by Erin Nelson. Portland, OR: Hart Publishing, 2013. 448 pages. Hardback $120.00. ISBN 978-1-84113-867-1.
Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University
j-baer [at] pols.tamu.edu
Erin Nelson joined the law faculty of the University of Alberta in 2000, specializing in reproductive health care law and feminist jurisprudence. She is the author or co-author of at least 25 journal articles and book chapters, some of which are incorporated into LAW, POLICY, AND REPRODUCTIVE AUTONOMY. The book also includes material from her doctoral dissertation. Given its provenance, the study’s primary goal is appropriately modest: to “nudge the discussion around reproductive autonomy” away from “the standpoint of whether we should be free to make” new reproductive choices toward “considerations of the meaning of reproductive autonomy before turning to its implications for regulation of reproductive decision making” (p.vii, emphasis original.) The questions she poses are important ones: “Does the right not to be involuntarily sterilized entail a right to access technological means of procreation? Does the apparent endorsement of a strong, negative rights approach to the question of avoiding reproduction translate into a similar privilege of positive rights to access reproductive technology” (p.5)? She does not purport to answer these questions, only to suggest how to go about answering them: “Rather than treat the concept itself as suspect due to its traditional liberal flavor, feminism needs to claim for itself a refigured conception of reproductive autonomy that invokes a rich understanding of autonomy, and that places women’s interests at its core” (p.355.)
Nelson’s secondary goal is to “make law and policy’ on reproductive issues “a bit easier to locate” (p.vii.) To this end, she has compiled a vast amount of information from four countries (Australia, Canada, the United Kingdom, and the United States) about statutes, court cases, and other official pronouncements on a variety of topics, including, but not limited to, birth control, abortion, sterilization, pre-natal torts, assisted reproductive technologies, surrogacy, wrongful life, and Caesarean sections, whether medically mandated or maternally chosen. (But why not breast-feeding, for instance or child custody apart from surrogacy?) Her effort felt like “chasing a fast-moving train in attempting to keep up” (p.vii). Mental fatigue is the only possible explanation for a sentence like “In 1998, AW donated sperm so that CC could attempt IVF” (p.293.) The theoretical discussion ends on page 54, and the conclusion begins on 352. The intervening pages present a massive data dump. The discussion is ultimately unsatisfying for two reasons. First, Nelson’s goals are essentially incompatible. Data does not produce theory; theory incorporates and interprets data. Secondly, Nelson’s emphasis on individual autonomy obscures key issues in reproductive [*208] policy.
Collections of factual information present problems for both readers and authors. The former are prone to getting lost in the details, overwhelmed by a forest that conceals the trees. The latter risk obsolescence as soon as the work is published: the more the data, the greater the risk. What happens, for instance, if Scotland leaves the UK, or if yet another legislature makes it a crime for pregnant women to follow medical advice? The data collected here are particularly unwieldy because they come from governments characterized by the old paradox of shared sovereignty: three are federal systems, while the outlier shares its power with the European Union. Her statement that these jurisdictions “can be criticized for failing to adopt any coherent policy framework for legal and policy decision making in this area” (p.7) is unsurprising; what else would anyone expect?
Nelson’s acceptance of liberalism as a partial foundation for reproductive autonomy leads her to statements with which few readers would disagree; for example, “I have significant personal concerns about the practice of sex-selective abortion. That said, I can reach no other conclusion but that . . .we respect women’s decisions to terminate their pregnancies, regardless of their reasons” (p.197). Liberal theory is an easy basis for condemning infamous rulings from the U.S. Supreme Court like Buck v. Bell (1927) and Stump v. Sparkman (1978), which upheld the involuntary sterilization of, respectively, a rape victim labeled “feeble-minded” by the director of the institution where she was confined and a minor labeled “somewhat retarded” by her mother. The fact that diagnosis of cognitive disability is a more nearly exact a science than it was 90 or even 35 years ago does not remove the danger of sterilization based on overly pessimistic or static judgments. The continuing use of hysterectomy as a method of sterilization for women with severe cognitive deficits, and the prevalence of exaggerated rhetoric in justifying these decisions (pp.4-5, 98-107) does not reassure the reader that the procedures are carried out in the clients’ interests. Nelson emphasizes the historical roots of compulsory sterilization in the now discredited eugenics movement, but neither she nor her sources make the point that these women are more than ordinarily vulnerable to sexual assault.
Any scholar who suggests the possibility of positive reproductive autonomy must confront the worst-case scenario: Nadya Suleiman, AKA “Octomom,” who became the struggling single parent of 14 children through IVF. One need not accept the idea of a means test for motherhood in order to find something very wrong about this result. Nelson asks why “IVF would be made available to a woman in her situation” (p.288), but this question merely shifts the burden of regulation from the state to the medical establishment.
This book promises no more than it delivers. Nelson’s intent was to redirect scholarly discourse, not to reinvent it. But much of the information she gathers undermines her project by suggesting that individual autonomy, however broadly conceived, is not sufficient to empower women to make reproductive choices. The author’s lengthy discussion of assisted reproductive technologies shows that inadequately tested and [*209] understood procedures have been aggressively marketed to women by those who are at least as eager to exploit women as to assist them. This phenomenon recalls the history of the birth control pill, the IUD, diethylstilbestrol, and hormone replacement therapy. Autonomy may not be enough to secure reproductive freedom.
BUCK V. BELL. 1927. 274 U.S. 200.
STUMP V. SPARKMAN. 1978. 436 U.S. 439.
Copyright 2014 by the Author, Judith A. Baer.