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Reproductive technologies and the Charter Morton, Chantal 1991

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Reproductive Technologies and the CharterbyChantal MortonB.A., The University of Victoria, 1988A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTERS IN POLITICAL SCIENCEinTHE FACULTY OF GRADUATE STUDIESPOLITICAL SCIENCEWe accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIADecember 1991© Chantal Morton, 1991In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(SiDepartment ofPolitical Science  The University of British ColumbiaVancouver, CanadaDate     DE-6 (2/88)iiABSTRACTReproductive technologies such as alternative inseminationand in-vitro fertilization, and their implementation throughsurrogacy, have been developed and managed in Canada withoutenough concern for the interests and needs of women. There is alack of regulation establishing safety standards and protectionfor the needs of the women participating. There is alsodiscrimination in determining who shall be allowed access to theprocedures. The theoretical basis for the development of thetechnologies and their discriminatory implementation can be foundin the ideologies of motherhood, privacy and notions of formalequality.Woman has been socially constructed by men as an object - anobject that is partially defined by her reproductive function. Wecan only understand reproductive technologies within this contextof women's situation - that is, as the 'Other' that men havecreated. A woman's gendered identity includes the possibility ofpregnancy and motherhood. Difference from men based on thisbiological potential is used to justify inequality.Section 15 of the Canadian Charter of Rights and Freedoms may be a means to assert women's rights to control of thetechnologies. However, the articulation of Charter rights may beconstrained by patriarchal assumptions of who should be a mother,notions of public/private that limit Charter applicability and donot recognize state involvement in maintaining a system ofinequality, and notions of formal equality that assume that womenand men are equal if they are treated as 'the same'. Theseassumptions remain as potential obstacles to a mobilization ofthe Charter.In order to challenge the theoretical basis of thedevelopment of reproductive technologies it will be necessary tothe subordination of women. This will entail the deconstructionof the patriarchal foundations of the social, legal and politicalsystems that identify men as the norm and women as difference. Byrecognizing and affirming difference in a vision of equality thatdoes not prioritize 'sameness', it will be possible to redefinewhat motherhood means by including the many experiences ofdifferent women. Thus, the technologies will be developed withthe interests of women as the primary concern and they will nolonger be made available solely to those who conform to theideologies of motherhood that prioritize heterosexual, middleclass women.TABLE OF CONTENTS flbsiractAcknowlecleicenuir1. Introduction 	 p.12. The Theoretical Justification for Women's Oppression p.6a. The Public/Private	 p.6b. The Ideology of Motherhood 	 p.14c. Equality 	 p.18d. Summary 	 p.241113. Reproductive Technologies and the Issuesa. In Vitro Fertilizationb. Alternative Inseminationc. Surrogacyd. Summary4. Abortion and the Charter a. Morgentalerb. Consequences of the Decisionc. Privacyd. Ideologies of Motherhoode. Equalityf. Summary5. A Feminist Reconstructiona. A Feminist Visionb. Brooks c. Equality and Reproductive Technologiesd. Summaryp.25p.26p.31p.35p.40p.43p.45p.49p.49p.51p.55p.61p.63p.64p.66p.68p.706. Conclusion 	 p.75ivI would like to acknowlegde the assistance of the followingpeople: Avigail Eisenberg, Isabel Grant, William Dick, JillWherrett and Michael Moir.First, a feminist perspective stresses women's ownexperience; that is, how events, institutions, socialgroups, and individuals are perceived and interpreted bywomen. It highlights those elements of women's personal andsocial experience which are common and shared, as well asthose which are distinct and diverse. Second, a feministperspective is founded upon and fully informed by anawareness of the history and present circumstances ofphysical, psychological, social, and legal discriminationand oppression which have ordinarily been women's lot inpatriarchy. Third, a feminist perspective is guided by adetermination to avoid perpetuating or acquiescing in thatoppression, and to contribute, wherever possible, to thefurther understanding and dissolution of sexualinequality.Feminism, both in theory and practice, seeks to challengethe foundations of a patriarchal society that establishes themale as a reference point and the female as difference. Thisdifference is considered justification for the subordination ofwomen. Western legal and political systems have been criticizedby feminists because they are based on values that render womenpowerless. Only by challenging the assumptions of society can weconstruct a community that does not include the injustices ofpatriarchy.The world, as a western construct, is split into dichotomiesdefined as self/other, culture/nature, same/different,public/private and male/female amongst others. Men are associatedwith the powerful concepts of culture, same, and public, whilewomen are connected to the powerless concepts of nature,Christine Overall, "Reproductive Ethics: Feminist and Non-FeministApproaches," Canadian Journal of Women and Law, (referred to as CJWL) 1 (1986):272.12difference and privacy. Men have the power to define themselvesand define 'others'. Women are prevented from exercising similarpower because the dichotomization of the world, the analyticaldivision of patriarchal society into oppositional dualities, hasgiven men the power to define and dismiss women as the powerless'other'.Part of the way in which men have defined women is throughtheir reproductive potential. A woman's body in patriarchalsociety is not solely a biological fact - it is also a culturalconstruct. 2 The potential to become pregnant appears as theimmutable difference between men and women in the construction ofgendered identities and has been represented as the unchangingbasis of woman's difference from man. 3 This has been usedpolitically to explain and reinforce women's subordination to menand ultimately their powerlessness. Specifically, a woman hasbeen constructed by patriarchal society as potentially pregnantand as a mother. The diversity of women is silenced to the extentthat a woman's identity is reduced to her capacity to becomepregnant. 4The development and management of reproductive technologiesin Canada has been influenced by this equation of womanhood with2 Ruth Hubbard, The Politics of Women's Biology, (New Brunswick: RutgersUniversity Press, 1989), p.120.3 Susan Moller Okin, Gender, The Public and the Private, Toronto: Facultyof Law, University of Toronto, 1989, pp.16-18.4 Zillah Eisenstein, The Female Body and the Law,(Berkeley: University ofCalifornia Press, 1989).3motherhood. Abortion, alternative insemination and in vitrofertilization are managed in a manner that reinforces thesubordination of women. A woman's body has thus become the siteof a power struggle between patriarchal interests and women'sneeds.The potential use of the technologies as a tool for theempowerment of all women is ignored when the focus of attentionis upon infertile, heterosexual and married women as thebeneficiaries. Lesbians, women of colour, and poor, single ordisabled women are denied access by most doctors and clinicsbecause they do not conform to notions of who is best suited tobecome a mother.If the definition of woman as mother is the result of man'spower to define, then in order to challenge this homogeneousconstruction it is necessary to challenge the unequal powerstructure. Some Canadian feminists hope that s.15 of the CanadianCharter of Rights and Freedoms will be interpreted in the courtsto provide the basis of that challenge. If conceptions ofequality are reconstructed to provide the space for theaffirmation and valuation of differences, the dominant positionof men would conceivably end.The Supreme Court of Canada has limited Charterapplicability solely to state action with its decision in DolphinDelivery. 