The Bodies of Women

Ethics, Embodiment and Sexual Differences

Rosalyn Diprose

• Publisher: Routledge
• Year: 2005
• eBook ISBN: 9781134860197
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

What sort of ethics do we need? Rosalyn Diprose argues that the usual approaches to ethics both perpetuate and remain blind to the mechanisms of the subordination of women. In Bodies of Women: Ethics, Embodiment and Sexual Differences, she claims that injustice against women is found in the social discourses and practices which both evaluate and constitute their modes of embodiment as improper in relation to men.
Diprose critically analyses the attempts in both feminist and non-feminist ethics to recognise the role of sexual difference and the biomedical discourses whose descriptions mask a constitution and regulation of the 'body'. Her critiques draw on insights from Anglophone feminist theory and continental philosophy, and are supported by critical readings of Irigaray, Cornell and Fraser, Hegel, Nietzsche, Merleau-Ponty, Derrida and Foucault. What emerges is a new ethics of sexual difference which not only better locates the mechanisms of discrimination but also provides the means to subvert them.

Chapter 1
Feminism and the ethics of reproduction

Ethics, embodiment and sexual difference are three themes which need to be thought together. That they rarely are in practice presents certain difficulties for both ethics and feminism. In order to highlight these difficulties and to set the scene for further analysis, I will begin with discussion of a particular kind of body, a pregnant body, and a particular ethical problem, surrogacy. What one encounters in such an excursion into the field of biomedical ethics is an inability to deal with specific kinds of bodies. Pregnant bodies, for example, continue to pose a problem for biomedical ethics, particularly within deliberations on the ethics of abortion, surrogacy and the use of reproductive technology. This inability to account for a mode of sexual difference, I take to be exemplary of ethics in general.

One rarely finds mention of the body in discussions of the ethics of biomedicine, despite what would seem to be an obvious point: that the object of biomedical theory and practice is the body. It is assumed that biomedical ethics regulates, not so much relations between bodies (discursive and human), but relations between self-present, autonomous, disembodied individuals. And it is thought that these relations take the form of contracts (implicit or explicit) which can be governed by universal ethical principles. Yet, despite the apparent insignificance of embodiment, if the spectre of a pregnant body is raised, this model of social relations and its universal principles are found to be wanting.

Surrogacy, for example, has been practised without much fuss for as long as written memory. But the ruling in the case of Baby M in New Jersey in 1987 changed all that as a consequence of bringing surrogacy within the contractarian paradigm of social relations. Judge Sorkow, under the umbrella of contract law, upheld the surrogacy contract against the surrogate mother’s wishes and ruled in favour of the genetic father’s paternity rights. While this ruling sparked widespread outrage, the ensuing debate about the ethics of surrogacy has, for the most part, remained within the contractarian paradigm of social relations. Some argue, with Judge Sorkow, in favour of surrogacy on the basis that contracts are just as binding for pregnant women as for anyone else; others seek to ban surrogacy altogether on the grounds that it leads to the exploitation of women. The Australian National Bioethics Consultative Committee (NBCC), in its 1990 report on surrogacy, takes the middle ground by recommending that surrogacy be permitted but that the surrogacy contract not be enforceable (NBCC 1990:36). I have no argument with this conclusion. But it does depend on the same paradigm of social relations which led to the opposite conclusion in the case of Baby M. As a consequence, the NBCC saves the social contract by excluding pregnant women from it. This seems highly problematic. If the contractarian model of social relations, used widely in biomedical ethics, cannot fairly include pregnant women then the model itself requires closer scrutiny. What I will argue in the remainder of this chapter is that biomedical ethics in general and the surrogacy debate in particular, in forgetting the body and armed with its universal rules, relies on an inappropriate model of the relation between the individual and her body and misconceives the nature of the relation between the individual and others.
In short, if ethics is to allow sexual difference, it is necessary to rethink embodiment and the nature of identity and difference.

