Mothers of the Nation: The Effect of Nationalist Ideology on Women's Reproductive Rights in Ireland and Iran
by Sarah O'Mahoney
Faculty of Law McGill University, Montreal
November, 2008
A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Master of Laws (LL.M.)
© Sarah O'Mahoney, 2008
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•+l Canada Abstract
Traditionally, studies of nationalism have largely ignored the issue of gender but, more recently, there is a growing body of feminist scholarship asserting that all nationalisms are gendered and exploring the effects of this gendering on women. In this thesis, I will examine how the focus on devout mothers as symbols of the nation in nationalist ideology can, when codified into law, engender negative effects on women's reproductive autonomy. Two countries that show surprising parallels in this regard are the Republic of Ireland and the Islamic Republic of Iran. Through comparing these two countries, one Catholic and one Muslim, I hope to highlight the ways in which diverse nationalisms use religion to justify what are politically motivated actions taken to control and subjugate women.
Resume
Les etudes portant sur le nationalisme ont traditionnellement ignore la question des genres, du moins dans une large mesure. Or, une mouvance intellectuelle et feministe recente affirme de plus en plus que tous les nationalismes impliquent clairement cette distinction entre les genres, et explore 1'impact de ce phenomene aupres des femmes. Dans la presente these, j'analyserai comment l'emphase placee sur les meres devouees en tant que symboles de la nation dans le cadre d'ideologies nationalistes peut, lorsque codifiee en droit, engendrer des effets nefastes pour ce qui concerne l'autonomie reproductive des femmes. A cet egard, les cas de la Republique dTrlande et de la Republique islamique dTran suscitent de surprenants paralleles. En comparant ces deux Etats, l'un catholique et l'autre musulman, j'espere souligner les facons dont les nationalismes varies emploient la religion afin de justifier des mesures politiques visant a controler et a subjuguer les femmes. Acknowledgements
I would like to thank my supervisor, Professor Colleen Sheppard, for all her help, advice, and support, during the process of writing this thesis. Though I often straggled, I always enjoyed our meetings, as she approached every task with empathy and a sense of humour. Huge thanks must be given to Vincent-Joel Proulx, Carlos Ivan Fuentes, and Thomas McMorrow, who were so generous with their time, ideas, and experience. I count myself incredibly lucky to have a support system that contains such intelligent, caring, and witty characters. Finally, to my parents Rose and John O'Mahoney, all the thanks in the world would never come close to accounting for the unwavering love and support you have shown me throughout my life, no matter what my endeavour. Nonetheless, thanks are surely due here as I could never have done it without you.
II Table of Contents
Introduction 1 The Comparative Project 8 Chapter 1: The Case of Ireland 13 The Roots of Religious Nationalism in Ireland 13 Chaste Self-Sacrifieing Mothers as Symbols of the Nation 16 The Trope of Motherhood Codified in Law 19 The Legislative Dimension 20 The Role of Women in the Constitution of 1937 26 Increasing Liberalisation and Gains in Reproductive Rights for Women.. 30 Liberalisation of the Law on Contraception 34 The Pro Life Amendment Campaign 36 Series of Cases Concerning the Right to Life of the Unborn 42 Conclusion 49 Chapter 2: The Case of Iran 51 The Roots of Religious Nationalism in the Islamic Republic of Iran 51 Women as Symbols of the Nation 60 The Constitution of the Islamic Republic of Iran 65 Women in the Constitution of the Islamic Republic of Iran 70 The Trope of Motherhood Codified in the Laws of the Islamic Republic of Iran 73 Pro-Natalist Ideology in the Post-Revolution Nation Building Stage 78 Introduction of a New Family Planning Policy 81 Abortion Law under the Islamic Regime 87 The Women's Movement in Iran 91 Conclusion: 96 Conclusion 97 Bibliography 104 Introduction
Reproductive rights constitute a relatively new, and controversial category of human rights, and religion is generally cast as the main obstacle in the battle for their recognition. While religious conservatism considerably impedes progress towards achieving the protection of reproductive rights, it does not work alone. Many other factors, such as history, economics and politics, also come into play.1 Indeed it is the combination of religion with politics that creates the real power to deny women their reproductive rights. A salient example is the use of religion in political struggles around nationalism. Two countries that show surprising parallels in this regard are the Republic of Ireland and the Islamic Republic of Iran. It has been noted that Ireland from the 17th to 20* centuries, and the Islamic Republic of Iran from 1979 to the present, display the same level of religious influence on the nationalist movement. They are both categorised as religious nationalisms proper, wherein nationalism and religion are fused to the point of being inseparable. Feminist discourse on nationalist ideology in Ireland and Iran demonstrates that despite the vast ideological differences between the two nationalist movements, they have both, at various historical moments, engendered similar negative effects on women's reproductive autonomy. In this project I intend to study the religious nationalist ideology in post-revolutionary Ireland and Iran, and the ways in which these ideologies "depend on powerful constructions of gender"3. I will then examine the effect these constructions have had on the law, as it relates to women's rights, and specifically reproductive rights. Traditionally, studies of nations and nationalism4 largely ignored the issue of gender and the effect nationalist discourse has specifically on the lives of women.5 More
1 Patrizia Albanese, "Abortion & Reproductive Rights under Nationalist Regimes in Twentieth Century Europe" (2004) 3 Women's Health and Urban Life 8 at 29. 2 Barbara-Ann J. Rieffer, "Religion and Nationalism: Understanding the Consequences of a Complex Relationship" (2003) 3 Ethnicities 215 at 224. 3 Cynthia Enloe, Bananas Beaches and Bases: Making Feminist Sense of International Politics (Berkeley: University of California Press, 2000) at 44. 4 "Nation, nationality, nationalism - all have proved notoriously difficult to define, let alone to analyse ... Nationalism has been deployed in a variety of different ways, including: the whole process of nation building; a sense of national consciousness or sentiment; a symbolic and linguistic representation of the nation; an ideology; and a movement intended to realise that national will", see Rick Wilford, "Women,
1 recently, there has been a growing body of feminist scholarship asserting that all nationalisms are gendered, and exploring the effects of this gendering.6 Several different studies on the international plane have demonstrated that, although one must avoid the pitfall of universalizing the experiences of women, strikingly similar constructions of women in relation to nation are prevalent today. This is a result of the fact that, as stated by Cynthia Enloe, nationalisms have "typically sprung from masculinised memory, masculinised humiliation and masculinised hope".8 It is a common experience of many women in post-colonial or post-revolutionary states that, although they may have been active participants in the revolution, they experience a rollback of rights during the "nation building" process.9 During revolution, feminist demands are painted as divisive, and women are asked to put them on the back burner and concentrate on nationalist goals.10 After putting their demands for equality on hold for the good of the nation, they find that not only are those demands ignored, their situation often worsens. This "re-patriarchalisation" of society is particularly notable in relation to familial and reproductive policies.11 There are a number of reasons why, both during and after the process of "nation building", nationalist governments attach great importance to women's role in society, and often specifically to limiting this role.12
Ethnicity and Nationalism: Surveying the Ground" in Rick Wilford & Robert L. Miller, eds., Women, Ethnicity and Nationalism: The Politics of Transition (London: Routledge, 1998) at 9. 5 Anne McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Context (New York: Routledge, 1995) at 353 [McClintock, Imperial Leather]. 6 See, e.g., Catherine Hall, Anne McClintock, Yuva-Davis, Floya Antias, Elleke Boehmner, Cynthia Enloe. 7 "In comparing nationalist struggles internationally, we discover specificity, but also remarkably similar constructions of women in relation to nation - a reminder that nationalism is always gendered." See: Wilford, supra note 4 at 6. 8 Enloe, supra note 3. 9 Catherine Hall, "Gender, Nationalisms and National Identities: Bellagio Symposium, July 1992" (1993) Feminist Rev. 97 at 5; Valentine M. Moghadam, "Gender and Revolutionary Transformations: Iran 1979 and East Central Europe 1989" (1995) 9 Gender Soc. 328 at 330. 10 Anne McClintock, "No Longer a Future in Heaven: Women and Nationalism in South Africa" (1991) 51 Transition 104 at 121; Valentine M. Moghadam, ed., Gender and National Identity: Women and Politics in Muslim Societies (London: Zed Books, 1994) at 2; Joane Nagel, "Masculinity and Nationalism: Gender and Sexuality in the Making of Nations" (1998) 21 Eth. Racial Stud. 242 at 253. " Albanese, supra note 1 at 10. 12 It must be noted here that I am not claiming a uniform effect of nationalist ideology on women in all situations. Valentine Moghadam has noted that there are essentially "two types of revolution, social transformation and national identity construction: (1) the women's emancipation or modernizing model and (2) the woman-in-the-family or patriarchal model". The two case studies in this thesis represent examples of the WOman-in-the-family'model; see Moghadam, supra note 9 at 335.
2 First, in an attempt to prove the authenticity of their claim to nationhood, nationalist governments tend to emphasize a shared national culture and history.13 This shared heritage is lauded not only as unique but also as superior to that of the chosen other(s), often the former colonial ruler. Nationalism purports to create unity through a combination of shared history and sentiment, selectively invoking existing cultural wealth such as language, religion and ethnicity to further their agenda.14 The focus placed on women's role in society as compared to men's, is demonstrative of the selective nature of this process. Seen as carriers of culture, it is commonplace for women to be confined to "traditional" domestic and maternal roles for the good of the nation, while men, not subject to the same scrutiny, are allowed to "modernize". Benedict Anderson referred to nations as "imagined, systems of cultural representation whereby people come to imagine a shared experience of identification with an extended community".15 These re-instated 'traditional roles" are, in reality, largely a modern construct, created to instill a feeling of shared history and difference from "others" outside the nation. As explained by Fatima Mernissi, "[i]n groups led by men whose identity is constructed in important ways by their confrontation with an external 'other', great weight falls on the need to control the 'others' [women] in their midst". 6 Nationalism's 'special affinity for male society', coupled with the 'concept of respectability', acts to legitimise this control of women by men.17 A number of scholars go as far as to argue that nationalism has become the language that justifies sexual control and repression of women (and homosexuals) while expressing and exercising masculine prowess. The nation's virtue is defined in terms of the purity of its women and it is seen as the role of men to protect this virtue through gender based dominance. "As exalted 'mothers in the fatherland' their purity must be impeccable, and so
13 Deniz Kandiyoti, "Identity and its Discontents: Women and the Nation" (1991) 35 Am. J. Pol'y Sci. 429 at 431. 14 Hall, supra note 9 at 99. '* McClintock, Imperial Leather, supra note 5 at 353. 16 Karen Brown, cited in Nayereh Tohidi & Jane H. Bayes, "Women Redefining Modernity and Religion in the Globalized Context" in Jane H. Bayes and Nayereh Tohidi eds., Globalization, Gender and Religion: The Politics Of Women's Rights in Catholic and Muslim Contexts (New York: Palgrave, 2001) at 39. 17 Wilford, supra note 4 at 14. 18 Tamar Mayer ed., Gender Ironies of Nationalism: Sexing the Nation (New York: Routledge, 2000) at 1 (Tamar Mayer explains that this is an argument made by the various authors of this volume).
3 nationalists often have a special interest in the sexuality and sexual behavior of their women."' This attitude is especially common in post-colonial nations, as women were often seen as particularly vulnerable to co-option by colonial powers. While many colonising powers often justified their interference by claiming that they were liberating women from the barbaric customs and traditions, colonised males felt that "their women" were being corrupted.20 Meaney highlights the fact that the impact of colonization on "discourses of gender and sexuality is that post-colonial masculinity is often exaggerated, not least through the extreme subordination of femininity, in order to assert the legitimacy of self rule"21. This push to confine women to such traditional roles is an attempt to reduce them to symbols, forced to embody the cultural ideal to demonstrate the success of the national project, and signify national difference. The attempt to display women as "the visible markers of national homogeneity"22 unrealistically paints them as a monolithic group, thus removing individual female voices from the political arena. Another common nationalist discourse does not just paint women as symbols of the nation, but goes farther, gendering the nation itself as female. This has a number of negative implications for women. First, as Catherine Hall posits, "[t]he common theme of the nation as female, which implies the gendering of the citizen as male, sets limits on the forms of national belonging available to women."23 Second, from a post-colonial or anti- imperialist perspective this discourse leads to the association of controlling women with protecting the nation from foreign intrusion. Women's bodies become the ground upon which battles of national identity and culture are fought.24 It is common for nationalist governments to use military metaphors to justify conservative political stances that they see as under attack from foreign influences 25. In this metaphorical war, when women are not cast as the battlefield, they are often seen as
19 Nagel, Supra note 10 at 254. 20 Bayes & Tohidi, Supra note 16 at 40. 21 Lisa Smyth, Abortion and Nation: The Politics of Reproduction in Contemporary Ireland (Burlington V.T.: Ashgate, 2005) at 46 [Smyth, Abortion and Nation]. 22 McClintock, Imperial Leather, supra note 5 at 365. 23 Hall, «//?/-3note9at5. 24 Lisa Smyth, "Narratives of Irishness and the Problem of Abortion: The X Case 1992" (1998) 60 Feminist Rev. 61 at 78 [Smyth, "Narratives of Irishness"]. 25 Angela K. Martin, "Death of a Nation: Transnationalism, Bodies and Abortion in Twentieth-Century Ireland" in Mayer, Supra note 18 at 78.
4 an enemy of the state. Feminism is frequently treated as a foreign, subversive element, acting against the best interests of the nation, even if the movement is generated by women within the national community. "Women can all too easily be labelled as subversive or treacherous, or as succumbing to the blandishments of foreign and hence unwelcome ideas such as feminism."26 Even when said feminists are members of the nationalist movement and worked towards the same goals as their male counterparts, as soon as they express gender specific demands they are labelled as divisive. Anne McClintock posits that nationalism is concerned with both the past and the future, and that in that discourse men symbolize modernity, and women the atavistic body of tradition.27 Thus, men's roles can change and modernize but women who call into question their "traditional" roles are seen as succumbing to foreign influences, and are blamed for the loss of native culture and traditions.28 Thus the problem posed by nationalism's simultaneous concern with both tradition and progress, is simply 'managed as a natural relation to gender' ; and this management attempts to confine women to roles that do not reflect the reality of their lives and contributions. As mentioned above, nationalist governments often focus on common culture and heritage to foster unity among the citizenry. A cultural artefact commonly used in this situation is religion. The effect of religion on nationalist movements can vary. In some instances "the influence of religious beliefs, ideas, symbols and leaders is essential to the development and success of the national movement".30 In others, religion is used for pragmatic or instrumental reasons, as "a supporting element that can unite the population".31 Religion is frequently a driving force behind nationalist movements; and often in the resulting nations, religious beliefs are codified in the laws and constitution.32 This combination of faith and democracy is a difficult one and, "religious nationalism frequently leads to discrimination, violence, human rights violations and intolerant
26 Wilford, supra note 4 at 3. 27 Anne McClintock, "Family Feuds: Gender, Nationalism and the Family" (1993) 44 Feminist Rev. 61 at 66 [McClintock, "Family Feuds"]. 28 Bayes & Tohidi, Supra note 16 at 39. 29 McClintock, Imperial Leather, supra note 5 at 359. 30 Rieffer, Supra note 2 at 225. 31 Ibid, at 229. 32 Ibid, at 225.
5 politics". The nation's women often bear the brunt of these negative consequences as most religions have a conservative gender ideology. Religious nationalist movements are more likely to create states that discriminate and violate human rights, especially those of women. The central theme running through these discourses of tradition and control is that the most important, or even only useful, role of women in nationalist states is that of a mother.34 Mothers are lauded not only as the biological reproducer of the nation, but also as those who transmit culture to their children, thereby strengthening the nation.35 This celebration of women as cultural transmitters, conveniently implies that they must embody "traditional" roles in order to serve as an example for their children. A second characteristic of nationalism that facilitates the re-partriarchalisation of society is the use of familial language when describing the 'imagined community' of the nation. Using the trope of the patriarchal family to describe the national community immediately subordinates children to women, and women to men, as in the traditional patriarchal family, and makes this hierarchy appear natural.36 The traditional gender roles envisioned in such a conception of family confines women to the roles of motherhood and domesticity and ultimately to the private sphere, thereby limiting their citizenship role. Along similar lines, Catherine Hall underscores that "[w]omen can often be conceptualized as 'mothers of the nation', an image which places their reproductive capacities at the centre of their service to the Nation." 37 Most often, this focus on women's reproductive capacities manifests itself as pro-natalism in nationalist states38. It is seen as necessary to produce more "brothers/warriors and sisters/mothers" to maintain the strength of the nation, and ensure its continued survival.39 In certain cases though, the focus is on controlling reproduction; whether to counteract a perceived overpopulation problem, or simply control the reproduction of certain "less desirable" sections of the
33 Ibid, at 237. 34 Nagel, Supra note 10 at 256. 35 Sylvia Walby, "Woman and Nation" 33 (1992) Int'l J. Comp. Soc'y 81 at 90. 36 McClintock, Imperial Leather, supra note 5 at 357. 37 Hall, W/?/-3note9at5. 38 Jessica Autumn Brown & Myra Max Ferree, "Close Your Eyes and Think of England: Pronatalism in the British Print Media" (2005) 19 Gender Soc'y 5 at 6. 39 Albanese, supra note 1 at 12.
6 population. As Nira Yuval-Davis notes, "Encouraging, discouraging and sometimes forcing women to have or not to have children depend on the hegemonic discourses which construct nationalist projects at specific historical moments."40 Whether women are being encouraged to produce new citizens to create a strong nation, or told to engage in strict family planning in order to produce "quality not quantity",41 the focus of nationalist reproductive policies is the good of the nation, not the rights or health of its female citizens. This emphasis on the common good, and the importance of family, which sometimes translates as the "national family", does not create a situation conducive to the protection of women's individual reproductive autonomy. Frequently, the ideal female role is not simply that of the mother but that of the self sacrificing, devoted mother figure; thus it is seen as natural that women should be the ones to sacrifice their individual rights for the good of the nation. 42 "The subordination of women's concerns to national concerns is ... a common theme in nationalist movements."43 Given the focus of much nationalist ideology on women's reproductive capacity, and the preference to harness that capacity in service of the nation; it follows that if said ideology is codified in the constitution and laws of a state, women's reproductive rights will be affected. It has been noted that the issue of reproductive rights and choices is a point of particular conflict between the projects of nationalism and feminism, as "the pro-natalist bias of so many nationalist leaders inevitably leads to confrontations with women's rights activists".44
40 Nira Yuval-Davis, "Women and the Biological Reproduction of the Nation'" (1996) 19 Women's Stud. Int'l Forum 17 at 18. 41 Gavin W. Jones & Mehtab S. Karim, eds., Islam the State and Population (London: Hurst & Co., 2005) at 148. 42 Patrick Hanafin, Constituting Identity: Political Identity Formation and the Constitution in Post- Independence Ireland (Burlington. VT : Ashgate/Dartmouth, 2001) at 28; Nahid Yeganeh, "Women, Nationalism and Islam in Contemporary Political Discourse in Iran" (1993) 44 Feminist Rev. 3 at 17. 43 Kathryn A. Conrad, Locked in the Family Cell: Gender, Sexuality and Political Agency in Irish National Discourse (Madison, W.I.: University of Wisconsin Press) at 106. 44 Moghadam, supra note 10 at 5.
7 The Comparative Project
From a Western perspective, religious nationalism today is most commonly associated with Islam, but it is important to remember that, "some contemporary, liberal democracies in the West also have a history of illiberal religious nationalism" 5. Despite their many ideological differences, Islamist and conservative Catholic nationalisms have been shown to have similar effects on the rights of female citizens.46 "Conscious or unconscious patriarchal motivations behind many of the morality campaigns and programs of Islamists and conservative Catholics directed at reinforcing the traditional family, women's 'authentic identity' and 'motherhood duties', and blocking the implementation of reproductive rights are not hard to understand."47 As Patrizia Albanese has explained, "[comparative, case oriented research is commonly used in studies of nationalism".48 I chose a comparative approach for this project because I was struck by the similarities in the constructions of women and the focus on the motherhood role in both nations despite the many differences. Existing studies on the effect of nationalism on gender equality and women's reproductive rights have expressed a need for further discussion of the issue through an expansion of the number of case studies and comparisons. A central focus of this project will be the way that nationalist constructions of women as mothers become codified in the states' constitutions and laws. The drafting of a constitution serves as a central component of nation building as constitutions espouse the fundamental values of the nation. It is essential to examine the role of women as advanced in a state's constitution, as these 'fundamental values' can be used to limit the claims of women for various expansions or protections of their rights. 50
Barbara-Ann J. Rieffer, "Improving Democracy in Religious Nation States: Norms of Moderation and Cooperation in Ireland and Iran" (2007) 4 Muslim World J.Hum. Rgts. 1 at 2. 46 Bayes & Tohidi, supra note 16 at 39. 47 Ibid, at 40. 48 Albanese, supra note 1 at 12. 49 Patrizia Albanese, Mothers of the Nation: Women, Families, and Nationalism in Twentieth Century Europe (Toronto: University of Toronto Press, 2006) at 191 [Albanese, Mothers}. 50 Beverly Baines & Ruth Rubio-Marin eds., The Gender of Constitutional Jurisprudence (New York: Cambridge University Press, 2005) at 9.
8 One important objective of this project, and a central motivation of the choice of one Western and one Islamic nation for the comparison, will be to seek to repudiate the common Western assumption of the uniform negative effect of Islam and Muslim culture, on women. In that regard, this comparative study will strive to highlight the ways in which diverse nationalisms use religion to justify what are politically motivated actions taken to control and subjugate women. This is not to say, however, that other religions and/or dogmatic ideologies have not proven repressive for women, but Islam is most frequently cast, in Western discourses, as particularly oppressive with regard to women's rights. In this discourse, the effect of religious nationalism on women, if addressed at all, has often become a problem of the 'other', something that happens in Muslim nations.51 This is a dangerous viewpoint, as it harks back to the colonial era, when the perceived treatment of women in colonized nations 'justified' interference. It is incredibly important in that respect to study the effects of illiberal religious nationalism in the (not so distant) histories of Western nations. This serves both to demonstrate that this problem is not isolated to any one part of the world, or religious ideology, and to recognise the fact that Western nations are not immune from the possibility that such a situation could reoccur. A second impetus for this comparative project is linked to issues of colonisation. Ireland is a fascinating case study in and of itself, as it is at once a Western European nation and a former colony. Iran, though never formally colonised, was historically the subject of a great deal of imperialist interference by European nations, in what is said to have been a 'semi-colonial' situation.53 Thus the comparison of these two nations could perhaps draw attention to the fact that some policies or political discourses espoused by nationalist governments which are constructed, or justified, as "authentically" cultural, are in fact reactionary responses to past imperialist interference. It is submitted that
51 In relation to western reaction to the situations of women in Afghanistan and Iran, Patrizia Albanese has written, " [s]canning through those headlines I could also not help but sense the omnipresent 'otherness' projected by the stories: those archaic leaders there re-patriarchalizing previously 'modernizing' societies. But are we in the West so safe from re-patriarchalizing 'revolutionaries' to whom they seem so vulnerable?" See: Albanese, Mothers, supra note 49 at 4. 52 Albanese, supra note 1 at 9. 53 Hamideh Sedghi, Women and Politics in Iran (Cambridge: Cambridge University Press, 2007) at 40.
9 analysing these similarities could help to diffuse the East/West cultural binary that dominates mainstream discourses in relation to women's rights. A third factor behind this project is the belief that discussion of the effect nationalist ideology can have on the reproductive autonomy of women will help women living under nationalist regimes formulate more effective discourses in the abortion/reproductive rights debate. Even in countries with seemingly excellent provision for reproductive freedom it is essential to study the different forces that work against full protection of reproductive rights. The fact of obtaining protection of reproductive rights is not a guarantee these rights will be upheld in the future.54 In this era of globalisation, with its destablising effect on identity, nationalism is an increasingly attractive force.55 It is crucial for feminists to be cognizant of potential strengthening of nationalist fervor and ideology globally, in view of the fact that, as this paper will show, it can lead to the implementation of regressive policies for women's reproductive autonomy.36 My aim in this comparison is by no means to attempt to essentialise the struggles of women in diverse nations and cultures.57 That said I do feel it is instructive to analyse the similarities and differences between the effects of religious nationalism on reproductive rights in these two countries. There are obvious challenges and limitations involved in the comparison of two disparate legal traditions and cultures. First, as a student educated in the common law discipline, many of my assumptions regarding what a legal system is, the level of religious involvement in the democratic process, and the objectives of women's rights initiatives were challenged by the reality of the situation in Iran. In that respect, it is important to note that I am not comparing the legal systems per se; instead I am comparing the ways in which nationalist ideology and its related constructions of women are codified in the constitutions and laws of both states in ways that affect women's reproductive autonomy. I was also hindered as regards the Iranian case study by limited
Albanese, supra note 1 at 8. 55 Catarina Kinnvall "Globalisation and Religious Nationalism: Identity and the Search for Ontological Security". (2004) 25 Political Psychology 741 at 742. 56 Albanese, Mothers, supra note 49 at 188. 57 Ratna Kapur, "The Tragedy of Victimization Rhetoric: Resurrecting the 'Native' Subject in Intemational/Post-Colonial Feminist Legal Politics" (2002) Harv. Hum. Rts. J. 1 at 6.
