Unbearable Weight: Feminism, Western Culture, and the Body (15 page)

The same intent, on Nelson's analysis, is behind the New Jersey Supreme Court's unfortunately worded statement, in
Smith v. Brennan
(1960) that "a child has a legal right to begin life with a sound mind and body."
Smith,
recognizing a child's cause of action for negligently inflicted prenatal injury, explicitly denies that this entails recognition of fetal personhood. The point is simply to establish the legitimacy of the
liveborn
child's injury claim.
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Yet the phrase taken by itself (out of context of the decision)
is
problematic, not only suggesting an unprecedented scope of rights, but ambiguous concerning to whom they belong. Over the past thirty years this ambiguity has been frequently exploited at the expense of the intent of the ruling, as advocates of obstetrical intervention have freely invoked the
fetus's
right to "begin life with a sound mind and body" as justification for their suits. The slippage here, from a liveborn child's right to bring action against injuries suffered when in the fetal state to the right of the
fetus
to force its mother to accept treatment against her will, is profound and pernicious.

But let us, for the sake of argument, lay aside the issue of misapplication of tort law. Let us grant a fetus's right to be born healthy and sound and to be provided with a safe, healthy environment to promote this end. If we grant this, we are obliged to recognize also

that this gives the fetus rights that
no one else
in this society has. Here we are once again confronted with the strange set of affairs entailed by fetalrights arguments, that a twoyearold child has far fewer rights than a sixmonthold fetus!
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My point here is
not
to deny protection or dignity to the fetus or to suggest that it is no more than tissue or an appendage to the mother. In fact, I will later argue very strongly against such perspectives. Rather, my object is to bring attention to the ontological construction that is entailed (but never openly acknowledged) by the fetal rights position, a position that is increasingly becoming conventional wisdom in many quarters of our culture. Very simply put, that construction is one in which pregnant women are not subjects at all (neither under the law nor in the zeitgeist) while fetuses are supersubjects. It is as though the subjectivity of the pregnant body were siphoned from it and emptied into fetal life.

Father's Rights

This offspring was begot without a Mother

Montesquieu, epigraph to

The Spirit of the Law

O why did God,

Creator wise, that peopl'd highest Heav'n With Spirits Masculine, create at last

This noveltie on Earth, this fair defect

Of Nature, and not fill the World at once With Men as Angels without Feminine, Or find some other way to generate Mankind?

Milton,
Paradise Lost,

Book X, lines 888895

Alongside attempts to define the pregnant woman's status as that of mere incubator, we have seen a corresponding emergence of a more and more vocal movement for father's rights. James Bopp, a highly visible advocate of this movement and general counsel of the National Right to Life Committee, has marketed a "Father's Rights Litigation Kit," a howto guide for bringing suit against wives and girlfriends.
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And although such cases have thus far invariably been defeated in higher courts, in November of 1989 the Pennsylvania State Senate passed legislation that has gone further than any other

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in addressing father's rights, requiring that women notify their husbands of abortion plans and holding physicians who perform an abortion without a form showing that the husband has been notified liable for civil damages to the husband and punitive damages of $5,000.
58

One reason why the movement for father's rights has grown so rapidly is the culturally powerful rhetoric of "equality" with which the movement has trumpeted its cause. "It's a balancing of rights," says James Bopp.
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But it is a mystification to conceptualize father's rights cases in this way, as though equitable distribution is the goal, like the allocation of a child's time in a custody case. For the basis for these cases is always a concrete occasion when the mother's and the father's goals are mutually exclusive. In that context, equal treatment
cannot
be achieved. Rather, one must prevail over the other in the dispute. Any father seeking his "rights'' in such a case is claiming that his desires should not merely
equal
but
supersede
those of the mother. That is, what is being sought in father'srights cases is not equality for fathers but the
privileging
of paternal interests.

The imagination of the father as not merely halfpartner in the creation of life but the true parent of the child is a construction that has deep roots in Western culture. In
The Furies,
which dramatizes the triumph of rational, impartial Apollonic justice over matriarchal "blood" justice, Aeschylus has Apollo argue, pointing to the motherless Pallas Athene, who sprang fully formed from the head of Zeus, that the "true parent" is "he who mounts":

The mother is no parent of that which is called her child, but only nurse of the newplanted seed that grows. The parent is he who mounts. A stranger she preserves a stranger's seed, if no god interfere. I will show you proof of what I have explained. There can be a father without any mother. There she stands, the living witness, daughter of Olympian Zeus, she who was never fostered in the dark of the womb yet such a child as no goddess could bring to birth.
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James Hillman has argued that the Genesis story, which reverses the actualities of birth, making the "male . . . the precondition of the female and the ground of its possibility rather than vice versa," is another version of the "male as true parent" fantasy.
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And

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certainly the dominant seventeenthcentury account of reproduction, which spruces up the Aristotelian theory of generation with modern, mechanistic dress, is another.

From Aristotle to contemporary representations of the romance of the sperm and the egg,
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the male contribution has been portrayed as the "effective and active" element in reproduction,
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the female as passive, unformed matter, waiting to be individuated and vivified by the valiant sperm who wins her. But the mechanistic theory of preformation and embodiment went still further, representing the female body not even as providing the
material
stuff out of which the human being is formed (Aristotle's view), but merely as a
container
for the housing and incubation of already formed human beings, originally placed in Adam's semen by God, and parceled out, over the ages, to all his male descendants.
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In 1577 the Dutch microscopist Antonie van Leeuwenhoek received what was for him decisive confirmation of this theory, when he discovered tiny tadpolelike creatures—"animalcules"—in the semen of male animals. He declared that this discovery empirically established Aristotle's intuition "that it is exclusively the male semen that forms the fetus, and that all that the woman may contribute only serves to receive the semen and feed it.''
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The imagination of woman as fetal incubator, in disturbing ascendance today, and of male as true parent (clearly attempting a comeback) has, then, deep historical roots.

