. I turn now to consider the possibility that this
is not the case.
2. Is Consent to Pregnancy Really Possible?
The British case of R. v. Olugboja156 hinged upon the difference between consent
and mere submission. In that case, the court drew the distinction as follows:
[T]here is a difference between consent and submission; every consent involves a
submission, but it by no means follows that a mere submission involves consent.157
With this distinction between consent and mere submission in mind, it is clear
that, on McDonaghs model, pregnancy cannot, at least initially, be consensual. Since,
on that model, the woman can do nothing to prevent the fetus from attacking her by
implanting itself in her uterus, consent to pregnancy is only possible retrospectively,
once the woman is already pregnant; she cannot consent to become pregnant, only to
remaining pregnant. Even then, her right to withdraw consent at any moment remains,
so that it will only be possible to describe a pregnancy as consensual with any real
154 Monica Pa, Beyond
the Pleasure Principle: The Criminalization of Consensual
Sadomasochistic Sex (2001) 11 Tex. J. Women & L. 51 at 64 ×..
155 Brown, supra note 145 at 245-46, Jauncey L.J.
156 [1982] Q.B. 320 (C.A.).
157 Ibid. at 332.
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confidence once the pregnancy is over (unless, of course, the pregnancy ends in
abortion). Moreover, no mutuality is possible. Since the fetus is characterized as an
aggressor, we are not dealing with any kind of metaphorical agreement or
arrangement between parties; we are being asked to understand pregnancy as a
relationship between two parties wherein one party has the right to consent or refuse
consent, but the issue of consent never arises for the other party.
[Vol. 50
In other areas of law, consent means something more than merely submitting to a
pre-existing situation; for example, in medical law, the ideal of informed consent
recognizes the right of patients to agree to or refuse medical treatment, having been
given all the relevant information and been allowed the chance to weigh it and arrive
at a decision before treatment commences. The patients right to consent entails a duty
on the part of healthcare professionals to seek consent before attempting to provide
treatment. Similarly, in contract law, parties to an agreement consent to the contractual
terms in order for the contract to be constituted; they do not merely submit to the
terms and thus acknowledge the agreement retrospectively. In these examples, to say
that someone has consented, either to medical treatment or to the terms of a contract,
implies that they had the option not to consent.
By contrast, in the context of pregnancy as McDonagh construes it, the pregnant
woman has never had the option to give prior consentshe cannot prevent the fetal
attack and the resulting pregnancy by refusing to consent to it. In addition, consent
in the contexts of medical law and the law of contract refers to a relationship that,
without being necessarily equal, has some possibility of mutualitythere is more
than one active party with rights or responsibilities. In pregnancy, however, one
party involuntarily imposes a condition upon another, who may, after the fact, choose
either to submit to the condition or to repel it by destroying the accidental
aggressor. The womans right to consent is not reflected in any duty on the part of
the fetus to seek her consent before implanting itself in her uterusthe very idea is, of
course, absurd. It is therefore difficult to see how this relationship can be consensual
in its ordinary legal sense.
A related problem is the distinction between coercion and control that emerges
from the slavery analogy McDonagh employs. The problem is that the legal definition
of slavery offered by McDonagh herself refers not to coercion, but to control
there is no mention of the will of the slave, or of lack of consent.158 Under this
definition, then, slavery is still slavery even if the slave consents to it. This is so
because, although coercion always entails an element of control, the reverse is not the
case: control need not necessarily be coercive. This distinction between coercion and
control is essential to the relevance of consent, a concept that is, of course,
fundamental to McDonaghs model. McDonagh describes pregnancy as an attack; it
always begins as coercion, but this element of coercion may subsequently be removed
by the addition of the womans consent. Control, on the other hand, is unaltered by
158 McDonagh, Breaking the Abortion Deadlock, supra note 1 at 74.
M. FORD THE CONSENT MODEL OF PREGNANCY
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consent, even taking into account the Rousseauean notion of agreeing to be bound;
one who agrees to be bound is boundis controllednonetheless.
659
How apt, then, is the slavery analogy? Could the willingness of a slave to be a
slave render the slavery relationship legally benign on account of its consensuality?
