International Catholic University
The topic of this lecture is maternal-fetal relations. In the not too distant past, the topic of this lecture would be covered in a sentence or two. Pregnant women ought to care for the babies they are carrying. Society . . . and businesses as part of society . . . ought to have in place protections for women and the children they are carrying. But that was the past and the "now" is different. The reasons why the "now" is different are the power of a particular form of feminism and the removal of most legal protections for the developing but preborn human being. What I would like to do in this lecture is to show how the "now" got to be so different, how the perspectives operative in the "now" influence the understanding of maternal-fetal relations in pregnancy and in the work place. The first reason why the "now" is different is the rise of a certain kind of feminism. Feminism had three distinctive moments in the Twentieth Century. The first moment was the suffragette moment. Women demonstrated for their rights as active and determining participants in the polity -- first as voters and then as lawmakers. They pressed for these goals and were successful in achieving them. The suffragettes, however, were mindful of the fact that woman get pregnant and men do not, so they sought appropriate protections for pregnant women.
The second moment in the feminist movement was born in the civil rights movement of the 1960s. At first feminists voiced the rightful claim to full participation in the goods of society -- to education and to work and to appropriate compensation. Technological developments emancipated them from the physical labor of housework and advances in conception control freed them from the uncertainties of their fertility cycles. Women claimed places in medical schools, in law schools, in business schools, and in the universities and after that places in the hospital, in the firm, in the hospital, in the corporation, and in the academe . laudable goals, each and every one. While women physicians, attorneys, CEOs, and professors are not yet at the top of their professions in significant numbers, they are no longer considered novelties.
However, in the midst of the success of second moment of the feminist movement, a division occurred. The two factions that emerged have been designated gender equity feminism and gender equality feminism. Both continued to hold many of the important values of feminism -- the rights of women to be full participants in the polity; the rights of women to education; the rights of women, essentially to be persons. The gender equity feminists acknowledge that there are real differences between men and women and these differences -- differences in biology, chemistry, anatomy, and interests -- must be respected. Gender equity feminists recognize too that arbitrary barriers have been in place that have impeded the advancement of women, but that there have been substantial gains in breaking down the artificial barriers. The gender equality feminists pressed the claim that gender differences are social constructs and they pressed for social reform to acknowledge these oppressive constructs and political reform to dismantle the constructs and to ensure the recognition of gender equality. For the equality feminists the fact that women become pregnant and men do not became a particularly oppressive obstacle to the advancement of women. Pregnancy sidelined women from the rise to the top. So if men are free from the burden of pregnancy, women too must have that freedom. The equality feminists sought to advance the claim of a right to abortion as a fundamental right -- a necessary right so that women might have absolute control over their reproductive finality and, hence, absolute control over their lives. Only this freedom would allow women a place on the playing field equal to the place of men.
Women in the United States were accorded that fundamental right in 1973 in a set of decisions, Roe v. Wade and Doe v. Bolton, that issued from the United States Supreme Court. The Court had to do considerable stretching to come up with these decisions. The stretching included coming up with a right that appears nowhere in the constitution -- the right to privacy -- and decreeing that the conceptus -- the conceived but unborn human being -- is not a person and hence has no standing in the law. The court also decreed that the state may have some interest in the conceptus, as its development progressed, but that interest was to be weighed against the health interest of the women, that is, her health -- as physical, mental, economic, familial -- was to be preferred to its life. The characterization of women that emerges is that of women as isolated, autonomous, rights bearers, who claim among their important rights the right to abortion if pregnancy interferes with the interests of the woman. Women in other developing nations were accorded similar protections in the name of liberation to destroy the human being developing within their bodies. Nations . . . and business . . . which did not fall into line and grant this liberty to women were considered oppressive and reactionary. As a result of the success of the agenda of the gender equality feminists a whole new host of problems arose at the intersection of law and medicine and ethics and even the business world as these addressed maternal-fetal relations. Among the problems are all the issues surrounding the justification for abortion and the issues of women in the workplace. The skewing of maternal fetal relations forces a convoluted solutions of these problems . . . and the problems are almost always solved at a significant cost to women and to their unborn children.
First, let me make clear that I am an equity feminist. The advances that women have made are important advances and feminism has been an important catalyst in the opening of wonderful opportunities for women. As an equity feminist I recognize real differences between men and women and real differences in obligations for men and women. Both men and women live their lives embedded in sets of relationships and from these relationships come advantages and obligations. These relationships exercise a limiting function on the exercise of autonomy and an enabling function on the exercise of limited autonomy. In the lectures on abortion, I developed and defended the position that human life begins at syngamy and that the conceptus should be accorded the same protections as any other human being. As a consequence, I acknowledge that when a woman is pregnant she is with child . . . that used to be considered common knowledge. She carries within her body a living developing human being.
