Addressing the tension between female reproductive autonomy and foetal interests during pregnancy and birth

Abstract

This thesis considers different areas of tension developing in South Africa between female reproductive autonomy rights and foetal interests that arise when law reform is proposed which aims to ensure healthy pregnancy and birth outcomes. Four areas are highlighted: prenatal substance abuse; termination of pregnancy; violence that terminates a pregnancy without a woman’s consent; and extending legal personhood to the unborn. Ultimately, this thesis explores whether it is possible to tackle these concerns without encouraging an adversarial pregnancy environment. There are two leading approaches to pregnancy in law: Pregnant women are either viewed as single entities (the primary South African position) or two separate entities (the primary position in the United States). This thesis tests the validity of both to adequately tackle the identified areas of concern. Research indicates that these approaches undermine healthy pregnancies or birth outcomes and female reproductive autonomy. The approaches fail to reflect the embodied nature of pregnancy being one that is based on relationship and inseparable connection. The single-entity approach denies the existence of the unborn while the separate-entities approach encourages pregnancy adversarialism. This thesis reveals that the concerns will never be adequately resolved unless the potential for tension between women and the unborn is removed. The author proposes a relational approach to pregnancy in order to address the potential for tension and applies the not-one-not-two approach to pregnancy which focuses on the embodied connection that pregnancy represents and the contextual realities in which pregnancies exist. The thesis applies this approach to the identified areas of concern.