If not, and if the analogy between pregnancy and slavery is a fair one, then why is it
that the consent of a woman to be pregnant can render the pregnancy relationship
benign? In fact, the analogy with slavery threatens to undermine the power of consent
in McDonaghs model by casting doubt on the notion of benign, consensual
pregnancy altogether. In Western legal systems, slavery would never be recognized
as a legitimate relationship between consenting parties. We are not permitted to
contract out of our fundamental human rights. If pregnancy were to involve a
similar alienation of personhoodeven a temporary one, the law would struggle to
recognize the possibility of benign pregnancy.
The above factors, taken in combination, imply that speaking about consent to
pregnancy, or about a particular pregnancy as consensual or nonconsensual,
seems inappropriate; rather, when the fetal attack meets no resistance from the
woman, it seems more appropriate to describe her lack of resistance as submission,
not consent. This is problematic mainly because it undermines the possibility of
consensual pregnancy, as discussed earlier. But it is also problematic in another way:
if pregnancy cannot be described as consensual until after it is complete, then all
pregnancies are voidable relationships that may be terminated at any point, should
the womans feelings change. This may have serious social consequences for our
understanding of the nature of pregnancy. Pregnant women themselves, and society at
large, may become wary of treating even a well-established and apparently
consensual pregnancy as anything other than a conditional good, with family,
friends, and the woman herself all reluctant to invest any emotional energy or
expectation in something that may at any time be re-characterized as something
coercive and therefore undesirable.
3. The Problem of Legitimation
A related criticism is that McDonaghs model equates consensual with good,
or valuable. I have already argued that her notion of consent to pregnancy is
closer to submission than to our ordinary understanding of consent. Other
commentators have responded to McDonaghs argument by asking whether the
authenticity of consent is what really matters.
Robin West notes that [l]iberalism rests heavily, and in some versions
exclusively, on the moral significance of consent.159 While she acknowledges that it
is proper to condemn coercive and nonconsensual transactions, West also notes the
danger that [t]he consensuality of a transaction, transfer, event, distribution, or social
159 West, supra note 86 at 2137.
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system, in liberal societies, inexorably comes to be viewed as not only a necessary
condition of its justice or value, but a sufficient condition as well.160 The emphasis on
consent above all else, she writes, means that [t]hat which is consensual comes to be
seen as both legal and goodconsent comes to be our moral marker of what we value
and should value, as well as our legal marker of what we criminalize.161 West is keen
to show that consensual relationships can be damaging, too:
[Vol. 50
Women consent to events and transactions and arrangements all the timeday
in and day outthat do us considerable harm: from marriages, to love affairs,
to one-night stands, to unequal pay for comparable work, to sexually harassing
work and school environments, to second shifts in the home, and to mommy
tracks at work.162
We must therefore look beneath the consensual surface of relationships to discover
whether the voluntariness they embody is authentic or not. West argues that
caregiving such as that undertaken in pregnancy must be authentically consensual in
order to be good and not harmful; McDonaghs model, she claims, is guilty of
overemphasizing the superficialities of consent, at the expense of this need for real
voluntariness in the giving of care.163
These are powerful arguments. It is easy to imagine a number of reasons why
women might submit to a pregnancy other than because they are undertaking the
responsibility of caregiving with authentic voluntariness. The physical and emotional
pressure exerted by the pregnancy itself can be tremendous. Hormonal fluctuations,
feelings of responsibility or even guilt for causing the pregnancy (however misplaced
McDonagh would regard these as being), social pressures, and the influence of
traditional norms of pregnancy, motherhood, and femininity could combine quite
powerfully to inhibit the ability of a woman to say no to the pregnancy relationship.
As Monica Pa comments, [l]iberal formulations of consent ignore how patriarchal
institutions create inequalities of power that make voluntary consent impossible.164
Furthermore, as Pa concludes, [t]he question is not whether consent existed, but
rather, the hows and whys of consent.165
D. Miscellaneous Criticisms
1. Late Abortions
[Another] problem with McDonaghs theory, according to Judith Scully, is that
it would permit abortions even in the final weeks of pregnancya result that the
160 Ibid. at 2138.
161 Ibid. at 2139.
162 Ibid.
163 Ibid.
164 Pa, supra note 154 at 88 ×..
165 Ibid. at 89.
M. FORD THE CONSENT MODEL OF PREGNANCY
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majority of the American public probably would not support.166 Scully elaborates the
point as follows:
661
McDonagh appears to argue that a womans right to withdraw her consent to
pregnancy can be exercised at any time, even in the ninth month of pregnancy.