10 access to primary materials, and the existence of secondary sources that were occasionally contradictory. Thirdly, and perhaps most importantly there is the risk of ethnocentrism in the comparative project. Though confronting the legacy of Orientalism, and the construction of Muslim women as a monolithic and voiceless group by Western academics was a motivating factor behind this project, 1 was wary of inadvertently falling into the same trap. My hope is that this comparison may help to challenge said ethnocentrism by attempting to see "ourselves as exotically as we see the other".58 The first chapter of this project will look at the Irish example, and address both the historical roots of religious nationalism in Ireland, and the effect that it has had on women's reproductive rights. The impact of the Irish Constitution, which is heavily influenced by Roman Catholic ideology, and places great emphasis on the motherhood role for women, will be discussed in detail, as will legislation and case law affecting women's reproductive freedom from 1922 to the present. An important part of the Irish history in this area is the relationship of the state with the European Union. While Ireland's membership of the European Union has had a generally positive effect on women's position, and rights protection in Irish society, anxiety over loss of national identity and encroaching liberalism from Europe arguably contributed to a fundamentalist backlash in the 1980s over the issue of abortion. The Irish case not only illustrates the focus of nationalist governments on controlling women's sexuality and fertility, it is also a reminder that we cannot assume that gender relations and reproductive policies will continue 'modernise' with the passage of time. Often attempts at 're-partiarchalisation' of gender relations — linked to nationalist sentiment — will occur as a reaction to changing political and economic conditions, even after much progress has been made.59 The second chapter will study the case of Iran, with references and comparisons to the previous chapter. It will begin by addressing the roots of religious nationalism in Iran, and how it contributed to a pro-natalist policy that restricted the exercise of women's reproductive rights in the aftermath of the 1979 Islamic revolution. A major motivating factor in the dismantling of the existing family planning program, and the
Brenda Cossman, "Turning the Gaze Back on Itself: Comparative Law, Feminist Legal Studies and the Post-Colonial Project" (1997) Utah L. Rev. 525 at 537. 59 Albanese, Mothers, Supra note 49 at 191.
11 criminalisation of abortion after the revolution, was to demonstrate the difference of the Islamic regime from the previous government, which had been seen as capitulating to western demands and cultural encroachment. Special attention will be paid to the constitution of the Islamic Republic of Iran as, like the Irish constitution, it places heavy emphasis on the motherhood role for women, and the influence of Islam in the nation's laws. The Iranian example is particularly interesting, as ten years after the revolution, problems caused by the rapidly expanding population caused the government to perform a complete about-face on their population policy and begin to encourage family planning. Just as the pro-natalist policy had been justified by appealing to Islamic sources, and claiming that contraceptives were imperialist tools designed to reduce the number of Muslims; nationalist and religious rhetoric was employed less than a decade later, to implore the populace to reduce family size. Though the family planning program of the Islamic Republic of Iran has been remarkably successful in curbing population growth, women's unequal position in the family, and society, prevents many women from effectively controlling their own fertility. Also, as is the case in Ireland, there are no exceptions to the abortion ban provided for cases of rape or incest. Though the situation in Iran has undoubtedly improved, in no small measure due to the constant struggle of women's rights activists, continued progress cannot be taken for granted. In conclusion, this project will address the struggle between women attempting to gain control of their own fertility, and nationalist and religious forces that require government control of female sexuality. Women's reproductive health raises sensitive issues for many legal traditions, as "[t]he sphere of personal sexual and reproductive life provides a central focus of most cultures, a dominant theme in cultural practices and rules". In studying the similarities and differences between the effects of religious nationalism on women's reproductive autonomy in two vastly different nations, I hope to contribute to a global feminist discourse on reproductive rights, highlighting the, often negative, effect of nationalist government ideology on women's reproductive autonomy.
60 Susan Moller Okin, "Is Multiculturalism Bad for Women?" Boston Review (October/November 1997) online: Boston Review: A Political and Literary Forum
12 Chapter 1: The Case of Ireland
This chapter will examine the effect of religious nationalist discourse in the Republic of Ireland, on women's rights, and specifically their reproductive rights. It will address how this discourse imposed a patriarchal societal model that attempted to use law to confine women to domestic and reproductive roles, and how those attempts at confinement were challenged. Special attention will be paid to Bunreacht na hEireann (hereinafter referred to as the Irish Constitution),61 drafted in 1937, and the 8th amendment thereto in 1983, which guaranteed protection of the right to life of the unborn. It is also vital in the Irish case to consider the implications membership in the European Union has had on the development of a reproductive rights discourse.
The Roots of Religious Nationalism in Ireland
Religious nationalism in Ireland developed as a result of colonization by the Protestant English in the 16' Century following the English Reformation.62 The Irish struggle for independence was a complex and gradual one, spanning centuries, many uprisings, and varying levels of English control. To understand the nature of nationalism in Ireland it is important to highlight some key events that had the effect of cementing Catholicism as essential to Irish national identity. First, the English employed a strategy to exert more control in Ireland, called 'the Plantations'. It involved removing, often violently, the native Irish Catholics from their land and homes, banishing them "to hell or Connaght"63 and handing over their land to English, Welsh, and Scottish Immigrants. This policy began in the 1580s with mixed success; yet, after the end of the English Civil War in 1649, the English again had the time and resources to make suppressing the Irish
61 Ir. Const., 1937, online:
13 a priority. Increasingly successful though the English were in asserting their might, the Irish did not comfortably resign themselves to their fate: "[r]esentment of this giant act of robbery fuelled Irish nationalism into the twentieth century".65 As well as depriving Irish Catholics of land ownership and any political influence, two specific acts during this time of renewed suppression in Ireland also contributed to a "growing Irish Catholic martyrology" 6. The massacres carried out by Oliver Cromwell in Drogheda and Wexford in 1649 displayed a savagery and level of casualties, including civilian casualties, which had not before been seen in the Irish struggle.67 It is widely reported that Cromwell's policy towards the Irish Catholics was ideological in motivation, not political, and driven by revenge.68 Between 1695 and 1829, during a period known as the Age of Ascendancy, or the Age of the Penal Laws, the English attempted to reduce Catholics to a servile caste by forbidding them from holding public office, voting, working as magistrates, entering a number of the professions, opening or teaching in schools, manufacturing newspapers and books, or buying land.69 This discrimination was combined with the denial of freedom of worship; effected through the closing of Catholic churches, the exile of the clergy and the forced payment of tithes to the Anglican Church. Consequently, English rule soon became equated with religious repression, further strengthening the link between nationalism and Catholicism.70 The famine of the 1840s led to a Devotional Revolution . The increase in religious practice and direct church control over education during this time72 saw Catholicism become a substitute for the dying Gaelic culture and Irish language.73 According to Yvonne Galligan and Nuala Ryan, the close connection between nationalism and Catholicism was exemplified in the 1916 Easter Rising.
Hughes, Supra note 62 at 8. 66 Ibid. 67 Micheal 6 Siochru, "Atrocity, Codes Of Conduct And The Irish In The British Civil Wars 1641-1653" (2007) 195 Past and Present 55 at 55. 68 Barnard, supra note 63 at 44. 69 Ann Rossiter, " 'Between the Devil and the Deep Blue Sea': Irish Women, Catholicism and Colonialism" in Saghal, Gita & Yuval-Davis, Nira. Refusing Holy Orders: Women and Fundamentalism in Britain (London, Women Living Under Muslim Laws, 2000) at 84. 70 Ibid, at 85. 71 Ibid, at 86 ("In 1840 there had been one priest to every 3,500 members of the laity; by 1900 that number was one to every 900"). 72 Martin, Supra note 25 at at 67. 73 A combination of British state policy of promoting the use of English through schools, and the fact that the famine hit the predominantly Irish speaking southern and western coastal areas the hardest caused a
14 The failed nationalist rebellion, the execution of its leaders and their subsequent elevation to political martyrdom ... was an illustration of blood sacrifice used to justify war and political violence, but also used to underpin religious beliefs.74
After a bloody struggle during the War of Independence75 between the British forces and the Irish Republican Army, a truce was reached in July 1921. This truce led to peace talks between the British Government and Sinn Fein76 and finally the agreement of the Anglo-Irish Treaty, signed on the 6th of December, 1921.77The Treaty established Ireland as an autonomous dominion — still part of the British Empire — called the Irish Free State. It also allowed the predominantly Protestant Northern Ireland7 — which had been created by the 1920 Government Of Ire/and Acf° — a chance to opt out of the Free State, which was taken. This partition caused a civil war between pro and anti-treaty forces in Ireland, which lasted a further two years.81 The pro-treaty forces prevailed. Despite the fact that Taoiseach (Prime Minister) Eamon de Valera declared Ireland to be a Republic de facto in 1933, and promulgated an entirely new Constitution in 1937 changing the name of the country to Eire, Ireland remained a Dominion until 1949, when it withdrew from the Commonwealth by statute.82 The incomplete nature of the nationalist project in Ireland "left the country frozen in the national liberation phase of development, apparently incapable of proceeding to
drastic decline in the use of the Irish language, see Bill Kissane, "Nineteenth-Century Nationalism in Finland and Ireland: A comparative Analysis (2000) 6 Nationalism and Ethnic Politics 25 at 29. 74 Yvonne Galligan & Nuala Ryan, "Implementing the Beijing Commitments in Ireland" in Bayes & Tohidi, Supra note 16 at 89. 75 The conflict lasted from 1919 to 1921, see Michael Hopkinson, The Irish War of Independence (Montreal: McGill-Queen's University Press, 2002) at xx. 76 The representatives of the de facto Irish Republic 77 Articles of Agreement for a Treaty Between Great Britain and Ire/and, 6 December 1921,26 L.N.T.S. 9. 78 Nicholas Mansergh, Nationalism and Independence: Selected Irish Papers (Cork: Cork University Press, 1997) at 93 and 94. 79 In Northern Ireland, unlike in the 26 Southern counties, the plantations had resulted in a complete change in the nature of society and not just the top level thereof, see Barnard, supra note 63 at 31. 80 Government of Ireland Act, 1920 (U.K.), 10 & 11 Geo. V, c. 67. 81 Radha Kumar, "The Troubled History of Partition" (1997) 76 Foreign Aff. 22 at 27. 82 Alpha Connelly, "Women and the Constitution of Ireland" in Yvonne Galligan, Eilis Ward & Rick Wilford, eds. Contesting Politics: Women in Ireland, North and South (Boulder CO.: Westview Press, 1999) at 18 (The statute declared that the description of the state should be the Republic of Ireland).
15 social and economic modernization". The partition itself had a significant effect on the development of women's citizenship rights in the Free State, as it led to stricter adherence to Catholic teaching on sexuality and reproduction. The existence of a Protestant Parliament for a Protestant People in the North inspired a need for a staunchly Catholic Parliament in the South. Catholic triumphalism was used as something to celebrate in a country scarred by civil war, and traumatised by the partition.84 The existence of Northern Ireland, and its continuing trouble with religious and political unrest, is a constant reminder of Ireland's colonial past that continues to feed nationalist sentiment.8
Chaste Self-Sacrificing Mothers as Symbols of the Nation
Women played an active role in the Irish struggle for independence, which coincided with the emergence of a campaign for women's equality, but there was tension between those espousing the cause of feminism and those pushing the cause of nationalism. 6 Feminism was seen as a divisive force by the nationalist movement, and women were told to wait until the realisation of the independence project before pursuing their agenda of gender equality. If they thought that their participation in the movement would be recognised, and cause the new government to address their concerns, they were mistaken. It is widely agreed among feminists and modern historians, that the negative outcome of putting nationalist demands before feminist demands became apparent in the post-independence period, as women's roles in public and political life diminished in comparison with the years prior to 1922.87 According to Breda Gray and Louise Ryan,
Hughes, supra note 62 at 58. 84 Rossiter, supra note 69 at 87. 85 Rieffer, supra note 45 at 6. 86 Ivana Bacik, Kicking and Screaming: Dragging Ireland into the 2f Century (Dublin: O'Brien Press, 2004) at 79. 87 Linda Connolly, The Irish Women's Movement: From Revolution to Devolution (Dublin: Lilliput Press, 2003) at 65.
16 "[c]ritical female voices were silenced during the process of nation-building in the twenties and thirties." 88 The reason for that silencing was that after the creation of the Irish Free State in 1922, the newly formed government focused on displaying and creating unity by emphasising the shared culture of the Irish people. As is often the case in post-colonial nations, the men in power who had felt emasculated by their previous colonisation needed to assert their strength and masculinity.
Just as British imperialist discourse described Ireland as feminine and therefore inferior, dependant and weak, Irish nationalists too took up a compensatory and exaggerated masculinity and thus were unsure whether to worship or revile those women who took up the cause of Irish nationalism.
This meant that the construction of culture during the nation-building process focused very strongly on the proper role of women. The welfare of the Irish state and nation were explicitly linked to the appropriate placement of women in the home, and with male control over this domain. ' The allegorisation of the Nation of Ireland as female was common in the discourse of Irish nationalists.92 "Mother Ireland" served as the perfect feminine counterpart to the strong, male State.93 "Excluded from direct action as national citizens, women are subsumed symbolically into the national body politic as its boundary and metaphoric limit."94 With the nation a woman or the woman a nation, the role of the state was the same: to protect her from interference —whether it be coming from colonial power or her own judgment. 5
88 Breda Gray & Louise Ryan, "The Politics of Irish Identity and the Interconnections between Feminism, Nationhood and Colonialism" in Ruth Roach Pierson, & Nupur Chaudhuri eds. Nation, Empire, Colony: HiStoricizing Gender and Race (Bloomington, Indiana: Indiana University Press, 1998) at 125. 89 Smyth, Abortion and Nation, supra note 21 at 45. 90 Lorna Stevens, Stephen Brown & Pauline MacLaran, "Gender, Nationality and Cultural Representations of Ireland: An Irish Woman's Place? (2000) 7 Eu. J. Women's Stud. 405 at 409. 91 Martin, Supra note 25 at 67. 92 Gray & Ryan, supra note 88 at 124. 93 Martin, Supra note 25 at 67. 94 McClintock, "Family Feuds", supra note 27 at 62. 95 Conrad, supra note 43 at 11; Smyth, Abortion and Nation, supra note 21 at 116
17 Another common theme in Irish nationalist ideology was the use of familial language to describe the nation. Lisa Smyth describes the "articulation of a distinctly patriarchal familial nation" as "central to discourses of Irishness".96 The family imagined in this discourse is the traditional male-headed household, with the husband as breadwinner and protector, and the wife as homemaker and mother. 7 The construction of familial-nationhood serves to justify the cultural subordination of women as 'natural', not just within the home but also in the public sphere, and has the effect of significantly delegitimising feminist critique.98 Secondly, familial language implies blood ties; this too facilitates the control of female sexuality in order to maintain the purity of the national family/ethnic group.99 The Irish race was portrayed as traditional and pure, sharing common origins and differentiating them from those not belonging to the nation.100 This placement of the family at the centre of Irish culture meant that the Irish Motherhood and the sanctity of the Irish Catholic family were considered increasingly symbolic of the nation.'01 Emphasis on motherhood and women's confinement to the domestic sphere also came from the teachings of the Roman Catholic Church, which place a strong emphasis on the importance of the patriarchal family and biologically determined 'proper roles' for men and women.102 Also central to the Catholic faith is the figure of the Virgin Mary. Irish women were encouraged to "represent and manifest the ideal of Mary ... in their behavior [sic], motherhood and their relationships with others".103 Thus the perfect model for behaviour is one of desexualised motherhood, an ideal that can never be attained by women, and thus justifies the control of their sexuality by the Church. So despite the strength of female political activists and radical women's groups like the Inghinidhe na hEireann ('Daughters of Erin') and the Cuman na mBhan ('The Society of Women'),104
Hanafin, Supra note 42 at 36. Nagel, supra note 10 at 254. Hanafin, Supra note 42 at 27. Yuval-Davis, Supra note 40 at 18; Albanese, Mothers, Supra note 49 at 17. ) Gray & Ryan, Supranote 88 at 127. 1 Ibid. 1 Siobhan Mullally, "Debating Reproductive Rights in Ireland" (2005) 27 Hum. Rgts. Q. 78 at 85. 1 Martin, supra note 25 at 69. * Stevens, Brown & Maclaran, supra note 90 at 409.
18 during the struggle for independence, Ireland came to be symbolized by chaste, self sacrificing mothers, to the exclusion of any other existing model of womanhood.
The Trope of Motherhood Codified in Law
As stated by Angela K. Martin, "it is clear that historically in nationalist Ireland women have almost exclusively borne the labour of representing the nation". She makes it clear that this role as national symbol has had very real consequences in the lives of Irish women both in the legislative and constitutional domains. The idealisation and objectification of women in the national cultural discourse "required a series of legislative vehicles with which to constrain women so that they might visibly conform to the prescribed national paradigm".106 Thus, from the early 1920's in Ireland there has been a pattern of legislation passed in an attempt to confine women to the domestic sphere and define them by their reproductive role. The result of this legislation has been that Irish women have been systematically denied control of their fertility. "Constructions of femininity by cultural nationalists in the early 1900's and later by the church and the new state, denied women an autonomous sexuality in their idealization of asexual motherhood."107Although many advances have been made by Irish women in gaining access to equal employment rights and contraception, the constitutional debates regarding abortion still bear the hallmarks of the hegemonic discourse of gendered nationalism. In 1922, agreeing to the Anglo-Irish Treaty to make Ireland an independent dominion, even though it meant the partition of the Island and less than full independence, was seen as the only option. This disappointing outcome, which left Ireland divided and still tied to Britain, led the Irish Government to attempt to portray a national identity that was as different from their former colonisers' as possible. This meant promoting a conservative Catholic identity with emphasis on the traditional rural lifestyle, in contrast with a country they saw as urban, Protestant and increasingly liberal. Thus from 1922 onwards there developed a mutually beneficial relationship between the
Martin, supra note 25 at 67. Ibid. Gray & Ryan, supra note 88 at 124.
19 Catholic hierarchy and the fledgling Free State government108 that led to a gradual incorporation of the Catholic moral code into the law of the land.109 The Roman Catholic- inspired state ideology portrayed mother and unpaid homemaker as the appropriate role for women and laws were enforced to promote that role. no
The Legislative Dimension
Women were granted suffrage at the birth of the Free State, but apart from that early allowance, the body of law that developed after 1922 had the cumulative effect of pushing women from the public/political sphere.111 "The position of women in society worsened as political activities available to them during the nationalist struggle were now closed off.112 Education was segregated and women were channeled into fields seen as suitable and feminine, such as nursing and teaching.113 Section 16 of the Conditions Of Employment Act 1936?'4 allowed the Minister for Industry to either limit the number of female workers in certain areas of industry or abolish their participation completely; section 46 also prevented women from engaging in any industrial work during the nig ht.115 Married women were barred from working in public service, a ban that was not lifted until 1973.116 Section 5 of The Juries Act 1927exempted women from jury service, so they would not be forced to neglect their duties in the home; although section 26 of the Act did allow them to apply for eligibility for such service, they had to prove they were 'qualified'.117 Women were subordinated to men in terms of property rights in a way that
The Catholic Church was essentially left in charge of education, healthcare and welfare, a situation that would continue for quite some time, see Jennifer E. Spreng, Abortion and Divorce Law in Ireland (Jefferson, N.C.: McFarland, 2004) at 6. 109 G.W. Hogan, "Law and Religion: Church State Relations in Ireland from Independence to the Present Day" (1987) 35 Am. J. Comp. L. 47 at 51. 1,0 Noel Whitty, "Law and the Regulation of Reproduction in Ireland: 1922 - 1992" (1993) 43 U.T. L.J. 851 at 853. 111 Jo Murphy-Lawless, "Fertility, Bodies and Politics: The Irish Case" (1993) 1 Reproductive Health Matters 53 at 54. 112 Evelyn Mahon, "Women's Rights and Catholicism in Ireland" (1987) 116 New Left Rev. 53 at 73. 1,3 Connolly, supra note 87 at 67. 114 Conditions of Employment Act 1936'(Ir.) 1936/2. "5 Ibid, at s. 46. 1.6 Civil Service (Employment of Married Women) Act 1973 (Ir.) 1973/17. 1.7 Deirdre Curtin, Irish Employment Equality Z.3W(Blackrock, Co. Dublin: Round Hall Press, 1989) at 24.
20 made wives completely dependent on their husbands, and married women lacked any independent contractual capacity.''8 This legal environment attempted to push women out of the public domain and back into the family home, where they were to serve as loyal wives and devoted mothers. Given that the family was seen as the locus of Irish culture and morality,119 the law was also enlisted to ensure its survival and reproduction. From 1922 Irish couples could only obtain a divorce by introducing a private members bill in the Dail (the Irish Parliament), and in 1925 the government passed a motion prohibiting divorce altogether.12 The government's attempts to portray the image of a homogenous and pure national population required the denial of behavior that did not fit this paradigm. James M. Smith points out how the official state policy on "sexual immorality" in the Irish Free State, led to a "containment culture" that punished women who violated the social and moral ideal, and concealed sexual crimes in order to maintain the appearance of a pure Catholic national identity.121 He draws attention to the example of the Carrigan Report of 1931122 and the ensuing legislation, the Criminal Law (Amendment) Act of 1935,m to demonstrate how the approach of the Free State government effectively criminalized sexual relations outside marriage. Those who suffered under this approach were unmarried mothers and their children, as well as victims of rape, incest and pedophilia. As concealment was the priority, the accepted societal responses to unmarried mothers, who were seen as visible markers of immoral sexual practice, were either incarceration or emigration, while the men involved avoided culpability.l25 The Free State's "post-colonial natavist morality" was supported by a network of institutions, including: "Industrial and Reformatory Schools, mother and baby homes, adoption
The Married Women's Status Act 1957 introduced a much greater degree of equality in the legal relationship between husband and wife, see Paul A. O'Connor, Key Issues in Irish Family Z.3W(Blackrock, Co. Dublin: Round Hall Press, 1988) at 172 and 173. 1,9 Gray & Ryan, supranole 88 at 126. 120 Whitty, supra note 110 at 853. ,21 James M. Smith, "The Politics of Sexual Knowledge in Ireland: The Origins of Ireland's Containment Culture arid the Carrigan Report (1931)" (2004) 13 J. Hist, of Sexuality at 208. 122 Also known as "The Report of the Committee on the Criminal Law Amendment Acts (1880-5) and Juvenile Prostitution", see Ibid. 123 Criminal Law (Amendment) Act 1935{\r.) 1935/6. 124 Smith, supranole 121 at 228. '25 Smith, Supranole 121 at 228.
21 agencies, Magdalen Asylums,126 and County Homes, among others".127 The punitive nature of these institutions becomes obvious if one looks at the language used in Report of the Commission on the Relief of the Sick and Destitute Poor, including the Insane Poor, which was published in 1927. Unmarried mothers are classified as offenders and a different approach is advised for first time Offenders who are seen as amenable to reform, and "less hopeful cases".128 It was suggested that first time offenders were incarcerated in Mother and Baby homes129 for two years, for "domestic training", religious instruction and moral regeneration, and their babies were fostered out. In the case of so called "intractable mothers" it was proposed that the Board of Health should have the power to detain the mother, in a County Home or Magdalen Asylum, for as long as they saw fit; and that prior to her discharge she should be able to demonstrate that she is able to pay for her child's maintenance in the Home, or boarded out with 'respectable people'. Though there was no legal basis for unmarried women to be detained in this way, the matrons of these institutions had wide discretionary powers.130 Men played the important role of gate-keepers, through their roles as priests and doctors who referred women to these institutions.131 Societal stigma and familial abandonment ensured that they had very little choice. As an alternative to this institutionalization some women chose to emigrate to England, either permanently or for the duration of their pregnancies, and to give their children up for adoption there. This caused great concern in Ireland both out of fear that Catholic babies "might be 'lost' to non-Catholic adopters"132, and that the girls arriving in
Magdalen Asylums were institutions run by nuns that housed women who were considered socially deviant or sexually promiscuous. They spend their days doing hard labour, usually in laundries, this and constant prayer and isolation was supposed to cleanse them of their sin. Thousands of Irish women were committed to Magdalen laundries by their families, they were denied all civil and legal rights and many were never released, see: James M. Smith, ''Remembering Ireland's Architecture of Containment: Telling Stories in the Butcher Boy and States of Fear" (2001) Eire-Ireland 111 at 111. 127 Ibid, at 113. 128 Paul Michael Garret, "The Abnormal Flight: The Migration and Repatriation of Irish Unmarried Mothers (2000) 25 Social History 330 at 332. 1 The First of these Mother and Baby Homes was opened in 1922. This is demonstrative of the fact from its inception the government of the Free State and the Church were focusing on controlling women's sexuality and fertility, and concealing evidence of sexual immorality", see Ibid. 130 Ibid, at 339. !31 Mary Wilson, Nuala Lordan & Audrey Mullender, "Family, Community, Church and State: Natural Parents Talking about Adoption in Ireland" (2004) 34 Brit. J. Social Work 661 at 626. 132 Garret, Supra note 128 at 338.
22 England would give a false impression of Ireland as cruel and intolerant. Adoption was not legalized in Ireland until the passing of the Adoption Act in 1952134. The delay was due to fears of proselytism, and that it was contrary to Roman Catholic teaching. When finally passed, this piece of legislation heavily reflected the moral code of the post- colonial Free State, stating that: the only children who could be adopted were orphans or 'illegitimate' children135, and the only people other than family members who could adopt were married couples.136 Also, the adopters must be the same religion as the child's natural parents,137 and finally that the term 'parent' did not include the father of an 'illegitimate' child. Despite there being no legal adoption until 1952 and even after that date, as the process in Ireland was long and protracted, there were many de facto adoptions, where the religious orders housing unmarried mothers, gave away their children to childless, Roman Catholic married couples from the United States. 139 The entire issue was shrouded in secrecy, to protect the impression of'purity'. The option of women keeping their babies was only ever discussed if they were going to marry the child's father;140 otherwise they were adopted or put into institutional care pending the child's adoption. These women lacked the education or means to prevent pregnancy, and then when this situation resulted in unplanned pregnancy, their infants were taken from them. They had no control over their own fertility, or its consequences. At the time of the creation of the Irish Free State in 1922 the legislation in place regarding abortion was the British Offences Against the Person Act 1861 w Section 58 of which made procuring, performing, or assisting in the procuration or performance of, an abortion, a felony. 142 This statute stayed in force in Ireland despite the fact that in England the law on abortion was amended, when the Infant Life (Preservation) Act
133 Ibid, at 340. 134 Adoption Act 1952(\v.) 1952/25. 135 Ibid., s. 10(c). U6 Ibid., s. ll. 137 Ibid., s. 12. 138 Ibid., s. 3. 139 Garret, Supra note 128 at 334. 140 Wilson, Lordan & Mullender, supranote 131 at 626. 141 Offences Against the Person Act 1861 (U.K.) 24 & 25 Vict. c. 100. 142 Ibid, at s. 58.
23 1929 was introduced to allow for abortion after 28 weeks to save the life of the mother. Also, in the case R V Bourne144 MacNaghten J. interpreted the inclusion of the word 'unlawfully' in the above section to mean that an abortion procured to save the life of the mother was not unlawful.145 Though English jurisprudence is persuasive in Irish law, the Courts and legislature in Ireland never followed suit, arguably because of the strong influence of the Catholic Church in the political, medical and legal fields.14 Ireland's national identity as Catholic, and thus stridently anti-abortion, prevented any exceptions to the ban.