5 State action can be legislation by either federal or5 For a discussion concerning the limitation of Charter applicability tothe private sphere see: Donald Buckingham, "The Canadian Charter of Rights andFreedoms and Private Actions: Applying the Purposive Approach," Saskatchewan Law4provincial governments, but it also may include governmentagencies that are poised between the public and private realms.The Canadian system of socialized medicine createsdifficulties in deciding whether the Charter is applicable to thedevelopment of reproductive technologies. The state provides muchof the funding for the medical services in Canada but it has yetto be determined if the hospitals and clinics in which theprocedures are performed are subject to the Charter. The SupremeCourt has indicated that the level of state involvement infunding and administration will determine whether or not aparticular clinic or hospital is considered 'public'. Exactlywhat this means for the development of reproductive technologieshas not yet been determined.State action would ensure the applicability of the Charter.However, there has not been any legislation regarding thedevelopment or proliferation of reproductive technologies inCanada. A Royal Commission on Biotechnology was appointed in 1990to examine the issues surrounding the technologies. It isexpected that the recommendations of the Commission will be readyReview 51 (); Donald P. Crann, "How Far Does the Charter Reach? A TheoreticalReview of the S.32(1) Debate and Canada's Emerging 'Governmental Action'Doctrine," Toronto Faculty of Law Review 47 (1988); Alan Domes, "The Courts, TheCommon Law and the Constitutional Imperative: Beyond Dolphin Delivery," AlbertaLaw Review 27 (1989); Dale Gibson, "The Charter of Rights and the PrivateSector:, The Charter of Rights 12 (1982) and "Distinguishing the Governors fromthe Governed: The Meaning of the 'Government' under Section 32(1)", Manitoba LawJournal 13 (); Robert Howse, "Dolphin Delivery: The Supreme Court and thePublic/Private Distinction in Canadian Constitutional Law," University of TorontoLaw Review 46 (1988); Hester Lessard, "The Idea of the 'Private': A Discussionof State Action Doctrine and Separate Sphere Ideology," Charterwatch: Reflectionson Equality, ed. Christine L.M. Boyle, (Toronto:Carswell, 1986); Brian Slattery,"The Charter's Relevance to Private Litigation: Does Dolphin Deliver?," McGill Law Journal 32 (1987), and "Charter of Rights and Freedoms - Does it Bind PrivatePersons?," Canadian Bar Review 63 (1985).5in April, 1992, and will provide the foundation for futurelegislation.An analysis of how the Charter could be interpreted toempower women with respect to the development and implementationof reproductive technologies may provide guidelines for futurelegislation or be the foundation of Charter challenges tolegislation that does not accommodate women's needs andinterests. A substantive interpretation of s.15 6 could provide ameans to challenge the power men have in Canada to define womenin opposition to themselves.Part I of this inquiry will examine the theoretical basisfor the development and implementation of reproductivetechnologies in a way that has reinforced women's subordination.Part II will discuss the impact of these theoretical concepts onthe development and management of alternative insemination, in-vitro fertilization and surrogacy. Part III will explore anattempt to use the Charter to empower women with respect to theirreproductive potential and part IV will examine the potentialthat a broad interpretation of equality may have for women. Asubstantive interpretation of s.15 by the Supreme Court of Canadamay provide the legal and political legitimation for a notion of6 S.15(1) Every individual is equal before and under the law and has theright to the equal protection and equal benefit of the law without discriminationand, in particular, without discrimination based on race, national or ethnicorigin, colour, religion, sex, age or mental or physical disability.(2) Subsection (1) does not preclude any law, program or activitythat has as its object the amelioration of conditions of disadvantagedindividuals or groups including those that are disadvantaged because of race,national or ethnic origin, colour, religion, sex, age or mental or physicaldisability.equality that values diversity and thus works to end the systemof hierarchies that have subordinated women based on theirdifference from men.67THE THEORETICAL JUSTIFICATION FOR WOMEN'S OPPRESSIONReproductive technologies have been developed andimplemented in Canadian society within a framework that functionsto oppress women. The theoretical foundation for women'ssubordination includes the creation of a boundary between publicand private life that justifies women's marginalization to theprivate and powerless sphere, an ideology of motherhood thatdefines a woman by her reproductive potential, and notions offormal equality that assume women's inequality ends when they aretreated like men.The Public/Private The public/private split is constituted in several ways. Theprimary concern for feminists is the theoretical boundaryestablished between civil society and the state. This dichotomyconstitutes the analytical distinction between non-state andstate action. Thus the public realm is the area defined by stateaction and the private realm is the area left unregulated bystate action.In mainstream modern theory the public domain is the realmof politics defined as a process set apart from everyday life.The private domain is the sphere in which all other activitytakes place. It is signified as the space for the family andother emotional relationships and for freedom from theconstraints imposed by the state.' While the public realm is7 Carole Pateman, "Feminist Critiques of the Public/Private Dichotomy,"Public and Private in Social Life, ed. S.I.Benn and G.F. Gaus, (London: GroomHelm, 1983), pp.282-287.8identified with men and the accumulation of power, the privaterealm is identified with women and the presence of harmony andaltruism. However, the family is "not really an altruisticinstitution of sharing and mutual self sacrifice." 8 Women, withtheir assigned responsibility for the care of the family, areoften the ones making the sacrifices.The original justification for the marginalization of womento the private sphere was their supposed lack of analyticalpowers, and their link to nature through their reproductiverole. 9 Because public institutions uniquely fit the lifepatterns of men, any woman who might have dared to challenge herbanishment to the private sphere was effectively excluded. Todaythe arguments which confine women to the family depend uponbiological determinist claims that a woman's duty to bear andraise children precludes her from participation in the publicrealm. 