Reproduction, self, and state - Part III: States and Boundaries

Social Research, Spring, 2002 by Judit Sandor

Introduction

REPRODUCTION is one of the most intimate spheres of individual life. It encompasses almost all the elements of the legal concept of privacy: the control of specific personal information, individual choice in personal matters, recognition of special and intimate relationships with another individual, and concern for bodily integrity. Yet, despite the multiplicity of privacy concerns in the field of reproduction, it is still frequently subject to various forms of state control. State interventions often cite family policies, public health or child protection, explicit or (more often implicit) demographic concerns, or moral views. Moreover, the number and scope of rules regulating reproduction has grown larger rather than smaller.

In this paper, I am not so much interested in whether the state can justify the legitimacy of its interests in regulation, but in whether state intervention can adequately assess the complexity of reproduction: its privacy component, as well as its different effects on women and men. I would like to examine the possibility of discussing issues of human reproduction within and beyond the legal framework of privacy. I will explore the nature of state interventions in this domain and examine why reproductive rights cannot be fully protected by the legal tools of respect to privacy.

Reproduction: Once and Now

What we mean by reproduction and reproductive rights is becoming less and less clear. (1) Yet most of us would still agree that reproduction-related personal decisions are among our most personal affairs. Moreover, interference in the personal domain of reproduction can affect an individual's life even more than violating the secrecy of correspondence. If one examines the dusty constitutions still enforced today, one can easily notice the following contradiction: while the right to protect the secrecy of correspondence is considered a basic constitutional right safeguarded in concrete terms, the right to privacy and reproductive rights are not included--even in abstract constitutional formulations.

Alan Westin (1967: 7) defined privacy as the "claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others." This definition is elegantly simple, but if one looks at the legal concept of privacy, at least four distinct meanings can be identified. One is a kind of liberty interest that constitutions protect indirectly by limiting state interference with intimate, individual decisions, such as birth control. The second type of privacy protects specific relationships, such as those between husband and wife, parent and child, or doctor and patient. This aspect of privacy is not regarded as a constitutionally protected privacy; it is merely based on judicial interpretation or on statutory provisions. The third locates protection to particular places, such as a private home and bedroom. In general, this concept can be regarded as an older, property-type privacy protection. The fourth interpretation of privacy can be summarized as a form of informational privacy: control of personal information and access to personal information. Examining reproduction in the context of these "privacies," one can see that reproductive rights can be interpreted according to all the aforementioned concepts of privacy. Friendship, marital relations, parent-child relationships, reproductive health, choices in family planning, pregnancy, child delivery--all hold secrets that should be protected by privacy.

It is therefore curious that, although the conception of the private sphere was extended beyond the solely physically determined boundaries of privacy a long time ago, in many cases the law still adheres to the earlier developmental stage, and thereby bears certain archaic, and consequently, certain male characteristics. Thus, it is striking that while the sealed "letter," the established "reputation," and the fenced "private house" deserve safeguarding (along with the recognition of the importance of data protection), the protection of a woman's physical and spiritual integrity has been generally ignored. This is most obvious, for instance, in the sociolegal treatment of sexual harassment and rape, or in the "consultative" procedures associated with the termination of pregnancy.

Besides the complexities surrounding the concept of privacy, we also have to face the complexity of reproductive questions. However, the legal frameworks designed to protect classical decisions on reproduction (such as partner choice, family planning, contraception, and abortion) have not yet developed an accepted concept of reproductive privacy.

In addition to classic reproductive procedures, the emergence of new forms of medically assisted reproduction represents a new challenge. As certain forms of reproduction have become a mundane part of medical treatment, the possibility of state intervention has also grown. Currently a specialist can call upon many medical procedures for the "treatment" of the infertile couple. As a result of these innovations, reproduction has become a health care service. And since health services imply some forms of state control, it follows that numerous ethical-legal issues have to be addressed as well. For example: Who can request infertility treatment? Can egg donors be used in the process of assisted procreation? Is surrogacy acceptable if a couple is infertile? (2)