The consent model of pregnancy: deadlock undiminished.

AuthorFord, Mary
PositionUnited Kingdom

In this article, the author examines what is perhaps the most comprehensive attempt so far to discover an alternative to the orthodox "conflict" model of adjudicating maternal/fetal issues: Eileen McDonagh's "consent model" of pregnancy. This model is essentially a refined version of the orthodox model, but is remarkable in that it claims to provide a legal justification for abortion rights while conceding the issue of "fetal personhood". Referring to the diverse criticisms of other commentators and adding her own analysis from the perspective of United Kingdom law, the author asks whether it is possible, as McDonagh claims it is, to adopt a purely legal approach to fetal personhood that is capable of sustaining a framework for adjudication without collapsing into the problematic metaphysics of personhood.

Dans cet article, l'auteure se penche sur ce qui constitue peut-etre a ce jour la tentative la plus exhaustive de proposer une alternative au modele traditionnel consistant a decider des questions maternelles/foetales en se basant sur le > : le > a la grossesse d'Eileen McDonagh. Ce modele est essentiellement une version perfectionnee du modele traditionnel, mais il est digne d'attention en ce qu'il pretend fournir une justification au droit a l'avortement tout en concedant la question de la personnalite du foetus. En se referant aux critiques diverses d'autres commentateurs et en ajoutant sa propre analyse basee sur le droit en vigueur au Royaume-Uni, l'anteure se demande s'il est possible, comme le revendique McDonagh, d'adopter une approche purement legale de la personnalite du foetus qui soit capable de soutenir tm cadre decisionnel sans s'emmeler dans la complexe metaphysique de la personnalite.

 Introduction I. McDonagh's Consent Model A. Causation and the Separation of Pregnancy from

Sexual Intercourse B. Consent C. Wrongful Pregnancy and Self-Defence D. The Politics of Consent II. Advantages of the Consent Model III. Difficulties for the Consent Model A. Self-Defence

  1. Is Pregnancy an Invited Attack? 2. Is Pregnancy a Sufficient Attack to Justify the Use of Deadly Force?

  2. Is Pregnancy Really an Attack at All? 4. Is the Fetus Entitled to Legal Due Process? 5. Is Pregnancy a Unique Case? 6. A Better Analogy? B. Causation 1. Is the Fetus Really the Cause of Pregnancy? 2. Fathers' Rights and Responsibilities 3. Implications for Wrongful Pregnancy

    1. Consent 1. Is Pregnancy the Kind of Intrusion to Which the Law Would Permit Consent? 2. Is Consent to Pregnancy Really Possible? 3. The Problem of Legitimation D. Miscellaneous Criticisms 1. Late Abortions 2. Women's Well-Being

  3. Masculinization of the Fetus Conclusion

    Introduction

    In her groundbreaking book Breaking the Abortion Deadlock: From Choice to Consent, (1) Eileen McDonagh claims that the analysis of abortion rights that she proposes resolves the troublesome question of the moral status of the fetus by focusing not on what the fetus is, but rather on what the fetus does in pregnancy. (2) McDonagh's first major claim is that the fetus causes pregnancy when it implants in the woman's uterus. (3) McDonagh uses this as a starting point from which to claim that the right to abortion is not, as has traditionally been thought, simply an example of a woman's right to decisional autonomy; while decisional autonomy is certainly an element of the right, McDonagh claims, the key element in abortion rights is the right to bodily integrity. (4) Thus, for McDonagh, abortion rights are important not only because they are an example of a woman's right to make autonomous decisions about her life, but also, and more centrally, because the right to seek an abortion is essential in order to protect women's bodily integrity--the control they have over what happens to their bodies. In other words, for McDonagh, the abortion issue is not only about choice; it is primarily an issue of consent.

