How does police violence impact people’s reproductive decisions?
After the murder of Michael Brown in 2014 by police in Ferguson, Missouri, Imani Gandy, Rewire Senior Editor of Law and Policy, tweeted “I saw so many people on Twitter saying “I don’t want to have/raise Black children in this country.” That is a reproductive justice issue.” Since then, the intersections of police violence and reproductive justice have received more attention in the popular press. “Reproductive justice,” first coined in 1994 by a group of Black women, has spurned into a movement that supports “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” The U.S. does not foster “safe and sustainable communities” particularly for Black, Indigenous, and other people of color, and that lack of safety is perpetuated through disproportionate and excessive surveillance, policing, and punishment by law enforcement. Black people have flocked to social media to vent about how even the fear of police violence threatens their reproductive and parenting decisions. Writer and journalist Hannah Giorgis has remarked that “Any force that systematically and unapologetically turns unconsenting Black wombs into graveyards is a reproductive justice issue.”
How do pregnant people experience police violence?
In 2020, the state-sanctioned murders of Breonna Taylor, George Floyd, Tony McDade and other Black people raised the public consciousness of an all too pernicious, long cycle of racist state-sanctioned violence in the United States. Ongoing advocacy and activism efforts were bolstered, calling for decreased use of force by officers, demilitarization of law enforcement, divestment of police department funding and redistribution to social services, and abolition. Nevertheless, since the summer of 2020, law enforcement has continued to disproportionately harm Black people, including assaulting and arresting pregnant Black women. In a recent study, Dr. Rachel Hardeman and colleagues found an 83% increase in the odds of preterm birth among those who reside in neighborhoods with high levels of police exposure, contact, and activity relative to those in low police exposure neighborhoods. After Zityrua Abraham’s assault mentioned earlier, she was in physical pain and her pregnancy became high risk. Although Ms. Abraham’s contact with police did not end in her murder, such exposure to law enforcement and their technologies of surveillance is still violent—physically, mentally, and emotionally. This is a type of “slow death”—a cumulative trauma borne out of the daily round of living, and in this case, living while Black.
It is also critical to acknowledge and address the mental, emotional, and physical ramifications of witnessing police violence. Darnella Frazier was 17-years-old when she filmed George Floyd being murdered by Minneapolis police officer Derek Chauvin. This footage helped to galvanize worldwide protests against police violence and became primary evidence in the conviction of Chauvin. Frazier has talked openly on social media and in news stories about the chronic post-traumatic stress that she has experienced from bearing witness to Floyd’s murder by police. Additionally, her then-nine-year-old cousin also witnessed the murder. Similarly, the children and other young family members of Korryn Gaines, Atatiana Jefferson, Philando Castile, and Jacob Blake witnessed or were in close proximity to the murders of their loved ones by law enforcement. Dr. Rhea Boyd’s research and advocacy acknowledges this, and she notes the glaring absence in the research literature of the impacts of young people who have witnessed their family members murdered by law enforcement. Ultimately, we must ask what are the consequences of witness and of survival; what coping practices exist and persist amidst chronic trauma; and will we ever be able to reproduce justice?
LeConté Dill, DrPH, MPH, is an Associate Professor in the Department of African American and African Studies at Michigan State University. In her work as a community-accountable scholar, educator, and poet, she listens to and shows up for urban Black girls and works to rigorously document their experiences of safety, resilience, resistance, and wellness.
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This post is a part of our Bioethics in the News series. For more information, click here.
By Hannah Giunta
Recently, The Guardian has carried a series of articles on the issue of commercial surrogacy. No doubt the recent emphasis stems from high-profile cases in the UK and the U.S., particularly the case of a UK surrogate mother who was ordered to honor her surrogacy agreement with a gay couple after she changed her mind about relinquishing the child (see this article for more details). In her May 9th editorial, Catherine Bennett laments that relational breakdowns in UK informal surrogacy arrangements will only encourage couples to look elsewhere for surrogates, and there are many women in developing countries who are willing to enter into these agreements even when few regulations exist to protect them. Surrogacy brokers can control these vulnerable women and sometimes force them to stay in special housing units where their activities can be monitored continuously until delivery. Keeping the child is socially and financially prohibitive for the women, so the brokers can guarantee the baby is handed over with minimal drama.
Even if richer countries like the UK and U.S. harmonized their laws and permitted commercial surrogacy domestically (like some U.S. states already do), arrangements would still sometimes fall apart, and wealthy couples desperate for a child would be drawn to the assurance provided by surrogacy brokers. Making an admittedly ethically inexact analogy with prostitution, Bennett surmises that there may be things, particularly acts that dehumanize and commodify women’s bodies, that no one should be asked to do, even for money. While I sympathize with Bennett’s desire to protect vulnerable women from exploitation, I worry that trying to simply end surrogacy would serve only to drive it underground. After all, prohibiting prostitution certainly hasn’t ended the practice. On the other hand, regulations without a new framework for the practice would ameliorate some of the exploitation endemic in commercial surrogacy but would fail to fundamentally address just what is so problematic about these ventures. However, there may be a middle way. If we want to address the larger moral issue, we have to ask, “What should give us pause about commercial surrogacy in a world where people can accept money for many forms of physical labor often at egregiously low prices?”