19 Linking men to the public and women to the private,through their supposedly natural abilities and biologicalpotential, legitimates the marginalization of women to theprivate sphere and ignores the oppression of women within thefamily. 118 Frances Olsen, "The Family and the Market: A Study of Ideology andLegal Reform," Harvard Law Review, 103 (1983): 1523.9 See Jean Bethke Elshtain, Public Man/Private Woman: Women in Social andPolitical Thought, (Princeton: Princeton University Press, 1981); Carol Pateman,The Sexual Contract, (Stanford: Stanford University Press, 1988).10 Zillah Eisenstein, The Radical Future of Liberal Feminism, (New York:Longman Inc., 1981), p.15.11 Ibid., p.25.9Feminist concerns with the public/private split are based onan understanding that the assumptions upon which the analyticaldistinction is based are inconsistent with the realityexperienced by women. The theoretical split between public andprivate which posits the private sphere as an area free of stateintervention, as a sphere where conventionally defined politicsis absent, is not borne out by women's experience. The powerwhich is wielded in the public realm is further exercised inprivate. The family is not a sphere free from coercion and the"personal is political."Within the family, women are often subordinated to theirmale partner. 12 For example, historically, married women werebeen left unable to retain their property after marriage, legallyexpected to submit to forced intercourse until 1983, and unableto seek legal protection or remedy for physical abuse. Althoughthese legal inequalities have changed to some extent, thecircumstances in which women live do not seem to have improved.Women are still beaten, raped and killed within their families indisturbingly high proportions and the police and the legal systemhave been reluctant to interfere.The development of reproductive technologies has largelytaken place in the private sphere where women often do not havethe political, economic or legal power to ensure their needs areaccommodated. This means that the technologies themselves are12 	 .Dianne Polan, "Toward a Theory of Law and Patriarchy", The Politics of Law, ed. David Kairys, (New York: Pantheon Books, 1982), p.298.10offered in a way that fits the framework of oppression into whichwomen have been slotted. The companies developing thetechnologies, and the clinics and doctors using the procedures,have not been held responsible for establishing safety standards.Nor are the procedures made available on a universal basis.Instead they are usually offered to women who conform to societalexpectations regarding who makes a good mother: that isheterosexual, married, and middle class women. 13The potential for the regulation of women in the privatesphere through the patriarchal control of reproductivetechnologies cannot be challenged or ended by using the Charter because it is only applicable to the public realm. MainstreamCanadian jurisprudence assumes that there is a boundary betweenstate and private action. The Charter itself has been interpretedby the courts to apply only to the public realm in the caseDolphin Delivery. 14 The decision in Dolphin included thedefinition of what is to be considered state action, and how the13 Susan McDaniel, "A New Stork Rising: Women's Roles and ReproductiveChanges", Transactions of the Royal Society of Canada 111 (1988), p.115.14 Retail, Wholesale and Department Store Union, Local 580 v. DolphinDelivery, (1986), [1986] 2 S.C.R. 573, [1987] 1 W.W.R. 577 (S.C.C.) [Cited toS.C.R.] The case concerned the union of ontario workers involved in a strikeagainst Purolator. The Ontario union intended to picket Dolphin Delivery inBritish Columbia because it had received a substantial amount of Purolator'sbusiness during the strike. Dolphin applied for an injunction which was granted.On appeal the union claimed that the common law supporting the injunctionviolated Charter guarantees of freedom of expression and association under ss.2(b) and (d). The B.C. Court of Appeal held that freedom of expression andassociation did not apply to picketing so that the injunction was upheld. Afurther appeal to the Supreme Court of Canada resulted in a decision which drewa line between the public sphere where the Charter was to be applicable and theprivate sphere which would remain exempt from Charter scrutiny. In effect, theinjunction was upheld because it was determined that the Charter did not applyto the court's issuance of an injunction because it was held to be in the privaterealm. For further debate on the decision see the articles in note 6.11Charter is to apply only to those actions which fall within thisstrict definition. This decision remains a guideline for furtherCharter adjudication and may limit future attempts to assertwomen's rights.' 5If the private realm is not in reality the zone of freedomand caring that is theorized in legal and political discourse,restricting the use of the Charter only to regulate and curtailstate control is a limited enterprise. The irony of thepublic/private split is that the power exercised in the privaterealm is reinforced and reflected by state action and inaction,while the subordination of women cannot be challenged with theCharter .16The claim that the state is actually implicated in themaintenance of the private realm through action and inaction isnot easily accepted by those firmly committed to the modernconstruction of the public/private split. However, the definitionof state and non-state action as the basis for the boundarybetween public and private is countered by recognition of therole the state plays in refusing to act to change the structuresof the private realm." This refusal legitimizes the status quo15 See Judy Fudge, "The Public/Private Distinction: The Possibilities ofand the Limits to the Use of Charter Litigation to Further Feminist Struggles",Osgoode Hall Law Journal 25 (1987).16 N. Colleen Sheppard, "Equality, Ideology and Oppression: Women and theCanadian Charter of Rights and Freedom, Charterwatch: Reflection on Equality,  ed.Christine L.M. Boyle, (Toronto: Carswell, 1986), p.204.17 For several articles dealing with changes in how the public/privatesplit has been constructed in the context of jurisprudence see Henry J. Friendly,"The Public-Private Penumbra - Fourteen Years Later," Morton Howwitz, "The12and thus the framework of hierarchies that results in women'soppression in the private sphere.' 8Further, it is incorrect to assume that the state does notact in the private realm. Frances Olsen discusses the incoherenceof attempting to draw a distinction between state interferenceand non interference. For her, the legal backdrop against whichfamilies are formed and dissolved and the decisions that are madeto reinforce the legal construct of a family directly implicatethe state in the creation of the family. "Laws establish who ismarried to whom and who shall be considered the child ofwhom." 