Like the Roman Catholic Religion, the definition of Ireland in exclusively "pro-life" terms served as another distinguishing mark of Irish identity. Women's reproductive autonomy was sacrificed to the greater good of a post colonial project, and women were defined not by their equal capacity for moral agency, but by their reproductive and sexual functions."147
As the Catholic nationalist ideology promoted a social model of unconstrained fertility within the boundaries of marriage, contraception, like abortion was not acceptable. The Government of the Irish Free State were so strongly anti-contraception, that not only was the import and sale of contraceptives banned,149 any literature including mention or advertising of contraception was censored.150 Section 16 (1) of the Censorship Of Publications Act 1929151 outlawed the printing, publication, sale, or distribution or any publication "which advocates or which might be reasonably seen to advocate, the unnatural prevention of conception, or the procurement of abortion or miscarriage or any
143 Infant Life (Preservation) Act 1929 (U.K.) 19 & 20 Geo. V, c. 34. 144 [1939] 1K.B. 867. 145 Whitty, supra note 110 at 859. 146 "Adherence to the Roman Catholic teachings on issues involving the family, sexuality and reproductive health served to distinguish "Irish laws and Irish ways" from the "polluting" forces of English law." see Mullally, supra note 102 at 84. 147 Ibid, at 83. 148 Murphy-Lawless, supra note 111 at 54. 149 Criminal Law Amendment Act, supranote 123 at s. 17(1) ("It shall not be lawful for any person to sell, or expose, offer, advertise, or keep for sale or to import or to attempt to import into Saorstat Eireann for sale, any contraceptive"). 150 This legislation also banned all pornography, with such a strict standard, that by the 1950's the Irish people had been banned from reading the works of 9 Nobel Prizewinners, see Rossiter, supra note 69 at 87. 151 Censorship of Publications Act 1929(\r.) 1929/ 21, s. 16(1).
24 method, treatment, or appliance to be used for the purpose of such prevention or such procurement". There are a number of reasons why a ban on any information about contraception was seen as necessary. First, Roman Catholic teachings strictly forbade the use of contraception; and if Ireland was to copper-fasten its identity as a beacon of Catholic piety in the increasingly liberal and decadent world,153 its laws had to reflect that prohibition. The censorship was seen as necessary, on top of the ban on import or sale of contraceptives, in order to protect Ireland from any foreign and corrupting influences. "Public ignorance was seen as the best basis for maintaining public morality".' Clancy has also suggested that the prohibition on contraception came from a desire to control women, as well as an attempt to exclude them from public life.155 With no ability to control their fertility they .were required to abide by the societal model of sex only within marriage, or risk dealing with the consequences and stigma of a child out of wedlock. As mentioned above, the treatment of unwed mothers in the Irish Republic was barbaric. According to James M. Smith they were treated as criminals and outcasts; exiled from the community their only options were to enter a county mother and baby home, beg on the streets or resort to prostitution.15 Another explanation for the stringent ban on contraception is the strong link between nationalism and pro-natalism,157 referred to by Nira Yuval Davis as the "People as Power" discourse.!58 Especially in countries with histories of violent revolution, colonization, or war, reproduction is often encouraged to ensure a supply of soldiers and workers, thereby guaranteeing the strength of the nation. "Thus, with this emphasis on the preservation and perpetuation of the "self at the expense of, or in competition with the "other", pro-natalism becomes a key part of nationalist family policy."159 In Ireland, because of the loss of life in the great famine in the 1840's, the death of the Catholic Irish
1 Ibid. 1 Smyth, "Narratives of Irishness", SUpranote 24 at 68; Smith, SUpranote 121 at at 211. 1 Whitty, Supra note 110 at 854. 1 Gray & Ryan, Supra note 88 at 127. ' Smith, supra note 121 at 208. ' Brown & Ferree, supra note 38 at 6. 1 Yuval-Davis, Supra note 40 at 18. 'Albanese, supra note 1 at 12
25 at the hands of Protestants during colonization,160 and mass emigration, there was a real fear that the Irish nation was at risk of dying out.161 By denying Irish women any control of their fertility through contraceptive use or abortion, the Government in the Irish Free State engaged in coercive reproductive policy, for "the common good". As Kathryn Conrad commented:
In order to ensure the uncomplicated perpetuation of the Irish State, then, women's agency over their bodies must be contained both by perpetuating a particular heterosexual family paradigm and by limiting women's access to reproductive choices: the narrative of women's lives and the future of the state are inextricably linked.162
The Role of Women in the Constitution of 1937
If the creation of the Irish Free State in 1922 signalled the beginning of the embodiment of Catholic and nationalist constructions of gender roles in the juridical structure of the State, the drafting of a new constitution in 1937 was its culmination. The Constitution enshrined the patriarchal nuclear family as the cornerstone of the State, and ascribed legal force to the common literary and cultural 'trope of motherhood'.163 As the drafting of the constitution preceded the recognition of a de jure Irish Republic by twelve years, it was not just a constative document, but also a performative document.164 Eamon de Valera was attempting to found the nation anew, to make his vision of the perfect Ireland a political reality, free of the polluting colonial influence that was seen to mar the 1922 Constitution of the Free State.165 He was supported in this endeavour by the leaders of the Catholic Church who argued that the Constitution of the Free State had been
160 Rieffer, supra note 45 at 5. 161 Kathryn Conrad, "Fetal Ireland: National Bodies and Political Agency" (2001) 36 Eire-Ireland 153 at 156. 162 /bid. a\ 161. 163 Martin, Sl/pranole 25 at 67. 164 Hanafin, supra note 42 at 4. 165 Ibid.
26 imposed on Ireland by a foreign, non-Catholic power, and urged him to move away from a liberal, secular type of state.1 6 The Irish Constitution is a contradictory document. Though it is based on the natural law "principles of the Catholic theologian St. Thomas Aquinas, who believed that the state was a means to instituting God's eternal law on earth and that justice can only be attained through Catholic morality and framework", 167 it also contains post- enlightenment, liberal theories of state, and individual rights. The Preamble makes reference to "the Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred" and acknowledges "our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial".168 Lawrence J. McCaffrey has noted that the close relationship between Irish Catholicism and Irish nationalism, meant that the Catholic Church did have "an unhealthy influence in the affairs of the Republic".169 As evidence of this he cites the original Article 44.1.2,170 which recognised the "special position" of the Roman Catholic Church in the State,171 and the fact that the Constitution "makes Catholic teachings on marriage and family law the law of the land".172 The Catholic features of the Constitution detract considerably from its liberal ethos; this is most noticeable in the paternalistic and monolithic depiction of'woman' in the Irish constitutional discourse.17 Eamon de Valera, the central drafter of the Irish Constitution, had strongly held views that the proper role of women was to bear and raise children within marriage, and support their husbands through their work in the home, which fit very well within the masculinsist, patriarchal discourse of Ireland's Catholic nationalism.174 He made sure that these views on the importance of a biologically determined role for women were
166 Mullally, supra note 102 at 85. 167 Bryan Mercurio, "Abortion In Ireland: An Analysis of the Legal Transformation Resulting from Membership in the European Union" (2003) 11 Tul. J. Int'l & Comp. L. 141 at 143. 168 Ir. Const., supra note 61 at Preamble. 169 Lawrence J. McCaffrey, "Irish Nationalism and Irish Catholicism: A Study in Cultural Identity" (1973) 42 Church History 524 at 527. 170 Referendum Amendment Act 1972 (IT.) 1972/23. 171 Article 44.1.2. originally read: "The State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens", see Ibid. 172 McCaffrey, supra note 169 at 527. 173 Hanafin, supra note 42 at 29. 174 Mahon, supra note 112 at 56.
27 embodied in the constitutional text. While in the preamble, thanks is given to "our fathers" for their "heroic and unremitting struggle"175 for independence, no mention is made of the contribution of women to the struggle. Instead, in Article 41, after recognising the family as the "natural primary and fundamental unit group of Society",176 women are lauded for their life and work within the home. Article 41.2 states:
1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.
Ruth Riddick notes that the terms 'woman' and 'mother' are seen as interchangeable in the Constitution.'77 In a document where all-powerful public figures are referred to as 'he', mothers are the only women the state deems worth acknowledging. As stated by Lisa Smyth, "[wjomen were made explicitly responsible for both the reproduction of the population and the transmission of national identity through the practice of mothering".178 This depiction of women in the Constitution did not go unnoticed, and there was serious protest from feminist organisations, as it did not reflect the reality of women's lives, denied their potential, and cut off opportunities, centring their value wholly on their reproductive function.179 The National University Women Graduates Association played a leading role in the campaign against the draft constitution, along with The Joint Committee of Women's Societies, the Irish Women Workers Union, the Women's Social and Progressive League and the Standing Committee on Legislation Affecting Women.180 Not only was this opposition largely ignored,181 but according to Patrick Hanafin, this
Ir. Const., supra note 61 at Preamble. 176 Ibid, at art. 41.2. 177 Conrad, Supra note 43 at 72. 178 Smyth, "Narratives of lrishness", supra note 24 at 64. 179 Hanafin, supra note 42 at 32. 180 Connolly, Supra note 87 at 67. 181 They were successful in lobbying the government to amend Article 45 of the draft which proposed to protect "the inadequate strength of women and the tender age of children" and ensure that they would not have to "enter avocations unsuited to their sex, age or strength", see Connolly, supra note 87 at 257.
28 construction of women in the Constitution also helped to marginalise future feminist discourse by legitimising and naturalising the social order therein contained.182 That this blatant discrimination was portrayed as a paternalistic protection of, and symbolic homage to women, makes its presence even more odious. It was argued at the time of drafting that Article 41.2 could not be used to deny women opportunities or confine them to the home, and could only be used for their protection.'83 A further look at the constitutional text and legislation shows this assurance to be false. Article 40.1, which guarantees the equality of citizens before the law makes no mention of protection against discrimination on the basis of sex. It is interesting to note that the equality guarantee in the Free State Constitution included the caveat "without distinction of sex"184, and there was considerable uproar regarding its removal. When challenged on this removal de Valera stated that it had no use in the context of this constitution as women had been given their political rights.185 The impact of this omission becomes glaringly obvious when one looks at the second paragraph of Article 40.1, which states, "This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function"}*6 Article 41.2 delineates the social function of Irish women as bearing and raising children, and fulfilling their "duties" within the home. Proof that women's equality in employment was not protected by the provisions of the Constitution is borne out in the fact that the ban on married women working in the public service was not lifted until the passing of the Civil Service (Employment of Married Women) Act 1973.ni Not only did the framers of the Constitution inscribe the patriarchal family as the cornerstone of Irish society, and attempt to prevent its dissolution by outlawing
18 Hanafin, supra note 42 at 27. 183 Deirdre Curtain, Irish Employment Equality Law (Dublin: Round Hall Press, 1989) at 28. 184 Galligan, Ward & Wilford, Supra note 82 at 32. 185 The constitution does protect certain political rights to all citizens without distinction on the grounds of sex. "Article 16 provides that every citizen over the age of 21 is eligible for membership of Dail Eireann, that all citizens over 18 without distinction as to sex, have the right to vote at an election for members of Dail Eireann. Article 12 provides that every citizen thus entitled is also entitled to vote at an election for President, and that every citizen who has reached the age of 35 is eligible to run for the office of President. Article 9 provides that no person may be excluded from Irish nationality and citizenship by reason of sex" see Marguerite Bolger & Cliona Kimber, Sex Discrimination Z.3W(Dublin: Round Hall, 2000) at 26. 186 Ir. Const., supra note 61 at art. 40.1 [Emphasis is mine]. 187 Civil Service Act, supra note 116.
29 divorce, they wanted to ensure that family would be productive. All laws concerning the prohibition of contraception and abortion that had been passed pre-1937 were retained.189 Tellingly even pieces of legislation passed before 1922, such as the Offences Aga/nst the Person Act 1861, representing the very legacy of the colonisation they were attempting to shake off, were retained in this area. Thus after 1937, women were still in the same position as regards reproductive autonomy, only now their biologically determined role of, "reproducing the Irish national subject and maintaining the family cell"190 was constitutionally mandated.
Increasing Liberalisation and Gains in Reproductive Rights for Women
The 1950's were a turning point for Ireland. Economic depression and high levels of emigration encouraged a political "shift away from the unresolved national question and towards modernization and development".' ' This required a move away from protectionist economics towards a policy of free trade and encouraging multinational investment. 192 Between 1948 and 1951 there was also a more liberal coalition government in place that attempted to bring in new social reforms.193 Unfortunately, as with the revolution, this did not result in an immediate improvement in the position of women. A pertinent example is the attempt of Dr. Noel Browne, a progressive Minister for Health, who in 1951 attempted to introduce a national "Mother and Child" health scheme. This scheme aimed to provide free natal health care for mothers, as well as health care for children under 16, and gynaecological care for women.194 This initiative was strongly opposed by the Church, who felt that it interfered with the constitutionally enshrined rights of the family to provide for the health of their children. They also
Article 41.3.2. of the Constitution stated "No law shall be enacted providing for the grant of a dissolution of marriage", see O'Connor, supra note 118 at 1. 189 Hanafin, supra note 42 at 39. 190 Conrad, supra note 43 at 73. 191 Gray & Ryan, supra note 88 at 129. 192 ibid. 193 Hughes, supra note 62 at 77. 194 Rossiter, supra note 69 at 90.
30 protested the fact that it would result in the State interfering in the education of women in the area of sexual relations and marriage, a delicate and sacred sphere, where they felt the State did not have the competence possessed by the Church.195 This controversy led to the failure of the initiative, and contributed to the fall of the coalition government.196 This expression of deference to the Bishops' opinion "was greeted with charges that the Catholic Church rather than the elected representatives governed the state".197 These charges were not entirely unfounded as was demonstrated in a parliamentary debate following the controversy. Sean McBride, the Deputy Prime Minister at the time, declared that those members of the Government that were Catholic were bound to give obedience to the rulings of the Church.198 Thus initial attempts to wrest control of healthcare, sexual morality, and women's reproductive health from the Church's clutches were largely unsuccessful. This setback notwithstanding, the late 60s and 70s were a time of great change in Ireland. Jo Murphy-Lawless has referred to it as a period during which Ireland rejected 'a nationalism based on impoverished self sufficiency'.199 With increased industrialisation, the State reached the point where it could afford more social service programs, and it began to encroach on areas generally controlled by the church such as healthcare and education. Citizens began to question the strict censorship laws.201 Also, the introduction of television in 1961 opened the eyes of Irish society to the world from which they had been hermetically sealed off. This information led Irish civil society to challenge the strictly Catholic moral code of the state.202 At this time there were also changes within the Church itself. In the mid 1950s the Catholic Church acknowledged that procreation was not the only legitimate function of sexual intercourse between
195 Ibid, at 90. 196 Hughes, Supra note 62 at 77. 197 Galiigan & Ryan, Supra note 74 at 90. 198 ibid. 199 Murphy-Lawless, Supra note 111 at 54. 200 Spreng, supra note 108 at 66. 201 Ibid, at 68. 202 Galiigan & Ryan, Supra note 74 at 91.
31 married couples; it could also serve to "unite the couple in love".203 Moreover, 1962 brought Vatican II, a more liberal Ecumenical Council of the Roman Catholic Church, which encouraged debate on the nature of the relationship between the church and its members, made church leaders less sceptical of state intervention, and encouraged discussion of religious issues among the laity. 4 The early 1970s also saw a resurgence of feminist activism and renewed vitality of the women's movement in Ireland.205 From the 1960s onward, Ireland experienced a demographic change, which involved an increase in the rate of marriage, a drop in the average age of marriage and an increased birth rate.206 "Increasingly, young couples wished to improve their standard of living and quality of life by reducing family size,"207 and they were no longer willing to obediently accept ancient Catholic teaching on the issue. Thus, although contraception was illegal in Ireland, from 1962 the birth control pill became available, though only if prescribed by doctors as a "cycle regulator",208 or sold illegally in urban family planning clinics, set up by feminist organisations such as the Contraceptive Action Campaign and the Well Woman Centre.209 As most doctors were staunchly Catholic, and family planning clinics only existed in larger cities, these options were open to very few. The situation was especially problematic for those in rural areas, and feminist groups such as Irish Women United, and the Irish Women's Liberation Movement (IWLM) 210 campaigned throughout the 70's for legal access to contraception, and public debate on reproductive rights.211 One of the most famous actions taken by activists to draw attention to the restrictive laws on import and sale of contraceptives was the 'Contraceptive Train'. In May of 1971 a group of women, including members of the IWLM travelled from Belfast on the train and "brpught contraceptives illegally and in a confrontational manner
203 Frances Kissling, "Roman Catholic Fundamentalism: What's Sex (and Power) Got to Do with It?" in Courtney W. Howland ed., Religious Fundamentalisms and the Human Rights of Women (New York: St. Martin's Press) at 200. 204 Ibid, at 195. 205 Connolly, supra note 87 at 58. 206 Rossiter, supra note 69 at 91. 207 Ibid. 208 Mahon, Supra note 112 at 64. 209 Connolly, Supra note 87 at 143. 210 Smyth, Abortion and Nation, supranoxell at 8. 21' Murphy-Lawless, Supra note 111 at 54.
32 marched them through customs at Connolly Station, Dublin". 212 Although this campaigning "drew the ire of the Catholic Church" who spoke out against the introduction of any reforms in this area, they denied any suggestion they felt the state was obliged to defend Catholic teaching through legislation. 213 Despite these statements, legislators were unwilling to propose any reform in the area of contraception, and change eventually came about through the courts, as discussed below. Although there was a concerted effort by a number of groups directed towards the goal of gaining access to contraception, there was notable absence of any mention of abortion rights. The silence on the issue of abortion by groups such as the IWLM was due to the fact that there was no internal consensus at the time regarding abortion rights, and even those who would have supported such rights felt the timing was not right to demand them.214 The women's liberation movement also pushed for public discussion of issues like rape, sexual assault, domestic violence and sexual harassment215—issues that had been ignored and contained through the effort to project a pure Catholic national identity. In 1969 following a UN directive, and the creation of an ad hoc committee on women's rights by feminist activists,216 the State established the Commission on the Status of Women. This too was indicative of cultural change, and brought more attention to women's causes. 17 The 1970s saw feminist activism and lobbying result in a body of legislation that greatly improved the position of women in Irish society, including: the removal of the marriage ban in the civil service;218 the provision of social welfare to deserted wives and unmarried mothers;219 the payment of children's allowance to mothers; and the removal of conditional exclusion of women from juries. In 1971 Mary Robinson introduced a contraception bill in the Senate. The Catholic Church
Connolly, supra note 87 at 120. 213 Galligan & Ryan, Supra note 74 at 96. 214 Connolly, supra note 87 at 115. 215 Gray & Ryan, supra note 88 at 133. 2,6 Connolly, SUpra note 87 at 89. 217 Smyth, Abortion and Nation, supra note 21 at 8. 218 Civil Service Act, supra note 116. 219 Social We/tare Act 1973{\r.) 1973/10, s. 8 and 17. 220 Ibid, at s. 6. 221 Connolly, SUpra note 87 at 240.
33 responded by using every opportunity to publicly decry contraception, stating that it was a matter of public, not private, morality.22" An event that has played a huge role in the liberalisation of Irish society, and the undermining of the influence of the Roman Catholic Church,223 is Ireland's accession to the European Economic Community in 1973.224 As Judith Taylor states, an increase in social rights protection is often a by-product of economic growth and the cohesive efforts of the European Community.225 Previous to Ireland's joining the EEC, the European Social and Human Rights Commissions had already expressed displeasure at the romanticism concerning "women's place" in the Irish Constitution.226 In January of 1973, six months after the third amendment to the Constitution, which allowed Ireland to join the European Communities, the Constitution was again amended to remove the "special position" of the Catholic Church.227 Although they had joined the EEC, there were still attempts by the Irish government to protect Ireland's "traditional" patriarchal society, from a more liberal European ethos. One example of this was the application to derogate from the European Commission's Directive on Equal Pay. This application was rejected by the Commission in 1976, and the Employment EqualityAcf26'was passed in 1977.
Liberalisation of the Law on Contraception
Ruth Fletcher points out that there were two significant legal events in the 1970s that demonstrated that the Roman Catholic Church was "losing its grasp on the legal regulation of Irish people's moral lives".229 Both of these events centred on women gaining control of their reproductive lives through access to contraception. First, in 1974 ,
222 Mahon, supra note 1 ] 2 at 59. 223 Ruth Fletcher, "Pro-Life Absolutes, Feminist Challenges: The Fundamentalist Narrative of Irish Abortion Law 1986 to 1992" (1998) 36 Osgoode Hall L.J. 1 at 21. 224 Mercurio, Supra note 167 at 148 (Not only did this have a huge influence on Irish society, it was to have a specific influence on the abortion debate in particular, which will be addressed below). 225 In 1974 and 1977 the Irish government passed a number of Acts aimed at creating equal employment opportunities for women in the workplace, in anticipation of European proposals, see Judith Taylor, "Case X: Irish Reproductive Policy and European Influence" (1999) Soc. Pol. 203 at 205. 226 Ibid, at 205. 227 Referendum Amendment Act, supra note 170. 228 Employment Equality Act 1977(ir.) 1977/16. 229 Fletcher, supra note 223 at 28.
34 in the case of McGee V Attorney General and Anor.230 the Supreme Court found that the right to 'marital privacy' was one of the unenumerated personal rights covered by constitutional article 40.3.1.231 It was held therefore, that the blanket ban on contraception in section 17 of the Criminal Law (Amendment) Act 1935,232 was unconstitutional, as it prevented Mrs. McGee 3 from importing contraceptives for her personal use, in violation of her right to marital privacy.234 Thus although the decision was still influenced greatly by Roman Catholic teaching— namely, in finding that unenumerated rights are based in natural law, and treating the marital family as the focus of the analysis— it was also considered a significant blow to Church control of the sexual and reproductive realm. That is because the court recognised a right to privacy, and accepted, albeit in limited circumstances, the use of contraception.235 The second significant event was a consequence of the first, though it did not come to pass until five years later. In 1979 the Government passed the Health (Family Planning) Act, 6 which legalised the sale of contraceptives by prescription, but only to married couples, for the bona fide purpose of family planning, or for adequate medical reasons.237 This resulted in a situation where doctors and pharmacists became the 'moral arbiters' of contraceptive supply, and "since 75% of chemists at that time refused to stock them, the majority of contraceptives continued to be sold illegally from urban family planning clinics".239 Finally in 1985 the situation improved considerably with the passing of the Health (Family Planning)(Amendment) Act,240 which allowed anyone over
230 McGee v. Attorney General and Anor. [1974] I.R. 284 (Ir.). 231 Ir. Const., supra note 61 at art. 40.3.1 ("The state guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen"). 232 Criminal Law Amendment Act, supra note 123. 233 Mrs. McGee was a mother of four whose doctor had advised the use of contraceptives as she was at the risk or paralysis or death if she became pregnant again, because of a medical condition, see Whitty, supra note 110 at 855, note 19. 234 Fletcher, Supra note 223 at 28. 235 Ibid. 236 Health (Family Planning) Act 1979{\r.) 1979/20. 237 /M/. ats. 4(l)(b)(ii). 238 Section 11 of the Act provides for contentious objectors by stating: "[n]othing in this Act shall be construed as obliging any person to take part in the provision of a family planning sefvice, the giving of prescriptions or authorisations for the purposes of this Act, or the sale, importation into the State, manufacture, advertising, or display of contraceptives", see Ibid, at s. 11. 239 Whitty, supra note 110 at 855. 240 Health (Family Planning) (Amendment) Act, 1985 (IT.) 1985/4.
35 eighteen to purchase contraceptives from a doctor, pharmacy, or family planning clinic without a prescription.241 The 60s and 70s were a time of great social transformation, and an era when Ireland was becoming increasingly open to international influence.242 The changes outlined above, as a part of the growing legitimacy of secular, liberal and feminist ideas, were seen by conservative Catholic groups as a threat to the continuity of a traditional, Roman Catholic national identity.243 Feminism was considered a foreign ideology, eroding Ireland's "family values" and unique heritage,244
The Pro Life Amendment Campaign
The Supreme Court in McGee had explicitly stated that the ruling did not alter the prohibition on abortion, and section 10 of the Health (Family Planning) Act 197
241 Whitty, Supranote 110 at 855. 242 Smyth, Abortion and Nation, supra note 21 at 6. 243 Ibid, Fletcher, Supra note 223 at 19. 244 Martin, supra note 25 at 72; many women's activists themselves avoided using the term feminist at the time, as it was seen as 'subversive', see Connolly, supranote 87 at 123. 245 Health (Family Planning) Act, supranote 236 at s.10. 246 Mercurio, supranote 167 at 145-146. 247 Smyth, Abortion and Nation, Supranote 21 at 7; The Supreme Court in McGeehad explicitly stated that the ruling did not alter the prohibition on abortion, and section 10 of the 1979 Act reiterated the ban on abortion contained in the sections 58 and 59 of the Offences Against the Person Act 1861. Conservative catholic groups still protested these moves, and began to organise around the goal of the constitutional protection of the right to life of the unborn; see Mercurio, supranote 167 at 145- 146. 248 Mullally, Supranote 102 at 90; Whitty, Supranote 110 at 846. 249 "A consitutional amendment would prevent any court from legalising abortion based on an unenumerated right to privacy and would make it considerably more difficult from the Legislature to pass a bill legalising abortion" see Mercurio, Supranote 167 at 146.