This conclusion seems extreme, and it fails to adequately address the fact that,
at some point in time, a fetus becomes viable and no longer needs to rely on a
womans body for survival. If a fetus is a person and it has a right to life, then,
at the point at which it becomes viable, it would seem appropriate to weigh its
right to life against the continuing intrusion upon the womans bodily
integrity … Thus, at the point of viability, it seems reasonable to limit a
pregnant womans ability to decide to terminate a pregnancy because she no
longer consents to being pregnant.167
There are a couple of problems with this argument. First, although McDonagh
treats the fetus as a legal person, she does so only in a negative sense, and does not
ascribe to it all of the incidents of legal personality usually applied to human beings,
such as a right to life. The problems inherent in her notion of fetal personality have
already been addressed in Part III.A.4, above. Given that she does not recognize the
fetus as a person in the strong sense of having a right to life, it is fair to assume that
McDonagh would not accept any need to weigh the competing rights of fetus and
mother at the point of viability.
Second, even if we were to accept that the fetus has a right to live, and that this
right is not limited by its dependence upon the body of the pregnant woman after the
point of viability, in order to grant it independent existence, it must first be delivered,
either vaginally or by Caesarean section. If, on McDonaghs model, a woman cannot
be forced to undergo the intrusion of pregnancy against her will, then surely by the
same logic she cannot be forced to undergo the intrusions of serious surgery or
childbirth unwillingly? If a woman chooses abortion post-viability, it will be
problematic to try to force her to undergo birth or Caesarean delivery instead; the
latter procedures are distinct from abortion, and her right to consent to medical
treatment surely means that she cannot be compelled to undergo one procedure
instead of another.
A potential counter-argument is that, in the United States, the fetus is emerging as
a second patient in medical law, raising the issue of balancing the womans refusal
to consent to a Caesarean against the fetuss right to life as a serious possibility. In the
UK, this problem does not arise because several important cases have clarified the
area, securing the right of the competent pregnant woman to consent or refuse consent
to medical treatment, meaning that a competent patient cannot be compelled to
undergo a Caesarean section against her will.168
166 Scully, supra note 103 at 147 ×..
167 Ibid. at 147-148.
168 The leading case is St Georges Healthcare NHS Trust v. S., [1998] 3 All E.R. 673 (C.A.).
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2. Womens Well-Being
Judith Scully argues that
[b]y framing abortion as an act of war, McDonagh suggests that a womans
primary health concern should be elimination of the fetal attack, not her overall
well-being. Within the self-defense framework, what right does a woman have
to demand competent health care? In our attempts to advance the abortion
debate, we must not lose sight of the fact that abortion is a medical procedure
that is supposed to further the health interests of the woman.169
In other words, McDonaghs focus on repelling the fetal attack, rather than on the
welfare of women generally, ignores the need to secure state provision of safe
abortions and good-quality backup services, such as pre-abortion counselling and
aftercare. Scully points out that the consent model is incapable of discouraging
certain things that are dangerous for women, such as unfettered access to abortion and
repeated abortions, and criticizes it on the basis that it overlooks the risk that women
might use abortion as a regular form of contraception when indeed it should be used
only as a last resort.170
This particular criticism of the consent model is unwarranted. The purpose of
legal models of pregnancy is chiefly to provide better ways for lawyers and
lawmakers to understand and adjudicate maternal-fetal issues; such models are
addressed primarily to legal academics, judges and practitioners who are concerned
with issues of legal coherence, clarity, and justification. They seek to provide
frameworks for judicial decision making, not for decision making by women faced
with unwanted pregnancies. When deciding whether or not to seek an abortion, a
pregnant women is likely to be concerned with her own health, perhaps the health of
the fetus, her future prospects of motherhood, possibly her relationship with her
partner and her extended family, her existing children, her financial situation, her
career, and many other factors. When legislatures decide what abortion laws to have,
or when judges decide how to dispose of a particular case involving maternal-fetal
issues, it would be paternalistic of them to concern themselves with these factors in
the same way. Public policy considerations are likely to play a part in their
deliberations, but it would be inappropriate for a judge to decide a case on the basis
that he thought a woman was simply wrong to choose an abortion in her
circumstances. Because the issues and responsibilities of judges and the issues and
responsibilities that pregnant women must contend with are quite different, it is
perfectly possible to endorse a legal model that permits late abortions and repeated
abortions so long as those educating and counselling women warn them of the
dangers of taking full advantage of these legal rights.
