Vol. 12 No. 7 (July 2002) pp. 325-327
REGULATING REPRODUCTION: LAW, TECHNOLOGY AND AUTONOMY by Emily Jackson. Oxford: Hart Publishing Co., 2001.
368pp. Cloth $60.00. ISBN: 1-84113-054-0.
Reviewed by Mary W. Atwell, Department of Criminal Justice, Radford University.
Emily Jackson, a lecturer in law at the London School of Economics, examines five reproductive issues-birth control,
abortion, pregnancy and childbirth, reproductive technologies, and surrogacy-as these matters are subject to legal
regulation. Although Jackson often offers comparisons with the United States, Canada, Australia, and members of
the European Union, this is primarily a book about and criticism of reproductive law in England. The American
reader notices immediately that the issues surrounding reproductive choice in England and the United States bear
some similarities to each other. Both societies are concerned with whether intimate matters such as sex and reproduction
should be regulated by the state and who should decide the content of that regulation. In both, control of reproduction
was long treated as a "private" matter, determined within the family sphere with little interest from
the legal system. Regulation came as industrialization and the changing roles of women raised the possibility
of controlling and managing fertility. In England and America, modern discussions of reproductive law have occurred
within a rights dialogue, although the emphases within that dialogue are different.
Yet one must also be aware of the dissimilar assumptions that lead to very different political controversies in
the two countries. For example, within the framework of a written constitution, controversies over reproductive
choices in the United States often take the form of debates over basic rights. In England, controversies are more
likely to focus on the meaning of statutes. It seems that religious arguments are much more divisive in the United
States, and because strongly held moral positions are less likely to admit of compromise, rifts over reproductive
matters run deeper there. On the other hand, it is notable that much of Jackson's analysis concerned the role
of the National Health Service and its branches in controlling, supporting, or covering various procedures. In
the absence of any public financial support for reproductive treatment in the United States, those issues would
be moot.
Against that background, Jackson argues the position that autonomous decision-making should be the standard for
evaluating reproductive regulation. To the greatest extent possible, the person whose fertility or whose bodily
integrity is most intimately concerned should be free to make the widest possible choices, as long as no one else
is harmed by the decision. Of course much of the debate over reproductive choice revolves around just the question
of whether and how another might suffer harm. Jackson makes the claim early on that a fetus is not entitled to
"essential and separate moral status" from a pregnant woman. If lawmakers were to share her view, they
could dispense with many of the
Page 326 begins here
troublesome questions about abortion or the dangers of certain behaviors by expectant mothers. In the real political
arena, however, the status of fetuses is by no means settled, nor is it likely to be settled any time soon. For
that reason alone, her prescriptions for near-total autonomy in reproductive decision-making seem farfetched rather
than farsighted.
In the five major topic areas she has chosen to examine, Jackson both analyzes the current law in Britain and
makes recommendations for improvements that will further the goal of maximizing reproductive choice. She notes
that law may facilitate access to birth control by making a variety of methods available without charge but warns
that no one, not even the mentally disabled, should be coerced into using contraceptives. Much of her case against
regulating the fertility of the mentally disabled rests on discrediting eugenic thinking. However there are other
concerns, including the social costs of taking care of children if parents cannot. Jackson seems to dismiss those
social costs as mere speculation, much outweighed by every woman's right to bear a child if she chooses. Conversely,
law should, she argues, provide redress for those who have chosen surgical sterilization rather than childbearing,
but find themselves pregnant. She makes an interesting claim that social assumptions that every (healthy) child
should be regarded as a blessing make it difficult to recognize the harm suffered by those who have made it extremely
clear they wish to have no more children.
As for abortion, it is legal in England. However, it is not based on a right to privacy, as in the United States,
but instead is protected in the Abortion Act of 1967. That law created statutory defenses to the crime of "procuring
a miscarriage" and destroying a viable fetus. The Abortion Act provided a variety of conditions under which
first and second trimester abortions are not a crime if two doctors determine that the mental or physical health
of the mother is at risk. So, although in Britain abortions are relatively easy to procure and relatively uncontroversial,
Jackson asserts that the system places the real power over a woman's reproductive choice in the hands of the medical
profession, not in her own hands. This medicalization of abortion is, in her opinion, particularly negative for
disadvantaged women who are more inclined to defer to professional advice rather than to choose for themselves.
Should the condition of pregnancy reduce a woman's freedom? Does her pregnancy justify intrusive state supervision
of her behavior to protect the fetus from potential harm? Jackson would answer with a resounding NO. She sees
dangers even in the monitoring of pregnant women's health where they may be persuaded to have unnecessary tests.
Sonograms, one such test, allow prospective parents to visualize the "baby" at a very early stage.
As the fetus is extensively monitored in utero, it may take on the status of a patient in its own right-one whose
interests may conflict with the mother's best interests. Such a perspective is what comes into play when a woman
in forced against her will to undergo a caesarean section-an extreme intrusion on her autonomous choice. In the
United States more than in England, women have come into conflict with the legal system for using illegal drugs
during pregnancy. Although the courts have seldom upheld them, a number of states have assumed fetal personhood
and charged addicted pregnant women with child abuse or delivering drugs to a minor. In such cases, Jackson would
maintain that, aside from the misapplication of specific laws, women do not give up their
Page 327 begins here
right to make choices-even irresponsible choices about their own bodies-just because they are pregnant.
A chapter is devoted to a discussion of reproductive technologies-a range of fertility treatments ranging from
cryopreservation to cloning. Jackson's major point is that once a technique has been established as safe, public
policy should be devoted to facilitating its availability to those who suffer from their inability to bear children.
She does recognize that many such treatments are expensive as well as controversial, and that public funds are
finite. It is, to me, a weakness in her argument that although Jackson admits that not everyone who wants children
can expect unlimited access to the latest technology, she refuses to find any such claims less persuasive than
others. Thus she argues that postmenopausal women or single parents should not be discriminated against, lest
their reproductive choices be unduly constrained. However, isn't it sophistry to ignore the reality that when
public resources are limited, some needs must take priority over others?
The final substantive chapter takes on the issue of surrogacy, another procedure that Jackson can approve if it
allows infertile couples to have children. Her major point in this chapter is that British law respecting surrogacy
is unnecessarily complex. It provides that a woman who gives birth to a child is its mother and has the absolute
right to decide whether to keep the child. The commissioning couple, who are likely to be the genetic parents,
must go through the process of adopting the child. She recommends borrowing principles from contract law to clarify
parentage in surrogacy cases.
Jackson dismisses feminist arguments that surrogacy involves women (usually poor) selling their bodies to serve
as a sort of incubator for more privileged couples. Her expanded notion of autonomy leads to the position that
all should be free to make these reproductive choices. In fact, although in some cases they would support the
same policies, Jackson often parts company with feminists. The latter would be inclined to question whether women's
best interests are advanced in a system that maximizes individualism and downplays mutuality and connection. The
author claims that her position is that all reproductive choices should be treated with respect-a position few
would challenge. However, respecting a variety of options does not really address the tough question of choosing
among competing goods or among lesser evils. Perhaps that is not Jackson's purpose, but it is surely a requirement
for a humane public policy.
***************************************************************************
Copyright 2002 by the author, Mary W. Atwell.