19The state is explicitly implicated in the maintenance of theinstitutions that have functioned to oppress women, theinstitutions into which women have been confined in politicaltheory. The family and marriage are legal constructs within whichmen have been free to coerce and manipulate their wives while thestate, through legislation, has been involved in determining thelegality of these relationships.Recognition of the political fiction that draws a boundarybetween state action and non action does not provide acceptableHistory of the Public/Private Distinction," Duncan Kennedy, "The Stages of theDecline of the Public/Private Distinction," Karl Klare "The Public/PrivateDistinction in Labor Law," and Robert Mnookin, "The Public/Private Dichotomy:Poltical Disagreement and Academic Repudiation," in the University ofPennsylvania Law Review 130 (1982).18 See Judy Fudge, "What do We Mean by Law and Social Transformation?",Canadian Journal of Law and Society 5 (1990); and Andrew Petter, "The Politicsof the Charter", Supreme Court Law Review 8 (1986).19 Frances Olsen, "The Family and the Market: A Study of Ideology and LegalReform," p.846.13grounds for using the Charter to empower women in the 'privaterealm'. Women may be forced to accept legislation as the onlymeans to ensure that their interests and needs are protectedthere. 2° Legislation may establish safety standards that willensure women's health. It may also secure access for all women byguaranteeing funding and preventing the institution of arbitrarycriteria that favour access for heterosexual, middle-class, andmarried women. Positive legislation may end the discriminationand threat to health that is the result of the unregulateddevelopment of reproductive technologies.Unfortunately, legislation that recognizes a woman's rightto make personal decisions regarding her bodily integrity whileproviding the political, economic and legal power to carry outthese decisions is unlikely. Although future legislation mayinclude safety standards, there is no guarantee that they will beadequate for women. The development of Deepo Provera, a form ofbirth control, is an example of how willing the medical communityis to experiment with women's bodies without enough concern forthe short or long term damage to health. 21 Further, it is20 For an examination of how state action may be the only means to counterthe oppression experienced by so many segments of our society in the privaterealm see: Alan C.Hutchinson and Andrew Petter, "Private Rights/Public Wrongs:The Liberal View of the Charter," University of Toronto Law Journal 36 (1988):284 and Frances Olsen, "The Family and the Market: A Study of Ideology and LegalReform," p.863.21 See Nikki Colodny, "The Politics of Birth Control in a a ReproductiveRights Context," The Future of Human Reproduction, ed. Christine Overall,(Toronto: Womens' Press, 1989); Phillida Bunkle, "Calling the Shots? TheInternational Politics of Deepo-Provera," Test-Tube Women: What Future forMotherhood, (London: Pandora Press, 1984). Although Deepo Provera is not widelyavailable in the United States, it is readily available in New Zealand and ThirdWorld Countries. Studies have not determined yet whether or not the contraception14possible that legislation will leave access to the technologiesup to the doctors and clinics that are offering the services. Itmay be that the same women who have suffered under state inactionwill do so even after there is legislation.The Charter then may be used to challenge the oppressivesections of future legislation but a successful challenge willneed to focus on identifying the hierarchical structures thatframe the private realm. It must challenge definitions of freedomthat rest at lack of state interference and reconstruct a visionof equality that empowers women to redefine themselves and theirneeds from their perspective.A Charter challenge will encounter the assumptions regardingpublic and private that are internalized by Canadian judges.Judges may believe that once again the state has noresponsibility to 'interfere' in the family realm and thus exemptgovernments from providing funding for services or ensuringaccess. A system of socialized medicine will not guarantee accessor funding if this is not deemed an important aspect of a woman'sidentity.The split between public and private is not the only hurdlefeminists must overcome in order to challenge legislation thatis safe. However, based on information from the women using Deepo Provera thereis reason for concern. It may cause cancer, uterine disease, bleeding,infertility, depression and permanent weight gain. Although there is concern thatthe contraception may cause short and long term harm to women it has beenfeatured in recent American news programmes as an effective form of birth controlwithout potential for serious harm. Because the women presently using DeepoProvera are largely women of colour there is some suspicion that the lack ofworry is based on racist unconcern. American proponents of the drug also suggestit would be an effective way to manage the fertility of women of colour and poorwomen in the United States.15does not show an equal concern for women's perspective. Formalreluctance to interfere in the family may perpetuate thesubordinate status of women and reinforce her genderedconstruction as a potentially pregnant woman and mother. Theideology of motherhood and notions of formal equalityinternalized by the judges may prevent a creative interpretationof Charter rights that would empower women with respect to thedevelopment and implementation of reproductive technologies.The ideology of motherhoodThe ideology of motherhood is a strong force limiting theclaims articulated by women in the legal system. It is based onthe construction of difference between men and women which poseswomen in opposition to men. The ideology of motherhood has haddifferent constructions throughout history. 22 Barbara KatzRothman found a change from motherhood as status, as a positionwomen had within the family that entailed a certain amount ofpower and prestige, to a labour/activity that involves a woman'sresponsibility to bear children. 23 The ideology of motherhoodthat focuses on the woman as a productive force identifies thechild as the product of her labour." It commodifies the processand product of reproduction. 25 The commodification of22 Barbara Katz Rothman, Recreating Motherhood: Ideology and Technology ina Patriarchal Society, (New York: W.W. Norton and Co., 1989).23 Ibid., p.23.24 Ibid., p.24,25 Ibid., p.53.16reproduction leads to an evaluation of womanhood that isinextricably linked to motherhood. That is, women will be valuedas women based on the children they bear and raise.The patriarchal construct of women as potential mothers isbased on assumptions regarding the biological potential of womento have children. It links all women to the definition of motherrather than recognizing that women may or may not become mothers,and will do so at different times in their lives. 26 Because awoman is solely responsible for gestating a fetus, she isexpected to accept responsibility for all other aspects of childcare. She is expected to nurture newborns because of her abilityto breast feed, and she has often been politically andeconomically confined to the family to accept primaryresponsibility for rearing children. 27Expectations regarding the role of mothers in the bearingand raising of children have restricted women to the family. Thepatriarchal family is specifically defined by the presence ofmother, father, and offspring . 