Jurisprudence is not designed to educate women about their reproductive health,
and Scully herself admits that the law should not be used to limit the number of
169 Scully, supra note 103 at 149.
170 Ibid. at 148.
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abortions a woman may have.171 Health education programs aimed at encouraging
women to practise contraception or abstinence, rather than relying on abortion as a
means of dealing with unwanted pregnancies, are of course vital; however, there is no
reason to suppose that the adoption by the courts of a consent model, rather than the
orthodox conflict model, would be inimical to the success of such programs.
Moreover, the health factors involved in pregnancy and the medical advice that is
given accordingly will be the same whatever model the courts adopt. As such, public
bodies and health care professionals duties to provide information and advice on
reproductive health are not threatened by the prominence of one academic theory or
another.
McDonaghs model certainly provides legal justification for abortion whether it
be the first or fifth abortion a woman seeks; however, it is a fallacy to suggest that
because the law permits greater access to abortion, women who are receptive to health
education will not choose to avoid unwanted pregnancies in other ways. Just because
women have a legal right to abortion does not mean that they will simply throw
caution to the wind, become pregnant numerous times, and seek repeated abortions;
there are overwhelming health reasons (and for many women, strong moral reasons)
not to do so, and these reasons are likely to be at least as influential to women
planning their reproductive lives as the legal rights they possess. As Scully notes,
legal theory will inevitably (and very rightly) be complemented by measures designed
to shape cultural attitudes and patterns of behaviour, since [c]ommunity advocacy
and public education are the keys to all successful social movements.172
3. Masculinization of the Fetus
Despite McDonaghs assurances that her model avoids dehumanizing the fetus,
the very way her model operates, and her use of language, combine to masculinize the
fetus, regardless of its actual sex. As noted above, McDonagh has analogized
wrongful pregnancy to the crime of rape, thus likening the fetus to the rapistthe
paradigmatic perpetrator of masculine violence on women.173 Elsewhere, she
compares the fetus to a slave master.174
While she masculinizes the fetus, however, she simultaneously feminizes
pregnancy. One aim of McDonaghs thesis is to redefine pregnancy as a relationship
between a woman and a fetusa relationship in which the male progenitor exists, at
best, as a shadowy figure, either purely historical (the genetic parent) or in a kind of
suspended animation until the birth of the child, when social parenthood can attach
to him. This banishment of the masculine is evident in her discussion of how
pregnancy begins, where McDonagh refers to the precursor of the fetus (prior to
171 Ibid.
172 Ibid. at 149.
173 See text accompanying note 25.
174 See text accompanying note 45.
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implantation) as the fertilized ovum, choosing this term over product of
conception, conceptus, cytoblast, zygote, or any of the other ungendered
terms available to her. Of all the alternatives, fertilized ovum is the most effective in
demasculating the event of conception and the beginnings of life. Pregnancy begins,
on McDonaghs model, quite literally on feminine terms.
[Vol. 50
There is a palpable tension in the juxtaposition of the feminine terminology of
fertilized ovum with the masculine terminology of penetration, invasion, and injury
used to describe the behaviour of this entity. In its behaviour, the fetus is decidedly
masculine, performing the stereotypically patriarchal role of colonizing, terrorizing,
and depleting a woman. The language McDonagh employs in these parts of her
analysis echoes the idea of the fetus-as-monster, which appears elsewhere in the
feminist canon.
In a fascinating essay, Ernest Larsen discusses Mary Shelleys Frankenstein as a
metaphor for pregnancy.175 At the centre of the narrative, he tells us, is a man-created
monster,176 the incarnation of phallic violence.177 Larsen writes that [t]he tale
exteriorizes pregnancy, making it into a momentous, exacting and, as described,
incredibly disgusting feat that occurs in the laboratory of the young manly natural
philosopher Frankenstein rather than in the natural laboratory of the womb.178 Larsen
claims that Shelley is making a conscious link between fetality and fatality:
Mary Shelley … can be credited with creating (giving birth to) the image of the fetus
as monster, the fetus as revivified corpse, the fetus as a pile of used body parts.179
He goes on to describe the 1931 film of the novel as fetal horror, and quotes
Garrett Hardins reference, in his 1974 book Mandatory Motherhood, to uses of fetal
imagery by the pro-life movement:
Suppose the six-foot-tall projected picture of a twenty-four-week-old embryo
came to life, stepped down off the screen, and walked toward you … You
would probably run screaming from the room. At that size the creature would
look less like a human being than it would like the Man from Mars constructed
for a horror movie.180
Having discussed Frankenstein and other Hollywood films in which women give
birth to monsters, Larsen remarks:
The popularity of such images of the fetus as monster seems a repeated
confirmation of what fetality might often feel likean invasive experience of
the monstrousto the pregnant subject. Pregnancy, in such representations,
subjugates the thematics of horror, contains the fantasy, nurtures it. That which