Pregnancy, then, provides a concrete example of human lives embedded in a relationship. Two human beings exist as really related to each other. An adequate morality requires attention be directed both to the relationship and to the beings who constitute the relationship. Directing attention to the relationship reveals the union to be asymmetrical. Directing attention to the beings in the relationship reveals an isomorphic symmetry, that is, each related being is a human being at a particular point on the human development trajectory.
Examination of pregnancy as a relationship reveals several things. Pregnancy is a temporary physical and moral union of two whole human beings. There is a physical union -- a union of being. There is a moral union also -- a union of purpose. As a physical union it is more complex than most physical unions. In most physical unions the relationship is of whole to part where the part is not necessary for the continuation of the whole and where it may be the case that if the part threatens the life of the whole, the part may be destroyed. Pregnancy is temporary physical relationship between two physically whole human beings, one immature and one mature. And in most instances the continuation of the temporary relationship does not endanger the life of either. The temporary physical relationship is also a moral union -- a unity of purpose. Neither of the human beings who constitute the relationship is determined to accomplish the totality of its existence within this relationship. Each of the two entities has meaning outside the relationship. The woman is a relatively autonomous being. Her life is characterized by a set of ends that extend beyond the pregnancy. For the duration of the pregnancy, the fetus is a radically dependent human being. While its growth and development are intrinsically directed, its continued existence is possible only within the nurturing environment supplied by the woman. The accomplishment of the ends of the fetus which lie outside the pregnancy require the cooperation of the woman. When the union is chosen, either implicitly or explicitly, its status and the obligations of the more powerful member are less problematic from an ethical perspective. The more powerful accepts the disadvantages which occur for the sake of the more dependent. When the union occurs without consent a more problematic relationship is constituted. The obligations that arise form a non-voluntary or involuntary relationship area a function of the need fulfilled by that relationship and the status of the beings who constitute that relationship. In attending the pregnancy relationship as a physical union the appropriate question may be: what obligations might be claimed to arise where the life of one human being is so radically dependent on the other for such a limited period of time. In attending the relationship as a moral union the appropriate question may be: what limitations may be placed on the activities of the more powerful when they find themselves in relationships that are not of their own choosing.
With that in place, the examination of issues follows. The first is the justification for abortion and the second is protection of pregnant women in the workplace.
The gender equality feminist presents the justification for abortion from the elements that define her understanding of her place in the world. The gender equality feminist holds a position that because she is an autonomous rights bearing human being; because she is equal to men in her fundamental right to be free of the burden of pregnancy; and because the conceived but not yet born human being is not an autonomous rights bearer, hence not a person who has standing in the law, she is free to end her pregnancy and the life developing within her whenever the pregnancy interferes with her life, physical health, mental health, economic circumstances, familial circumstances or if the conceived but not yet born human being is deformed or if the conception of the new life is the consequence of rape or incest.
The gender equity feminist recognizes that all human life is embedded in relationships. Her rights to autonomy and freedom are limited by the legitimate claims of others. She understands that our being in the world as related human beings is the source of our traditions of community and hospitality and solidarity, of mutual respect, and of liberty as ordered, of beneficence, and of intersubjectivity. These relationships constitute the links in the web of society. From these specific relationships to one another, concrete duties arise and are defined. At the same time, the human beings who anchor these relationships possess individual identity. They have significance in themselves apart from these relationships. An adequate moral theory considers both the beings who constitute the relationships and the link which defines the relationship.
The equity feminist ought then to recognize the fact that every pregnancy involves at least two human beings, so the question becomes under what circumstances may the immature dependent human being be killed at the request of the more mature and more independent human being. She should present a set of answers different from her sister, the equality feminist, to the question of the permissibility of abortion. Her starting point ought to be that is inasmuch as abortion takes the life of a living developing human being, the moral rules that apply to the taking of human life apply here. This understanding is affirmed in the Religious and Ethical Directives for Catholic Health Care Institutions which in Directive 45 recognizes that abortion is the direct taking of the life of the preborn human being regardless of its stage of development and which forbids abortion at any time in the pregnancy. So unless the life of the woman is threatened by the continuation of the pregnancy, abortion is not an option for her.