28 Within this unit women areexpected to provide the nurturing environment that will shelterother members from the harsh, competitive aspects of public26 Lucinda M. Finley, "Transending Equality Theory: A Way Out of TheMaternity and the Workplace Debate," Columbia Law Review, 64 (1986): 1131.27 Eisenstein, The Radical Future of Liberal Feminism, p.15.28 Carol Pateman, The Sexual Contract, (Cambridge: Polity), 1988; SusanMoller Okin, Gender, The Public, and the Private; Susan B. Boyd, "Child Custody,Ideologies, and Employment," CJWL 3 (1989): 120.17life. 29 Because in a patriarchal society men have the power todefine and confine women, they have defined her as mother andconfined her to the family.That women have been constructed as mothers and heldresponsible for maintaining an idealized vision of the family mayappear natural amidst the assumptions regarding a woman'sbiological attributes. But it is a political act.Challenging the approach of those theorists who stillseem silently to assume that female childrearing anddomesticity are 'natural' and therefore outside of the scopeof political inquiry, feminist scholars have argued that thedomestic division of labour, and especially the prevalenceof female child rearing, are socially constructed, andtherefore matters of political concern.The role of the court system in reaffirming a woman's roleas mother within the family unit is founded in ideologies ofmotherhood. The ideology of motherhood internalized by judges isillustrated in Susan Boyd's analysis of Canadian child custodycases. n Boyd examined the cases in which men challenged custodydecisions after the dissolution of a marriage. 32 In manyinstances she found that judicial decisions depended uponpreconceptions concerning maternal behaviour, the construction ofthe family, and notions of equality.29 Frances Olsen, "The Family and the Market: A Study of Ideology andLegal Reform".30 Susan Muller Okin, "Gender: The Public and the Private," p.16,31 Susan B. Boyd, "Child Custody, Ideologies, and Employment," CJWL 3(1989).32 Keyes v. Gordon (1985), 45 R.F.L. (2d), 1987, Winnipeg, Manitoba; R. V. R. (1983), 34 R.F.L. (2d) 277, 287 (Alta. C.A.).18The assumption that the mother necessarily is the bestparent has ended because of a focus on the ability of eitherparent to assume that responsibility. The notion that men areequally capable of becoming good parents has led to increaseddiscretion on the part of judges in the awarding of custody "tothe parent or parents who can best serve the welfare of thechild." 33 This notion of equal capability to parent hascombined with expectations regarding the responsibilities ofmothers and resulted in an award of custody to the father whenthe mother does not conform to the expectations regardingmaternal behaviour.Boyd found that by making decisions regarding what theyperceived to be "in the best interests of the child", judges weremore likely to award custody to the parent that conformed tosocietal norms. 34 Therefore custody was given to fathers whowere able to ensure the presence of a female care giver in thehome and were financially stable, 36 and to those women whoremarried or were willing to curtail their extra-familial33 Boyd, "Child Custody, Ideologies, and Employment," p.116.34 Ibid., p.120.35 Fishback v. Fishback, (1985), 46 R.F.L., (2d), 51; Despatie v. Larouche,(1983), 36 R.F.L. (2d) 30 (Que. Sup. Ct.); Cain v. Cain, (1983) 33 R.F.L. (2d)353 (Sask. Q.B.); Ellert v. Ellert, (1982) 30 R.F.L. (2d) 396 (Ont. Dist. Ct.).36 Karlene Faith, "Justice Where Art Thou? and Do We Care?: FeministPerspectives on Justice for Women in Canada," The Journal of Human Justice 1(Autumn 1989): 81.19activities in order to remain in the home. 37 In most of thecases examined single women with full time work were deniedcustody because their absence from the home appeared to precludethe environment that judges deemed to be in the best interests ofthe child. 38 "In many cases, then, the 'successful' parent maybe the person who offers a family structure which most closelyresembles the traditional nuclear family, preferably with stay-at-home female care for the children.""The judges who awarded custody to fathers did so because ofthe ability of the fathers to provide an environment thatconformed to patriarchal definitions of family. These custodydecisions assumed that women must remain at home full time inorder to be appropriately maternal, although it was acceptablefor the father to be absent as long as he had appointed a womanto take care of the children on a full time basis.The custody decisions that link the best interests of thechild to the patriarchal definition of the family with full timefemale care have reinforced the framework that limits theopportunities of women. Further, they are clear indications ofjudicial assumptions regarding the criteria for legally37 Boyd, "Child Custody, Ideologies, and Employment," pp.120-121; Sung v. Sung, (1980), 14 R.F.L. (2d) 112 (Ont. S.C.); Pfeiffer v. Pfeiffer; Saboe,(1981), 26 R.F.L. (2d) 284; Surreys v. Surreys, (1982), 28 R.F.L. (2d) 452 (Ont.S.C.0; Jesperson v. Jesperson (1985), 48 R.F.L. (2d) 183 (B.C.C.A.); Purvey v. Purvey (1985), 48 R.F.L. (2d) 183 (Ont. D.C.); Robinson v. Robinson (1985), 49R.F.L. (2d) 43 (Ont. C.A.); Chesko and Keirl v. Chesko (1985), 43 R.F.L. (2d)341, (Sask. C.A.).38 Ibid., pp.120-122, Voegelin v. Voegelin (1980), 15 R.F.L. (2d) 337(Man. C.A.); Boehmer v. Boehmer (1985)m 45 R.F.L. (2d) 433, (Man. C.A.).39 Ibid., p.122.20constructed motherhood. They highlight the obstacles women mayencounter in their efforts to use the court system to gaincontrol over the development and diffusion of reproductivetechnologies. Those women who conform to the ideology ofmotherhood will be expected to bear and raise children as a partof their identity while those women who do not conform will belimited in their access to the technologies that assistconceptions. Thus, the ideology of motherhood will affect who isable to use the technologies and how that use will beconstructed.EqualityDefinitions of equality have been a crucial debating pointsince the Charter was introduced in 1982 and s.15 came intoeffect in 1985. Creative definitions of equality have not beenuniversally accepted because entrenched assumptions of formalequality are still considered acceptable." However, feministsare gradually convincing the judiciary to rethink assumptionsabout equality and inequality.Formal equality means being treated the same as those whohave had the power to define the standards of equality (men).This is countered by the recognition that when treating women as'the same' the experiences and norms of men are privileged. 41 Amale standard as the foundation of equality denies the values and40 Sheppard, "Equality, Ideology and Oppression: Women and the CanadianCharter of Rights and Freedoms," pp.205-206.41 Finley, "Transcending Equality Theory: A Way Out of the Maternity andthe Workplace Debate," p.1155.21perspectives of women and results in inequality.The structures of Canadian society actually reinforce andperpetuate a form of injustice that builds hierarchies based ondifference and awards power to those who most closely conform tothe norm. 42 The difficulty in using the legal system to destroythese hierarchies lies with judicial definitions of equality thatlargely focus on an egalitarian approach which would have allsubjects treated the same way by the law. 43 This approachserves to divest people of their real, individual life,of those 'political' attributes such as sex, social class,race and educational status which, in all likelihood, werethe very factors underpinning the dispute in the firstplace.Formal equality establishes a norm primarily based on maleexpectations against which equality is measured and provides thefoundation of the justification for treating women like men. 45This does not counter the male standard or provide the impetusfor a valuation of concerns specific to women.Notions of formal equality perpetuate the legal assumptionthat the standards against which the claims of women are measuredare neutral and that the equitable distribution of justicedepends upon treating and evaluating each individual the same42 Faith, "Justice Where Art Thou? and Do We Care?: Feminist Perspectiveson Justice for Women in Canada," p.94.43 Marie Ashe, "Minds Opportunity: Discourse Holding Nature in Contempt,"Syracuse Law Review 38 (1987): 1146.44 Margot Stubbs, "Feminism and Legal Positivism," Australian Journal of Law and Society 3 (1986): 70.45 Catharine MacKinnon, Toward a Femininst Theory of the State,  (Cambridge:Harvard University Press, 1987), p.220.22way. Differences, represented by women, are not perceived as alegitimate reason for reassessing the norms of a patriarchalsociety which accepts, indeed is founded upon, the subordinationof women.What judges perceive as normal, abstract and neutral isbased upon their personal experience. The norms and rules whichare the basis of adjudication are male and middle class. 