is unknown or unknowable, unnamed or unnamable, unstable, but ever more
175 Ernest Larsen, The Fetal Monster in Morgan & Michaels, supra note 131.
176 Ibid. at 237.
177 Ibid. at 238.
178 Ibid. at 237-38.
179 Ibid. at 238-39.
180 Garrett Hardin, Mandatory Motherhood (New York: Basic Books, 1974), cited in Larsen, ibid. at 239.
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M. FORD THE CONSENT MODEL OF PREGNANCY
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insistent, hidden from sight yet imperiously present to the body, is that thrilling
territory of fear that marks out the site of horror. And all these qualities mark
the fetus, every fetus, as a potential monster. … Fetality contains horror, the
expressive extremity of feeling that horror films sanction.181
Larsen concludes by reassuring the reader, lightheartedly, that [t]he fetusin the
overwhelming number of casesis not a monster. In the overwhelming number of
cases it first has to be delivered into the world and then grow up to become one.182
Although Larsen seeks here to distance himself from the claim that fetality equals
monstrosity by stating that this is not so in the overwhelming number of cases, he
implicitly acknowledges that in some cases, the fetus is monstrous. This is hardly the
kind of sentiment that requires no further justification, and while the rest of Larsens
essay contains plenty of evidence that many representations of the fetus contain
elements of the monstrous, nowhere does he provide any adequate explanation of why
the fetus is so represented. He comes close a couple of times: first, when he traces the
origins of Mary Shelleys horrific metaphor for pregnancy to events in her own
family history, such as death in childbirth and infant mortality, and to the general
dangers inherent in pregnancy at the time when she lived and wrote; and second,
when he suggests that Hollywood representations of pregnancy (and its aftermath) as
horrific might reflect what fatality might often feel like … to the pregnant subject.183
At any rate, Larsens concluding minimization of fetal monstrosity remains
unconvincing.
McDonaghs model, and Larsens discussion, reveal that personification of the
fetus as a separate entity with personhood or person-like characteristics does not
always work to the fetuss advantage. Ascribing person-like attributes to fetuses and
embryos does not necessarily entail that they will be treated like born persons and
afforded greater legal protection than is currently the case. On the contrary, they may
be regarded as malign agents of injuryas monsters, evento be repelled using
deadly force. Claiming that the fetus ought to be regarded as a legal person may, in
the end, turn out to be a bad strategic choice for opponents of abortion.
Conclusion
McDonaghs consent model is innovative and provocative, providing a new
way of thinking about women, pregnancy, and abortion rights,184 and several
elements in her analysis represent valuable contributions to the literature on legal
interventions in pregnancy. In particular, her emphasis on relationships rather than
intrinsic moral status is to be welcomed, as it represents a significant shift in thinking
181 Larsen, ibid. at 240-41.
182 Ibid. at 249.
183 Ibid. at 240.
184 Scully, supra note 103 at 143.
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that seems to offer legal theory an escape route from the familiar intractable debates
about the metaphysics of personhood and moral status.
[Vol. 50
Unfortunately, as promising as this approach may seem at first, it fails on account
of major flaws in the way McDonagh employs such concepts as self-defence,
causation, and consent. As Judith Scully has remarked, McDonaghs analysis …
leave[s] many questions unanswered.185 During the course of the present analysis, I
have addressed these holes in her thesis, and demonstrated that, upon further scrutiny,
the inadequacies of the consent model become even more apparent. Significantly, the
failure of McDonaghs attempt to discover a purely legal way of understanding fetal
personhood lends credence to suggestions that legal notions of personhood are too
thin and cipherous to provide solutions to maternal-fetal issues. This means that if
we persist in framing such issues as conflicts of rights and interests, courts will
continue to be forced to return, time after time, to the troublesome metaphysics of
personhood and questions of the nature and moral status of life before birthto the
very source of the abortion deadlock.
185 Ibid. at 131.
