"Being Pregnant in Someone Else's Body" by Jennifer S. Hendricks

Alternate Title

Being Pregnant in Someone Else's Body

Jennifer S. Hendricks, University of Colorado at BoulderFollow

Abstract

In the wake of the Dobbs decision overturning the right to abortion, now is a critical time to re-assess how legal feminism theorizes the pregnant body. Before Dobbs, feminist legal scholarship had blazed a path of anti-maternalism, a stance rooted in liberal, formalist notions of equality that denigrates the “feminine” and too often minimizes the importance of reproductive issues both as tools of sex-based subordination in the present and as foundations for liberation in the future. Anti-maternalism is attractive to legal scholars because it minimizes sex and gender differences and may appear to be gender-inclusive. It has produced arguments that minimize the importance of gestation and childbirth, primarily in establishing parent-child relationships but increasingly in other areas.

This article analyzes a particularly dramatic example of pre-Dobbs anti-maternalism: a proposal to re-conceptualize pregnancy as the physiologically neutral state of waiting for a stork. Under this proposal, people who are not biologically pregnant would be considered legally pregnant nonetheless and would acquire legal rights because of a pregnancy in someone else’s body. The article first shows that the claimed gender inclusivity of this proposal is illusory. It then identifies rhetorical strategies that parallel those of the anti-abortion right: (1) characterizing pregnancy as passive; (2) casting the fetus as the star and focal point for a pregnancy; and (3) “helicoptering the womb,” which consists of swamping the field with so many purportedly necessary non-gestational tasks on the road to parenthood that the actual pregnancy can start to look like a rounding error in an otherwise equal effort by both parents. At the heart of these rhetorical strategies—whether used by the anti-abortion right or by anti-maternalist liberals—is an impulse to coerce pregnant people in order to give other people rights over their bodies or the fruits of their reproductive labor (babies). The article argues that feminists should instead return to an approach advocated by feminist scholars as diverse as Martha Fineman and Catharine MacKinnon: one in which pregnancy is a base case for understanding human relationships rather than an awkward anomaly to be papered over with abstractions.