36 felt focusing on preventing abortion would 'halt the permissive tide in other areas'.250 Lisa Smyth explains that,
... the particular hegemonic constructions of Irishness as familial, Catholic, traditional and heterosexual had come under pressure in response to the changes of the late 1960s and 1970s. A political focus on abortion provided a means of reasserting the connections between the major themes of this construction, namely sexuality, gender, familialism, and religion, in distinctively 'national' terms.251
Although inspired by a number of factors, including the Pope's visit to Ireland in 1979, and the establishment of a small Women's Right to Choose Group,252 the main motivating factor was conservative anxiety, caused by the changes in Irish society in the previous decade. One cause of great concern to this group was the liberalisation of abortion laws internationally. The passing of the Abortion Act 196Z252 in the United Kingdom greatly increased the number of Irish women travelling to that jurisdiction to obtain pregnancy terminations, a number that has continued to grow with every passing year. There were also fears that the EEC "might construe Ireland's abortion laws as an impermissible restriction on a provision of services".255 The largest impact was caused by the decision of the United States Supreme Court in Roe V Wade156 in 1973, legalising abortion. The Irish judiciary tends to be influenced by the United States Supreme Court, and the decision in McGee was very similar to, and in fact relied upon the precedent of,257 the
250 Connolly, Supra note 87 at 165. 251 Smyth, Abortion and Nation, supra note 21 at 47. 252 Smyth, "Narratives of Irishness", supra note 24 at 65. 253 Abortion Act 1967(U.K..), 1967, c. 87. 254 Whitty, Supra note 110 at 862; Between 1970 and 1983, the official yearly estimate increased from 261 to 3,677. Today it is estimated to be more than 10,000 women per year. It has been suggested that as with women travelling to Enlgand between the 20s and 50s in order to give their babies up for adoption, although this action is officially disapproved of, in a way it is seen as a safety valve. The exportation of Ireland's problems so they do not have to deal with the fallout of their strict Catholic laws that deny women's reproductive rights, and can maintain their identity as a 'pro-life nation'; see Garret, supra note 128 at at 342. 253 Mercurio, supra note 167 at 145. 256 Roe v. Wade, 410 U.S. 113 (1973). 257 J. H. Whyte, Church and State in Modern Ireland 1923-1979 (Dublin: Gill & Macmillan, 1980) at 409.
37 1965 Supreme Court case of Griswold V Connecticut?™ Both cases held that a total ban on contraceptives violated the marital right to privacy and was thus unconstitutional. The decision in Roe created anxiety that McGee would serve as a stepping-stone to the legalisation of abortion in Ireland, the way Griswold had in the United States.259 Thus PLAC embarked on a pre-emptive campaign, "animated by the fear that the courts might, like their American counterparts, declare abortion to be a constitutional right".260 The Pro Life Amendment Campaign attempted to achieve their goal by stirring up moral panic regarding Ireland's future, in the face of what was painted as encroaching global liberalism. The amendment campaign was both divisive and rife with the use of nationalist language; indeed, so much so that it was referred to as the "second partitioning of the state",262 and "our moral civil war".263 Although the Pro Life Amendment Campaign was careful to use secular language, it obviously drew on a conservative Catholic ethos, and made use of the close ties of Roman Catholicism to Irish post-colonial nationalism. Utilizing common themes from the nationalist discourse of the 1920s and 1930s the campaign painted abortion, and the forces of feminism and liberalisation, as 'un-Irish' and a "terrorist" threat to the Irish National Family.265 Abortion was seen to violate the patriarchal familial nation as it undermines the dominant construction of women in
258 Griswold v. Connecticut 381 U.S. 479(1965). 259 Mercurio, Supra note 167 at 145 260 J.P. O'Carroll, "Bishops, Knights - and Pawns? Traditional Thought and the Irish Abortion Referendum Debate of 1983" (1991) 6 Irish Pol. Stud. 53 at 54. 261 The Roman Catholic ethos of the campaign was immediately evident and thus the proposal was denounced as a sectarian measure. This lead to the main Protestant Churches in Ireland joining the Anti- Amendment Campaign, with a diverse group of feminists, socialist and liberals. They opposed the amendment on five points: 1) it would do nothing to solve the problem of unwanted pregnancy, 2) it allowed for no exceptions even for a severe threat to a woman's health, or cases of rape or incest, 3) it sought to enshrine the teachings of one religious denomination in the Constitution, 4) it would impede further public discussion and legislation on abortion and 5) at a time of severe unemployment and poverty the referendum was an irresponsible waste of public funds, see Fletcher, supra note 223 at 30. This is a reference to the partitioning of the Island of Ireland into North and South during the agreement of the Anglo-Irish Act in 1922, which fuelled continuing nationalist sentiment in Ireland, referred to above, see Tom Hesketh, The Second Partitioning of Ireland: The Abortion Referendum of 1983 (Dublin: Brandsma Books, 1990); Ann Rossiter suggests that it was the most divisive issue in Irish Society since the 1920's, see Rossiter, supranote 69 at at 96. 263 Smyth, Abortion and Nation, supra note 21 at 67. 264 Ruth Fletcher, "Post-Colonial Fragments: Representations of Abortion in Irish Law and Politics" (2001) 28 J.L. Soc'y 568 at 574 [Fletcher, "Post-Colonial Fragments"]. 265 Not only to Ireland's "pro-life" and "pro-family" traditions but also as a threat to Ireland's sovereignty, see Mullally, supra note 102 at 83.
38 "primarily maternal and subordinate terms".266 The fear as to the nation's survival that had contributed to pro-natalist policies following independence was re-ignited. Abortion was represented as a "violent colonial tool",267 and a "threat to Irish values", and its legalisation "the threshold beyond which the nation could not survive".268 In her article "Narratives of Irishness and the Problem of Abortion", Lisa Smyth draws attention to a protest poster that read "The Abortion Mills of England Grind Irish Babies into Blood that Cries out to Heaven for Vengeance", to demonstrate how the pro-amendment campaign attempted to tie the issue of abortion to Ireland's history of oppression by Britain.269 Irishness was painted as needing protection from "exploitation by the reproductive service providers of the former coloniser".270 A large part of post-colonial Irish national identity, as a moral and god-fearing, Catholic nation, had been constructed in opposition to nationalist representations of England as godless and brutal.271 The constitutional guarantee to the right to life of the unborn was painted as a necessary step to maintain this distinction. Although some Catholic bishops and priests did not get involved in the referendum, "most preached against abortion and, for the three Sundays prior to the referendum encouraged their parishioners, who constituted the majority of the population, to vote "yes".272 Ruth Fletcher suggests that the formation of this group signalled a shift from the law playing a role in constructing Irish identity as Catholic as part of post-colonial nationalist ideology, to engagement with law as part of a "fundamentalist ideology of Catholicness". She explains that "[w]hile nationalism emphasised a need to resist the threat from without - from Britain — in its construction of Irish identity, fundamentalism emphasized a need to resist a threat from within - secularization - in its assertion of the Catholicness of Irish identity".27 I would suggest that although this may be true, the
Smyth, Abortion and Nation, supra note 21 at 60. 267 Mullally, Supra note 102 at 90. 268 Smyth, Abortion and Nation, supra note 21 at 64. 269 Smyth, "Narratives of Irishness", supra note 24 at 65. 270 Fletcher, "Post-Colonial Fragments", supra note 264 at 569. 271 Fletcher, supra note 223 at 23. 272 O'Carroll, supra note 260 at 56. 273 Fletcher, supra note 223 at 23.
39 employment of post-colonial nationalist discourse was essential to this effort, in order to paint the internal threat in the colours of the familiar external enemy. Even when the argument for the amendment was not being presented explicitly as an issue of cultural defence, the focus on the right to life of the foetus, and the nation's interest in, and responsibility for, protecting that right,276 was supported by nationalist and religious themes. First, the belief that life begins at conception, and thus needs legal protection, is taken from Roman Catholic teaching, and thus ties the protection of the unborn to the protection of Roman Catholic values in Ireland.277 Second, Kathryn Conrad explains the similarity in the construction of the foetus in pro-life discourse, and Ireland in nationalist discourse: both are seen as autonomous entities under threat from without. In the context of abortion, women are no longer seen as symbols of the nation and its reproduction and survival, but as the external threat to the foetus, who is now "the pure potential citizen, a sign of reproduction of the Nation/State"279
The fixing of the fetus as an autonomous entity by Irish nationalist, anti-abortion discourse is a symbolic fixing of the borders of Ireland as a similarly autonomous entity from outside attacks.280
As a result of the focus on the foetus, women were either invisible in this debate, or they were seen as the external enemy threatening the nation, thus, their voices, and the consideration of their rights, were largely excluded or silenced.281 P. J. O'Carroll commented that the fact that the debate was constructed in terms of cultural/national defence, which distracted voters from the fundamental issues. This meant that the "resort to a constitutional amendment and its successful attainment represent ... not a triumph of
274 O'Carroll, Supra note 260 at 67. 275 "Throughout me campaign the foetus was consistently constructed as male and independent of the mother, or 'maternal environment', which was conceived as a dangerous place to be." see Conrad, Supra note 161 at 158. 276 Ibid, at 160. 277 Fletcher, "Post-Colonial Fragments", supra note 264 at 576. 278 Conrad, Supra note 161 at 158. 279 Ibid, at 160. 280 Ibid. 28 Smyth, Abortion and Nation, supra note 21 at 71.
40 democracy, but an improper curtailment of the democratic development of the public morality itself'.282 The silencing of opposition voices that occurred during the media campaign was continued in the Oireachtas (Parliament) debates. Though there was marginal opposition expressed to the amendment on a number of grounds, the official position taken by the government echoed that of the media campaign, by constructing a moral discourse of nationhood in strictly anti-abortion terms. In the debates the nation was constructed as morally homogeneous, and thus the 'people's will' justified an authoritarian political project. "The official view was that "women's rights could ... be compromised in order to avoid a disjunction between a national anti-abortion morality and the nation state".283 The Constitutional amendment was seen as a way to prevent what was seen as the inevitable decline into national immorality. Despite the divisive nature of the campaign, PLAC had succeeded in convincing the Irish government, and public, of the necessity of constitutional protection of the right to life of the unborn. In September 1983, with only 54% of the electorate turning out to vote 4, the 8lh amendment to the constitution was passed, acknowledging that right and enjoining the state to protect it.285 Article 40.3.3 reads:
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
The inclusion of the protection of foetal life in the Constitution adds force to the existing articles emphasizing the central importance of women fulfilling their motherhood role to
8 O'Carroll, supra note 260 at 67. 283 Smyth, Abortion and Nation, supra note 21 at 81. 284 This was seen as evidence of public disquiet surrounding the referendum, see Rossiter, supra note 69 at 97. 285 Fletcher, supra note 223 at 30; when the amendment was accepted it became Article 40.3.3., which states that, "[T]he State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right", see Ir. Const., Supra note 61 at art. 40.3.3.
41 the nation. Tellingly, it also constructs them as too morally untrustworthy to fulfill their vital 'obligations' without being subject to state control.286
Series of Cases Concerning the Right to Life of the Unborn
Perhaps emboldened by their success in the Pro-Life Amendment campaign, anti- abortion activists then began a campaign of legal action against organisations who provided information about obtaining abortions in Britain, to Irish women. In 1985, in the first of these cases, Att. Gen. {SPUC Ltd.) V Open Door Ltd.287a group called the Society for the Protection of the Unborn Child (SPUC), brought suit against two Dublin women's health clinics alleging that the non-directive pregnancy counselling they offered violated the 8' amendment because they offered information and referrals to abortion clinics in Britain as part of their service.288 The Attorney General, as the prosecutor of the public interest, assisted them in this suit, by consenting to join them in a relator action, in order to prevent the claim being struck out on the basis that SPUC did not have the requisite /OCUS Standi2*9 In his judgement, Hamilton P, the President of the High Court, stated that there was no doubt that abortion was "contrary to national policy, public morality, [and] contrary to law" and thus stated that giving advice as to how to obtain an abortion was unlawful.290 This conclusion was reached despite there being no statute forbidding the provision of such information and without discussion of the nature of the rights to privacy, freedom of expression, and freedom of association except to state that such 'qualified' rights could never be "invoked to interfere with such a fundamental right as the right to life of the unborn". In fact, there was no consideration of the effects of this case on women's rights, as Hamilton P. stated
286 Smyth, Abortion and Nation, supra note 21 at 79. 287 Att. Gen. (SPUC Ltd) v. Open Door Counselling Ltd and Dublin Well Woman Centre Ltd. [1988] I.R. 593. 288 Mercurio, Supra note 167 at 153. 289 Whitty, supra note 110 at 867. 290 Open Door Counselling, supra note 287 at 619.
42 I do not in the circumstances of this case, have to have regard to the effect of 'the equal right to life of the mother' on the right to life of the unborn acknowledged by this Article.
Both the High Court and the Supreme Court, on appeal, held that the health clinics' activities assisted in the destruction of the 'fundamental' right to life of the unborn, and permanently enjoined the clinics from assisting pregnant women to travel abroad to obtain abortions.292 The Courts rejected the suggestion that the case involved any questions of EC law,293 but the clinics appealed to the European Commission of Human Rights and their case was referred to the European Court of Human Rights.294 Shortly after this decision, in the case of SPUC V Coogan, SPUC sought an interlocutory injunction to prevent the Students Union of University College Dublin from publishing information on abortion, or information as to the identity, location, and methods of communication with specified clinics where abortions are performed, in their publication entitled "Welfare Guide", as they had done the previous year.295 This case differed from Open Door as SPUC had not sought the fiat of the Attorney General before commencing the action. Thus Ms. Justice Carroll, in the High Court, refused to grant the injunction as they lacked the requisite locus Standi, and stated that, "the Attorney General was the proper party to move such a case".296 In explaining her decision, she expressed disapproval at the fact that the Plaintiff had "assumed the self-appointed role of policing the Supreme Court judgement".297 SPUC appealed the decision and the Supreme Court allowed the appeal, stating that the Plaintiff had the requisite lOCUS Standi as a party with a bona fide concern and interest in the protection of constitutionally guaranteed right to life of the unborn. Central to this decision was their "record of earlier successful proceedings", and "the importance of that right to the whole nature of Irish society".29 The case was then remitted to the High Court to deal with interlocutory injunctions. The reference of the importance of the right to life of the foetus to 'the whole of Irish society'
291 Open Door Counselling, supra note 287 at 617. 292 Whitty, supra note 110 at 868. 293 Open Door Counselling, supra note 287 at 618. 294 Mercurio, supra note 167 at 155. 295 SPUC v Grogan[m9] I.R. 753. 296 SPUC V Coogan[\9%9\ I.R. 734 at 737. 297 Ibid. 298 Ibid, at 735 & 742.
43 is very telling as it demonstrates that the arguments made by PLAC regarding the centrality of'pro-life' values to the survival of Irish national culture, had become firmly embedded in the law. Almost immediately after this case was decided, SPUC was before the High Court again in the case of SPUC V Grogan, this time seeking interlocutory injunctions to restrain a number of other students' unions from publishing similar information. In this case the students' unions claimed that they were entitled to publish and distribute the information under European Community Law, submitting that the right to receive information relating to services provided outside the state gave a corresponding right to impart such information. Ms. Justice Carroll, in the High Court, made no formal orders regarding the injunctions and referred the case to the European Court of Justice, for an interpretation on the lawfulness of information provided about abortion services legally provided abroad, under European Law. 30° The Supreme Court, in overturning her decision, and granting the injunction against the student unions, was openly disdainful of her decision to refer questions to the ECJ. Again, the only right that was seen as worthy of consideration in the decision was that of the unborn.301 In fact, in a revealing Obiter dicta by Walsh J., a pregnant woman's rights are explicitly subordinated to those of the foetus she is carrying.
When a woman becomes pregnant she acquires rights which cannot be taken from her, namely the right to protect the life of her unborn child and the right to protect her own bodily integrity against any effort to compel her by law or by persuasion to submit herself to an abortion.302
299 SPUC v Grogan, supra note 295. 300 Fletcher, Supra note 223 at 33. (The defendants had argued that the distribution of such information was protected by Articles 59 and 60 of the Treaty Establishing the European Economic Community (EEC), which protected freedom of movement of services between Member states and implied a right to give and recive information about those services). 301 In explaining this position the Chief Justice stated, "With regard to the issue of balance of convenience, I sam staified that where an injunction is sought to protect a constitutional right, the only matter which could properly be capable of being weighted in a balance against the granting of such protecting would be another competing constiutional right. 1 am quite satisfied in the instant case where the right sought to be protected is that of a life, there can be no question of a possible or putative right which might exist in Euroepan law as a corollary to a right to travel so as to avail of services, counterbalancing as a matter of convenience the necessity for an interlocutory injunction" see SPUC V Grogan, supranole 295 at 765. 302 Ibid, at 767.
44 What are referred to expressly as rights in this statement are in fact obligations the pregnant women bears towards the foetus she is carrying. By using rights-language selectively in this way, the judge disguises the issues at hand, effectively ignoring the rights of women during pregnancy. Apparently no consideration was given to the problematic issues regarding the right to bodily integrity involved with forced pregnancy, as it seems a pregnant woman's right to bodily integrity can only be invoked to save the life of her unbom child. Ruth Fletcher identifies three main points that she argues demonstrate that the rhetoric of the Courts in these cases30 was inspired by a fundamentalist view of the value of foetal life.304 First, the Courts ascribed absolute protection to foetal rights, and disregarded the effect this had on the rights of women, avoiding any consideration of a balance of convenience. Second, with the exception of Ms. Justice Carroll, the judges of the Superior Courts were happy to allow an anti-choice group to appoint themselves guardians of the right to life of the unborn, 'in the absence of a particular factual pregnancy', thereby identifying "the private interests of a fundamentalist group with the public interest in enforcing the law".305 Also the courts' refusal to acknowledge the relevance of EC law in the area of abortion, even though Ireland had acceded to the EC and accepted the supremacy of European law over domestic law, can be seen as an attempt to "isolate Irish abortion law from the effects of supranational regulation".306 In defining Ireland culturally as a 'pro-life nation', and succeeding in having this discourse translated into law by its inclusion in the Constitution, PLAC had managed to equate the survival of unborn children with the Nation's survival. The previous three cases illustrate that the centrality of the protection of foetal life to Irish identity was wholeheartedly taken up by the Superior Courts. The result of these cases was that by the beginning of the 1990s all information on abortion, even in magazines and books, was illegal in Ireland. Many publications on women's health were removed from public libraries and bookshops, and British
Excluding Ms. Justice Carroll. Whitty, supra note 110 at 866; Fletcher, supra note 223 at 34. Fletcher, supra note 223 at 31. Ibid.
45 magazines published censored Irish editions.307 This situation is reminiscent of the requirements of the Censorship Of Publications Act 1929 that criminalised the publication of information on contraception. It was not seen as sufficient, by anti-abortion groups, or the Superior Courts, to make the act of abortion illegal within the State, it was also seen necessary to protect Irish citizens from "corrupting" foreign influences". These efforts at censorship, and to reseal Ireland off from foreign influence were not effective in the protection of "unborn life", as the number of women travelling for abortions did not diminish. However, there is evidence that it led to increased incidence of Irish women presenting for abortions at later stages in the pregnancy, due to the difficulty in accessing information. In addition, without the support offered by health clinics, the experience was far more stressful. Before either Open Door or Grogan could be heard before the respective European Courts, a tragic case had a huge impact on the hegemonic religious nationalist discourse on abortion in Ireland. The X Case involved a 14-year-old girl, pregnant as the result of rape, who with the support of her parents wished to obtain an abortion in England. When the Attorney General became cognisant of the situation,309 "on the understanding that Irish law required the state to prevent the destruction of foetal life",310 he secured an injunction from the High Court preventing her from leaving the country for nine months, even though she had threatened to commit suicide if forced to carry the pregnancy to term.311 The victimization, at the hands of the law, of this young girl made the violation of women's rights through the prioritisation of foetal life tangible for the
Evelyn Mahon, "Abortion Debates in Ireland: An Ongoing Issue" in Dorothy McBride Stetson ed. Abortion Politics, Women's Movements, and the Democratic State: A Comparative Study of State Feminism (Oxford: Oxford University Press, 2002) at 165. 308 Smyth, Abortion and Nation, supra note 21 at 11 (British clinic's reported that though the numbers didn't change, women were arriving more anxious and unprepared, and there was a great increase in later abortions). 3 As her parents were anxious about the prosecution of the man responsible they contacted the Gardai to inquire as to whether DNA evidence from fetal tissue would be admissible in Court. The Gardai contacted the office of the Director of Public Prosecutions with the inquiry and the Attorney General was notified, see Fletcher, supra note 223 at 58. 310 Ibid, at 57. 311 Costello J. in the High Court was of the opinion that the threat to the girls life through suicide was of a lesser order of magnitude than that of the certain death of the foetus if she was allowed to travel to England, see Ibid, at 59.
46 Irish public.312 As a result, there was outcry and protest at both a national and international level.313 Moreover, the case provoked a national identity crisis. Although Irish national identity had always been portrayed as conservative and Catholic, it was also centred around being morally superior to its barbaric coloniser. Now the country was being compared to totalitarian states. An editorial in the Irish times stated:
What has been done to this Irish Republic, what sort of State has it become that in 1992, its full panoply of authority, its police, its law officers, its courts, are mobilised to condemn a fourteen-year- old child to the ordeal of pregnancy and childbirth after rape at the hands of a 'depraved and evil man'? With what are we now to compare ourselves? Ceausescu's Romania? The Ayatollah's Iran? Algeria? There are similarities. 315
In order to minimise the negative attention the case was garnering, the government funded X's appeal to the Supreme Court, where the High Court judgement was overturned. The Supreme Court noted the state's duty to have 'due regard to the equal right to life of the mother' contained in article 40.3.3., and held that this meant abortion was lawful in Ireland if there was a 'real and substantial threat to the life' of the mother, including the threat of suicide.316 The Court's refusal to consider European Community law concerning the right to travel, and obiter dicta that the constitutional right to life of the unborn took precedence over the constitutional right of women to travel, however, raised concerns about women's citizenship rights. Instead of resulting in the absolute protection of foetal life, and shoring up Ireland's identity as a patriarchal pro-life nation, the Eighth Amendment of the constitution had led to the first liberalisation of abortion law in Irish history, and opened space in the political discourse for discussion of women's reproductive freedom.317
312 Ibid. 313 Mullally, supra note 102 at 92. 3,4 Smyth, "Narratives of Irishness", supra note 24 at 80. 315 Ibid, at 68 ("There was a response from 'pro-life' activists that Ireland was not guilty of cruelty and totalitarianism, but, rather, was the last bastion of humanity in a barbarous world"). 316 Mullally, supra note 102 at 92. 3'7 Fletcher, supra note 223 at 61.
47 Although the X case had opened up the debate on women's reproductive rights, the law on the subject was in a state of disarray, and there were many issues that needed to be addressed: primarily, the extent of the rights to travel and receive information under EC law, and a specific definition as to when pregnancies could be terminated in the Republic of Ireland. These issues, especially travel, were brought to the fore when it became public knowledge that under pressure from anti abortion groups, before the X Case, the government had secretly added a protocol to the Maastricht Treaty on European Uniorr that attempted to limit the application of European Community Law to article 40.3.3 of the Constitution.319 Women's groups protested this inclusion and as the Government feared the controversy would affect the State's ratification of the Maastricht Treaty, it both adopted a solemn declaration stating that Protocol 17 would not have any impact on the rights to travel and information,320 and gave assurances that a referendum would be held after ratification to resolve remaining questions. Before the referendum was held, the European Court of Human Rights ruled on the appeal taken by Open Door Limited and Dublin Well Woman Centres. It was found that Ireland's absolute ban on abortion information was not proportionate and thus violated Article 10 of the European Convention on Human Rights that protected freedom of expression. 321 On November 25l , 1992, the Government held the promised referendum and put three constitutional amendments to the people. The Twelfth Amendment to the Constitution, which attempted to remove the threat of suicide as constituting a real and substantial risk to life was rejected, while the thirteenth and fourteenth amendments which stated that article 40.3.3 could not be used to limit freedom of movement between Ireland and another state, or the freedom to obtain or make available information relating to services lawfully available in another state were accepted by the electorate.322 This demonstrated a shift in the Irish consciousness away
318 Treaty on European Union and Final Act, 7 February 1992, [1992] O.J. C 191/1, 31 l.L.M. 247. 319 Whitty, supra note 110 at 881. (Protocol 17 States: Nothing in the Treaty on the European Union or in the Treaties establishing the European Communities or in the Treaties of Acts modifying or supplementing those Treaties shall affect the application in Irleand of Article 40.3.3 of the Constitution of Ireland.) 320 Mercurio, Supra note 167 at 164. 321 Mullally, supra note 102 at 96. 322 Conrad, Supra note 161 at 169 and 170.
48 from considering the absolute protection of foetal life as necessary, and showed a greater respect for the citizenship rights of Irish women. In 1995 the legislature passed a bill323 providing for freedom of information for services legally available in other states, but there has yet to be any legislative clarification of when an abortion is lawful under Irish law. 1995 was also the year the Irish government implemented a comprehensive family planning program, pursuant to the 1994 Cairo Conference on Population and Development, demonstrating a willingness to move forward in areas of reproductive rights not related to abortion.324 An opinion poll taken in 1997 confirmed that public opinion on abortion had evolved and liberalised considerably since 1983, with 77% of those polled stating that abortion should be provided in Ireland in limited circumstances, and only 18% stated it should never be permitted.325 After years of inaction on the issue, a new referendum was held in March 2002. The amendment again attempted to remove the "risk of suicide" exception and was defeated by a very narrow margin. The current situation of Irish law relating to abortion is very uncertain, and legislation is badly needed; however, the government continues to avoid acting in this controversial area and the situation remains unchanged.326
Conclusion
The example of post-independence Ireland demonstrates the negative effect that religious nationalist discourse can have on women's reproductive autonomy and by extension their citizenship rights. As women are seen as symbolic of the nation, the control of their sexual behaviour is often seen as a marker of difference from other nations. This leads to a resistance to external liberalising influences in an area that is considered crucial to 'national morals' and 'cultural identity'. As demonstrated by the situation in Ireland in the 1980s these nationalist sentiments can be reactivated to justify further legal infringement of women's reproductive autonomy even in times of general
323 Regulation of Information (Services Outside the State For Termination of Pregnancies) Act, 1995 (Ir.) 1995/5. 324 Galligan & Ryan, supra note 74 at 103. 325 Mercurio, Supra note 167 at 172. 326 Ibid, at 180.