To my mind, the dehumanizing and commodifying part of current surrogacy practices in developing countries is not the use of women’s bodies for what might be a distasteful purpose to some but the surrogate’s wholesale exclusion from the relational aspects of pregnancy and birth. Here I call pregnancy and birth inherently relational because they usually result in the founding of a family unit, whatever the unit might look like. To be sure, families are not always founded intentionally or under the best of circumstances, but I would argue that at some level all pregnancies cement relationships and promote family ties. A new child solidifies the understanding that certain adults are now bound together at least through their relationship with the child. And, there is something special about family ties. We help relatives through troubled times, and we remain loyal to family members even when they annoy or disappoint us. The extent of our connections changes with proximity, but we treat even distant relatives with some respect just because they are in our family. Family members aren’t like contractually obligated service providers, and family life is much messier than any commercial venture. Surrogates in developing countries usually remain unrecognized as even extended family members, and this lack of recognition is presented as a desirable outcome by commissioning couples and surrogacy brokers. Commercial surrogacy arrangements where prospective parents possibly supply the raw ingredients, sign a contract, and return for pick-up with the intention never to see the surrogate again require women to do fundamentally relational work without relational support or respect. Effectively, couples are saying, “You’re good enough to carry our child but not welcome as part of our family.” It’s this attitude that is unacceptable. We should be wary when people want to found a family while excluding a significant member from the picture entirely. Not to mention, surrogacy has an impact not just on the involved adults but sooner or later on the child who is deprived of a potentially significant relationship. The worry about commercial surrogacy then shouldn’t be based solely on the physical labor performed or risks undertaken. It should be informed by the inherently relational nature of pregnancy and birth. With the current vision of international surrogacy as a clean, strings-free way to have a child, we need to change how we look at the process. Only then will regulations truly help.
What might surrogacy look like if there were significant efforts to integrate the surrogate into the larger family unit and thereby restore relational ties? Obviously, every surrogacy arrangement would look different, but minimally, there would have to be avenues for the surrogate to remain in contact with the family after delivery. Provisions would likely look similar to those specified in open adoptions. These changes would impact couples seeking surrogacy arrangements, but family life isn’t exclusively about the needs of any two people. The surrogate’s desires and the child’s needs should factor just as heavily into the discussion. Acknowledging the unique and fundamental role surrogates play in families is the only way to insure their wombs are not merely leased for nine months. If children were like products, then such leasing might be acceptable. But, children are family members who deserve positive relationships with as many other family members as possible, and they share an undeniable relationship with their surrogate. After all, if the surrogate had not carried them for nine months and done real work on their behalf, they wouldn’t exist. Founding a family will always have to be like family life itself—messy but rewarding—and that dichotomy is something that rigid commercial contracts can’t easily accommodate. The only way to right the wrong is to realize that when a couple creates a child with a surrogate they are founding a family—one that includes the surrogate herself.
Hannah Giunta is a sixth year DO-PhD student pursuing a PhD in Philosophy and Bioethics.
Join the discussion! Your comments and responses to this commentary are welcomed. The author will respond to all comments made by Thursday, June 4. With your participation, we hope to create discussions rich with insights from diverse perspectives.
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This post is a part of our Bioethics in the News series. For more information, click here.
By Deborah Fisch, JD
Public fascination with the female  breast is nothing new, from Janet Jackson’s famous “wardrobe malfunction” to Angelina Jolie’s much-discussed preventive mastectomy. When, in addition, the breast is used in its reproductive capacity to nourish children, law especially sits up and takes notice. In 2014 the lactating breast was at the center of a number of issues, with implications not only for legal rights, but also medical practice, public health, and Reproductive Justice. The breast, so active last year, was propelled by interesting messages, ultimately arriving at unexpected places.
 The author recognizes that some people who breastfeed do not identify as women; in the absence of generally accepted non-specific language, this article will alternate the use of gender-specific and gender-neutral terms.
1. The Public Breast: Yes, You Can!
Passage of Michigan’s Breastfeeding Antidiscrimination Act represents an improvement on previous legal protections limited to the breastfeeding’s exclusion from municipal public indecency laws. The new Act broadly forbids the denial of “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service to a woman because she is breastfeeding a child.” It also provides civil remedies in case of violation; in offering recovery of litigation costs, the law makes it possible for a greater number of injured parties to pursue legal redress.
The Act does not include the addition of breastfeeding as a fundamental right, a provision that might have shaped employment sex discrimination cases. Of more pressing concern is that although since 2012 breastfeeding mothers may be exempted from jury duty, no caregiver exemption exists. To suddenly locate full-time childcare for an indeterminate period of time may be even more challenging than coping with the interruption of breastfeeding. In other words, while breastfeeding is a biological act, it is its social context that can often determine its success or failure.
2. The Working Breast: We Think You Can!
Nowhere is breastfeeding’s social context more central than in the workplace. The absence of a national parental leave policy presents an immediate barrier to continued breastfeeding, as does the lack of workplace-centered childcare.
