Removing tension between female autonomy and foetal interests

Congratulations to Camilla Pickles, LL.D.,  who recently defended an interesting doctoral thesis at the Department of Public Law, Faculty of Law, University of Pretoria in South Africa.  The author, who can be reached at her firstname. lastname@gmail.com, currently works for the Chief Justice of the Constitutional Court of South Africa.  We thank her for submitting the following abstract:

 Addressing the Tension between Female Reproductive Autonomy and Foetal Interests during Pregnancy and Birth

by Camilla Pickles
LL.D. Thesis presented to the Department of Public Law, Faculty of Law, University of Pretoria.
 


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 the extension of 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 viewed either 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, centred on fostering relationships, in order to eliminate the potential for tension. She applies the not-one-but-not two approach to pregnancy which recognises that a pregnant woman and her foetus are two separate entities but inseparably linked through pregnancy. This approach focuses the embodied connection that pregnancy represents and the contextual realities in which pregnancy exists.

The author then applies this useful approach to four key areas of concern:
*    prenatal substance abuse;
*    termination of pregnancy;
*    violence that terminates a pregnancy without a woman’s consent; and
*    the extension of legal personhood to the unborn.

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Related publications

  • C Pickles “Personhood: Proving the Significance of the Born-Alive Rule with Reference to Medical Knowledge of Foetal Viability” (2013) 24(1) Stellenbosch Law Review 146
  • C Pickles “Lived Experiences of the Choice on Termination of Pregnancy Act 92 of 1996: Bridging the Gap for Women in Need” South African Journal on Human Rights (2013) 29(3) 51
  • C Pickles “Approaches to Pregnancy under the Law: A Relational Response to the Current South African Position and Recent Academic Trends” (2014) 47(1) De Jure 20

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