However, a special case arises for consideration if the life of the pregnant woman is directly threatened by the continued existence of the preborn human being. With the advances of medical science in monitoring pregnancy and caring for the mother and her child, the direct threat to the life of the mother is seldom the case. But when it is the case that her life is threatened, abortion is permissible under the rubric of the principle of double effect. The fact that the choice here is a choice of one life over another is acknowledged and the principle is applied. The intention of the act is the saving of her life; the death of the preborn human being is not intended and if its death can be averted, it must be averted. The most common medical instance of this dilemma in contemporary medicine is ectopic pregnancy. An ectopic pregnancy is the result of the implantation of the embryo in the fallopian tube rather than in the uterus. Its position in the fallopian tube is inappropriate for two reasons: the fallopian tube does not provide a suitable environment for its development and the growth of the embryo in the fallopian tube poses a risk of rupture of the tube and serious medical consequences, including the possibility of death, for the mother. The preborn human being, in cases where the life of the mother is at risk, cannot, however, be viewed as an unjust aggressor in the strict sense. Unjust aggression requires the intention to commit an act of aggression. The preborn human being is not capable of forming an intention. Its position, in the situation of permissible abortion, is to be viewed as material aggression, that is, as a matter of fact its continued existence poses a threat to the existence of the mother.
The same application of the principle of double effect allows the pregnant woman to go forth with medical treatment necessary for the continuation of her life and health. Sometimes the treatment has a second effect of causing the death of the preborn human being. The health of the mother is the intended effect; the death is the unintended and undesired effect. This understanding is affirmed in Directive 47 which states that "[o]perations, treatments, and medication that have as their direct purpose the cure of a proportionately serious pathological condition of a pregnant woman are permitted when they cannot be safely postponed until the child is viable, even if they result in the death of the unborn child." It may be the case, however, that the mother, who is faced with a serious illness that requires treatment which poses a threat to the life of her developing child, may forgo the treatment for the sake of her child. Her choice, usually made out of religious commitment, is an instance of supererogation. That choice may not be made an obligation for other women. There can be no fetus first rule in ethics or in the law. Both the woman and the preborn human being have equal value as human beings and an equal right to have their life protected.
The case of fetal deformity, no matter what its etiology and no matter what its degree and no matter what its consequent disability, presents a particular problem to be faced by pregnant women and these problems - - some quite significant -- have been put forth as reasons adequate to justify abortion. Of course, no one wants a child to suffer. But, whether the preborn human being is perceived as a child or not depends on the perspective of the culture. In the world as defined by the gender equality feminist, the preborn human being does not have the rights of a person, hence it is not viewed as a child. Furthermore, its continued existence, especially if it is disabled, may impede the activities of the woman. So, whether it continues its existence or not is her choice. Its death -- a beneficent or compassionate killing -- is to be preferred to its suffering and her freedom is to be preferred to its care. If, on the other hand, the preborn human being is recognized as a dependent member of the human community -- a member to whom some other human beings are already related, a different set of responses should arise. The disability of the human being should be compensated for by the ability of the community into which it is born to care for it. Those who suffer disability and whatever suffering is attendant upon the disability, more frequently than not attest to the fact that they prefer their existence albeit it limited to their not being born. In the case of a preborn human being with disabilities so grave that it may never be able to attest to the goodness of its existence, it goodness may be affirmed by the impact that its life has on others, those who commit themselves to its care. And the first voice that should speak in its behalf is the voice of the woman who is related most intimately to it. The choices that human beings make affect the quality of the society whose progress or decline is fashioned by human choices.
In addition to those pregnancies in which the fetus is known to have a disability, there are some pregnancies in which the fetus has a condition incompatible with life. Among those conditions are anencephaly and Potter's syndrome. Once the diagnosis of anencephaly or Potter's syndrome has been confirmed, the significant question is what is the appropriate care for the human beings -- mother and child -- in this sad, perhaps devastating, and temporary situation. The two possible courses of action are to continue the pregnancy until birth or to seek a termination of pregnancy by early induction. The former response directs attention primarily to the child and the sanctity of the child's life. The latter response directs attention primarily to the woman and her grief and the desire to continue on with her life. In response to this difficult and poignant situation, Catholic Health Care Institutions have provided two responses. In some institutions intervention, understood as a kind of direct abortion, is forbidden. In other institutions, very close attention to Directives 45 and 49 in the Ethical and Religious Directives for Catholic Health Care allows the early induction of labor and the delivery of the child. It is argued that there is no direct intention to destroy a viable fetus, there is a proportionate reason for the induction, and the resources of the hospital will be made available to sustain the life of the child at delivery.
Neither response is unproblematic. The first response which forbids intervention and which may, if the woman is seeking help in a Catholic institution, force her to seek help elsewhere seems dismissive of the woman and of her concerns and of the concerns of her family. Some women report feeling abandoned by the institutional church when they needed its comfort most. The child that they so desperately loved will not be and they wish to bring closure to the tragedy by early induction. Some women, on the other hand, find comfort in carrying the child to term. They experience consolation in the fact that they cared for their child in the only way still possible, that is, in the patient accompanying of the child in its brief life until the child dies. Here there needs to be a sustained conversation. And in the conversation the voices of women must be heard. Rather than being dismissed as having vested interests, they must be accorded respect as the voice of experience. The recording of the conversation is important. We shall have listened and we may learn.