In 1976 the Supreme Court clearly and resoundingly rejected the father'srights argument, ruling in
Planned Parenthood of Central Missouri v. Danforth
that a spouse has no right that competes with, balances, or limits the woman's right to choose abortion. The court recognized both "the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus"
and
the fact that an implication of the
Danforth
ruling (as of
Roe)
was that there would be cases when the mother might act unilaterally, without the approval of her husband. But the court insisted that since "only one of the two marriage partners can prevail" and since "it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy . . . the balance weighs in her favor."
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The seemingly incontrovertible fact that only the mother experiences pregnant
embodiment
(obscured by the current fashion of speaking of
couples
as pregnant) is a powerful impediment to the father'srights position, as those who have brought suit against their wives have obviously recognized, judging from the rhetoric and strategy of their arguments. Listen, for example, to Erin Conn, one of James Bopp's clients, as he describes his case on a "Nightline" show of July, 1988:

My rights—I'm the—father of the child. My wife and I were joined in matrimony, and there's a bond there which makes me the father of the children that come out of our family. God—you know, the way the system's set up, the woman carries the child. And if I could carry the child, I would. But that's not the way the system's set up. But the thing is, that after that child is born, half of that child—part of that child is me. And I'm part of that child. And I feel like by her having the right to abort that child is her having the right to destroy a part of me without me having any sayso. And—she—you know, she wants control of her body. But what about me? Am I not allowed to have control of my body? That baby is a part of my body also.
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For Erin Conn, the biological reality of pregnancy is described as "the way the system's set up." This mechanistic imagery, I would suggest, although instinctively rather than methodically chosen by Conn, is not accidental. Conn has inchoately recognized that he must divest pregnancy of all emotional, spiritual, religious significance, of all evocation of hardship or burden, of all connection with the
experience
of the pregnant woman. He must turn the fact that women bear children into merely one instance of the impersonal, arbitrary functioning of an impersonal, arbitrary "system." In this imagination of things, there are no female subjects, only "carriers'' (as Conn puts it) of fetuses, and the only true loci of subjective experience are the men who (it is implied) have been so cruelly and unfairly excluded (by the "system") from serving as "carriers." It's been "set up" that way; what's a poor fellow to do?

It is easy, of course, for Conn to say that if he
could
carry the child, he would—for he can't. But details like this pale alongside Conn's impassioned description of himself as so intertwined and interconnected with the fetus that not only is
he
"part of that child"—which is true—but
the child
is a "part of [Conn's] body" as well— which is

not true. The slippage from fatheraspartofthechild to childas partofthefather allows Conn actually to evoke the image—emotional, if not visual—of himself as pregnant, and from there to appropriate and emotionally manipulate the rhetoric of the pro choice movement (and indeed of his own wife's case): "She wants control of her body. But what about me? Am I not allowed to have control of my body?" Such exploitation of ideas that feminists have introduced to the culture is a typical strategy of father'srights arguments. In a September, 1989, hearing, one litigant went so far as to claim—shamelessly equating his situation with that of a woman whose body has been invaded against her will—that he would feel "raped of his reproductive rights" if he lost the case.
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Such rhetoric attempts to strangle feminism with its own rope ("reproductive rights") and to win sympathy for the man as brutalized "rape" victim. More deeply, it attempts to create an image of the man as
woman
(that is, as women have been imagined in our culture). As "woman'' he can lay claim to sensitivity, nurturing instinct, tenderness, and caring—the construction of subjectivity that has been assigned to us, and in many people's minds the justification for privileging maternal over paternal claims. To win father'srights cases, that justification must be undercut; thus, the men who have brought these cases to court have rarely been ashamed to cry, to speak of their helplessness, to "feminize" themselves. "I just felt helpless," said Gary Bell, describing his feelings after his girlfriend had an abortion. "I cried for hours. I hurt so bad inside."
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The strategy is to underscore that men have tender feelings too, especially tender feelings of a parental nature. That they
do
have such feelings (and many others discouraged from full expression by dominant Western constructions of masculinity) is indisputably true. My point, once again—as in my argument concerning fetal rights—is not to dehumanize men or challenge their claims to enhanced subjectivity, but to point out the corresponding price that
women's
subjectivity has been required to pay. In the father'srights cases, every assertion of male feeling has been accompanied by a corresponding denial of
female
sensibility; every attempt to prove that men can be nurturers, too, has involved an attempted discreditation of the
woman's
nurturing capabilities—for instance, picturing her as lacking the qualities of caring, selflessness, and so forth that

are required of a "true parent." While the men describe themselves as tender flowers, easily bruised and damaged, the women are portrayed as cold, ruthless destroyers of fetal life, running roughshod over paternal sensibilities.

In one of the most striking of these cases, an Indiana man sought an injunction prohibiting his girlfriend's abortion, arguing that her reasons for wanting an abortion were that "she wishes to look nice in a bathing suit this summer . not to be pregnant in the summertime and not to share the petitioner with the baby." The judge granted the man's petition (without hearing from the woman), ruling that since the woman was not in school, was unemployed, and was living with her mother, "the continuance of her pregnancy would not interfere with either her employment or education." Moreover, he went on, "The appearance and demeanor of the respondent . . . indicated that she is a very pleasant young lady, slender in stature, healthy, and well able to carry a baby to delivery without an undue burden."
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Are we in a courtroom, or at an auction for prize heifers?