SURROGACY AND THE FORGOTTEN BODY OF BIOMEDICAL ETHICS

I have said that biomedical ethics forgets embodiment in determining the ethics of practices such as surrogacy. However, with some work a concept of embodiment can be found within the paradigm of social relations used in these deliberations. The principles informing the NBCC’s report on surrogacy provide an apt guide to what is typically taken to be the nature of the individual, and of relations between individuals, in biomedical ethics. These principles are spelt out as follows:

1. ‘[T]he principle of personal autonomy or self-determination, namely that people should have the right to make their own life decisions for themselves so long as those decisions do not involve harm to others’;
2. ‘The principle of justice’, namely that arrangements between individuals should not involve exploitation and should best serve the interests of all those involved (in this case those of the surrogate mother, the unborn child and the commissioning couple);
3. 3 ‘The principle of the common good, namely that the good of the whole community must be considered’ in arrangements made between individuals (NBCC 1990:14).

There are two features about the individual which are assumed in, and allow the use of, these principles in determining the ethics of practices such as surrogacy:
first that the individual is disembodied, and second that the individual’s identity is given prior to its relations with others. In what follows I will draw out these features, which are only implied, and point to the difficulties they produce.

The NBCC is explicit about the kind of individual it assumes in its principle of autonomy and it is here we find a simplistic and problematic understanding of embodiment. Quoting from John Stuart Mill’s essay On Liberty, the individual is defined by the dictum: ‘over himself, over his own body and mind the individual is sovereign’ (NBCC 1990:15). In the only direct reference made to the body in this report, it is given the status of a passive object governed by an individual agent who somehow stands above it. But much more is implied about the body in this concept of the individual. Mill’s concept, which can be traced back to the philosophy of John Locke, is one where the individual is said to have property in their own person (Locke 1967:305–6). Locke had effectively severed the rational agent from his or her body giving the agent property rights over the body and the products of its labour. So, for the NBCC, autonomy implies the freedom to decide how to dispose of one’s body so long as others are not harmed by that decision. By itself, this principle of autonomy would allow a woman to use her body for the purposes of a surrogacy arrangement.

What is also implied in this concept of the individual is that the individual agent is unified and present to her self: she has immediate access to her motives and desires, at least potentially, and can weigh up competing possibilities in arriving at a decision about what to do with this appendage called the body in order to best serve her interests. And, in the event that the individual is ignorant of her best interests, it is assumed that the ethicist can define these for her.

This notion of the disembodied individual forms the foundation for a certain understanding of the nature of relations between individuals introduced through the principles of justice and the common good. The NBCC’s stated aim is to reconcile the principle of personal autonomy with those of justice and the common good (NBCC 1990:23). And in this, the implicit focus of regulation are relations of contract and exchange between self-present individuals where the object of exchange is the individual’s body. This model of exchange should not be surprising. Once the individual is said to have a property relation to her body, it is taken for granted that she has the right to exchange products of her body’s labour, under contract, for financial or other reward.

The first point to note about the NBCC’s paradigm of social relations is the atomism it implies. The individual’s identity is given prior to her relations with others and prior to the rules which govern those relations. The individual is said to meet the other on equal terms and the contract they make constitutes their social relation. Secondly, what is assumed, when contracting out body property, is that the self does not, or should not, change (her mind) over the duration of the contract even though the terms of the contract may involve addition to, or subtraction from, her body. (In the case of Baby M, Mary Beth Whitehead was held to her contract on these grounds despite changing her mind about giving up her child.) The third point to note is that only some kinds of body property are allowed into the market place. What seems to be at issue in bioethics is the preservation of an assumed atomism and, implicitly, the significance of the body property being exchanged. So, while the principle of autonomy grants the right to freely contract out property in one’s person, the principles of justice and the common good place ethical limits upon ways in which the body can become a legitimate object of exchange. A woman, like a man, has the right to do with her body what she will except, it would seem, if that body is involved in reproduction. The pregnant body is not a body which can be easily exchanged in the market place.

In the case of surrogacy, the most general object of exchange and regulation seems to be a woman’s body. Those players said to compete for sovereignty over this body are: the woman herself (considered separate from her body), the unborn child, the commissioning couple, the bioethicist (as representative of the law and the common good), and the biomedical practitioner (if reproductive technology is used). The woman’s autonomy (her right to sovereignty over her own body), is pitted against the possibility that her actions (and those of biomedical science) may bring harm to herself, to the child in the future, to others and to the fabric of society in general. The ethicist, using the principle of justice, may deem that the surrogate’s autonomy is threatened by a biomedical practitioner (if reproductive technology is used) or by the commissioning couple. This perceived threat to the woman’s autonomy is a common basis for feminist objections to surrogacy. Or the autonomy of others (the child, for example) may be deemed to be at risk in the future as an effect of this contract. On the basis of the principle of the common good, the surrogacy contract may appear to threaten the social fabric (if it is said to involve baby selling). So, in determining the ethics of a contract between individuals in general terms, the value and integrity of the individual’s body, as assumed by the individual her- or himself, is weighed against the value and integrity of others and of the body of the community.

