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Bearing Knowledge: Law, Reproduction and the Female Body in Modern Morocco, 1912-Present

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Bearing Knowledge: Law, Reproduction and the Female Body in Modern Morocco, 1912-Present Bearing Knowledge: Law, Reproduction and the Female Body in Modern Morocco, 1912-Present By Satyel K. Larson A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Rhetoric in the Graduate Division of the University of California, Berkeley Committee in Charge: Professor Marianne Constable, Chair Professor Mariane Ferme Professor Samera Esmeir Professor Stefania Pandolfo Professor David Cohen Fall 2012 © 2012 Satyel Larson All Rights Reserved Abstract Bearing Knowledge: Law, Reproduction and the Female Body in Modern Morocco, 1912-Present by Satyel K. Larson Doctor of Philosophy in Rhetoric University of California, Berkeley Professor Marianne Constable, Chair Combining historical, juridical and ethnographic analysis, my dissertation traces a history of evidence of reproductive bodies and the not-yet born in the Maghrib over the course of the last century through a case study of a regional phenomenon known as the “sleeping baby in the mother’s womb” (al-rāqid; l-raged; bū mergūd). Women with sleeping babies experience pregnancies that can last for years beyond the standard nine months accepted in Western law and medicine. According to the belief in the sleeping baby, a sudden traumatic experience or the return of menstrual blood can arrest the development of a fetus in the womb. The fetus will then “sleep” in the womb—“neither living nor dead”—for an indefinite period of time until it is awoken by another traumatic shock, sexual intercourse, or spiritual and herbal treatments. As a legal doctrine in Islamic law, the sleeping baby admitted protracted pregnancies lasting up to five, and in some cases seven, years after conception. Prior to the codification of Islamic family law between 1957-9, which banished the sleeping baby from official law, the sleeping baby phenomenon and discourse addressed the intersection of the psycho-biological and socio-legal aspects of human reproduction. The biological aspects include false or "hysterical" pregnancies (i.e., pseudocyesis), abortion induced by the mother, ectopic pregnancies, and various kinds of miscarriages--both those that are expelled from the mother's uterus and those that are retained--as well as viable, full-term pregnancies in which women give birth to a living baby. The socio-legal aspects include claims to paternity, contestations of paternity, inheritance disputes, spousal and child maintenance claims, adultery, and the status of the children of slave mothers (um walad), and free mothers based on their marital situation. The discourse of the sleeping baby enabled women to express any of the various contingent combinations that could arise from these biological and social contingencies. The dissertation knits together detailed archival analysis of selected published and unpublished family and criminal law cases in French and Arabic from the colonial and postcolonial periods, with ethnographic data gathered from participant observation and extensive interviewing in courts and a public maternity hospital in urban Morocco. In my analysis, I track and examine the diverse forms of evidence in colonial Islamic law (1912-1959) and post-colonial state family law (1959-present) that have taken reproductive bodies and the not-yet born as objects of legal knowledge—a process I term 1 “legal embodiment.” By legal embodiment, I mean how human reproductive bodies and their bodily materials emerge in and from historical forms of law, as viable evidentiary objects carrying signifying force. Legal embodiments indicate how reproductive bodies interact with, emerge from and are given value by particular geo-historically circumscribed knowledge, authority and technologies. From women’s testimony about their own bodies and midwives’ sensory expertise in colonial Islamic courts, to visualizing biomedical technology and DNA testing in postcolonial state family law courts—the diverse set of bodily evidence reveals how diverse legalities that regulate women’s reproduction intersect with knowledge, technologies and authority under colonial and post-colonial political-economic power. By tracing legal embodiments, I show how evidence and expertise in Moroccan law have transformed women with sleeping babies from legally-viable reproductive bodies to extra-legal unproductive bodies. Extra-legal embodiment indexes historically minor discourses and practices that law does not value as evidence, and which are deemed irrelevant in law’s bodily valuations. 