Nine Months a Slave: When Pregnancy Is Involuntary Servitude to a Foetus

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Nine Months a Slave: When Pregnancy Is Involuntary Servitude to a Foetus Reproductive Health Matters An international journal on sexual and reproductive health and rights ISSN: 0968-8080 (Print) 1460-9576 (Online) Journal homepage: http://tandfonline.com/loi/zrhm20 Nine months a slave: when pregnancy is involuntary servitude to a foetus Kiva Diamond Allotey-Reidpath, Pascale Allotey & Daniel D Reidpath To cite this article: Kiva Diamond Allotey-Reidpath, Pascale Allotey & Daniel D Reidpath (2018) Nine months a slave: when pregnancy is involuntary servitude to a foetus, Reproductive Health Matters, 26:52, 1451173, DOI: 10.1080/09688080.2018.1451173 To link to this article: https://doi.org/10.1080/09688080.2018.1451173 © 2018 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group Published online: 13 Apr 2018. Submit your article to this journal Article views: 958 View Crossmark data Full Terms & Conditions of access and use can be found at http://tandfonline.com/action/journalInformation?journalCode=zrhm20 PERSPECTIVE Nine months a slave: when pregnancy is involuntary servitude to a foetus Kiva Diamond Allotey-Reidpath,a Pascale Allotey ,b Daniel D Reidpath c a Birkbeck, University of London, London, UK. Correspondence: [email protected] b Director, United Nations University (UNU), International Institute for Global Health (IIGH), UNU-IIGH Building, UKM Medical Centre, Federal Territory of Kuala Lumpur, Malaysia c Professor of Population Health, Jeffrey Cheah School of Medicine and Health Sciences & SEACO, Monash University Malaysia, Jalan Lagoon Selatan, Bandar Sunway, Selangor, Malaysia Abstract: Recent globally compiled evidence suggests that one-quarter of pregnancies end in abortions. However, abortions remain illegal in many countries, resulting in unsafe practices. Debates have largely stalled with the pro-life, pro-choice epithets. To provide further arguments in support of legalising abortion services, we argue that the state cannot demand of a woman that she maintains an unwanted pregnancy because that demand places her in a state of involuntary servitude. Involuntary servitude would put states in breach of international human rights law (Article 8 of International Covenant on Civil and Political Rights). Furthermore, we argue that the fact that a life may be forfeit when a woman withdraws her service is no basis for enforcing the servitude. We draw on the 13th Amendment of the US Constitution as an example to extend the argument and highlight the need to test involuntary servitude in international human rights law through mechanisms offered in the international periodic review of member states. This could provide a robust approach to support and strengthen access to safe abortion services. DOI: 10.1080/09688080.2018.1451173 Keywords: abortion, right to life, pro-choice, slavery, reproductive rights, pro-life Introduction and structural barriers created by unresponsive or Couples have the right to decide freely and respon- inadequate health systems. Within the broader sibly the number, spacing and timing of their chil- societal and cultural context, control over repro- dren; however, women, as the bearers, also have ductive choices remains heavily contested, fuelled the right to control the decision about their bodies, by multiple interests and arguments that draw on free of coercion, discrimination and violence. Inno- health, the law, feminism, morals and religion. vations in contraception increasingly provide Recent developments in the United States (US), methods that enable birth control decisions while for instance, have seen the withdrawal of subsidies supporting “pleasurable and safe sexual experi- for contraception for working women, based on ences”.1 Notwithstanding the existence of contra- protecting religious freedoms of employers. In addition, legislative challenges to the right to abor- ceptives, recent data suggest that, globally, 5 upwards of 40% of all pregnancies are unplanned tion are constant items on court agendas. While and often unwanted; half of these result in abor- these examples fall under US jurisdiction, the US tion.2 It is estimated that between 2010 and plays a major role in global health and frequently 2014, 25% of all pregnancies resulted in places conditionalities on aid and trade agree- abortions.3 ments that coerce the adoption of these values The ability for women to exercise the right to and restrictions. reproductive control, through both contraception With respect to abortion, “pro-choice”, “anti- and abortion, is fraught with obstacles.4 These choice”, “pro-life” and “anti-life” are epithets can include, inter alia, lack of power to negotiate across the divide of the arguments that, on the when and with whom to have intercourse, poor one hand, support a woman’s right to choose access to knowledge and services for contraception whether to terminate a pregnancy and on the © 2018 