49 liberalisation of social norms. The Irish case also demonstrates that perceived international pressure can have both negative and positive consequences for women's rights in nationalist countries. On the one hand, one of the main catalysts for the fundamentalist anti-abortion discourse that emerged in Ireland in the 80s was the perceived threat of the secularizing and modernising influence of Europe on Ireland's traditional patriarchal society. On the other hand, European influence, both through the European Courts and more subtle forms of pressure, has had a liberalising effect, especially in the area of freedom of movement to obtain an abortion, and access to information on abortion services in other states. Although Irish women have made great advances in gaining control over their fertility, their progress is hindered by the biological determinism still contained in the Irish Constitution. Reform of the gendered nature of that document is long overdue.327
Connelly, Supra note 82 at 35.
50 Chapter 2: The Case of Iran
This chapter will address the effect of religious nationalist ideology on women's rights in the Islamic Republic of Iran since 1979, with a special focus on reproductive rights, and draw comparisons to the Irish example. It is submitted that "the woman question" has been an important issue in Iranian national politics for many years, not just since the Islamic revolution. As a corollary, many of the policy changes pertaining to women's position and rights after the 1979 Revolution were as much a reactionary response to the deposed Pahlavi regime's attempts at western style modernisation, as they were inspired by religion. It will examine how nationalist discourse was invoked in the early years of the revolution to justify governmental attempts to confine women to the domestic sphere, and to pursue a pro-natalist policy, which had an immediately negative effect on women's reproductive freedom. Furthermore, it will delve into how, later, when political and economic exigencies required, the Regime was forced to compromise some of its earlier stances on the 'proper' role of women. Religious nationalist discourse was again mobilised, but this time in support of a national family planning policy; a complete about-face from the earlier pro-natalist stance. This chapter will also address the continuing efforts of Iranian women to challenge the regime's strict patriarchal gender policies, and gain equality and rights protection.
The Roots of Religious Nationalism in the Islamic Republic of Iran
The revolution of 1979 and the resulting anti-Western religious nationalism of the government of the Islamic Republic of Iran can be traced back in large part, to a history of Imperial interference and the capitulation of Iranian monarchs to Western nations. While a comprehensive review of modern Iranian history extends beyond the scope of this project, specific historical aspects of Iran's quasi-colonial relationship with certain European superpowers must be addressed. The modern Iranian state is considered by
51 many to have been founded by the Safavid dynasty (1501-1722).328 They unified a large independent territory covering the same area as modern Iran, and imposed Shi 7 Islam as a state religion,329 thereby differentiating Iranians from neighbouring Siinni Ottomans and Uzbek states.330 This distinction was one of the contributing factors to the survival of a strong Irano-Islamic cultural tradition in the area despite persistent civil war during the 18th century.331 In fact Sedghi states that, "from the sixteenth until the present century, Iranianism and Shi'ism blended for many people".332 While up until the 18th century Muslim states of the Middle East were on par with their Western Rivals, by the early 19 th century, the predominantly agrarian Iranian state was less developed economically and thus politically weaker than the industrialising West.333 The Qajar dynasty (1794-1925) succumbed to pressure from Russia and Britain and by mid-century, "Iran had lost its independence and moved into a semi-colonial situation".334 Military defeats led to the loss of territory to Russia who annexed several Northern provinces, and gained significant and advantageous political and commercial concessions through treaties with the Qajars.335 In addition, British competition with the Russian powers over territory and trade, led them too to pursue and obtain advantageous commercial and political treaties with Iran throughout the 19th and 20th centuries.336 By 1907 Britain and Russia had divided Iran into spheres of influence in order to limit rivalry.337 The Qajar monarchs' capitulation to European nations became a serious concern for Iranian citizens. They suffered economically as European manufactured goods undersold their handicrafts, and felt they were vulnerable to European conquest and control, as successive regimes had responded with complacency and weakness to
328 This is the case even though the Safavids were actually of Turkish descent, see Nikkie Keddie, "Iran: Understanding the Enigma: A Historian's View" (1998) 2 Middle East Rev. IntT Aff. 1 at 4. 329 Islam was first introduced in the region with the Muslim Arab conquest in A.D. 637-651. Even after ShiT Islam was introduced as the state religion there was religious diversity in the area including Zorostrians, Jews, and Christians as well as Sunni Muslims; see Sedghi, Supra note 53 at 34. 330 Keddie, supra note 328 at 4. 331 Lois Beck & Guity Nashat eds., Women in Iran: From 1800 to the Islamic Republic (Chicago: University of Illinois Press, 2004) at 5. 332 Sedghi, supra note 53 at 35. 333 Beck & Nashat, supra note 331 at 5; Keddie, supra note 328 at 5. 334 Sedghi, supra note 53 at 40. 335 Yeganeh, supra note 42 at 3. 336 Ibid. 337 Beck & Nashat, supra note 331 at xii.
52 Western aggression.338 Not only did the Qajars fail to protect Iranian interests from the European powers, they also squandered the revenues of the land, concessions, privileges, and even slaves, they had sold to those Western powers. These revenues were largely spent to support the Qajar's lavish lifestyles, which included building palaces and funding trips abroad, while Iran suffered economic decline and poverty.339 Exposure to European influence had a divisive effect on Iranian society. European visitors, who came to Iran during the 19th century, representing governments and religious organisations or pursuing lucrative commercial concessions had little understanding of Iranian culture or Islam, and expressed xenophobic and condescending attitudes towards what they saw as 'backwardness' and a lack of civilization.340 European criticism and influence had a powerful impact on some members of the elite who became convinced that the European attitudes were accurate, and that it was necessary to emulate European society in order to catch up with the West. This created a schism in society between secular reformists and those who became even more adamant about protecting Iran's religious and political traditions.341 As with the Orientalist sentiments expressed by Westerners towards many other Muslim nations at the time, much of what they saw as proof of their simplistic condemning attitudes, and justification for their interference, was their perception of the treatment of women in Iran.342 In the 19th and early 20th centuries women were veiled and secluded; primarily confined to the household and their reproductive role, and largely controlled by men;343 but by no means were they the powerless, voiceless monolith the Europeans perceived. This would be demonstrated by their participation in political movements beginning in the late 191 century, which was seen as the beginning of the women's movement in Iran.344 Europeans saw Iran's veiled and secluded women as a symbol of the country's religious backwardness. What's more this perception has
338 Keddie, Supra note 328 at 5; Yeganeh, Supra note 42 at 3. 339 Sedghi, Supra note 53 at 40. 340 Beck & Nashat, supra note 331 at 7. 341 Ibid, at 9-10. 342 Rayah Feldman & Kate Clark, "Women, Religious Fundamentalism and Reproductive Rights" (1996) 8 Reproductive Health Matters 12 at 16. 343 Sedghi, supra note 53 at 25. 344 Shahrzad Mojab, "Theorising the Politics of Islamic Feminism" (2001) 69 Feminist Rev. 124 at 128.
53 remained an enduring legacy of European contact with Iranians since the 19 century, and contributed to women's status being central the policies of all three states that have assumed power since the dissolution of the Qajar dynasty.346 Iranians began to protest against colonial policies and their government's corruption. An early and crucial incident was that of the Tobacco Protest of 1891-92. The Qajars had granted the British a monopoly over the production, sale and export of all Iranian tobacco, which seriously threatened the domestic economy. As a result, there were massive protests by ulama (religious scholars), merchants, secular reformists, and the urban population, including women. In one incident a group of armed women held a protest in the bazaar, closing it down; the regime ultimately capitulated to the demonstrators and cancelled the agreement.347 Iranian demonstrations culminated in the Constitutional Revolution of 1905-11. Again, a coalition of u/ama, merchants, intellectuals and women joined together against the government. Advocating predominantly nationalist and anti-colonialist sentiments, they demanded a constitution and parliament in order to limit the power of the monarchs.348 While the different elements of the coalition each had their own demands, women included,349 they were nonetheless united in their opposition of both the Shah and colonial interference. The movement succeeded, and in 1906 the Monarch granted a constitution with a parliament. Internal discord and Russian interference ensured that the constitutional experiment was not an entirely successful one, but women continued to take action in support of the Constitution. 35° In 1911, three hundred armed women entered the public gallery of the Majles and threatened to shoot any deputies willing to capitulate to a Russian invasion of Tehran.351 The constitutional movement wished to establish Iran as a modern and independent nation capable of standing up to Western pressure and intrusion. This new social and political impetus allowed women to gain political experience, and although there was no consensus or concerted action on the
Beck & Nashat, Supra note 331 at 9. 6 Yeganeh, supra note 42 at 4. 7 Sedghi, supra note 53 at 41. 8 Ibid, at 44. 9 As well as a constitution, women were demanding enfranchisement and education; Ibid. 0 Keddie, supra note 328 at 5. 1 Sedghi, supra note 53 at 45.
54 issue, the movement articulated "a conceptual link between national independence on the one hand, and women's emancipation on the other".352 This relationship between women's status and nationalism continues to play a central role in Iranian politics today. Nationalist and democratic sentiment grew exponentially during World War I, as Iran was used as a battlefield by European forces. In 1921, which marked an era following a period of great instability for Iran, Colonel Reza Khan, led a bloodless coup and became the leader of Iran, declaring himself Shah in 1925. 54 His objective was to build a modern and independent Iran, a notion that in his eyes was synonymous with: westernisation, capitalism, elimination of foreign incursion, building a strong military, and the curtailment of religious power.355 He "stressed the nationalism that admired pre- Islamic Iran, which was a way of bringing in western style modernization without alluding to its western origin".356 Democratisation was not part of his plan and as his rule became increasingly autocratic, modernising and centralising policies were swiftly imposed on the state.357 A large number of Reza Shah's policies were directed towards the emancipation of women. His primary motivations in taking this action were the undermining and emasculation of the clergy, and improving Iran's reputation internationally as a 'modern nation'. It followed that "[w]omen's emancipation was thus a means and not an end".358 Though he instituted many changes feminists had been working towards for years, he did it by co-opting women's power; namely by banning independent women's organisations and replacing them with state sponsored institutions run by elite women who supported the monarchy. 5 National progress was to be achieved "through the legal construction of women as social participants, educated mothers, and subservient wives," so although
352 Yeganeh, Supra note 42 at 4. 353 Keddie, supra note 328 at 5. 354 Sedghi, Supra note 53 at 63. 355 Ibid. 356 Keddie, Supra note 328 at 5. 357 Homa Hoodfar, "The Women's Movement in Iran: Women at the Crosswords of Secularization and Islamization" Women Living Under Muslim Laws, Women's Movement Series No.l, Winter 1999 at 12 [Hoodfar, "Women's Movement"]. 358 Sedghi, supra note 53 at 90. 359//>«/. at 61.
55 women gained many opportunities in education and employment, their legal status within the family remained largely unchanged.360 Of all the Shah's gender policies the most famous one undoubtedly remains the banning of the veil — which he saw as a symbol of backwardness — in 1936. Though a small number of elite and intellectual women celebrated this move, the majority of Iranian women resented having this decision imposed on them. For devout women, because it meant confinement to their homes as appearing unveiled was considered a sin,361 and for those opposed to veiling because they had not asked for a mandatory ban but the freedom to choose.362 In 1941 the Allies invaded Iran, and due to Reza Shah's alliance with Germany, pressured him to abdicate in favour of his son Mohammad Reza, and ultimately deported him to South Africa.363 Mohammad Reza Shah continued on his father's path of westernisation, repression, and the co-optation of the women's, movement. In fact, "Western intervention in Iran's internal affairs reached its height in the 1940s and 1950s."364 In 1953 the Shah co-operated with the British government and the CIA in a coup d'etat to remove popular, democratically oriented, nationalist Prime Minister Mohammad Mosaddegh, who was gaining increasing power and had nationalised the oil industry, thereby ending British control over it.365 Before this coup the Iranian people had "perceived Britain and Russia as primarily responsible for the West's treatment of Iran as a colony", because of the role of the United States in this action, they were thereafter added to the "list of Imperialist enemies". After the removal of Mosaddegh, Mohammad Reza Shah became increasingly autocratic and violent in his repression of dissident groups, fuelling resentment from secular, Islamist, and even women's groups.367 In 1963 as part of the
360 Yeganeh, supra note 42 at 5. 361 Beck & Nashat, supra note 331 at 22; Hoodfar, "Women's Movement", supra note 357 at 12. 362 Hammed Shahidian, "The Iranian Left and the "Woman Question" in the Revolution of 1978-79" (1994) 26 Int'l J. Middle East Stud. 223 at 225. 363 Sedghi, supra note 53 at 90. 364 Yeganeh, Supra note 42 at 5. 365 See generally Mark J. Gasiorowski, "The 1953 Coup D'etat in Iran" (1987) 3 Int'l J. Middle East Stud. 261. 366 Mehrancuiz Kar, "Women's Strategies in Iran from the 1979 Revolution to 1999" in Bayes & Tohidi, supra note 16 at 178. 367 During the 1940s and 1950s the women's movement had resumed its independent activity. But it was co-opted again as the modernisation of women's position resumed; see Yeganeh, SUpranote 42 at 6.
56 'White Revolution" he granted women suffrage, and in 1967 the passing of the Family Protection Laws created a new family court,368 and improved the position of women in marriage, divorce and custody.369 1967 was also marked the year that the first official family planning policy was introduced in Iran,370 and in 1973 the country's strict abortion and sterilization laws were repealed with the adoption of a new Penal Code/" The new Penal Code permitted a physician to perform an abortion if:
(a) the couple was able to provide evidence of social or medico- social grounds for an abortion; (b) the abortion was performed during the first 12 weeks of pregnancy; (c) written permission of the parents was obtained; and (d) there was no danger to the health of the mother from the procedure.372
The penal code also specified that if the woman seeking the abortion was unmarried her own consent, without that of the father, was sufficient.373 Despite many of the changes made being in line with feminist demands,374 they were: imposed in an undemocratic fashion, generally only taken advantage of by an urban elite, and only embodied a superficial advance in the sphere of male female inequality in the family.
368 Previously issues relating to the family had been resolved using Shari'a law, this court restricted the use of Shari'a law in certain areas, see Elham Gheytanchi, "Civil Society in Iran: Politics of Motherhood and the Public Sphere" (2001) 16 lnt'l Socio'y 557 at 568 [Gheytanchi, "Civil Society"]. 369 The Family Protection Laws "curbed men's right to unilateral divorce at will and limited the practice of polygyny by requiring either the court's authorizaiton or the first wife's permission ... More important, the custody of children following a divorce was to be decided according to their best interest rather than by traditional precedent which denied custody to divorced mothers", see Homa Hoodfar & Samad Assadpour, "The Politics of Population Policy in the Islamic Republic of Iran" (2000) 31 Stud. Fam. Planning 19 at 19; also the legal age for marriage was raised to twenty for men and eighteen for women, see Yeganeh, Supra note 42 at 6. 370 Hoodfar & Assadpour, supra note 369 at 19. 3 ' The law created a loophole for abortion and sterilization procedures, as they were no longer explicitly prohibited, it did not come into effect until 1976, see Akbar Aghajanian, "Family Planning and Contraception in Iran, 1967-1992" (1994) 2 lnt'l Fam. Planning Pers. 66 at 66. 372 Department of Economic and Social Affairs, Population Division, Abortion Policies: A Global Review: Volume II: Gabon to Norway (New York : United Nations, 2001-2002) at 63. 373 ibid. 374 It is essential to note that although Mohammad Reza Shah did his best to co-opt the women's movement and suppress action by independent women's groups, these changes came about as much as a product of women's action and determination, both within and outside of the official government women's organisations, as by independent action by the Pahlavi regime, see Yeganeh, Supra note 42 at 6.
57 The gender policies of both Pahlavi Shah's, which included: unveiling, desegregated education, encouraging women to join the labour force, family planning and the amendment of divorce and child custody laws, were fervently opposed by the religious authorities. Family planning was condemned during Friday sermons as an imperialist plot to reduce the number of Muslims.375 "Although historically contraception has been permitted in Islam, following the introduction of the Shah's program many religious leaders denounced it as haram (religiously prohibited)." 376 Ayatollah Khomeini, one of the most virulent critics of the Shah's regime, strenuously opposed women's enfranchisement and felt that the Family Protection Laws were "anti-Islamic", "intended for the break-up of Muslim families",377 and impinged on the divine rights of men. As such, the State and the clergy centred their contest for political power on the importance of gender and women's issues. The Pahlavis' policies on women "restricted and challenged some of male dominatory tendencies, specifically the cleric's control over women's sexuality and their labor [sic]".379 This patriarchal control was thus transferred to the public realm of the state, in order to utilize women to achieve the regime's westernising goals. Under the Pahlavi dynasty, therefore, women's emancipation came to mean "state exploitation of gender as a measure to combat and contain religious forces and their bazaar supporters".380
It should be emphasized that the religious opposition was far from the only group mobilizing against the government. Throughout the Pahlavi era (1925-1979) there was also strong opposition from secular groups, who sought democracy, civil rights, and freedom from imperialist interference. 381 In response to calls from both secular opposition leaders and Mojtahed Ruhollah Khomeini, along with other leading religious figures, protests escalated drastically after the White Revolution in 1963, responding to calls from both. The Pahlavi regime responded with violent repression, arresting many
Hoodfar & Assadpour, supra note 369 at 20. 376 Ibid. 377 Sedghi, supra note 53 at 128. 378 Homa Hoodfar, "Bargaining with Fundamentalism: Women and the Politics of Population Control in Iran" (1996) 8 Reproductive Health Matters 30 at 31 [Hoodfar, "Bargaining with Fundamentalism"]. 379 Sedghi, supra note 53 at 62. 380 Ibid, at 67. 381 Reza Shah had reduced the Majles to a rubber stamp parliament, and in 1961 Mohammad Reza Shah suspended the parliament indefinitely, see Ibid, at 132.
58 members of the national front and exiling Khomeini. Faced with this coercive and autocratic government, demand for respect of the Constitution and democracy gave way to a full-fledged demand for the overthrow of the Pahlavi dynasty, which led to the revolution of 1979.382 As was the case with the constitutional revolution of 1905-1911 the anti-Shah movement brought temporary unity between disparate groups. Women and men, the religious and the secular, were all united around anti-Shah, nationalist, and anti- imperialist platforms.383 Shi'ism was a rising political force during the late 60s and early 70s, with many newly formed Islamic parties attracting increasing numbers of educated members, predominantly from the middle and lower classes. 384 Many of these participants were young educated women from traditional families, who felt confused, frustrated and torn between their dual identities; the traditional role promoted by their families, and the "modern" role encouraged by the Shah.385 Though it must be said that "Islamists never enjoyed an unchallenged monopoly over the masses in revo It",386 the leftists and other secular opposition groups, recognising that they lacked the ability to draw mass support, joined forces with clerics, as they felt they had a greater pull on the population.387 As stated by Barb Rieffer-Flanagan in reference to the cases of both Iran and Ireland, "[ojften religion is the most feasible means to obtain the goal of political autonomy". Thus nationalist movements use religion in an instrumental way in order to "facilitate the mobilization of a grassroots network".388 Unlike the Constitutional Revolution of 1905-1911, the aim of which was to achieve independence and democracy through the emulation of a Western model of modernity, the revolution of 1979 rallied around a cultural, rather than liberal, nationalism.389 As stated above, Iranian culture is almost inextricably entwined with Shi'i Islam and has remained so, almost immutably since the sixteenth century. Though this
382 Yeganeh, supra note 42 at 7. 383 Sedghi, SUpranole 53 at 203. 384 Beck & Nashat, Supra note 331 at 24. 385 Nayereh Tohidi, "Modernity, Islamization and Women in Iran" in Moghadam, Supra note 10 at 120. 386 Hammed Shahidian, Women in Iran: Gender Politics in the Islamic Republic (London: Greenwood Press, 2002) at 100 [Shahidian, Women in Iran]. 387 Beck & Nashat, supra note 331 at 28. 388 Rieffer, supra note 45 at 3. 389 Yeganeh, supra note 42 at 7.
59 cultural approach was most likely predominantly influenced by the leading role taken by the Islamists in the revolution, it appealed to the vast majority of Iranians who disagreed with Western intervention in Iran's affairs, the Shah's capitulation thereto, and the undemocratic actions carried out to 'modernise' the country. "It has been argued that nationalism associated with religious fundamentalism has arisen in response to the failures and dislocations resulting from attempts to modernise and westernise."3 ° The revolution of 1979 created "a new alliance between Islam and nationalism which became the cornerstone of the Islamic Republic's gender policies".391
Women as Symbols of the Nation
Given the fact that the respective Pahlavi Shahs had attempted to use women as visible symbols of a modernising Iran by forcibly unveiling them and encouraging them to enter the workplace, it followed that the revolutionary forces too would almost immediately focus on women as symbols of the revolutionary movement. Thus, unlike in Ireland where the use of women as national symbols occurred predominantly in the post- revolution period; in Iran the "authentic" Iranian woman became one the main symbols of the revolutionary movement itself. The Islamist government's attempts to "Islamise" women's roles then intensified further during the nation building stage. Azar Nafisi explains that this consistent use of women as symbols by consecutive Iranian regimes and movements has created a situation where women are used as the gauges with which we measure where Iranian society is going and where it has been.392 Though the Islamists did not enjoy total control over the revolutionary movement, they did take on a leadership role, and undoubtedly possessed the strongest (or only) voice dictating what the revolution should mean for women. According to Nahid Yeganeh,
Nickie Charles & Helen Hintjens, "Gender, Ethnicity and Cultural Identity: 'Women's Places'" in Nickie Charles & Helen Hintjens eds., Gender, Ethnicity and Political Ideologies (New York: Routledge, 1998) at 4. 391 Yeganeh, supra note 42 at 8. 392 Azar Nafisi, "Tales of Subversion: Women Challenging Fundamentalism in the Islamic Republic of Iran" in Howland, supra note 203 at 259.
60 Since the state had made a claim to women's liberation and the secular opposition had not constructed an alternative gender policy to that of the state, the gender aspect of the demand for the overthrow of the Pahlavi state became the preserve of the Islamic • • 393 opposition.
The Islamists appealed to women to reject "Westernisation", which only exploited them as sex objects, and embrace the new Shi'i model of womanhood, which emphasised women's double role as mothers and revolutionaries. The vision of women presented by the Islamists claimed to embody both 'authenticity' and 'independence'.394 As a result, the ideal Muslim-Iranian women was constructed in direct opposition to the perception of "Western" women, who were depicted as promiscuous, immoral, materialistic, and guilty of prioritising their careers over having children and caring for their families. Western feminism was blamed for promoting this type of womanhood, "fit for the evil, inhumane US capitalist-exploitative society".395 They made empty promises to disguise the extent of their future plans for an Islamic state;396 moreover, they described their gender policies in ways that were attractive to both religious and secular women, promising "political freedom, economic equality, social justice, cultural integrity and personal fulfilment".397 Khomeini's forces "promoted Shi'i Islam as the basis of the new visionary social construct and popularized religious allegories to demonstrate the fallacies of the monarchy and the West".398 This strategy drew attention to the purported relationship between Western cultural influence and sexuality; thus, the anti-imperialism project actually overshadowed Islam. Despite having protested against every decision taken by the Pahlavis that brought women out into the pubic sphere on religious grounds, the clerics recognised the
Yeganeh, Supra note 42 at 7. 394 Ibid, at 7. 395 Judy Brink & Joan Mencher, eds., Mixed Blessings: Gender and Religious Fundamentalism Cross Culturally (New York, Routledge: 1997) at 154. 396 Shahidian, Women in Iran, supra note 386 at 100. 397 Yeganeh, supra note 42 at 7. 398 Sedghi, supra note 53 at 205.
61 potential of Iranian women in the Revolution and encouraged them to participate.399 This is one of multiple examples of the instrumental use of religion by conservative Iranian clerics in order to justify opposing sides of an issue at different times, depending on the economic and political exigencies facing them. Though women from all walks of life participated in the revolution, the Islamist ideal was a woman who was at once a powerful revolutionary and a chaste, pious and veiled Muslim. They were praised in contrast to the 'westoxicated', unveiled, secular women who were criticised as monarchical and indecent.400 Many women re-veiled during the revolution, either because of religious conviction, political solidarity, or as a form of protest against the Shah and his co-option of the women's movement.401 As one commenter notes,
So powerful were the messages that the hejab (cover or modesty) and reveiling became one of the most pervasive symbols of the revolution, standing for Islamism, anti-imperialism and anti- Westernism. The Islamic revolution was thus turning into a sexual counter-revolution, a struggle over women's sexuality.402
Similarly to post-independence Ireland, the control of Iranian women was conflated with the protection of the nation from foreign intrusion. The revolutionary leaders spoke of the West's "cultural invasion" of Iran, which was destroying traditional Islamic culture.403 They dubbed unveiled women, "cultural traitors"404. Claiming that the appearance of unveiled women and their occupation of public space were the most glaring manifestations of Western cultural invasion, they targeted them for social recrimination.405 In Iran as in many other Muslim cultures the "Islamic Domino Theory" regards modernised women as the fifth column of imperialism. Nayereh Tohidi and Jane H. Bayes explain said theory thusly,
399 Mahmood Monshipouri, "The Road to Globalization Runs Through Women's Struggle" (2004) 167 World Aff. 3 at 7. 400 Sedghi, supra note 53 at 200. 401 Nikkie R. Keddie, "Women in Iran Since 1979" (2000) 67 Soc. Res. 405 at 408, [Keddie, "Women in Iran Since 1979"]. 402 Sedghi, supra note 53 at 199. 403 Nafisi, Supra note 392 at 260. 404 Moghadam, supra note 10 at 6. 405 Nafisi, supra note 392 at 261.