46 Thestandards by which women are measured in court have little to dowith female experience and are unlikely to represent women'sneeds or desires. Therefore,in order for feminists to use the law to helpeffectuate change, we must be able to talk about theconnection between power and knowledge. This connection mustbe acknowledged in order to demystify the 'neutrality' ofthe law, to make the law comprehend that women's definitionshave been excluded and marginalized, and to show that thelanguage of neutrality itself is one of the devices for thissilencing.The "fictive option of equal access to the protection of neutrallaws is a device which removed the private experience of theoppressed as members of a discriminated class from legalrelevance." 48 Formal equality cannot answer women's needsbecause it does not seek to make adjustments for inequalitiesthat are not based on procedural inconsistencies.46 Andrew Petter, "The Politics of the Charter," pp.487-488.47 Finley, "Breaking Women's Silence in Law: The Dilemma of the GenderedNature of Legal Reasoning," Notre Dame Law Review 64 (1989): 897.48 Hester Lessard, "The Idea of the 'Private': A Discussion of State ActionDoctrine and Separate Sphere Ideology", Charterwatch: Reflections on Equality,p.119.23In the Dialectic of Sex," Shulamith Firestone takes the'sameness' approach to equality to its most extreme conclusion.She concludes that women's subordination to men would be ended bydeveloping reproductive technologies to free women from thenecessity of having children. 5° Contraception and abortion areviewed as methods for women to avoid the stress of childbearing.The development of other techniques to conceive and gestate afetus externally are hailed as a means of perpetuating thespecies without burdening women with the physical responsibility.The link Firestone draws between a woman's biologicalcapacity to conceive and gestate a child and her subordination tomen is a deterministic and reductionist analysis that offers nohope for women's emancipation without technology. Relying upon abiological explanation for women's subordination ignores theimpact societal expectations and assumptions have on the waymotherhood is defined. Biology is not the explanation for asociety that subordinates women because of their ability toreproduce. It is the justification for inequality that hasalready been established. It is the patriarchal construction ofmotherhood that results in women's subordination - not theirbiology. 51The root of women's inequality must be recognized in the49 Shulamith Firestone, The Dialectic of Sex: The Case for FeministRevolution, (New York: Morrow, 1970).50 Ibid.51 Okin, Gender: The Public and the Private, p.18.24societal construction of a woman, including her pregnancy andresponsibility for being the primary care giver to her children.To recognize this is to challenge the discourse on reproductivetechnologies that justifies their development because they mayallow women to deny their biological difference from men. Therealization that the subordination of women to men based on theirability to bear children is a patriarchal construct wouldundermine hierarchies based on a woman's conformance to maleconstructions of her identity.With s. 15 of the Charter calling for equality before andunder the law and the equal protection and equal benefit of thelaw without discrimination, there is hope that a substantialinterpretation of equality will take into account the systemicinequalities from which various segments of Canadian societysuffer. 52 Analysis that includes sensitivity to the systemic andhistorical inequalities suffered by women may form the basis fora creative jurisprudence that takes into account theirexperiences and perspectives in Canadian society.Unfortunately, accommodating different perspectives andneeds also poses hazards for women. Recognition of the specialtreatment needed to alleviate the distress caused by patriarchalexpectations may also reinforce stereotypes about a woman's52 See Andrews v. Law Society of British Columbia, [1989]1 S.C.R. 43, inwhich "the Supreme Court of Canada stated that the equality rights guaranteed bys. 15 of the Charter should not be read formalistically so as to protect only'similarly situated' groups, but rather should be given a remedial interpretationso as to protect those groups which have historically suffered disadvantage."Judy Fudge, "What do We Mean by Law and Social Transformation?," Canadian Journal of Law and Society 17 (1989): 59.25inability to participate in a male world. 53 Because a woman'sreproductive potential has been used to justify woman'ssubordination to men, it could also be used to reinforce thehierarchy of differences already in place. To avoid this dilemmait will be important to create a vision of equality thatdeconstructs the hierarchies that have oppressed women ratherthan creating alternative justifications for their existence.SummaryThe delineation of the public/private split in legal andpolitical discourse at the boundary of state and non-state actionis an arbitrary theoretical construction. It can be deconstructedby analysis that includes a recognition that the state isdirectly implicated in the maintenance of the private sphere. Themarginalization of women into the private sphere has not broughtthem the freedom and equality enjoyed by men. Instead they lackthe power to ensure that their needs and interests are fulfilled.The development of reproductive technologies and their control bypatriarchal interests has reinforced women's oppression.It would seem that legislation may be the only opportunityto assert women's control over the development of reproductivetechnologies. However, it is unlikely that this legislation willanswer the needs of women. It may become necessary to use theCharter to ensure women's equality with respect to their health53 Marie Ashe, "Minds Opportunity: Birthing a Poststructuralist FeministJurisprudence," Syracuse Law Review  38 (1987): 1147; See also Martha Minow,"Foreword: Justice Engendered," Harvard Law Review 101 (1987) for a discussionof the dilemma of difference.26and access to the technologies.Using the legal system may not help the feminist movement ifdecisions are based upon internalized expectations regarding awoman's appropriate behaviour. However, a creative interpretationof equality based on s.15 of the Charter may provide women withthe legal means to challenge their oppression and to use thecourts to legitimize their political goals in society.27REPRODUCTIVE TECHNOLOGIES and the ISSUESThe ideologies of privacy and motherhood and notions offormal equality have had an impact on the development oftechnologies like in-vitro fertilization (IVF) and alternativeinsemination (AI), and the establishment of