Labor Pains in Feminist Jurisprudence: An Examination of Birthing Rights

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INTRODUCTION

Pregnant women wait and prepare nine months. Some agonize over the details and anticipate the moment when they are able to hold their babies, but for Laura Pemberton things would be much different. The day Laura gave birth, she probably did not expect to be escorted to a hospital, where a judge conducted a hearing in her labor and delivery room and ultimately forced her to undergo a cesarean section. In fact, Laura made a particular plan that would not involve medical intervention; she made arrangements to deliver her baby at home with a midwife. (1)

While Laura's experiences may represent an extreme situation of forced medical intervention, her experience, nonetheless, sheds light on the increasing interference that many women encounter in their particular labor and delivery. With advancements in medicine, pregnant women are no longer required to deliver their babies the way nature intended. Instead, women and doctors can schedule the birth of a baby through elective cesarean sections or other procedures that accelerate a woman's labor. Despite the convenience of scheduling a birth, these advancements provide doctors with incentives that may motivate them to persuade women into a fast and easy birth. (2)

Some women believe that specific medical interventions, such as a cesarean section, provide physicians an excuse to ignore a woman's birthing plan. As medical malpractice premiums increase for doctors, some doctors feel unable to follow a woman's decision in the labor and delivery room if such a decision presents the slightest risk of injury. The baby's life and health also provide doctors a rather convenient excuse to ignore a woman's decision regarding childbirth. This Note shows that it is not only the medical profession that ignores women's concerns, but also an ostensibly important area of legal scholarship, which looks to improve women's role in society: feminist jurisprudence. This Note addresses the absence of, and the need for, a discussion of birthing rights in current feminist jurisprudence, so all women's experiences may be rightfully recognized.

Part I of this Note traces the historical progression and emergence of feminist jurisprudence from first wave feminism to second wave feminism to understand the focus and scope of the subject matter. Part II discusses birthing rights and the experience of women giving birth in today's hospitals, while Part III analyzes the amount of deference given to a woman's birthing plan. After addressing the scope of feminist jurisprudence and the issues pertaining to women's birthing decisions, Part IV argues that excluding birthing rights from feminist jurisprudence undermines the legitimacy of the subject whose purpose purportedly embraces the experience of women in order to raise awareness in a legal system that ignores the concerns, interests, fears, and harms experienced by women.

I. THE EVOLUTION OF FEMINIST JURISPRUDENCE

Jurisprudence is "the study of the general or fundamental elements of a particular legal system." (3) In other words, jurisprudence addresses questions about law that an inquisitive person might think particularly important. (4) Before and after their enfranchisement, women examined the fundamental elements of law and how women were perceived through the law. (5) From this examination, women revealed that the law limited women's participation in society. (6) To understand the focus and scope of feminist jurisprudence, the following sections provide an overview of women's examination of the law and how it relates to them. Thus, this Note starts at the beginning of women's fight for a voice in government and society.

A. The Birth of Feminist Jurisprudence

The leaders of the American Revolution looked to build a new foundation on the recognition that all men are created equal. (7) Despite this new spirit of equality and basic rights, women and their ideas were left out of the process. …