62 The theory holds that imperialist outsiders often use the women of a Muslim nation to disrupt the traditional family, unravel the moral fabric of the healthy society, undermine its cultural identity, and finally, dominate its economy.406
Thus, legally controlling, visually concealing, and socially removing women from the eyes and reach of imperialists by veiling them, and confining them to the family- home were seen, by conservative Islamists, to constitute methods of protecting the nation.407 The traditional Iranian adage, "Woman Represents the Chastity of Society" became a central piece of the Islamist nationalist discourse, as veiled Iranian women came to symbolise the repulsion of Western culture.408 If members of different opposition groups were critical of, or apprehensive about, the Islamists or their policies, the majority of them kept quiet so as to avoid derailing their nationalist ambitions.409 They felt that as long as they were united in the goal of overthrowing the Shah, "incidental matters could be sorted out later".410 In hindsight, this approach seems incredibly short sighted, but was facilitated by Ayatollah Khomeini, who deliberately eschewed "specifying his plans to turn Iran into a theocracy imposing medieval Islamic rules".4" In addition a great number of secular revolutionaries felt that clerical rule was not possible in an increasingly capitalist Iran, or that even if the clerics took power, such an arrangement would not be sustainable because they had no political or economic experience.412 Many secular women too, though increasingly suspicious and apprehensive of the strong role the Islamists were taking in the revolution, put questions pertaining to them as women to the back of their minds, as the immediate and pressing priority was to rid Iran
406 Bayes & Tohidi, supra note 16 at 40. ' 407 Ibid. 408 Sedghi, Supra note 53 at 200. 409 Shahidian, Women in Iran, supra note 386 at 100. 4,0 Ibid, at 105. 41' Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (Boulder, CO.: Westview Press, 2007) 23. 412 Nayereh Tohidi, "Gender and Islamic Fundamentalism: Feminist Politics in Iran" in Chandra Tapalade Mohanty, Ann Russo & Lourdes Torres eds., Third World Women and the Politics of Feminism (Bloomington: Indiana University Press, 1991) at 251; Keddie, "Women in Iran Since 1979", supra note 401 at 408.
63 of the Shah's oppressive regime.413 What arose in Iran has also arisen in other colonial contexts where "the factors of colonization and the anti-colonial secular or religious nationalism have complicated the modern versus anti modern alignments".414 Thus in Iran Muslim modernist liberals felt obliged to join forces with "retrogressive anti-modern religionationalists" in order to fight Western encroachment.415 Women involved in such uprisings are caught in a very difficult situation and are "often compelled to postpone women's rights and feminism and give priority to the battle over nationalist goals and ethnoreligious identity politics".416 Similarly to the Irish experience, the demand for women's rights in Iran was seen as a divisive agent in the revolution. Khomeini and his followers often silenced requests for equal rights by stating that in the tyrannical system under the Shah, neither men nor women were free, so it was too premature, or not appropriate to speak of "women's rights".417 Even secular opposition parties, that often contained their own women's groups and pursued egalitarian policies in their programs, discouraged targeted campaigns for women's rights as divisive, claiming that they would solve these issues once they gained power.41 Thus millions of women, both religious and secular, unquestioningly supported the revolution, taking to the streets to protest, distributing news and leaflets, protecting revolutionaries in their homes, with some even going so far as joining the guerrilla movement. l Though many of the women participating in the revolution were educated middle class women who had benefited from the Shah's policies, they were protesting the repressive autocratic government, the uneven distribution of wealth, and the way those "emancipatory" policies had been
413 Tohidi, supra note 412 at 252. 414 Bayes & Tohidi, supra note 16 at 43. 4.5 Ibid. 4.6 Ibid. 417 Shahidian, Women in Iran, supra note 386 at 103 (Despite explaining the denial of women's demands this way, the reality was that Khomeini was completely against women's rights and equality as he felt it undermined men's divine authority over women). 418 Keddie, "Women in Iran Since 1979", Supra note 401 at 407. 419 Tohidi, supra note 412 at at 251.
64 implemented.420 As expressed by Hammed Shahdian, "[t]heir demands as women were secondary to their exigencies as oppressed Iranians".421 During the last few months of the revolution, and as a result of massive striking by oil-field workers, government employees and shopkeepers, the number of protesters swelled to millions and the Shah was forced to abandon the throne and flee Iran in January of 1979.422 Following the departure of the Shah there was a two-year-long violent power struggle between Islamist, nationalist and leftist forces, the outcome of which was the "complete supremacy of Ayatollah Khomeini's hard-line Shi'ism and total suppression of internal opposition by the Islamic state".
The Constitution of the Islamic Republic of I ran
During the transitional phase between the departure of the Shah, and the development of an Islamic theocracy, the State was run by a coalition of Islamic and nationalist forces. Ayatollah Khomeini took on the role of Spiritual Leader, and in order to better consolidate its position, the hard-line Islamic leadership monopolised the seats of power, and manipulated the radical political culture so as to gradually remove its opposition from government, to suppress dissent and to begin establishing a theocratic state.424 Ayatollah Khomeini rejected suggestions of an open referendum as to the future political system of the country,425 rather insisting that the populace had already chosen an Islamic Republic. Thus in the referendum held, the people were simply asked to vote 'yes or no' to an Islamic Republic.42 On the 29' and 30th of March, the Iranian people voted yes427. Despite Khomeini's earlier opposition to women's suffrage, not only were women
420 Moghadam, supra note 10 at 123. 421 Shahidian, Women in Iran, 5Z//V3note386at 107. 422 Beck & Nashat, Supra note 331 at 29. 423 Yeganeh, supra note 42 at 8. 424 Parvin Paidar, Women and the Political Process in Twentieth Century Iran (New York: Cambridge University Press, 1995) at 222-224. 425 Political parties had presented their own choices to put to the public. "Islamic parties proposed a "Democratic Islamic Republic", secular nationalists called for a "Republic of Iran" and the left campaigned for a "Democractic Republic of Iran", see Ibid, at 226. 426 Ibid. 427 Constitution Of the Islamic Republic Of Iran, trans by Hamid Algar (Berkeley: Mizan Press, 1980) art. 1 at 26.
65 permitted to vote in this referendum, efforts were made to mobilize them to vote for the Islamic Republic; going so far as to call it a religious duty.428 This constituted yet another example of the conservative clerics changing their stance, once they were in government, on something they had previously denounced as "un-Islamic". This was one of the first of many challenges faced by the Shi'i authorities in the transition from an institution that had been independent of, and often in opposition to, the government into a governmental institution.429 With their ascendance into power, economic and political exigencies gained increasing influence on decisions as to what was declared "un-Islamic". The Islamist forces set about drafting a constitution430 that would restore Shah 'a as the paramount law of the land, grant clerics ultimate legal authority, and make Khomeini himself the Supreme leader, thereby conferring upon him the inherent right to veto any act of Parliament.431 Much like the Constitution of the Republic of Ireland of 1937, the Constitution of the Islamic Republic of Iran placed a strong focus on religion,432 the centrality and sanctity of the family, and the woman's role as mother. As Nahid Yeganeh points out, although the stated goal of the Islamic regime was the return to a 'traditional' Islamic society, just as occurs in many post-revolutionary nationalist governments during the nation building stage, much of what ended up in the Constitution and in later policies was in fact a modern construct. She writes:
Indeed, it was the context of revolutionary populism and anti- imperialism which determined which concepts and ideas on women found their way into the Constitution as 'Islamic' and which ones were excluded as 'un-Islamic'.433
Nesta Ramazani, "Women in Iran: The Revolutionary Ebb and Flow" (1993) 47 Middle East J. 409 at 411. 429 Moghadam, supra note 10 at 136. 430 There was a previous draft constitution written in the Spring of 1979 when leftist and secular forces still retained some influence. During the preparation of the first draft there were suggestions to formally adopt the Universal Declaration of Human Rights as part of Iranian law. Once the balance of power shifted to the conservative clerics, that draft was discarded and an assembly with a majority of conservative clerics was chosen to prepare the new draft. Not surprisingly it did not contain any reference to the UDHR, it gave much greater scope for the application of Islamic law, enhanced the power of the clergy and diluted existing rights provisions with Islamic qualifications, see Mayer, Supra note 411 at 31 & 83. 431 Beck & Nashat, supra note 331 at 29. 432 This similarity is noted by Barb Rieffer-Flanagan, who states, "[T]he language of Iran's constitution is similar to Ireland's. Articles 1 and 4 set out the importance of Islam in the Iranian nation..." see Rieffer, Stf/ranote45 at 12. 433 Yeganeh, Supra note 42 at 9.
66 Ann Elizabeth Mayer posits that, "the impetus behind the campaigns to uphold Islamic law and cast aside laws associated with the era of Western domination is rooted as much in nationalism as it is in religion".434 The anti-imperialist bent of the Islamic Republic is certainly apparent early on in the Constitution. For instance, the second paragraph of the Preamble explains that the previous anti-despotic and anti-colonial revolutions in Iran failed because of their lack of an ideological Islamic basis, and that under the leadership of Ayatollah Khomeini, the nation came to understand the necessity of pursuing such an approach.43 The Preamble also explains the revolutionary movement in great detail. Unlike that of the Irish constitution, it does give credit to female revolutionaries, though the most prominent example is that of "mothers with infants in their arms".436 Under the heading The Form Of Government in Islam, the Preamble states that the nation has, "purged itself of foreign influences" and "intends to establish an ideal and model society on the basis of Islamic norms".437 This sentiment is reiterated in Article 3 of the Constitution, entitled State Goals. The goal outlined in subsection five thereof is "the complete elimination of imperialism and the prevention of foreign influence".438 While the desire to be free from imperialist influence is an understandable one given the Iranian experience, the emphasis on "complete elimination" of foreign influence creates a situation where it is possible for the conservative clerical leaders of the Islamic Republic to simply disregard concepts such as family planning and equal rights for women as imperialist plots439 to reduce the number of Muslims, or destroy Iranian Shi'i culture and the Muslim family. In fact, in 1984 Iran's UN representative Said Raja'i-Khorasani argued that international standards could not be used to judge Iran's human rights record, as its political order recognised no authority other than Islamic law. He further explained
Mayer, Supra note 411 at 70. 435 Constitution of the Islamic Republic of Iran, supra note 427 at preamble, 14. 436 Ibid, at preamble. 437 Ibid, at preamble. 438 Ibid, at art. 3.5. 439 Kristin J. Miller, "Human Rights of Women in Iran: The Universalist Approach and the Relativist Response" (1996) 10 Emory lnt'1 L. Rev. 779 at 804-805.
67 that the Universal Declaration Of Human Rights could not be implemented by Muslims as it represented a secular understanding of the Judeo-Christian tradition, and thus the Islamic Regime would not hesitate to violate its provisions.441 The Constitution of the Islamic Republic of Iran established a theocratic state where all laws and regulations must be based on Islamic criteria. Article 2 thereof states that the Islamic Republic is based on a belief in the,
"One God ... his exclusive sovereignty and right to legislate ... the necessity of submission to His commands ... Divine revelation and its fundamental role in setting forth laws".44
Unlike in the Republic of Ireland where the people are sovereign,443 in Iran sovereignty is vested in God. This framing supports the concept of unlimited government because of the inalienable political authority of the Islamic jurists in power, deriving from God.444 Short of completely dismantling the Islamic State, this situation seems to leave no possibility for the gradual secularization of, the State, as happened in Ireland. Though the regime was expected to be Republican in nature, "clearly the new constitution was not a Republicanized version of the 1906 Constitution, but its Islamicized version, as the authority does not originate in the nation and centrality of the parliament is reduced".445 As discussed in the previous chapter, the Irish Constitution is a contradictory document, given that its Catholic elements clearly detract from its liberal ethos. The Constitution of the Islamic Republic of Iran too contains a combination of religious aspects, civil rights, European civil law and customary and Islamic law, but the influence of religion is far stronger and places much more stringent limitations on the exercise of
440 Universal Declaration of Human Rights, GA Res. 217 (111), UN GAOR, 3d Sess., Supp. No. 13, UN Doc. A/810 (1948). 441 United Nations General Assembly. Thirty-Ninth Session. Third Committee. Sixty-fifth meeting, held on Friday, December 7, 1984, at 3P.M., New York. A/C.3/39/SR.65. 442 Constitution of the Islamic Republic of Iran, supra note 427 at art. 2. 443 lr. Const., Supra note 61 at art. 1. 444 Majid Mohammadi, Judicial reform and reorganization in 20th century Iran: state-building, modernization, and Islamicization (New York : Routlege, 2008) at 115; in fact the preamble states, under the heading "The Governance of the Just Faqitf, "The conduct of affairs is to be in the hands of those who are learned concerning God and are trustworthy guardians of that which He has permitted and that which he has forbidden", see Constitution Of the Islamic Republic of Iran, supra note 427 at preamble. 445 Mohammadi, Supra note 444 at 116.
68 individual rights. Consequently, Ann Elizabeth Mayer has called it an "attempt to resolve the question of what rights belong in a constitution tied to Twelver Shi'i Islam".446 Article 4 of the Iranian Constitution states that all laws must be based on Islamic criteria, and that the members of the Guardian Council are the judges of what those criteria entail.448 A number of articles in Chapter Three, titled The Rights Of the People, also explicitly subject the protection of many of the rights provided therein to compliance with Islamic criteria.449 Thus, if a right guaranteed in the Constitution, is stated to be incompatible with Islamic criteria by the members of the Guardian Council, it then holds no force in law.450 Members of the Guardian Council are free to so decide because the specific limitations Islamic criteria place on constitutional rights have never been explicitly outlined, and the Iranian judiciary is "politicized and subservient to the government", thereby depriving the system of any effective judicial review. 45' Also, when performing a review of legislation to ensure its compatibility with the criteria of Islam and the Constitution, pursuant to its function outlined in Article 94, the Guardian Council itself produces no jurisprudence. A decision is simply handed down declaring that the legislation in question was or was not compatible.452 This hinders any potential judicial review due to the lack of an accessible body of constitutional jurisprudence. As there is no central authority in Islam, and many different schools of thought exist, there is no ultimate authority to defer to as to the proper relationship between Islamic law and human rights. Several moderate clerics disagree with the stances adopted by the Islamic Regime on issues of human rights, but opposition is suppressed. Those who publicly challenge the Supreme Leader or the clerics of the Guardian Council are treated very harshly.453
446 Mayer, supra note 411 at 31. 447 The Guardian Council consists of 6 clerics selected by the Supreme Leader, and 6 jurists elected by the Islamic Consultative Assembly. Its stated purpose is to safeguard the Islamic ordinances and the Constitution, see Constitution of the Islamic Republic of Iran, supra note 427 at art. 91. 448 Ibid, at art. 4. 449 These are Article 20 [Equality Before Law], Article 21 [Women's Rights], Article 24 [Freedom of the Press], Article 26 [Freedom of Association], Article 27 [Freedom of Assembly], and Article 28 [Right to Work]. 450 Mayer, supra note 411 at 38. 451 Ibid, at 87. 452 Said Amir Arjomand, "Islamic Constitutionalism" (207) 3 Annu. Rev. Law Soc. Sci. 115 at 131. 453 Kar, Supra note 366 at 193.
69 Women in the Constitution of the Islamic Republic of Iran
The importance of the role of women to the perceived success of the Islamic Republic is also evidenced by the fact that there is a paragraph in the Preamble titled Woman in the Constitution?54 The first paragraph of this subsection explains that through the creation of Islamic social infrastructures Iranians shall regain, "their true identity and human rights", and that as women suffered greater oppression under the old regime, they "should benefit from a particularly large augmentation of their rights".455 This statement makes it clear that the planned Islamisation of Iranian society is going to have a far greater impact on women's lives than men's, but gives no clue as to what said "augmentation" will involve. The second paragraph of the subsection goes on to identify what the Islamic regime sees as the "true identity" of the Iranian women: namely, the "momentous and precious function of motherhood".456 The "greater oppression" women were said to have suffered under the Pahlavi regime was that Westernisation had treated them like sex objects, distracting them from their familial responsibilities.457 The Islamic Republic was going to restore to them their "undeniable right to be mothers",458 and thus, "deliver them from being regarded as an object or as an instrument in the service of consumerism and exploitation".459
454 Yeganeh, supra note 42 at 8. 455 Constitution of the Islamic Republic of Iran, supra note 427 at preamble. 45 The full second paragraph reads: "The family is the fundamental unit of society and the major center for the growth and advancement of man. Compatibility with respect to belief and ideal is the main consideration in the establishment of a family, for the family provides the primary basis for man's development and growth. It is the duty of the Islamic government to provide the necessary facilities for the attainment of this goal. This view of the family unit delivers woman from being regarded as an object or instrument in the service of consumerism and exploitation. Not only does woman recover thereby her momentous and precious function of motherhood, rearing alert and active human beings, she also becomes the fellow straggler of man in all the different areas of life. Given the weighty responsibilities that woman thus assumes, she is accorded in Islam great value and nobility", see Constitution of the Islamic Republic of Iran, supra note 427 at preamble. 457 Paidar, supra note 424 at 260. 458 Shahidian, Women in Iran, supra note 386 at 121. 459 Constitution of the Islamic Republic of Iran, supra note 427 at preamble.
70 Compare Article 41 of the Irish Constitution, which stresses the importance of the family before outlining the importance of mothers work within the home.460 Once again, in the Iranian constitution, before the motherhood role is mentioned in the second paragraph of the subsection Women in the Constitution, the importance of the family as the "fundamental unit group of society" is outlined. It further states that "compatibility with respect to belief and ideal" is the main consideration in the establishment of a family and "it is the duty of the Islamic government to provide the necessary facilities for the attainment of this goal".461 In the Muslim and Catholic religions traditionally the first priority for women is "to bear children within the institution of marriage".462 Both faiths "emerged in societies organised along patriarchal lines in which the family and not the individual was the building block of social order".46 Both recognise the prescribed functions of women as motherhood, nurturing and domesticity. Both view women as inferior to men "because these functions make them weak, unable to reason, and inadequate to engage in public or political activities". Article 11 again states that "since the family is the fundamental unit of Islamic society" all laws "must tend to facilitate the foundation of a family and tend to protect the sanctity and stability of family relations on the basis of law and the ethics of Islam".46:i Thus one can interpret the intention to encourage the establishment of families compatible with "belief and ideal" as the intention to promote the traditional patriarchal family where the man provides for the family materially, and the woman's role is purely domestic, maternal, and contained to the private sphere. This is reminiscent of, if less explicit than, Article 41.2.2 of the Irish Constitution in which the State was to "endeavour to ensure that mothers shall not be obliged ... to engage in labour to the neglect of their duties in the home".466 In the nation- building stage of the Islamic Republic of Iran, much like that of the Republic of Ireland, the religio-nationalist regime implemented laws and policies in an attempt to confine women to domestic and maternal roles. This will be addressed further below.
Ir. Const., Supra note 61 at art. 41. '' Constitution of the Islamic Republic of Iran, supranote 427 at preamble. '2 Bayes & Tohidi, supra note 16 at 21. ,3 Ibid, at \&. '4 Ibid. '5 Constitution of the Islamic Republic of Iran, supra note 427 at art. 11. ,6 lr. Const., Supra note 61 at art. 41.2.2.
71 Finally, Article 21 of the Iranian Constitution, entitled Women's Rights, states that "[t]he government must ensure the rights of women in all respects, in conformity with Islamic criteria ,..".467 Although under Article 20 both men and women enjoy equal protection of the law (of course subject to Islamic criteria), there is no equivalent provision that explicitly subordinates men's rights to Islamic criteria in the same fashion. This is particularly significant in modern Iran, "where the application of secular law has been associated with women's emancipation and the application of Shari'a law with the relegation of women to a subordinate status".468 Shahrzan Mojab explains that the union of state and religion "shapes the status of women not as citizens but as subjects of Islamic patriarchy in Iran".469 One of the stated goals of Article 21 is the "protection of mothers, particularly during pregnancy and childrearing".470 Hammed Shahidian posits that the Islamic Republic of Iran has "subjugated women's rights to religious interests", and correspondingly their "rights as citizens are defined in the context of their 'worthwhile and responsible task of motherhood'", which has "affected their presence in social, economic and political spheres".471 This sentiment echoes the statement of Parvin Paidar who opines that, since motherhood was seen as the "essence of a woman's being", all other dimensions of womanhood, including their citizenship rights of education, employment and equality before the law, were all conditional upon it.472 "In short, women were granted social and political rights because they were mothers or potential mothers."473 The final sentence of the section of the Preamble, titled Women in the Constitution, states that "[gjiven the weighty responsibilities that woman thus assumes, she is accorded in Islam great value and nobility".474 The importance placed on the motherhood role was emphasised much more strongly in the Constitution of the Islamic
Constitution of the Islamic Republic of Iran, supra note 427 at art. 21. Mayer, Supra note 411 at 84. Mojab, Supra note 344 at 140. Constitution of the Islamic Republic of Iran, supra note 427 at art. 21.2. Shahidian, Women in Iran, supra note 386 at 118. Paidar, Supra note 424 at 259 Ibid, at 261. Constitution of the Islamic Republic of Iran, supra note 427 at preamble.
72 Republic of Iran than that of the Republic of Ireland. Nonetheless, the position embodied in both texts on the role of women is that of religiously inspired, biological determinism, discriminating against them by allocating them predetermined roles and deficiencies, while disguising it as the protection and celebration of women and their role in society. In both countries it is easy to see how the focus on the family and bearing children for the strength of the nation led to policies that had an effect on women's reproductive autonomy.
The Trope of Motherhood Codified in the Laws of the Islamic Republic of I ran
The discourse of nation building and the Islamisation of society in post- revolutionary Iran involved the romanticisation of the past and the purification of the present— with "virtuous women as the bearers of cultural purity and authenticity".475 Law has been used as a central tool by the Islamic regime in the Islamisation of gender relations from the moment of the Revolution's success.476 Measures taken to subjugate women and exclude them from the public and legal domain began even under the transitional government, over which Khomeini had considerable control— long before the Constitution was finalised and the referendum regarding the establishment of an Islamic Republic was put to the electorate.477 While the Revolution had mobilised women politically, in its aftermath, the development of women's political, legal and social situation ground to a halt.478 In the course of the Revolution, many women became politically active for the first time, making significant contributions to its success. Once
475 Sedghi, Supra note 53 at 206. 476 Mojab, supra note 344 at 131. 477 Haleh Afshar, "Women and the Politics of Fundamentalism in Iran" in Haleh Afshar, Women and Politics in the Third World (New York: Routledge, 1996) at 125; The legal basis for some of these changes was questionable as the Council of the Revolution and the Provisional Government were not elected bodies, and their mandate did not include passing civil laws, see Paidar, supra note 424 at 272. 478 Louise Halper, "Law and Women's Agency in Post-Revolutionary Iran" (2005) 28 Harv. J. L. & Gender 85 at 86.
73 they were in power, the Islamic regime praised women's role as revolutionaries but then asked them to go back to their homes.479 Only two weeks after the departure of the Shah, the Family Protection Law was effectively annulled. Khomeini then announced that Shari'a would be reinstituted in the area of family law.481 A week later women were barred from becoming judges, and all female judges were removed from the bench.482 Less than three days after that he proclaimed that all women should wear hejab to work, a statement he temporarily retracted following massive protests by women on the 8th of March 1979.483 This policy was reinstated in June of 1980 when hejab was made mandatory in government buildings and public places.484 Women were denied access to employment in a number of fields deemed 'masculine' such as engineering and medicine, as well as many public offices. In turn, women were funnelled into other more 'appropriate' occupations such as nursing and education. They were also prevented from studying in 140 academic disciplines; education was segregated, single women were not entitled to study abroad, and after the repeal of the Passport Act of 1972, married women could not travel abroad without the written permission of their husbands.487 Paidar explains that within a few months of the victory of the revolution nearly every aspect of women's role and position had been the subject of Khomeini's comment and intervention, including matters relating to: family, education, employment, segregation, hejab, sexual relations and penal law.488 Though it must be mentioned that there were many Islamist women who supported the Islamisation policies of Islamic Regime, there was a great number of them, both secular and religious,
479 Azadeh Kian-Thiebaut, "From Islamization to the Individualization of Women in Post-Revolutionary Iran" in Sarah Ansari & Vanessa Martin, eds. Women, Religion and Culture in Iran (Richmond: Curzon Press, 2002) at 129. 480 Hoodfar & Assadpour, supra note 369 at 22. 481 Halper, Supra note 478 at 88 (New courts were created but the FPL was not formally repealed until 1989). 482 Paidar, supra note 424 at 232. 483 Elham Gheytanchi, "Chronology of Events Regarding Women in Iran since the Revolution of 1979" (2000) 67 Soc. Res. 439 at 439. 484 Ibid, at 440. 485 Afshar, "Women and the Politics", supra note 477 at 126. 486 Nafisi, supra note 392 at 262. 487 Sedghi, supra note 53 at 208; Shahidian, Women in Iran, supra note 386 at 221. 488 Paidar, Supra note 424 at 232.
74 who resisted and protested the reversal of the progress they had made towards gender equality and the violation of their rights. Khomeini's actions were largely calculated to promote the traditional Islamic family, a goal that Ann Elizabeth Mayer has termed "code for programs designed to confine women to child care and house work". Within five months of the Revolution all public day-care centres and nurseries had been closed. Food tokens for married civil servants, which had allowed working mothers to buy food for their families outside office-hours in government co-ops, were also discontinued. ° There was a massive propaganda campaign to drive women out of office jobs. Salary increases were offered to male employees if their wives retired,491 and women were forbidden to take paid employment without the formal consent of their husbands.492 The policy of the conservative clerics in charge of the transitional and then Islamic Republic government was that women should abandon public ambitions and concentrate on motherhood and domesticity; thus, they made it as difficult as possible for mothers to continue working after the Revolution.493 A similar assault was taking place on the media front: "New posters and murals publicized the importance of women as trainers of the Islamic community and state-supported communication networks promoted the role of motherhood and the image of pious and devout mothers."494 Much like in Ireland, the Iranian authorities were obsessed with the prevention of moral corruption. Marriage and procreation were seen as the primary means of curing social ills, and they promoted the Islamic family, which is central to Islamic culture.493 As mentioned above, the focus on family can be invoked to justify control of women and female sexuality for two reasons. First, the hierarchy of the patriarchal family, with
489 Mayer, Slipra note 411 at 130. 490Haleh Afshar, "Women, State and Ideology in Iran" (1985) 7 Third World Q. 256 at 258 [Afshar, "Women, State"]. 491 Tohidi, supra note 412 at 254. 492 After much struggle, this rule had been changed to apply to both spouses, if it concerned a job that was detrimental to the family honour, before the revolution but afterwards was revised only in favour of men, and regardless of the type of employment, see Afshar, "Women and the Politics", supranole All at 126. 493 Ibid. 494 Sedghi, supranole 53 at 229. 495 Hoodfar & Assadpour, Supra note 369 at 22.