the surrogacyindustry. The ways in which these technologies have beendeveloped, implemented and distributed are the result of thecomplex interaction of different expectations regarding a woman'sbiological potential to fulfil her role and responsibilities as amother in the family unit. 54 The technologies do not inevitablymean the further loss of women's independence, but theirdevelopment and control within patriarchal society may reinforcethe ideologies of motherhood that have justified women'smarginalization into the private/family realm and theirsubordination.Reproductive technologies contain within them both thepotential to challenge the societal assumptions regarding awoman's status as mother and a very real threat for women. Theycan be seen as a means to free women from the determinacy ofbiology and enable them to chose how and under what circumstancesthey will have children. Yet, they can also be manipulated toensure that some women are held responsible for bearing andraising children while other women are prevented from exercising54 For a thorough discussion of the sexist and patriarchal assumptionsguiding medicine and science see Linda Birke, Women, Feminism and Biology: TheFeminist Challenge, (Brighton: Whitesheaf Books Ltd., 1986).28the same opportunity. It is the intention of the feministmovement to enable individual women to regain control over theirreproductive potential as a fundamental element of a woman'sidentity.The 1985 Report on Human Artificial Reproduction and RelatedMatters, of the Ontario Law Reform Commission 55 dealt with theconcerns regarding the development of reproductive technologies.The recommendations offered in the report will be included in thediscussion of the technologies to illustrate the way in whichfuture legislation may not view women's interests and needs asthe primary concern in the management of the technologies.In Vitro FertilizationIn vitro fertilization was developed during the 1970s. Womenwere encouraged to participate in the experimental programmesbecause the process was touted as an effective method of'assisting' infertile women to become pregnant. This was before achild conceived by IVF was even born. 56 Women paid thousands ofdollars 57 to participate in programs that had yet to produce a55 Hereafter referred to as the OLRC. It is interesting to note that thecommission consisted of five men: a commission charged with examining issuesfundamental to a woman's reproduction did not have a single female on its board.56 Although the doctors Robert Edwards and Patrick Steptoe claimed to bemaking an effort to fully inform the women that were participating in theirprogramme, Lesley Brown had the impression that hundreds of women had alreadygiven birth to children conceived by IVF before her baby was born. Gena Corea,The Mother Machine: Reproductive Technologies from Artificial Insemination toArtificial Wombs, (New York: Harper and Row, 1985), p.167.57 In 1985, at Toronto General Hospital, the costs for IVF added up to:$1,000-2,000 in laboratory fees; $300 for laparoscopy ($150 paid for by OHIP);$100 for the embryo transfer(not covered by OHIP) and $400-$500 for drugs. Mostpeople have a drug plan which pays 80-90 percent of their drug costs but29live birth." The birth of Louise Brown in England gave greaterlegitimacy to the various clinics but there are still majordiscrepancies in success claims. The fair estimate hovers at aten percent chance of a successful birth" - and this oftenmeans that the woman has gone through the programme more thanonce.IVF technology has not been developed in a way that placeswomen as the primary concern of the doctors during thetreatments. Undergoing the procedure can be a harrowing andpainful process. Women are given hormones to ovulate at aspecific time and ensure the release of more than one egg. 60Then they are put under a general anaesthetic in order toretrieve their ova. Finally, during the pregnancy they are oftensubjected to a battery of tests (amniocentesis, ultrasound),which pose their own risks for any pregnancy, to determine thealtogether they may end up paying approximately $1,500. Debra Pilon, "Conceptionwithout Sex," Healthsharing (Fall 1985): p.22. But in the U.S. health insurancedoes not make a difference and IVF becomes even more of a procedure for thewealthy. Estimates range from $4 000 to $12 000 per attempt and as three attemptsare usually necessary it can add up to as much as $36 000, see Susan Abramowitz,"A Stalemate on Test Tube Baby Research," Hastings Center Report (February 1984):8.58 Corea, The Mother Machine, pp.166-185.59 Corea, The Mother Machine; and Michell Stanworth , Lynda Birke, SusanHimmelweit, and Gail Vines, Tomorrow's Child: Reproductive Technologies in the90's, (Virago Press: London, 1990).60 These hormones are given to women in IVF procedures to stimulate therelease of their ova - preferably so that the ova are retrievable at a specifictime of day for the convenience of doctors and in numbers that make the effort'worthwhile'. See Corea, The Mother Machine, p.108; Mary Anne Coffey, "Of FatherBorn: A Lesbian Feminist Critique of the Ontario Law Reform Recommendations onArtificial Insemination," CJWL 1 (1986): 430.30status of the embryo/fetus. 61 Some women lose the embryoimmediately because it does not implant in the wall of theuterus, while some manage to keep it but suffer latermiscarriages, and very few experience the joy of a live birth. 62The dangers posed by the process are numerous. They include:superovulation which can ultimately end in death; ectopicpregnancies which can end in death or removal of the reproductiveorgans; multiple pregnancies; similar symptoms to menopauseincluding headaches and the loss of hair; and possible long termdamage because of the high doses of hormones. 63 Women are notalways informed of the full extent of their risks."It is not denied that IVF presents a real possibility forovercoming infertility, but it is being developed and implementedwithout enough concern for a woman's needs and health. Evidencefor this lack of concern may be found in the focus oncircumventing infertility rather than concentrating on its causesand prevention. This lack of consideration is not countered by61 The dangers posed by the use of seemingly benign procedures such asultrasound and amniocentesis are indeterminate. There is increasing concern thatthese procedures are being used extensively without enough experimentation toensure their safety. See George Annas, "Is a Genetic Screening Test Ready whenthe Lawyers Say it is," Hastings Center Report (December 1985); Dianne Patychuck,"Ultrasound: The First Wave," Healthsharing, (Fall 1988): 25; Abby Lippman,"Access to Prenatal Screening Services: Who Decides?," CJWL 1 (1986): 442-443.62 Linda Birke, Susan Himmelweit, and Gail Vines, Tomorrow's Child: Reproductive Technologies in the 90s, pp.130-157.63 Ibid., pp.131-156.64 Robyn Rowland, "Technology and Motherhood: Reproductive ChoiceReconsidered," Signs (1987): 321.31legislation that would identify a woman's health as the primaryfocus of the procedure. Instead, IVF is presently a procedurethat places a woman at risk in an effort to establish apregnancy.An increasing number of IVF procedures are taking placebecause of male infertility. 