2 TABLE OF CONTENTS ACKNOWLEDGEMENTS ii INTRODUCTION iv CHAPTER ONE. Genealogies of Sleeping Babies in Pre-Colonial Maghrib Between Women’s Embodied Knowledge, Legal Doctrine and Social Praxis 1 CHAPTER TWO. Free and Slave Women in Sleeping Baby Cases in Colonial Morocco, 1912-1956 29 CHAPTER THREE. Under the Colonial Gaze: Ethical Forensics, Obstetric Jurisprudence and the Legal Death of the Sleeping Baby in the Mother’s Womb 53 CHAPTER FOUR. In the Postcolony: Law and Gender in Fragments 94 CHAPTER FIVE. Translating Paternity: DNA, the Marriage Bed [al-firāsh] and technologies of gender and kinship in Modern Moroccan Law (2004-present) 106 CHAPTER SIX. Thinking the Sleeping Baby: The Ethics and Politics of Human Reproduction at the Margins 138 CONCLUSION 155 BIBLIOGRAPHY 167 i ACKNOWLEDGEMENTS This dissertation has benefited from generous support and wise counsel from faculty in the Departments of Rhetoric and Anthropology at the University of California, Berkeley. Marianne Constable presided over all the stages of research and writing, offering her time and erudition far beyond what I could have ever hoped for. Mariane Ferme, Samera Esmeir, Stefania Pandolfo and David Cohen were equally generous with their time, critical acumen and sharp insight. During my time at Harvard, I was very fortunate to have studied with Baber Johansen. I remain in awe of his critical and careful approach to the study of Islamic legal history and encyclopedic knowledge of Islamic law. Hamid Lahmar at the University of Sidi Mohammed Ben Abdullah in Fez deepened my knowledge about the family in Maliki jurisprudence. At UC Berkeley, I was fortunate to have been the student of a number of outstanding scholars of Arabic, including Mohammed Siddiq, Margaret Larkin and Mona Selim el-Sherif. In Morocco, it was a privilege to be admitted into people’s lives, into their homes, hospitals, courtrooms and libraries. To all the women I cannot name, it was a great honor to learn about sleeping babies from you. Even if you cannot read this, I thank you for sharing your personal histories with me. I also thank the staff of the Ministry of Justice; Mohammed Farshidou and Talal Abdullah in the family law court in Rabat, and especially Najla in the court’s archive for sitting with me for hours sifting through court records; Madame Touria al-Harrif at the Higher Institute of the Judiciary; and the incredibly helpful staff in the libraries at the Supreme Court. At the Maternity Hospital in Rabat, I am deeply grateful to Professor Chafik Chraibi and his staff, as well as to Dr. Imane Khachani. In the colonial archives at the Bibliothèque National du Royaume du Maroc in Rabat, Bidarne Mbarek offered crucial assistance. I was lucky to have a number of helpful interlocutors in Moroccan intellectual circles including Abdelsammad Dialmy, Badiha Naddass, Souad Slaoui, Souad Eddouadda, Farida al-Khamlichi and Latifa al- Bouhsini. Chapter Five of this dissertation benefited from two workshops, first with the Law, Organization, Science and Technology workshop, a group directed by Richard Rottenburg at the Max Planck Institute for Social Anthropology. This dissertation greatly benefited from Dr. Rottenburg’s critical acumen, intellectual generosity and friendship. Professor Amade M’Charek also offered sharp feedback. I also thank the Berkeley Legal Empirical Studies Group. Marcel Paret in particular was an excellent respondent. I thank Professor Calvin Morill for suggesting helpful ways to frame that chapter. Institutes, Centers and Foundations have provided vital support during the research and writing of this dissertation. These include, the University of California, Berkeley; American Association of University Women Dissertation Fellowship; Max Planck Institute for Social Anthropology; Berkeley Empirical Legal Studies at the Center for the Study of Law and Society at Berkeley School of Law; Center for Middle Eastern Studies; and the Department of Rhetoric. I am also grateful to the Center for African Studies at UC Berkeley and the Jacob K. Javits Fellowship for pre-dissertation support. The intellectual labor of writing a dissertation involves more than mere cognition. Over the course of my graduate school career, this dissertation has benefited from engagements with friends and colleagues at Berkeley, Harvard, Max Planck and in ii Morocco. I was fortunate to have in Nima Bassiri boundless intellectual engagement and emotional support. Angela Jansen provided me with more than one beautiful home and an endless repertoire of contacts in Morocco. Claire Nicholas, Ahmed Kannani and Brendan Hart were equally giving of their time and contacts. Through discussions with Meriem Cheikh, Meryame Bettoya and Irene Capelli, this project developed in new ways. Johanna Mugler in Halle was the perfect German comrade. This project has benefited directly and indirectly from sustained friendships and intellectual engagements with Anne Montgomery, Zhivka Valiavarschiska and Ruth Jennison. I dedicate the dissertation to my sister, Cassandra Larson. iii INTRODUCTION
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