75 women subordinate to men, is depicted as 'natural' and religiously ordained.496 Like in Ireland, the national system of Iran "is often conceived in terms of the family metaphor";497 this allows for the justification of societal hierarchy — a "patrimonial political structure"498— with women in their place as 'mothers of the nation'. Rebecca Barlow and Shahram Akbarzadeh observe the following:
The state's gender ideology is grounded in a culture of patriarchy, and reinforced (and ostensibly justified) by a patriarchal interpretation of Islam's holy sources. A cornerstone of the Islamic Republic's gender ideology is the conviction that men and women are fundamentally 'different' beings in nature. This conviction is derived from a conservative Islamic world view in which men and women exist, function, and relate to one another only within the limits of a 'natural' gender hierarchy.499
This 'natural' familial hierarchy is codified in Iranian law. Article 1105 of the Iranian civil code provides that "[i]n relations between spouses, the headship of the family is a prerogative of the husband".500 While it must be noted that the content of this provision also existed/was prevalent prior to the Revolution,501 the power it conferred upon its beneficiaries increased significantly thereafter, especially when contemplated through the prism of the many post-revolutionary legal and policy changes aiming to confine women to the domestic domain. Secondly, when women are given the sole responsibility of the reproduction of the 'national family', control of their sexuality is justified to protect its purity and sanctity. In Iran this control is exerted not only by strongly encouraging marriage. Legally, women do not have free choice as to whom they marry. Article 1059 of the Iranian Civil Code states that it is not permitted for a Muslim woman to marry a non-
Shahidian, Women in Iran, supra note 386 at 113. 497 TohidiTohid , supra note 385 at 126. Ibid. 499 Rebecca Barlow & Shahram Akbarzad, "Prospects for Feminism in the Islamic Republic of Iran" (2008) 30 Hum. Rts. Q. 21 at 22. 500 The Civil Code Of Iran trans, by Mostafa Shahabi (London: Wildy, Simmonds & Hill Publishing, 2007) at art. 1105. 501 Patricia J. Higgins, "Women in the Islamic Republic of Iran: Legal, Social and Ideological Changes" (1985) 10 Signs 477 at 482.
76 Muslim so? ; furthermore, article 1060 states that the legality of a marriage between an Iranian woman and a foreign national is dependent on special dispensation from the government.503 In contrast, men are free to marry both non-Muslims and foreign nationals, without similar, state-sanctioned restrictions.504 Control of whom women in the Islamic Republic of Iran can marry approximates total control of their sexuality, since extra marital sexual activity is criminalised and can be punishable by death. The goals of the Regime were universal and early marriage,506 as well as the reinforcement of male dominance within the family.507 There was a state campaign encouraging marriage that included financial incentives such as special marriage loans. There were also corresponding legal changes, including the abrogation of the Family Protection Law 1967, which had improved the position of women in relation to marriage, divorce, and child custody.508 As Khomeini discarded the Family Protection Law before new legislation was drafted through proper legal channels, family law was thrown into a state of confusion. Effectively the legal status of the family was returned to that contained in the Civil Code of 1931.509 In addition, judges in the family courts were instructed not to deliver judgements that could be considered against the Shari 'a and in cases where no guidance was provided, to ground their decisions on the fatwas of Ayatollah Khomeini.3 While a detailed outline of the changes and contradictions in the family law in the post- revolution years is beyond the scope of this thesis, the main changes that seriously weakened the position of women in marriage will nonetheless be canvassed. The removal of the protections found in the Family Protection Law meant that men regained their right to unilateral divorce,5'1 while women could only dissolve a marriage of their own initiative on the following three grounds: male impotence,
502 The Civil Code of Iran, supra note 500 at art. 1059. 503 Ibid. 504 ,Shahidian , Women in Iran, supra note 386 at 222. 505 Tohidi, supra note 412 at 254; Miller, Supra note 439 at 784; Higgins, supra note 501 at 492. 506 Mayer, supra note 411 at 131. 507 Shahidian, Women in Iran, supra note 386 at 163. 508 Halper, supra note 478 at 88. 509 Paidar, supra note 424 at 272. 510 Paidar, supra note 424 at 272-273. 5,1 Keddie, "Women in Iran Since 1979", supra note 401 at 414.
77 barrenness, and desertion.512 The restraints on polygamy were removed, with men being able to take up to four wives without their first wife's permission;513 meanwhile, temporary marriage, something that had theretofore been outlawed, was not only made legal again,514 but also actively encouraged.51 Men also reacquired the right to automatic custody of their children after the age of two for male children and seven for female.316 Early marriage, as a way to lock women into the maternal role at the earliest possible opportunity,317 was encouraged by reducing the legal ages for marriage to nine years old for girls and fifteen for boys in line with Shari'a law.518 The subordinate positions of women in marriage, and of mothers, as regards child custody, fall in sharp contrast to the praise lavished upon them in the constitution and government discourse. Mehrangiz Kar, a female lawyer writing in Zatian magazine explains that, "the law clearly warns us that the high status of being a mother is locked in slogans only".519 The focus on the marital family and the motherhood role formed the basis of the regime's post-revolutionary pro- natalist ideology, which had a negative effect on Iranian women's reproductive rights and freedom.
Pro-Natalist Ideology in the Post-Revolution Nation Building Stage
The discourse of the post-revolutionary regime encouraged large families. Many of the clerical leaders saw a large population as a sign of strength and cause for celebration.320 Population growth was also envisioned as a way to strengthen the Muslim nation,321 an important response to the perceived attempts by Imperialists to reduce the
512 Afshar, "Women, State", Supra note 490 at 262. 5,3 Ibid. &i262. 514 Homa Hoodfar, "Devices and Desires: Population Policy and Gender Roles in the Islamic Republic" (1994) Middle East Rep. 11 at 15 [Hoodfar, "Devices and Desires"]. 515 Hoodfar & Assadpour, Supra note 369 at 22. 516 Halper, supra note 478 at 88. 517 Mayer, supra note 411 at 131. 518 Gheytanchi, "Civil Society", Supra note 368 at 562; Paidar, Supra note 424 at 273 (Under the previous civil code the ages were 15 for girls and 18 for boys). 519 Gheytanchi, "Civil Society", Supra note 368 at 567 (Zanan was a widely read women's journal that publicly campaigned for women's rights). 520 Hoodfar & Assadpour, supra note 369 at 21. 521 Carla Maklhouf Obermeyer, "Reproductive Choice in Islam: Gender and the State in Iran and Tunisia" (1994) 25 Stud. Fam. Planning 41 at 46.
78 number of Muslims in the world. Just as they did prior to the victory of the revolutionary movement, many of the clerics that were now in power continued to decry the family planning program established by Pahlavi. They renounced it as an attempt to maintain the dominance of the Western world over Muslim countries; thus, they dismantled it almost immediately, and also re-criminalised abortion. 522 Abortion was thereafter only permissible to save the life of the mother and only if gestation of the pregnancy was less than four months.523 Although there had historically been diversity of thought on the topics of contraceptive use and abortion in the community of Shi"i clerics, "[t]he political necessity of opposing the Pahlavi regime gave rise to new consensus on family planning as expressed by Ayatollah Khomeini".524 Although the Regime did not formally outlaw the use of contraceptives, conservative leaders continued to decry contraception as "un-Islamic"525 and to call on women to fulfil their motherhood role. In the discourse encouraging motherhood, Fatima, one of the Prophet's daughters was often used as the model of the ideal Islamic woman that Iran's female citizens should aspire to emulate, in large part because of her dedication to her children. "' It was also argued in one of the influential Friday prayer sermons, which outline the government's political and ideological positions, that birth control was against women's Islamic duty to bear children; indeed, it asserted that women did not have the right to avoid pregnancy. Although contraceptives were not officially banned, with the dismantling of the family planning program, supply became erratic and prices skyrocketed. 528 As a result of the official messages decrying contraception there was widespread confusion as to the legality of contraceptive use, and
Yeganeh, Supranote 42 at 10-11; Department of Economic and Social Affairs, SUpranote 372 at 63. 523 Amir Erfani, "Abortion in Iran: What do we know?" (Policy brief presented at the workshop of the Population Reference Bureau (PRB) held in the annual meeting of Population Association of America in New York City, 29-31 March 2007) at 3 [unpublished] (The cut off point of four months is significant because that is the point at which the Shii clergy consider the foetus to be 'ensouled'); B. Larijani & F. Zahedi, "Changing Parameters for Abortion in Iran" 3 (2006) Indian J. Med. Ethics 130 at 130. 524 Paidar, Supra note 424 at 287. 525 Hoodfar, "Devices and Desires", supra note 514 at 12. 526 "In today's Iran, Fatemeh's birthday is celebrated as the Women's Day. She is commemorated as the paragon of motherhood and wifely virtues, above all, a heroine who was an authentic and devout Muslim, devoid of anything impure, foreign, and alien to Islam", see Sedghi, Supra note 53 at 210; Higgins, Supra note 501 at 491. 527 Paidar, supra note 424 at 287. 528 Hoodfar, "Bargaining with Fundamentalism", Supra note 378 at 31.
79 a black market developed.529 This caused Ayatollah Khomeini, at the urging of medical professionals, to issue a f3twa in 1980 stating that contraceptive use was not contrary to Islam, as long as it did not impair the human organs, and the husband agreed to its use.530 Thus, while contraception was legal, and the government did not interfere with its use by 'the family', women had no control over their reproductive lives as individuals. A woman could not use contraception without her husband's knowledge, if he did not agree to its use, and he had the right to withhold maintenance if she refused intercourse.531 This situation, coupled with the facts that men could refuse to allow their wives to work outside the home, and that women could not easily initiate divorce,3 meant that their husbands had considerable control over their reproductive lives. The onset of the war with Iraq in 1981333 also contributed to a pro-natalist sentiment in the Islamic government as the government encouraged women to raise more dedicated soldiers/martyrs for the cause.534 Women were praised as self-sacrificing mothers who sent their husbands and sons off to war. The Islamic Regime took a contradictory stance on the proper role of women from early on as they shrewdly encouraged female citizens to be politically active while still pushing the proper "Islamic" role of domesticated wife and mother on them.536 The war with Iraq increased the tension between the ideal Islamic woman praised by the Regime and the reality of Iranian women's lives. On the one hand, they were encouraged to marry the wounded veterans, nurse them, and have large families to increase the strength of the nation. As such, "Women were told that the war returners (sic) had a special place in heaven and women who married them would share it with them."537 Additionally during the war, basic rations were based on the number of family members with no qualifications. Having new babies who could be breast-fed resulted in an increase
529 Hoodfar & Assadpour, supra note 369 at 21. 530 Marie Ladier-Fouladi, "The Fertility Transition in Iran" (1997) 9 Population: An English Selection 191 at 201. 531 Afshar, "Women, State", supra note 490 at 260. 532 Paidar, Supra note 424 at 281. 533 Kar, Supra note 366 at 177. 534 Maklhouf Obermeyer, supra note 521 at 46. 535 Gheytanchi, "Civil Society", Supra note 368 at 562. 536 Hoodfar, "Bargaining with Fundamentalism", supra note 378 at 30; Maklhouf Obermeyer, supra note 521 at 46. 537 Paidar, Supra note 424 at 279.
80 in rations for the family, thereby also encouraging poorer families to have more children.538 On the other hand, women were recruited to fill a wide range of roles in the war effort, including acting as: soldiers, guerrilla fighters, auxiliaries, nurses and cooks;539 The war and post-war reconstruction policies also induced increasing numbers of women to take employment outside the home,5 although the numbers of women in the labour force were still lower in comparison to the statistics recorded in the late 1970s.541 As a result of the pro-natalist policies of the Islamic Regime there was a huge rise in fertility rates after the Revolution. The census taken in 1986, the first one since the Revolution, stated that the population was nearly 50 million, an increase of approximately 14 million citizens in one decade, 542 and was "expanding at an unprecedented annual natural rate" of 3.2 percent.543 Many members of the Islamic government, including Prime Minister Mussavi — who upon hearing the census results called the large population "one of the greatest achievements of the Islamic Revolution"544 — felt that the population growth was a positive development. But beginning in the mid 1980s, some of the more politically astute members of the government realised that the increase in population and high birth rate would be incredibly problematic in the context of a depressed post-war economy.s/b
Introduction of a New Family Planning Policy
The Islamic Regime had always depicted itself as the government of the IWOStazefin (oppressed and downtrodden),546 and promised in the Constitution to provide
538 Mohammad Mirzaie, "Swings in Fertility Limitation in Iran" (2005) 14 Critical Middle Eastern Stud. 25 at 29. 539 Sedghi, Supra note 53 at 215. 540 Sharah Razavi, "Islamic Politics, Human Rights and Women's Claim for Equality in Iran" (2006) 27 Third World Q. 1223 at 1225. 541 Sedghi, Supra note 53 at 221 542 Hoodfar & Assadpour, Supra note 369 at 22. 543 Mirzaie, Supra note 538 at 29 (This just includes births not immigration, with immigration the rate of population growth was 3.97%). 544 Maklhouf Obermeyer, Supra note 521 at 47. 545 Hoodfar, "Devices and Desires", supra note 514 at 12. 546 Ibid, at 12; Afshar, "Women and the Politics", supranote All at 121.
81 its citizens with the basic foodstuffs, healthcare, and education. The growing population and increasingly dire economic situation challenged the ability to deliver on those promises, and thus forced the reconsideration of pro-natalist policies. By 1985 a loose coalition of experts from both inside and outside the government was beginning to question the Regime's pro-natalist policies and to suggest implementing a family planning programme. In so doing, proponents of this proposal were cautious in approaching the delicate subject. Many of the current leaders had been "outspoken enemies" of the Shah's population program, and it would prove incredibly difficult to challenge that stance without undermining the credibility of the Regime, or of its religious leaders.548 In order to create the right atmosphere for the introduction of a family planning policy, this increasingly large and influential coalition commenced a consensus building campaign that relied heavily on religious and nationalist justifications. Ironically, the very same rhetoric that had been evoked to decry family planning as an imperialist plot were now being employed to encourage the use of contraceptives by Iranian citizens. The campaign was designed not just to convince the public, but also the many high-ranking clerics, who staunchly opposed a government-sponsored family planning program.549 The government funded research and publications on the issue. They promoted debate in newspapers and other publications, and addressed the issues in the Friday sermons." The religious aspect of the campaign focused on the study and publication of "medieval writings which demonstrate that family planning has been a concern of Islamic societies long before it was a Western interest", as well as the claim that the Prophet "allowed Muslims to practice contraception in times of economic hardship".552 The nationalist aspect of the discourse concentrated on the fact that if the population outstripped national
Maklhouf Obermeyer, supra note 521 at 47. 548 Hoodfar & Assadpour, supra note 369 at 22. 549 Ibid, at 23. 550 Hoodfar, "Devices and Desires", supra note 514 at 12. 551 Homa Hoodfar, "Reproductive Health Counselling in the Islamic Republic of Iran: The Roles of Woman Mullahs" in Carla Maklhouf Obermeyer ed., Cultural Perspectives on Reproductive Health (New York: Oxford University Press, 2001) at 156. 552 Hoodfar, "Bargaining with Fundamentalism", supra note 378 at 32.
82 resources Iran would be forced to 'beg' from Western countries.553 Emphasising that because of their more balanced population pyramids, the West were in a better position to educate their citizens and thus continue their domination over Muslim nations.534 Emphasis was placed on 'quality' not 'quantity' of Muslim Iranian citizens.555 In fact, it was elevated to the level of an 'Islamic duty' not to sacrifice the quality of the nation by having a large family.556 This public discussion led to a national conference on population policy in 1988, which resulted in the creation of a national family planning policy.M7 In December of 1988, Iran's High Judicial Council cleared the way for the introduction of a family planning programme by publicly affirming that Islam did not pose any barriers to family planning.558 Then in December 1989, Ayatollah Khomeini, who had been a fervent opponent of Pahlavi's family planning campaign, signed the Family Planning Bill before his death.559 The Family Planning Bill was not actually ratified until 1993. In 1989 the basic ideas of family planning were included in the First Five Year Plan of Development Bill instead, in order to deny influential members of the legislative assembly who were still against family, planning the chance to mobilise support against the bill. 56° The program had three major objectives: i) to encourage women to space out their pregnancies over three-year intervals, ii) to discourage women under eighteen and over thirty-five from becoming pregnant, and iii) to limit families to three children.i6] Contraceptives, imported from Western countries were distributed free of charge in newly created "health houses". The government spearheaded a campaign to educate the public about contraceptive use and family planning.562 Despite the previous fatwa issued by Ayatollah Khomeini condemning permanent forms of contraception as contrary to
553 Ibid. 554 Hoodfar, "Devices and Desires", SUpranote 514 at 13. 555 Jones & Mehtab, Supra note 41 at 148. 556 Paidar, supra note 424 at 289. 557 Hoodfar & Assadpour, Supra note 369 at 24. 558 Aghajanian, Supra note 371 at 68. 559 Hoodfar, "Bargaining with Fundamentalism", supra note 378 at 32. 560 Amir H. Mehryar, "Shi'ite Teachings, Pragmatism and Fertility Change in Iran" in Jones & Mehtab, Supra note 4\ at 150. 561 Akbar Aghajanian & Amir H. Merhyar, "Fertility, Contraceptive Use, and Family Planning Program Activity in the Islamic Republic of Iran" (1995) 25 Int'l Fam. Planning Pers. 98 at 98. 562 Paidar, Supra note 424 at 288.
83 Islam, in 1990 the High Judicial Council declared that sterilisation was not against Islamic principles or existing laws.363 As a result, vasectomies and tubal-ligations became available at all main hospitals.564 In a complete about-face from previous pro-natalist policies, the Family Planning Bill, ratified in 1993, provided for financial disincentives to discourage families from having more than three children. These disincentives included denial of paid maternity leave, insurance, and social welfare subsidies to families for any child after the third.565 "The policy of birth control received a positive response from the Islamic women's movement", and discussion of different methods of birth control in women's magazines contributed greatly to the Regime's campaign on family planning.566 The program recognises women as central decision-makers and agents regarding fertility. Correspondingly, this recognition has created opportunities for pragmatic female activists to raise put forth demands for women's rights as citizens and economic development.367 This mobilisation obviously engendered serious challenges for the regime and their ideological stance on the woman's role within the family. So far, although the fact that improving women's position within the family and society is important for the program's continued success has been recognised, "the government has been ambivalent about reforming personal status law".568 Despite the issues that women's employment and position within the family cause the regime in regard to their family planning goals, one unexpected area in which the policies of the Islamic Republic have had a positive effect on women is that of education and literacy. Despite the early setbacks caused by segregation and the barring of women from certain fields of study, many of the restrictions have now been lifted,569 and the level of education of women under the Islamic Regime has risen considerably compared to the Pahlavi era. Increased levels of literacy among women have lead to a later age of marriage and higher rates of
563Dariusch Atighetchi, Islamic Bioethics: Problems and Perspectives (New York: Springer, 2007) at 88. 564 Hoodfar, "Devices and Desires", supra note 514 at 14. 565 Mehryar, supra note 560 at 152. 566 Paidar, supra note 424 at 289. 567 Hoodfar, "Bargaining with Fundamentalism", supra note 378 at 32. 568 Ibid. 569 By 1989, due to continued pressure restrictions on women in higher education were removed, see Yeganeh, supra note 42 at 12.
84 contraceptive use, which have greatly contributed to the family planning programme's 570 success. Although Iran's family planning program has been incredibly successful and has lowered the birth rate significantly, many women's fertility decisions are still dictated by their subordinate and insecure position within the family and society. Iranian women are generally much younger than their husbands, they expect to be widowed. Since job opportunities for them have decreased since the revolution, they hope to have sons that will provide for them. In trying for sons they often end up with a family much larger than the government recommends, and they themselves want. The threat of polygamy, temporary marriages, and losing their children in divorce, also causes women to have more children in order to "consolidate their family ties".372 In that regard, women's activists continue to link their demands for greater security in marriage and economic independence to the national goals of the family planning program,573 namely by pointing out the "contradiction between the government's demand that women have small families and the way women are treated legally and socially".574 In regard to the family planning program of the Islamic Republic of Iran, Homa Hoodfar explains that "[w]hile this falls short of an ideal feminist family planning programme whose paramount goal is women's reproductive rights, it nonetheless represents a considerable improvement". Though it is important to recognise this improvement, it cannot be at the expense of ignoring the fact that although contraceptives are legal and there is a comprehensive system of reproductive healthcare, many women in Iran do not have the legal autonomy to control their own fertility. In order for the right of reproductive choice to be a meaningful one, a full constellation of other rights must be protected.576
Mohammad Jalal Abbasi-Shavazi, "The Rise and Fall of Fertility in Post-Revolutionary Iran" in Jones & Mehtab, Supra note 41 at 151. 571 Hoodfar,. "Devices and Desires", supra note 514 at 15. 512 /bid at IS. 573 Hoodfar & Assadpour, supra note 369 at 25; Sedghi, supra note 53 at 240. 574 Hoodfar, "Devices and Desires", supra note 514 at 15. 575 Hoodfar, "Bargaining with Fundamentalism", supra note 378 at 32. 576 Lynn P. Freedman & Stephen L. Issacs, "Human Rights and Reproductive Choice" (1993) 24 Stud. Fam. Planning 18 at 19.
85 As the history outlined above demonstrates, both Islam and Iran's national interest have been invoked to justify diametrically opposed positions on contraception and fertility control, depending on the economic and political exigencies of the time.577 Patrizia Albanese has explained, in the context of Europe that, "women's battles for political rights and reproductive health often seem to get ignored by those who can legislate change, until fighting for women's rights and health appear to be useful in achieving broader national goals". 578 Given the importance placed on women's motherhood role and sexuality in respect to the national project by successive Iranian regimes, if there is no recognition of women's rights to control their fertility, there can be no guarantee that the government's position will not change again, stripping women of the access to reproductive health care provision they currently have. Although contraception was never formally outlawed by the Islamic Regime, the dismantling of the family planning program, combined with the detrimental effects to women's position in marriage caused by the abrogation of the Family Protection Law, and aggressive pro-natalist policies, had a negative affect on women's reproductive autonomy. Since 1988, motivated by political and economic requirements, the Regime has shown an impressive turnaround as regards reproductive health provision and can now boast the most successful family planning programme in the Middle East.579 Presently, it is the subordinate position of women in society that serves as the major obstacle to their realisation of reproductive autonomy. One positive outcome of the Regime's new dedication to family planning, is that it has given pragmatic women's activists leverage with which to press the government towards greater recognition of women's rights, and improvement of their position within the family and wider society. Women continue to agitate for rights protection within the confines of the present system, as explained by Elham Gheytanchi:
... motherhood serves as the tension between Islamic laws, state's ideology and women's lack of legal rights ... motherhood has been reclaimed by women and Muslim women's activists. They
Maklhouf Obermeyer, SUpranote 521 at 41. 78 Albanese, supra note lat 8-9. 79 Atighetchi, Supra note 563 at 89.
86 are now using the same slogan to demand actual legal protection for issues such as divorce, custody of children and ev6n abortion as public actors present in the social sense.580
Abortion Law under the Islamic Regime
In 1989 when the government of the Islamic Regime changed their position on contraceptive use and family planning, their stance on abortion— namely that it was unlawful and un-Islamic— remained the same. ' The directors of the family planning programme avoided being drawn into a debate on abortion by stating that it was a health matter, not a family planning matter, and thus outside the scope of the programme.582 The abortion law of the Islamic Republic was originally codified in the Penal Code of 1982 and remained unchanged when the Code was amended in 1991.583 In the Iranian Penal Code "abortion is categorized as a lesser crime involving bodily injury (O/'sas), which is punishable by the payment of blood money or compensation (diyah)". This compensation is paid, by the culprit, to the victim, or in the case of the victim's death, to their heirs.585 Articles 487 to 492 set out the regulations for the payment of diyah, in the case of abortion.586 The amount of compensation payable depends on the stage of pregnancy at which the abortion is performed. The six phases of embryonic and foetal development outlined are based directly on passages from the Qur'an.^1 The most critical stage is the sixth, 'ensoulment'. This is usually considered under Islamic law to
coo t t SRQ occur after 120 days, but the time frame is not explicitly specified in the code itself.
580 Gheytanchi, "Civil Society", supra note 368 at 572. 581 Ramazani, supranote 428 at 414. 582 Hoodfar & Assadpour, supra note 369 at 27. 583 Atighetchi, supra note 563 at 119. 584 Department of Economic and Social Affairs, Supra note 372 at 63. 585 Atighetchi, supranote 563 at 120. 586 Islamic Penal Law in Iran [Islamic Republic of Iran] online: UNHCR Refworld
87 If an abortion is carried out after ensoulment, the full diyah payable for taking a human life is to be paid for a male foetus, half for a female foetus, and three quarters of the full diyah if the gender is unknown (Article 487).590 Article 489 states that if a pregnant woman aborts her foetus at any stage of pregnancy she shall pay the full blood money and none of the blood money shall go to her.591 If there is more than one foetus is involved in an abortion, separate blood monies will be paid for each.592 As well as the payment of blood money, Article 622 of the Penal Code states that any individual who causes a pregnant woman to miscarry through violence, can serve up to three years in prison. Article 624, establishes that if a doctor, midwife, chemist or surgeon supplies the instruments or takes part in an abortion, they risk from two to five years imprisonment, as well as being responsible for the blood money.593 Although there are no explicit exceptions provided to the illegality of abortion, it is stated in the United Nations publication titled, Abortion Policies: A Global Review that, as other sections of the Code exempt criminal actors from punishment if the action was taken to save a life, it is presumed this would apply to the life of a pregnant mother.594 Additionally, Ayatollah Khomeini issued a fatwa before his death, which has been reaffirmed by a number of different clerics, stating that: before the fourth month of pregnancy, if continuing the pregnancy would lead to a fatal condition for the mother, or threaten her life, abortion is permitted with the confirmation of a physician, and permission of her husband.5 3 As stated in Article 167 of the Constitution, if a judge cannot find a basis for judgement in the codified laws of the land, he must make reference to reputable Islamic sources or fatwas.596 Hamideh Sedghi explains that although abortions were still illegal, after 1989 they became more frequent than they had been since the 1979 Revolution.597 It has been
590 Islamic Penal Law in Iran, supra note 586. 591 Ibid. 592 Ibid, at art. 490. 593 Atighetchi, Supra note 563 at 120. 594 Department of Economic and Social Affairs, supranote 372 at 63. 595 K .M. Hedayat, P. Shooshtarizadeh & M. Raza, "Theraputic Abortion in Islam: Contemporary Views of Muslim Shiite Scholars and the Effect of Recent Iranian Legislation" (2006) 32 J. Med. Ethics 652 at 654; Larijani & Zahedi, Supra note 523 at 130. 596 Constitution of the Islamic Republic of Iran, supra note 427 at art. 167. 597 Sedghi, supranote 53 at 228.
