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Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother Rona Kaufman Kitchen

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Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother Rona Kaufman Kitchen Hastings Women’s Law Journal Volume 26 Article 2 Number 2 Summer 2015 1-1-2015 Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother Rona Kaufman Kitchen Follow this and additional works at: https://repository.uchastings.edu/hwlj Part of the Law and Gender Commons Recommended Citation Rona Kaufman Kitchen, Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother, 26 Hastings Women's L.J. 207 (2015). Available at: https://repository.uchastings.edu/hwlj/vol26/iss2/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Women’s Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Holistic Pregnancy: Rejecting the Theory of the Adversarial Mother Rona Kaufman Kitchen* INTRODUCTION Like generations of mothers before her, Laura Pemberton planned to welcome her baby into the world in the comfort of her family home. She desired a natural, vaginal birth. The State disagreed. Police entered her home, strapped her legs together and forcibly transported her to the hospital. Authorized by court order, doctors cut her open and removed her baby from her womb, without her consent.1 Angela Carder had an inoperable, terminal, cancerous tumor in her lung. She was twenty-five weeks pregnant and eagerly awaiting the birth of her first child when the tumor was found. Wanting to deliver a healthy baby and live long enough to hold him in her arms, she consented to undergo a cesarean section once her pregnancy reached twenty-eight weeks. Angela’s health rapidly deteriorated and at twenty-six weeks, without her consent, but armed with a court order, doctors cut her open and removed her baby from her womb, ending the lives of both baby and mother.2 *Assistant Professor of Law, Duquesne University School of Law. This Article represents conversations I have been having in my head since I first experienced pregnancy in 2002. It also incorporates the thoughts and feedback I received from my supportive colleagues: Martha Jordan, Bruce Ledewitz, Jan Levine, Jane Moriarty, Wesley Oliver, Nancy Perkins, Laurie Serafino, and Ann Schiavone. I thank Dr. J. Lee Nelson and Professor Jeanne Flavin for their helpful critique. I am grateful for the opportunity to present earlier versions of this article at the Three School Colloquium at the University of Pittsburgh School of Law and the Feminist Law Conferences organized by Marina Angel at Temple University Beasley School of Law and the University of Pennsylvania School of Law. I thank the following students for their valuable research assistance: Alexandra Bott, Staci Fonner, Judy Hale Reed, and Cara Pinto. And, I thank the staff of the Hastings Women’s Law Journal, especially Sonya Laddon Rahders, for their suggestions and edits. Finally, I am thankful beyond words to my grandmother, mother, sister, and children for helping me to understand the nature of pregnancy and the mother-child relationship. 1. Pemberton v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 66 F. Supp. 2d 1247 (N.D. Fla. 1999); Lynne M. Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health, 38(2) J. HEALTH POLITICS, POL’Y & L. 299, 306–07 (2013); Sarah D. Murphy, Labor Pains in Feminist Jurisprudence: An Examination of Birthing Rights, note, 8 AVE MARIA L. REV. 443, 443–44 (2010). 2. In re A.C., 573 A.2d 1235 (D.C. 1990). HASTINGS WOMEN’S LAW JOURNAL 207 208 HASTINGS WOMEN’S LAW JOURNAL [Vol. 26:2 Bei Bei Shuai attempted to commit suicide after her boyfriend, a married man who was the father of the child she was expecting, left her. She survived, but her baby did not. Thereafter, she was charged with murder.3 Rennie Gibbs, a pregnant fifteen-year-old girl ingested cocaine during her pregnancy. She delivered a premature stillborn with the umbilical cord wrapped around its neck. The teen was charged with “depraved heart murder.”4 Hope Ankrom’s healthy newborn tested positive for cocaine. Despite her denial of drug use and the lack of harm to her baby, Hope was arrested. Police separated her from all three of her children, including her breastfeeding newborn. She was convicted of child endangerment and sentenced to three years in prison.5 These stories exemplify the law’s hostile relationship with pregnant women. Rather than presuming the pregnant woman will act in the best interests of her pregnancy and of fetal life, the law assumes that she is hostile to her unborn child and identifies the State as better suited to protect pregnancy and fetal life. The law responds to pregnant women as if they are threats to their babies, instead of respecting them as expectant mothers. As a result, pregnant women are increasingly targeted by the State for