The second response, induction and delivery at twenty weeks, is also problematic, even while it intends to stay within the letter of the law. There is a very real sense in which the child with anencephaly or the child with Potter's syndrome is never viable. These children have conditions incompatible with human life; they are not disabled as is the child with Down syndrome. So an early induction with all the equipment on hand for resuscitation may have the appearance of a sham. A better response might be to have all comfort care measures in place for this child who is born dying.
When a woman is pregnant as the result of rape or incest, the woman is rightly the subject of compassion. She has been injured by a violent act and the consequences do not end with the violence of the act. The injury violated her body and her person, and the individual who perpetrated the act should be punished. What she is capable of doing will depend on the society within which she lives and the perspective from which she understands her condition. If she views herself as an autonomous rights bearing individual and if she views the human life as it develops within her to be possessed of no rights and if she lives in a community that offers her no support in her sad and stressful situation, then abortion is her solution. If, on the other hand, she views herself as related to this new life, despite its origin, and if she views the human life as it develops within her to be a human being possessed of the same rights as every other human being and if she lives in a community that offers her support in her sad and stressful situation, then she may have the opportunity to choose life. Women have the strength of character to bear adversity, even great adversity such as presented in pregnancy as a consequence of rape or incest. In addressing this difficult question of pregnancy by violation at least two important questions arise. The first question is: what obligations might be claimed to arise where the life of one human being is so radically dependent on another human being for such a limited amount of time. The second question is: what limitations ought to be placed on or expected of the activities of the more powerful members of society when they find themselves in relationships that are not of their own choosing? We shall often find ourselves in situations not of our own choosing. The choices that we make create the kind of person we become and the kind of society we constitute by our membership.
The issue of pregnant women in the workplace has become particularly convoluted within the contemporary horizon marked by gender equality feminism and the legal status of abortion. In the not too distant past, there were protections for pregnant women in the workplace. It used to be considered enlightened policy, beneficent even, for businesses to put into place protections for women who were pregnant. The protections were mindful of the fact that she was in a changed condition, not disabled, but carrying a developing new life within her. Now these policies have come to be considered paternalistic and in violation of the right of women to be considered equal to men. And in the past twenty years, the protection for pregnant women and their unborn children have gradually diminished. An example may be found in the case of the United Automobile Workers v. Johnson Controls. The company, Johnson Controls, produces automobile batteries and during the production of the batteries lead and lead oxide particles are released into the air. This lead can enter into the bloodstream and remain there for a considerable time period. The levels of lead in the air and the levels of lead absorbed into the bloodstream were low enough to be considered safe for adults. However, because the level of lead in the factory was considered high enough to lead to lead to brain and central nervous system damage to the preborn human being, Johnson Controls in an attempt to protect the developing human being and in an attempt to save itself from possible future liability, put into place restrictions on women in the workplace. The company tried a variety of remedies including the exclusion of pregnant women and women at risk for pregnancy from employment by the company to the exclusion of all women from work sites where the risk of contamination was considered significant. The case wound its way through the courts and finally reached the U.S. Supreme Court. The Supreme Court ruled against the protective policy of Johnson Controls. Justice Blackmun who delivered the opinion for the court wrote:
Johnson Control's fear of prenatal injury, no matter how sincere, does not begin to show that substantially all of its fertile women are incapable of doing their jobs . . . [i]t is no more appropriate for the courts than it is for individual employers to decide whether a woman's reproductive role is more important to herself and her family than her economic role (Supreme Court Reporter 111, 1196-1217, March 20, 1991).
The decision of the Court was framed in the presence of the following elements: (1) the claim of equality of men and women in the workplace; (2) the choice of the women in the exercise of her reproductive role and in the exercise of her economic role; and (3) the lack of standing for the fetus in the law.
A better choice might have been had in a company policy that made it possible for pregnant women to have the opportunity to have a positions of comparable worth within the company for the duration of their pregnancy, in a social situation which regarded the real differences between men and women as well as their real equalities, and in a legal situation which afforded protection to the preborn human being. The appropriate balance in maternal-fetal relationships will be recovered only by the reversal of the cultural bias that has been created by the failure to recognize the preborn human being as a bearer of rights and by the assertion of women of radical equality and the fundamental right to abortion. With this reversal in place it may be possible for companies to put into place policies which respect the equal dignity of men and women and their right to work, the economic needs of women as well as men, and the health needs of developing human beings.