    The fatal error that has dogged the abortion debate thus far, according to McDonagh, has been a failure to identify the fetus as the coercer in pregnancy. (5) It is the fetus that actually makes the woman pregnant when it implants itself in her uterus. Abortion is not, therefore, about expelling the coercive imposition of masculine force on the body of a woman; rather, what is rejected and expelled in the act of abortion is fetal force, since the fetus is the coercive agent: "A woman seeking to terminate her pregnancy does not wish to expel the coercive imposition of a man on her body. On the contrary, she seeks to expel the coercive imposition of the one and only agent capable of making her pregnant: the fetus." (6)

    McDonagh claims that the fetus is the direct cause of pregnancy, whether or not the act of sexual intercourse that preceded the pregnancy was consensual. In other words, if a woman consents to having sexual intercourse with a man and subsequently becomes pregnant, the direct and immediate cause of pregnancy is not the act of sexual intercourse but the fetus' implantation in her uterus. Accordingly, neither the woman nor the man can be said to have "caused" her to become pregnant. Similarly, if pregnancy occurs after an act of nonconsensual intercourse (a rape), the rapist has not caused the woman's pregnancy on McDonagh's model: he has inflicted a grave harm on her, but the additional harm of any resulting pregnancy is not his responsibility, but that of the fetus. Clearly, in such circumstances, the woman cannot be held responsible at any stage of the sequence of events from conception to implantation, certainly not on McDonagh's model and arguably not on any other. McDonagh writes:

     [F]ounding abortion fights on the conditions under which sexual intercourse occurs prior to pregnancy misses the point. The fetus is the direct cause of pregnancy, and if it makes a woman pregnant without her consent, it severely violates her bodily integrity and liberty. (7) 

    McDonagh's second and third major claims, respectively, are: (1) that pregnancy constitutes a massive intrusion on a woman's body, even where the pregnancy is "medically normal" (i.e., not subject to any of the additional medical risks that may accompany pregnancy); and (2) that women have a fight to state assistance in exercising their fight to refuse consent to such an invasion of their bodies. On the harm associated with "medically normal" pregnancies, McDonagh writes:

     Even in a medically normal pregnancy, the fetus massively intrudes on a woman's body and expropriates her liberty. If a woman does not consent to this transformation and use of her body, the fetus's imposition constitutes injuries sufficient to justify the use of deadly force to stop it. (8) 

    Of paramount importance here is the point McDonagh makes about the use of "deadly force". The severity and scale of the intrusion that pregnancy represents entitles women to take extreme measures to bring it to an end, even where the only way to do so is by killing the fetus/intruder. McDonagh claims that in so arguing, she is simply regarding the fetus the way any other intruder would be regarded, even those intruders who are, irrefutably, persons:

     Since no bore people have a fight to intrude massively on the body of another, … to the degree that the state stops people from harming others by intruding on their bodies and liberty, including

    the mentally incompetent or those in dire need of the body parts of others, similarly the state must stop fetuses that intrude on

    women's bodies without their consent. (9)

    This, according to McDonagh, is how her thesis is able to "break the abortion deadlock": she is prepared to concede the issue of fetal personhood to the anti-abortion lobby, believing that she can construct an argument for abortion fights that holds good even if we accept, for the sake of argument, that fetuses are persons and ought to be treated by the law in the same way that born persons are treated. "Even if the fetus were a person", she writes, "a woman is justified in killing it because of what it does to her when it imposes wrongful pregnancy." (10) This is so because "[e]ven if the fetus is constructed to be a person, it gains no fight to take over a woman's body against her will. And if and when it does, she has a right to say no, whatever might be her reasons for activating that right." (11)

    The "fundamental liberty" at stake in all of this, according to McDonagh, is the right of a woman to consent to any pregnancy relationship she might become involved in. (12) Throughout, McDonagh's focus is on what the fetus does, not what the fetus is. (13) It is the fetus's action in causing pregnancy that justifies the right of a woman to terminate its life in order to put an end to its intrusion/violence. (14) McDonagh suggests that the reason this right has been ignored, both historically and more recently in the legal and political debates over abortion rights, is that our culture has traditionally reserved norms of self-defence for men, while simultaneously ascribing norms of self-sacrifice to women, (15) such that the extreme physical subjugation and coercion that pregnancy represents has been "normalized" and not recognized for what it is: a massive violence justifying the use of deadly force in self-defence.

    1. McDonagh's Consent Model

      Having briefly introduced McDonagh's arguments, I now propose to draw out certain strands in order to subject her claims, and the counterclaims of her critics, to critical analysis. It is helpful to observe here that McDonagh's argument is reducible to two broad stages: in the first stage, she claims that women have a right to consent to the pregnancy relationship; in the second stage, she claims that the state should intervene to protect women from the massive intrusion of nonconsensual pregnancy. These stages provide the basis for McDonagh to argue that women have a fundamental right to abortion, based on the right to bodily integrity, as well as a fundamental right to state assistance (primarily in...

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