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

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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

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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.

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Copyright 2002 by the author, Mary W. Atwell.