The Affordable Care Act addressed this obstacle by requiring employers to provide “a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth.” However, legal experts are skeptical of the provision’s effectiveness. Philadelphia attorney Jake Marcus has long pointed out the law’s lack of a clear enforcement provision and what that means. She also questions the extent of the law’s coverage, an issue addressed by Nancy Ehrenreich in a forthcoming article. While the law on its face covers hourly workers and excludes salaried workers, Ehrenreich believes that in practice, salaried workers are more likely to reap its benefits because of factors related to logistics, culture, and power dynamics. She argues that the (unpaid) “Break Time” provision may actually exacerbate systemic inequalities based on race and class: mothers abandonment of breastfeeding will be regarded as “evidence of ignorance and poor parenting – and therefore as deserving of disciplinary surveillance and regulation.”
Lynne Paltrow and Jeanne Flavin write of the criminalization of pregnancy, the loss of civil or human rights when pregnant. Behavior that is permitted in non-pregnant people is forbidden when carried out by pregnant ones, with uneven enforcement based on socioeconomic status and race. Similarly, the disapprobation many Americans feel at the idea of public breastfeeding – thus the need for protective laws – often translates into moral policing and criminalization of breastfeeding women’s behavior.
At the same time, no amount of moral purity protects breastfeeding parents from the charge of harming their children – through breastfeeding! Anthropologist Katherine A. Dettwyler notes that “ … women have been accused of sexual abuse of their children simply for breastfeeding them for various lengths of time deemed inappropriate by others, including mothers of children as young as 2 months of age.”
Journalist Kimberly Seals Allers, a consultant to the Detroit Black Mothers’ Breastfeeding Association, describes reservations expressed by BMBA and other advocacy organizations at the plans of Medolac, an Oregon company, to solicit donations of breast milk at $1/ounce from lactating women in Detroit. Medolac hopes to re-sell milk to hospitals for use by preterm infants.
The commodification of body parts and fluids is a topic long disputed by advocates, ethicists, and scholars. Whether payment should be offered for breast milk is a question beyond the scope of this piece. Nevertheless, one wonders how Medolac could be so remarkably insensitive to the context and conditions of this particular business venture.
As this article was going to press, Medolac announced the retirement of its campaign in Detroit.
A common theme is not so much national or state law as a combination of the Law of Unintended Consequences and Murphy’s Law. Various entities with good intentions have nevertheless not gone far enough, gone too far, or caused outcomes the reverse of their design. Part of the blame results from reliance on inadequate, incorrect, or changing evidence – but what is to be done? The responsibility of the legislature is to safeguard the public’s health. Medical providers are ethically bound to respect patient autonomy and do no harm. The ultimate legal rights inquiry is who decides, while Reproductive Justice demands that governments affirmatively assist people in accessing their rights. Consider also that no one is more concerned about the welfare of a child than its mother; no one holds the child’s interest closer to their heart.
These facts taken together suggest that consulting and following the wishes of breastfeeding parents will yield the best chance of identifying problems and arriving at solutions. Detroit mothers would eagerly have given input on the prospect of selling their breast milk, had they been asked. Parents who use substances can explain what policies would best support them in taking care of their children. The initiatives required to permit parents in the workplace to continue to breastfeed are to be most easily discovered by asking a variety of parents in the workplace. Whether a law protecting breastfeeding in stores and restaurants goes far enough is, again, best evaluated by people who struggle with integrating breastfeeding into their private and public lives.
When in doubt, trust and support breastfeeding parents. The breast that feeds the child is (usually) attached to the parent, after all. As much as we might wish to endow the breast with a separate identity and cause it to function – or malfunction, in Ms. Jackson’s case – at the behest of medicine, public health, or the law, it is the person behind the breast who can say what is needed, and tell us how to get there.
Deborah Fisch, JD, is Senior Researcher at the Sexual Rights and Reproductive Justice Program at the University of Michigan. She is a founding member of the Birth Rights Bar Association and actively advocates for licensure of Certified Professional Midwives in Michigan. Her professional interests include the role of malpractice liability in determination of standard of care; the legal maternal-fetal relationship in pregnancy, labor, childbirth, and postpartum; regulation of out-of-hospital birth attendants and protocols for their interaction with in-hospital providers; and evolving access to maternity care under the Affordable Care Act. She writes on these subjects and many others at Mama’s Got a Plan and the associated Facebook page. She earned her AB in Linguistics from the University of Michigan and her JD from Wayne State University Law School. All opinions expressed in this article are her own.
Join the discussion! Your comments and responses to this commentary are welcomed. The author will respond to all comments made by Thursday, February 5, 2015. With your participation, we hope to create discussions rich with insights from diverse perspectives.
“… [W]hile all pregnant women walk the line between “good girls” (those who eat right, exercise, and put speakers on their bellies to let their future children listen to classical music) and “bad girls” (those smoking, drinking, soft cheese-eating ne’er-do-wells), the ultimate bad pregnant girls—the baddest of the bad—are those who decide to birth their babies at home, turning their backs on the “benefits” offered by hospital-based obstetric technology.”