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group 9 This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons. org/licenses/by/4.0/), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited. KD Allotey-Reidpath et al. Reproductive Health Matters 2018;26(52):9–13 other hand, oppose that right. Arguments against foetus. Thus, while the ruling has been empower- the right to choose cite the primacy of a foetal ing for women who have the opportunity to exer- “right” to continue a path of cell division and cise the right to have an abortion, the language maturation until birth. Inherent in the argument of the ruling has left it open to moral interpret- is the lower value placed on the woman’s right to ation and challenges. Attempts to overturn the self-determination, compared to the future life. Supreme Court decision are ongoing. Furthermore, At the core of this argument is an expectation the ruling allows states to regulate terminations that women bear the burden of pregnancy, includ- once the foetus is deemed to be viable ex utero. ing under coercion, in order to benefit another. The result, again, is a privileging of the unborn In this perspective essay, we move away from and the requirement, regardless of choice, for the “pro-choice”, “anti-choice”, “pro-life” and women to carry the pregnancy to term when the “anti-life” arguments. These arguments have state deems it necessary. become markers of a social division that has entrenched unconstructive positions. We instead argue, that without regard to where a person Involuntary servitude may lie on the divide, there is a further, strong Involuntary servitude has been defined in law as legal argument for a woman’s right to seek an the “control by which the personal service of one abortion that is completely consistent with being man [sic] is disposed of or coerced for another’s “pro-life”. Indeed, while we do not necessarily benefit)”.6 If the foetus is indeed a life, then the agree with the position, for argument’s sake we definition of involuntary servitude applies. The will stipulate that life begins at conception. We mother is in service to the foetus. In the majority will, furthermore, stipulate that all life is sacred of cases, the service is voluntary and rewarding. and worthy of saving. The alternative to the tra- If the mother does not wish to perform that service ditional “pro-choice” argument, simply put, is and is forced to by the state or any other body, therefore that the state cannot demand of a however, she is in a state of involuntary servitude. woman that she maintains an unwanted preg- If the foetus is not a life, then there can be no pro- nancy, because that demand places her in a state life opposition to termination. of involuntary servitude. We thus explore the Article 8 of the International Covenant on Civil value of involuntary servitude as a legal argument and Political Rights (ICCPR) states that “No one in supporting the right to safe and legal abortions. shall be held in slavery; slavery and the slave- trade in all their forms shall be prohibited. No one shall be held in servitude. No one shall be The legal arguments required to perform forced or compulsory Depending on the jurisdiction, different laws have labour”.7 [Article 8: 1–3a] Of the 193 countries in developed about the conditions under which a the United Nations, 169 have ratified the ICCPR. pregnancy may be terminated. These laws often Another six are signatories, although have not yet address the age of the foetus, the viability of the ratified it.8 life following birth, the consequences of the preg- The US example provides a poignant illustration nancy for the mother’s health and the circum- of how apposite the application of involuntary ser- stances surrounding conception. vitude is to withholding access to safe abortion. In the US, for instance, the Supreme Court case The 13th Amendment of the US constitution of Roe v. Wade ruled that a woman’s decision about which saw the end of slavery reads: whether (or not) to have a child was a legal right “Neither slavery nor involuntary servitude shall exist guaranteed under the constitution. As such, the within the United States, or any place subject to right to have an abortion has been protected (to their jurisdiction.”9 varying extents) under the “right to privacy”,a derivative right argued to exist under the due pro- To place the 13th Amendment in its context, it cess clause of the 14th Amendment of the US Con- important to note that Thomas Jefferson, one of stitution. It is important to note, however, that in the principal authors of the Declaration of Inde- Roe v. Wade the court also ruled that the right to pendence and a slave holder, observed that “… privacy in this context needs to be balanced by a woman who bears a child every two years is the state’s interests to protect women’s health more profitable than the best man on the and to protect the potential future life of the farm”.10 In this, he was noting the obvious 10 KD Allotey-Reidpath et al.
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