An immediate problem with this model of social exchange and its concept of the individual is that, as I’ve suggested, it doesn’t seem to apply to pregnant bodies. On the one hand, if women are to be admitted into social exchange on the same basis as men, then we should have the right to participate in contracts to do with property in our person. Yet, under the guise of being held to her contract, a woman can be forced to give up her child, as in the case with Baby M. This doesn’t seem just to most observers, as evidenced by the outcry from feminists and others in the wake of this ruling. On the other hand, to exclude women from social exchange on the basis of our embodied womanhood would be contrary to the ideals of autonomy and feminism. As neither option is satisfactory, the contract model of social relations itself requires reviewing. To do this I will turn to some feminist critiques of this paradigm. The first is a general critique provided by Carole Pateman who challenges the atomised disembodied concept of the individual and the contract model of social relations. The second is a critique of the use of this paradigm in ethics from the work of Carol Gilligan and her followers.

FEMINISM AND CONTRACTARIAN ETHICS

In The Sexual Contract (1988) Carole Pateman takes issue with the contract model of social exchange both as a story about the origin of civil society and as a principle for relations within contemporary society. As Pateman explains, social contract theory claims that society is founded when insecure natural freedom is exchanged for equal (although restricted) civil freedom, a freedom and equality which is supposedly reproduced when entering into particular contracts. And, according to Pateman, that contract is given as the paradigm of free agreement is based on the atomised, disembodied concept of the individual (Pateman 1988:55– 7). That is, as the individual is said to be the proprietor of his person, then relations with others must be created in such a way as to protect this property right. Contracts supposedly allow for the use of another’s property by mutual agreement, to mutual advantage and with security over time.

Aside from a general suspicion with the concept of the individual assumed in contract theory, Pateman takes issue with the contract model of social exchange on at least two counts. She argues that, contrary to the claim that contracts involving property in the person are to the mutual benefit of both parties, they actually constitute a relation of subordination (whether the contract is entered into voluntarily or not) (Pateman 1988:55–9). For the purposes of her argument, Pateman points out that what is exchanged between parties to a social contract are words (which constitute a social relationship) and civil obedience for protection of property in a person. And, following the ‘original’ contract, the law provides security over time for contracts between individuals where the personal property of one party is rented or sold to another. The social relationships thus constituted involve subordination, according to Pateman, because the party who purchases or ‘protects’ the property held in another has the power to decide what the other must do to fulfil their side of the contract.

Pateman’s second objection to the contractarian model lies in her claim that the individual agent assumed in it is male (Pateman 1988: 39–54, 59–60). Beginning with the distinction between a rational agent and their body, stories of the original social contract (with the possible exception of Hobbes) assume women do not have the rational capacities necessary for the social contract. They are parties to a sexual contract only, insofar as they are assumed to be property per se. This sexual contract (assumed to be natural rather than social) effectively gives men the right of access to women’s bodies. And, Pateman suggests, while women have since been granted access to the same civil institutions as men, they become parties to social contracts only insofar as the property in their persons is devoid of anything specific to their womanhood. The sexed bodies of women and their products remain the property of men. Taking both criticisms together, Pateman concludes that the social contract effectively trades man’s civil freedom for woman’s social subordination.

These two criticisms inform Pateman’s objections to the surrogacy contract (Pateman 1988:209–18). There she argues that what is exchanged in the surrogacy contract is the genetic father’s sperm and the surrogate mother’s uterus. This appears to be a free and equal exchange because the masculine concept of the individual (as owner of property in one’s person) has been extended to women, making sexual difference apparently irrelevant to reproduction: as each party’s property is said to have the same value, the birth mother has no greater claim to the product of exchange. But, Pateman argues, the contract actually extends paternal rights and secures the subordination of women. This conclusion is based on her claim that in this contract only sperm has the status of actual property and, as its owner effectively pays for access to the surrogate’s body (which is thus reduced to an empty vessel), he assumes ownership of the product of the contract.