88 suggested, that in the early 1990s, after the introduction of the family planning program, the government eased its firm stand prohibiting abortion, though no formal policy changes were made.598 It is estimated that approximately 100,000 illegal abortions are performed in Iran each year.599 A flourishing underground market exists to meet demand for abortions,600 and the authorities do not seem to actively pursue prosecutions.60' Although data regarding unsafe abortions and maternal morbidity in Iran is limited, it is "recognised as one of the main causes of maternal mortalities from pregnancy-related causes, responsible for an estimated 5.2 percent of maternal deaths".602 Although it did not result in an immediate change in the law, the problem of population growth in Iran has opened up the debate on abortion, with even some religious figures, like Ayatollah Sanei, reviving Islamic arguments in favour of early abortion.603 Under the more liberal atmosphere prevalent during the terms of ex-President Khatami (1997-2005), "health-care workers, lawyers, human rights activists and women's groups have called attention to the need for medically prescribed abortion".604 This action led to the first national conference on abortion in February 2003, which contributed in part to the first liberalization of abortion law in Iran since 1979. 605 In April 2005 the Iranian Parliament (Maj/es) approved a bill that sought to legalise therapeutic abortion in cases of specified maternal or fetal conditions, with the approval of three specialist physicians, where either the pregnancy is a danger to the life of the mother, or the foetus is mentally or physically handicapped.606 The bill was rejected twice by the Guardian Council, as either contrary to the Constitution or Islam, but finally passed with amendments.607 The
598 Donna Lee Bowen, "Islamic Law and Family Planning" in Stephen P. Heyneman, ed., Islam and Social Policy (Nashville: Vanderbuilt University Press, 2004) at 142. 599 Jocelyn DeJong, et a/., "The Sexual and Reproductive Health of Young People in the Arab Countries and Iran" (2005) 13 Reproductive Health Matters 49 at 55. 0 Amir H. Mehryar, Shirin Ahmad-Nia & Shahla Kazemipour, "Reproductive Health in Iran: Pragmatic Achievements, Unmet Needs & Ethical Challenges in a Theocratic System" (2007) 38 Stud.Family Planning 352 at 357. 601 Hoodfar, "Devices and Desires", supranote 514 at 13. 602 Erfani, Supra note 523 at 2. 603 Paidar, supra note 424 at 289. 604 Mehryar, Ahmad-Nia & Kazemipour, supra note 600 at 357. 605 Ibid, at 357. 606 Frances Harrison, "Iran Liberalises Laws on Abortion" BBC News (12 April 2005) online: BBC News
89 requirements one must satisfy to obtain a legal abortion are nonetheless incredibly stringent.608 With the approval of this bill the abortion law in Iran is now more liberal than that of the Republic of Ireland. The strict abortion ban in Ireland came about through the government accepting a constitutional amendment clearly inspired by strict Roman Catholic doctrine on the issue of abortion, despite the separation of church and state in Ireland. In sharp contrast, the liberalization of abortion law in Iran, where there is no separation of religion and state, can be better explained by the fact that Islam lacks a central authority. As a result, a number of different positions on abortion are entertained by Shi'i clerics, though all ulama agree that abortion after ensoulment is strictly forbidden.609 Again, as with the approach to contraception above, the emphasis is not on individual women, but the marital family. In order to acquire an abortion under the newly liberalized law, both the mother and father must consent to the procedure.610 While this liberalization of the abortion law is an extremely positive development, and demonstrates the flexibility possible under Islamic law on the issue of abortion; as with the issue of contraception above, it is important to note that women do not make decisions regarding their fertility in a vacuum. While there is increased access to legal abortion in Iran, there are many other factors that weigh on women's ability to freely avail of that service. Academic opinion on the Islamic Regime's changing stance on family planning and abortion is divided. One position is that these changes evidence the ability of Shi 7 Islam to evolve with the times, through the practice of ijtihad^' which also demonstrates
The requirements of the legislation are outlined here. Therapeutic abortions may be performed under the following conditions. First, the fetus must be less than four months of age, that is, before the spirit is breathed into it. Second, the fetus must be suffering from profound developmental delay or profound deformations or mal-formations. Third, these fetal problems must be causing extreme suffering or hardship for the mother or the fetus. Fourth, the life of the mother should be in danger. Fifth, both the mother and the father give their consent to the procedure. A physician who performs an abortion shall not be penalized, if all of these requirements are met. see Hedayat, Shooshtarizadeh & Raza, Supra note 595 at 654.. 609 Bowen, supra note 598 at 164. 610 Hedayat, Shooshtarizadeh & Raza, Supra note 595 at 654. 611 "Shi'te jurists lay particular emphasis on ijtihad, that is inferences made by a commonly acknowledged living jurist on the basis of his interpretation of the holy Qur'an and traditions attributed to the Prophet or another member of the fourteen infallibles ... It is said that in Shi'ism, unlike other major Islamic schools of jurisprudence, the doors of ijtihad remain open. Modern Shi'ite writers like the late Ali Shariati, have made much of this inherent ability of Shi'ism to cope with changing socio-political circumstances and to accommodate emerging social problems through new and innovative interpretations of basic Islamic doctrines" see Mehryar, Supra note 560 at 123.
90 that Islam itself is not incompatible with human rights, that the problem is simply conservative, patriarchal interpretations by conservative clerics in power.612 Another perspective is that the regime has demonstrated a utilitarian use of religion to justify any position that is considered economically or politically necessary, or advantageous.613 Whatever the motivations, the flexibility of Shi'i jurisprudence, and lack of a central authority, meant that it was possible for the Islamic Regime to reverse its pro-natalist position and encourage contraceptive use. Even more surprising is the Regime's support of sterilization, which had been made illegal along with abortion at the inception of the Islamic Republic, and is widely viewed in other Muslim countries as contrary to Islam.614 The recent liberalisation of the law on abortion is also encouraging. Nonetheless, it is important to recognise that there are many factors that affect women's reproductive decisions. Though the flexibility of Islam on the issues of contraception and abortion has engendered some positive results, attempts to improve women's position in society and the family are proving far more difficult.
The Women's Movement in Iran
Despite the attempts to rebuild society along 'Islamic' lines, and confine women to domestic and maternal roles, the Islamic Regime was never able to completely contain Iranian women. Political factors, the demands of Iran's capitalist economy, and the eight- year war with Iraq, affected the Regime's ability to strictly enforce the role they saw as proper.615 More importantly, the Revolution had brought women out into the public and political arena and they refused to simply be pushed back into the home.616 Despite the governmental discourse that describes Iranian women solely as wives, mothers and the
612 Nafisi, Supra note 392 at 84. 613 "Others have viewed the decision of Iranian authorities to revive the family planning programme and to promote contraceptive use as another example of the expediency measures taken by a shrewdly pragmatic regime in the face of enormous economic problems that threatened its very survival at the end of an eight year wa." see Mehryar, supra note 560 at 121. 614 Aghajanian & Merhyar, SUpranote 561 at 100. 615 Tohidi, supra note 412 at 223. 6i6 Gheytanchi, "Civil Society", supra note 368 at 561; Halper, supra note 478 at 138.
91 cultural guardians of the nation, they nonetheless perceive themselves as individuals. 17 Since the inception of the Islamic Republic of Iran they have been campaigning for the protection of their rights.618 Because of the suppression of any dissenting voices by the Islamic regime, it has been largely impossible for openly secular women to engage in politics.619 Thus, despite the struggles of secular women, it is devout Muslim women 2 who have been most successful in challenging the Islamic Regime within the framework of religious language, by promoting more gender egalitarian interpretations of Islam's holy sources.6 ' They have won considerable ground in the areas of marriage, divorce, child custody, and education, and continue to push for improved gender equality.622 Increasingly, since the 1990s, secular and religious women are working together to further the goals of women's rights and equality.623 The election of Muhammad Khatami in 1997, a liberal cleric, and a leader of the reform movement, was seen as a positive force for change in the Islamic Republic of Iran. Notably, women voters played a key role in his election.624 Khatami appointed the first female Vice-President in Iranian history; moreover, the Majles (Parliament) from 2000-2004 was dominated by reformists. Although a number of positive changes were made during this era, including raising the legal age for marriage of girls from 9 to 13,625 and an amendment of the custody law to grant women increased custody rights, the vast majority of bills passed by the parliament to improve women's rights in marriage, divorce and other areas, were either rejected by the Guardian Council, or "emptied of their progressive elements".627 In 2003 the parliament passed a bill allowing for the
617 Monshipouri, supranote 399 at 10. 618 Mayer, supra note 411 at 133. 619 Razavi, supranote 540 at 1225. 620 The vast majority of Islamic women involved in furthering the cause of women's rights do not self identify as feminist, though there actions may be identified and named as feminists by outside observers, or Iranian scholars in exile. 621 Keddie, "Women in Iran Since 1979", supranote 401 at 416. 622 Afshar, "Women and the Politics", supra note 477 at 126. 623 Halper, supra note 478 at 119. 624 Barlow & Akbarzad, supra note 499 at 26. 625 Ramazani, supranote 428 at at 415. 626 In 1997 a law was passed to allowed to grant child custody to divorcing mothers in some specific cases, despite the fact that Shari'ah law automatically gives custody to the father, see Reza Afshari, Human Rights in Iran: The Abuse Of Cultural Relativism (Philadelphia: University of Philadelphia Press, 2001) at 257. 627 Barlow & Akbarzad, supranote 499 at 28.
92 Ratification of the Convention on the Elimination of Discrimination Against Women, but the Guardian Council rejected the bill, stating that ratification would violate both Islamic Law and the Constitution.628 Although many of the attempts to improve women's position between 1997 and 2004 were thwarted, it was a positive time for the development of civil society. President Khatami created the Centre for Women's Participation, headed by Vice-President Zahra Shoja'i, which encouraged the formation of women's NGO's. The women's movement also gained confidence with the Nobel Peace Prize being awarded to Shirin Ebadi in 2003.629 The prevailing attitude also allowed for greater tolerance of public participation by secular women's rights activists. Unfortunately, this time period was a vivid illustration of the limits placed on religious- oriented women's activism in Iran, as years of work by reformist parliamentarians were rendered essentially moot by the actions of the Guardian Council.630 Huge efforts have been made, within the Islamic framework, to improve woman's position by encouraging more egalitarian interpretations of the Qur'an to inform the reform of law. Unfortunately, the Iranian governmental power structure, which gives the unelected conservative clerics of the Guardian Council the ultimate power to veto or pass legislation, means that they can continue to block law reform and impose their patriarchal ideology on the laws of the state. During the reform period (1997-2004) there was a power struggle between the reformists, "who sought to reconcile Islam with democracy, human rights and gender equality" and the conservatives who insisted on keeping their ideological construction of Islam intact.632 This led to the Guardian Council regaining control of the government for conservatives by disqualifying one third of the candidates in the lead up to the 2004 legislative election.633 Similarly, before the 2005 presidential election, the Guardian
Mayer, Supra note 411 at 134. 529 Ziba Mir-Hosseini, "Is Time on Iranian Women Protesters' Side?" Middle East Report (June 16 2006), online: Middle East Report Online
93 Council disqualified all presidential candidates it deemed to be ideologically unacceptable, leaving only conservative candidates with no strong ties to the reformist movement in contention.634 Ziba Mir-Hosseni notes that although the reformists failed to bring about any major reforms or change in the structure of power during their time in office, they had one major and lasting success; they "demystified both the power games conducted in a religious language and the instrumental use of religion to justify autocratic rule and patriarchal culture".635 Since the election of conservative President, Mahmoud Ahmadinejad, there has been a renewed focus on motherhood and domesticity as the principal and proper role for women in Iran. Tellingly, the Centre for Women's Participation was renamed The Centre for Women and Family Affairs. In October of 2006, President Ahmadinejad called on women to return to their family homes and devote their energies to their primary responsibility of raising children.637 His presidency has overseen a crackdown on women's rights' activists,638 including the closure of Zanan— a magazine dedicated to the promotion of women's rights in Iran that had been in print since 1992 and was a central institution of the women's movement — and the imprisonment of a number of
• • 639 activists. In recent years, growing frustration with the limits of attempting to improve women's rights within the constraints of the present system — as the Guardian Council refuse to accept changes that do not fit within their conservative ideology — has led to an increase in secular-type activism.640 A great number of Iranian citizens, including women's activists are now calling for the revision of the Constitution and the separation
634 Ibid, at 34 & 37 (A similar campaign of disqualification had occurred before the legislative elections in 2004). 635 Ziba Mir-Hosseini, supra note 631 at 637. 636 Kambiz Fattahi "Women's bill 'unites' Iran and US" BBC News (31 July 2007), online: BBC News
94 of Mosque and State. Many women are frustrated with, and have chosen to opt out of, the current political system. They are taking their issues directly to the public through public protests and acts of civil disobedience. A notable example is a protest that was held in June 2005. Women staged a sit in to protest the Guardian Council's disregard for democracy and demanded a referendum to revise the Constitution. An official statement by the protest organisers stated that, "[t]he constitution's belittlement of women as citizens and active social participants has blocked their ability to secure their rights".642 A similar protest was held on the same day in 2006 to "commemorate and expand on their demands from one year earlier".643 Iranian women's rights activists are in a difficult position as their demands for equal human rights are often decried as Western cultural imperialism.644 In the current international climate, that is a very powerful rhetoric. America's "War on Terror", has seen the invasion of both Afghanistan and Iraq, often justified in the name of human rights. Also, in 2002, President George W. Bush catagorised Iran as a member of the "Axis of Evil", and there has been increased pressure and focus on Iran regarding nuclear proliferation.645 Not only do such actions strengthen nationalist sentiment, and lend renewed vigor to the government's goal of the "Islamisation" of society; they also erode the credibility of secular human rights discourses in the Muslim context.646 Despite the many obstacles, and often harsh treament by the authorities, Iranian women's rights activists persevere. Repression and subordination under the Islamic regime has radicalised Iranian women, and they continue to protest and demand equal rights and reform of the constitution. It remains to be seen what the future holds for women's rights in Iran.
641 Barlow & Akbarzad, supra note 499 at 40. 642 Masha Shekarloo, Supra note 640. 643 Barlow & Akbarzad, supra note 499 at 37. 644 Kar, Supra note 366 at 198. 645 Rieffer, Supra note 45 at 21. 646 Ziba Mir-Hosseini, SupranoXe 631at 645.
95 Conclusion:
The example of the Islamic Republic of Iran, like that of Ireland, demonstrates that religious nationalist ideology when codified into law and governmental policy can have a negative effect on the reproductive rights of female citizens. The focus on women, — and specifically pious, devoted mothers — as symbols of the nation, can be used to justify control of their sexuality, and even participation in society. The Iranian example is particularly interesting because unlike Catholicism, Islam does not strictly proscribe contraception and abortion. As there is no central religious authority, a number of different positions on these issues are taken within different schools of thought, and the majority of them are relatively permissive. Nonetheless, immediately following the revolution, the Islamic regime outlawed abortion and sterilization, dismantled the existing family planning program and pursued aggressive pro-natalist policies. These policies were often justified in religious language, but can be seen to have been partially motivated by nationalist and anti-imperialist ideology. It was possible for the Islamic Regime to reverse these policies while still maintaining that all laws must be compatible with Islam, but women will not have true reproductive autonomy until their subordinate position both within the family, and wider society is remedied.
96 Conclusion
This project has outlined the root causes of religious nationalism in both the Republic of Ireland and the Islamic Republic of Iran, and studied the effect that it has had on the reproductive rights of women. Though the two countries profiled are vastly different there are a significant number of similarities regarding post-revolutionary nationalist ideology and its negative consequences for women's autonomy generally. Both states exhibited a central focus on controlling women's sexuality and justified this control through emphasising the importance of the motherhood role to the nation. A central aim of this comparison, and a point that has been addressed by Joane Nagel among others, is to demonstrate that the re-patriarchalisation of society after a revolution is not unique to Islamic societies as "religious nationalism, indeed all nationalism, tends to be conservative, and 'conservative' often means 'patriarchal'".647 As stated by a growing number of feminist scholars, nationalist politics is an essentially masculine enterprise. In the process of nation building, the new 'national culture' is constructed primarily "by men, for men and about men" and thus women are cast in supporting roles that "reflect masculinist notions of femininity and 'women's proper place'".648 Thus it is noted that "images of women as chaste, modest mothers and preservers of tradition" are often central to nationalist ideology.649 Nira Yuval Davis and Floya Anthias have identifies five ways that women are implicated in nationalist movements and discourse:
1. As biological reproducers of national collectivities. 2. As reproducers of the boundaries of national groups (through restrictions on sexual or marital relations). 3. As active transmitters and producers of the national culture.
Nagel, supra note 10 at 254. Ibid, at 243. Albanese, Mothers, supra note 49 at 17.
97 4. As symbolic signifiers of national difference. 5. As active participants in national struggle. 5
This paper has demonstrated that in both Ireland and Iran, despite women's active participation in the revolutionary struggle, in the aftermath of revolution, the first four roles outlined above have been seen by the governments in power as the only important or acceptable roles for women. The policies regarding women in both countries post- revolution can be seen, in part, as a reaction to past imperialist interference. In constructing their national identity as morally superior to that of their former colonisers, they must construct their female citizens — the symbols of the nation and carriers of culture — as pure, chaste and pious; this is central to national honour. Such a construction is dangerous as it ignores the reality of women's lives and contributions, as well as denying them the opportunity to construct their own identities. When the proper role of women is so tightly tied to national identity, women who venture outside this role are seen as traitors to their national collectivity.651 The religio-nationalist discourse in both countries focused heavily on centrality of the motherhood role for women. In particular, discourses of the familial nation constructed women as the 'mothers of the nation', and thus 'naturally' subordinated them to men in their designated role as the father/protector/provider. Both Catholicism and Islam prescribe motherhood and domesticity as the proper role for women, and see women as complementary to men, not equal, and thus religion played an important role in this construction. Women in both countries were encouraged to emulate examples of pious and dedicated motherhood, in the person of such female religious figures as Fatima in the Muslim tradition and the Virgin Mary in Catholicism. This focus on motherhood was transcribed into the constitutions of both the Republic of Ireland and the Islamic Republic of Iran. When women are presented primarily as mothers, instead of individuals, in a state's constitution, it legitimizes limiting their autonomy in order to
650 Nira Yuval-Davis, Floya Anthias & Jo Campling, eds. Woman-Nation-State (Hampshire: Macmillan, 1989) at 7. 651 Wilford, Supra note 4 at 3.
98 ensure they reproduce. Thus their rights as citizens are thus subordinated to the importance of their role as mothers. Both in post-revolution Ireland and Iran political and legal measures were used in attempts to confine women to maternal and domestic roles. These efforts inhibited the improvement of women's socio-economic status and independence, both of which play an essential role in allowing full exercise of reproductive rights. Focus on the centrality of the motherhood role for women often feeds directly into pro-natalist policies in many post-revolutionary nationalist governments. Limiting women's ability to control their fertility is justified through the perceived need for a strong nation state, especially when the state concerned has been the subject of imperialist interference and control. Also, denying women's access to contraceptives, or limiting that access solely to married women, serves to control their sexual behaviour. Though female fecundity is valued in the context of their role as mothers of the nation, female sexual behaviour that falls outside the prescribed pattern is seen as threatening to the entire national project. In Ireland, this focus on motherhood has been gradually tempered as the secularisation of the law and society has allowed women to define themselves as individuals, though the legacy of its retrogressive gender ideology remains in Article 41.3.3 of the Constitution. In Iran, this secularisation has not occurred. Furthermore, the most powerful members of the Iranian government, the Supreme Leader and the members of the Guardian Council, will not allow laws to be passed if they violate their conservative religious ideology. Progress towards improving women's position within the family and in society has been slow, and motherhood is sill emphasised as the primary role for women. This government position does not reflect the reality of Iranian women's lives or how they see themselves.652 As explained by Jo Murphy-Lawless, since the 1960s "Irish women have demolished rationales about Irish national identity and rejected notions of family and motherhood which came from a comfortable working consensus between the male-dominant authorities of church and state".653 Iranian women have been working tirelessly to do the same thing. Unfortunately they do not have the same opportunities to effect legal change in the theocratic system of the Islamic Republic of
Monshipouri, supra note 399 at 10. Murphy-Lawless, Supra note 111 at 61.
99 Iran. In order for the regime to maintain its fiction about the nature of its culture and citizens, it needs to suppress the voices of Iranian women. In the areas of reproductive rights specifically, one can observe the effect of nationalist ideology, as women in both countries were denied control of their fertility in various ways even though the faiths of Catholicism and Islam do not take the same position on the issues of contraception and abortion.654 At different times, in both countries, reproductive technologies were referred to as violent colonial tools, in order to discourage their use or legalisation. When the government in Iran changed its position on family planning, the same arguments regarding the strength of the nation were trotted out, though now the emphasis was on 'quality' as opposed to quantity.655 Women's health is consistently subordinated to the nation's health, as the issue of fertility control is tied to nationalism and identity in a way that discredits the needs of women. In Ireland, a gradual improvement of the position of women in society and the secularisation of the government and law, allowed them to fight for and obtain legal protection of their reproductive rights that was contrary to Catholic teaching. That said, abortion is still a controversial issue, and despite evidence that societal views on the topic have changed, the amendment of the Constitution to protect the right to life of the unborn poses a huge obstacle to any future liberalisation of the law. In Iran the situation is different, as the Islamic position on contraception and abortion is generally more permissive. Also, there are many different available interpretations of that position. It was therefore possible for the Government to change its stance on the provision of contraception while still requiring that no law contravene religious ideology. The same can be said for the recent, restricted liberalisation of the abortion law. Despite this shift, and some hard fought improvements in the areas of family law and education, women still occupy a subordinate position both in the family and wider society, thus many do not have the autonomy to make independent choices about their fertility. On the issue of abortion, both countries have extremely restrictive laws, without any exceptions for rape or incest and very limited health exceptions. In fact in Ireland the exception only applies when there is a threat to the life as distinct from the health of the
Bayes & Tohidi, supra note 16 at 24. Jones & Mehtab, Supra note 41 at 148.
100 mother. This position is not acceptable from a perspective of women's rights, as restrictive abortion laws often lead to women resorting to dangerous, clandestine abortions. In Iran this has been shown to be a problem. In Ireland the option of travelling to England means that there is not a persistent problem of illegal abortions, but there are the obvious concerns that only those with the economic means are able to take advantage of that outlet. Abortion is obviously a very controversial issue world-wide, but it has been demonstrated that a motivating factor in the restrictive abortion laws in Ireland and Iran has been that of religious nationalism. In Iran, although abortion in the first trimester is not strictly contrary to Islam, the law legalising abortion passed by the Shah was reversed, immediately post-revolution, out of a necessity to oppose his regime. In Ireland, though abortion was always illegal, the addition of foetal rights in the Constitution was seen as necessary to prevent encroaching liberalism from abroad, and protect Ireland's culture and identity as a 'pro-life' nation. 5 An important issue that is illustrated by both of these case studies, is that one can not assume progress in the area of women's rights and status with the passage of time, as even though a "state may appear to be 'modernising' gender and family relations at one point, it can experience re-patriarchalisation of gender relations and family life as the political and economic climate changes, particularly with the rise of nationalism".657 This 'backlash' against modernisation is particularly noticeable in the Iranian case, as many of the individuals who came into power after the Revolution, had been stridently against legal changes in the 60s and 70s, including the extension of the vote to women, the passage of the Family Protection Law, the introduction of a family planning program and the legalisation of abortion. As soon as they gained power, priority was given to reversing many of these changes, in order to return women to their proper islamically' defined roles. Although this paper has concentrated on the rise of religious nationalism, post- revolution, in both states, I believe that the Irish case also illustrates that the secularisation and liberalisation of society, which results in improvement of women's status, can lead to a conservative backlash, informed by religious nationalist ideology, even without a change in government. The rapid change in Irish society during the 60s
Smyth, Abortion and Nation, supra note 21 at 81. Albanese, Mothers, supra note 49 at 187.
101 and 70s, combined with increased influence from European institutions, caused anxiety in conservative and religious circles. This anxiety led to a pre-emptive strike against increased protection of women's reproductive rights, in the form of the Pro Life Amendment Campaign in the early 1980s. This campaign, which painted its religious intentions in secular language, did little to disguise the nationalist sentiment behind their aim, describing the constitutional amendment regarding the protection of the unborn as necessary for the survival of the Irish nation, and the maintenance of its superiority to its barbaric coloniser. It took a tragic situation involving a young rape victim— a national embarrassment on an international scale— to move the abortion discussion in Ireland beyond the issues of cultural and national defence, and towards meaningful engagement with the issues.658 Though it is impossible to predict any changes that may occur in the Iranian government over the coming years, if there were to be a similar liberalisation, predictably a conservative backlash could ensue. In fact, even the attempts at reform made between the years 1997 and 2005, led to a backlash of sorts, with the Guardian Council using their power to vet electoral candidates to ensure a return to conservative government. The focus on the family, and women as representative of "the timeless quality of status-quo", in traditional religious societies means that often in times of social change or upheaval, women's roles are something people cling to in an attempt to halt the perceived threat of a tide of increasing liberalism.659 A central component in both of these cases is the treatment of women in the constitution. Patrick Hanafin has referred to Ireland as "a paradigmactic case of how a patriarchal cultural narrative insinuated itself into the legal narrative and, in particular, the constitutional text".660 I would argue that the same can be said for the Islamic Republic of Iran. A constitution is expected to "espouse the fundamental values of a nation";661 and the expected roles, and protected rights, of women therein can serve to "legitimise and naturalise the present social order".662 Though I am not arguing that revision of the Irish and Iranian constitutions is the sole solution to the present struggles
Fletcher, supra note 223 at 59. Kinnvall, Supra note 55 at 762. Hanafin, supra note 42 at 26. Baines & Rubio-Marin, supra note 50 at 9. Hanafin, Sl/pra note 42 at 27.
102 faced in the area of reproductive rights, and women's rights in general; the nationalist inspired focus on the motherhood role as codified in both documents presents a significant obstacle to the achievement of equality and reproductive autonomy.
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