aggressive surveillance, regulation, separation, and incarceration. Outside of the abortion context, the assumption that a pregnant woman is hostile to her fetus is misplaced and leads to disastrous results for women, children, and families. Pregnant women eagerly anticipating the births of their children like Laura Pemberton and Angela Carder are brutally assaulted by the State in the name of fetal protection. Mothers like Hope Ankrom are taken from their children for the sake of punishing misconduct during pregnancy. Young women like Rennie Gibbs and Bei Bei Shuai are re- victimized by the State after suffering the devastating loss of their babies. In addition to affecting those directly involved, this intervention also fosters an environment in which pregnant women fear the State. The State’s interaction with pregnant women, outside of the abortion context, communicates that women’s autonomy, bodily integrity, parental rights, and physical freedom are at risk during pregnancy. Birthing plans are subject to veto by the State. Prenatal indiscretions are subject to harsh judgment. Misconduct stemming from mental illness and drug addiction is more likely to lead to criminal charges and lengthy incarcerations. As Lynn Paltrow, Jeanne Flavin, and the National Advocates for Pregnant Women have documented, women, aware of the trend toward increased state involvement, consider that their rights will be constrained if they become pregnant.6 Thus, the impact of the State’s relationship with 3. Bei Bei Shuai v. State, 966 N.E.2d 619 (Ind. Ct. App. 2012). 4. Order 162566, Gibbs v. State, 2010-IA-00819-SCT, (Miss. Oct. 27, 2011). 5. Ex parte Ankrom v. State, 152 So. 3d 397 (Ala. 2013); see Ada Calhoun, The Criminalization of Bad Mothers, N.Y. TIMES, Apr. 15, 2012, http://www.nytimes.com/ 2012/04/29/magazine/the-criminalization-of-bad-mothers.html?pagewanted=all&_r=0. 6. See Lynn M. Paltrow and Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Summer 2015] HOLISTIC PREGNANCY 209 pregnancy is not limited to those women whose individual rights have been affected. State action against any pregnant woman serves as a warning to all women who are pregnant or who may become pregnant.7 This invasive state action is a consequence of extending the legal understanding of pregnancy as developed in the abortion cases, which has various flaws, to all pregnancies.8 The law first conceptualized pregnancy as adversarial in response to women’s attempts to terminate pregnancy. In the abortion context, understanding the relationship between mother and fetus as adversarial is arguably essential to protection of fetal life. By identifying the mother as a threat to the fetus, State intervention is justified. Therefore, within the abortion context, it is easy to understand why pregnancy was defined as inherently adversarial. The great tragedy is that this adversarial view is becoming the dominant legal paradigm for all pregnancies. Wanted and unwanted pregnancies alike are being treated as threatened pregnancies. Pregnant women intending to carry their pregnancies to term and love a new child are viewed with suspicion for the harm they could inflict, instead of with respect and appreciation for the care they will provide. This article critiques this perspective. It argues that the adversarial conceptualization of pregnancy is inapplicable outside of the abortion context. In other words, wanted pregnancies9 should not be conceptualized as adversarial and State action should not be justified upon that basis. Health, 38(2) J. HEALTH POLITICS, POL’Y & L. 299, 330–31 (2013) (discussing examples of pregnant women who avoid prenatal care out of fear of arrest, or who would have avoided prenatal care or lied to their healthcare providers had they known there was a risk of arrest). 7. See MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 51 (1995) (“[R]egardless of the differences among us, all women must care about social and legal constructions of motherhood. Although we may make individual choices not to become mothers, social construction and its legal ramifications operate independent of individual choice. As is demonstrated in everyday existence, as well as in legal doctrines and political language, women will be treated as mothers (or potential mothers) because ‘Woman’ as a cultural and legal category inevitably encompasses and incorporates socially constructed notions of motherhood in its definition.”). 8. In this article I do not critique the legal conceptualization of pregnancy in the abortion context because this article is not a critique of the adversarial conceptualization of pregnancy in the context of abortion. Rather, this article is about the law’s application of the adversarial view of pregnancy to pregnancies that are not being terminated, that is, wanted pregnancies.
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