While accepting, for the moment, Pateman’s valuable critique of the sexual contract in general, I find her analysis of surrogacy problematic insofar as it depends upon the same notion of the individual she criticises elsewhere. Once the individual is understood to be a conscious agent separate from and owning property in his or her body and its products, then the decision about what part of that property is exchanged in a surrogacy contract remains fairly arbitrary, as does the subsequent decision about the fairness of that contract. Pateman claims that sperm and the uterus are the exchangeable commodities. But, as she acknowledges, contractarian defenders of surrogacy (the most notorious being in the case of Baby M) will just as easily argue that it is the services of the woman’s body which are exchanged for financial reward without detriment to any person.

The NBCC settles for an entirely different division of personal property in its analysis of surrogacy, yet argues towards a similar conclusion to Pateman. For the NBCC, the child, rather than the mother’s body, is the most pertinent exchangeable commodity (NBCC 1990:29). Such a suggestion, in keeping with contractarian individualism and its model of exchange, takes the pregnant body to be two bodies. Surrogacy becomes a problem about competing claims between two individuals, the mother and the foetus, where both are assumed to be autonomous entities with the right to sovereignty over their respective bodies (the mother in reality, the foetus potentially). Again this division of the pregnant body is arbitrary and not necessarily legitimate. And even if it is, decisions about whose property rights should take priority become reduced to the question of whose side you are on. Pateman counters this kind of division of the body with the claim that, in the case of the pregnant body, the foetus is part of the self (Pateman 1988:214–15). What I am suggesting is that the way that Pateman divides the woman’s body for the purposes of her account is equally arbitrary and that there is something fundamentally problematic about dividing a self, pregnant or otherwise, into a conscious agent and a passive, divisible body. (I’ll return to this point.)

Besides the assumption that we can divide the pregnant body into two autonomous entities, the more general atomism implied in the NBCC’s notion of individual autonomy is also questionable. The NBCC expresses no doubts that the body is a unified entity separate from those who seek to govern its activity, implying that autonomous decisions are about one’s body rather than being enmeshed within it. And it finds no problem with the distinction between personal autonomy (private morality) and the values constituting the common good (the legal sphere) (NBCC 1990:15). This distinction implies that the individual comes before her social relationships, that what is exchanged in a contract (constituting those relations) is something apart from herself and that her decisions are uncontaminated by the values which constitute the ‘common good’.

But the NBCC does entertain submissions which question this notion of autonomy. One submission, for example, opposes surrogacy per se on the basis that while women’s autonomy should be upheld, free choice implies being fully informed of the consequences of a decision and yet, in the case of surrogacy or the use of reproductive technology, a woman can never be fully informed of her future emotional wellbeing (NBCC 1990:17).¹ This implies that the distinction between a woman’s agency and her embodied wellbeing over time is illegitimate. Another submission claims that women’s disadvantaged social position influences and limits the choices they can make, leaving them open to exploitation by the commissioning couple, in the case of surrogacy, and by biomedical science, if reproductive technology is used (ibid.: 17). Here the suggestion is that individual decisions are already informed by the agent’s social position (and hence by the values embodied in the common good). This argument against surrogacy insists, as feminist theorists do in general, that the patriarchal context be considered when evaluating the ethics of reproductive practices. But the argument is usually extended to a call to minimise those practices on the grounds that they increase patriarchal control over women’s bodies.²

The importance of the feminist challenge to the distinction between the private sphere of autonomy and a (public) common good cannot be overstated. But too often this challenge leads to the disturbin...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• INTRODUCTION
• ACKNOWLEDGEMENTS
• CHAPTER 1: FEMINISM AND THE ETHICS OF REPRODUCTION
• CHAPTER 2: ETHICS, EMBODIMENT AND SEXUAL DIFFERENCE
• CHAPTER 3: HEGEL’S RESTRICTED ECONOMY OF DIFFERENCE
• CHAPTER 4: SEXUAL DIFFERENCE BEYOND DUALITY
• CHAPTER 5: NIETZSCHE ON SEXED EMBODIMENT
• CHAPTER 6: BIOMEDICAL ETHICS AND LIVED, SEXED BODIES
• CHAPTER 7: CONCLUSIONS
• NOTES
• REFERENCES