65 Although a woman may be in goodhealth and far more likely to achieve pregnancy with therelatively benign AI, the challenge AI poses for notions offamily now makes it more likely that IVF is used. Thus, while IVFis a potentially liberating procedure for women who are otherwiseunable to conceive, it can also be used to submit 'healthy' womento intrusive, painful procedures.The use of IVF to bolster and reinforce a patriarchaldefinition of family is evident when it is recognized that theservices of most clinics are limited to heterosexual couples.Like AI, IVF clinics require psychological testing ofparticipants which then label single women and lesbians unfit totake part on the grounds of "increased stress or lack of support,either emotional or financial". 66IVF also raises concerns regarding a eugenic agenda. There65 Judith Lorber, "Women's Consent to In Vitro Fertilization in MaleInfertility," Hypatia 4 (Fall 1989). Although there are no definitive numberssupporting the view that women are going through IVF for their male partner'sinfertility this is still widely accepted. The difficulty in determining theextent of male infertility rests in the fact until recently men were notconsidered a likely source of the difficulty in achieving conception.66 .Pllon, "Conception Without Sex," p.23 There is a blanket rule in B.C.that there should be no testing - unfortunately this does not mean that a doctoror clinic is any more likely to allow a lesbian or single woman to undergo theprocedure than a doctor or clinic in another province.32is increasing interest in the potential for genetic manipulationof the conceptus in the petri dish before implantation. 67Scientists hope to be able to alter the embryo in the petri dishto ensure that obvious genetic 'imperfections' are removed. Therehas also been considerable dialogue concerning the pre-conceptionselection of sex; that is, a desire to ensure that only XYchromosome carrying sperm fertilize the ova to result in theconception of a male child."The issues associated with IVF highlight the dangers of theunregulated development and implementation of technologies in theprivate sphere. IVF may be partially funded by the provincialgovernments and this will vary with specific medical plans.However, the companies inventing and establishing thetechnologies, as well as the doctors and clinics making decisionsregarding access, are effectively functioning in the privatedomain. The discrimination with respect to accessability, theeugenic agenda, the construction of the patriarchal family, andthe lack of enough concern for a woman's health, fit the67 Shelley Minden, "Designer Genes: A View From the Factory," Test-TubeWomen: What Future for Motherhood, ed. Rita Arditti, Renate Duelli Klein andShelley Minden, (London: Pandora Press, 1984), pp.92-98.68 See: Helen B. Holmes and Betty B. Hoskins, "Prenatal and PreconceptionSex Choice Technologies: A Path to Femicide," in Man-Made Women: The Affect ofReproductive Technologies on Women, ed. Gena Corea et al. (London: Hutchinson,1985); and "Technology and Prenatal Femicide," in Test-Tube Women; Robyn Rowland,"Motherhood, Patriarchal Power, Alienation and the Issue of 'Choice' in SexPreselection," in Man-Made Women; Roberta Steinbacher and Helen B. Holmes, "SexChoice:Survival and Sisterhood," in Man-Made Women; and Dorothy C. Wertz and JohnC. Fletcher, "Fatal Knowledge? Prenatal Diagnosis and Sex Selection," HastingsCenter Report (May/June 1989). There is a sperm washing technique used in NorthAmerica in at least seven clinics developed by a company called Gametrics Ltd..They claim a 75% success rate for selecting boys. Cited in Robyn Rowland,"Technology and Motherhood: Reproductive Choice Reconsidered," p..33framework of oppression in which women are positioned in theprivate sphere.Removing the issue of a woman's ability to reproduce to theprivate sphere theoretically gives her the power to decide forherself whether or not to participate in IVF programmes. Yet, theprocedure has not been developed or offered in a way that extendschoice to women. In order for women to take advantage of IVF in amanner that empowers them it will be important to challenge thepublic/private split that justifies the unregulated developmentof the technology in a manner that does not prioritize the needsof women. A lack of governmental intervention has created a realmof freedom that allows the development of technologies that maypose short and long term dangers to women's health, and it hasdone nothing to prevent discriminatory practices in assessing thesuitability of particular women for the programmes.Alternative Insemination Alternative insemination, or artificial insemination, is asimple procedure that can safely be performed by the womandesiring pregnancy. 69 But the Canadian medical community hasinsisted on establishing it as a medical procedure that should beregulated and performed solely by members of the medicalprofession - specifically doctors." In recommendation 3 the69 Renate Duelli Klein, "Doing It Ourselves: Self Insemination," Test-TubeWomen; Nancy Adamson, "Self Insemination," Healthsharing (Fall 1985): 8.70 Mary Anne Coffey, "Of Father Born: A Lesbian Feminist Critique of theOntario Law Reform Commission Recommendations on Artificial Insemination," CJWL1 (1986): 429.34OLRC Report also recommended that AI be legislated as the'practice of medicine'. Legalizing AI only as a practice ofmedicine becomes a contentious issue when it results inlimitations regarding who may have access to the procedure, forexample lesbians and single women.The reasons for establishing AI as a medical procedure havevarying degrees of legitimacy in a feminist analysis. There is adefinite need to screen donors to ensure there are no risks ofsexually transmitted diseases. However, there is no reason why apotential donor could not have the tests done before donationwhile avoiding the need to have the actual insemination done inthe presence of a doctor.The explanation for establishing AI as a medical procedureappears to be an issue of regulation of access. 71 With doctorsperforming AI in formal settings, there is control over who is toreceive the benefit of the process. A psychological test of therecipient is intended to weed out those who do not conform to theidealized 'mother'. Single women, women with disabilities, 72poor women and lesbians are often denied access because they do71 Ibid., p.424.72 There are many obstacles encountered by women with disabilities bothmental and physical. Much of society, the medical community included, are unableto recognize these women as capable of having and raising children - they aredefined as asexual and their needs are ignored. It is important to assert thatthese women are equally deserving of consideration in any discussion ofReproductive Technologies. While they are more likely to suffer from the moreobvious horrors (sterilization) they are also some of those who may most directlybenefit if control is gained by women - and exercised by all women. See JaniceJ. Tait, "Reproductive Technology and the Rights of Disabled Persons," CJWL 1(1986); Susan Wendell, "Feminist Theory of Disability," Hypatia 4 (1989); andAnne Finger, "Claiming All of our Bodies: Reproductive Rights and Disabilities,"Test-Tube Women.35not conform to the idealized vision of a 'mother' and their homelife does not fit with patriarchal notions of the 'family'.A study conducted by Benjamin Freedman, P.J. Taylor, ThomasWonnacott' and Katherine Hil1, 73 compared the criteria foracceptance in adoption and AI. It found that 66% of the doctorssurveyed would reject a candidate for AI that did not have a malepartner. In recommendation 5 the OLRC Report limited eligibilityto stable single women and stable women in stable marital or nonmarital unions. Although single women and lesbians are notobviously excluded there is ambiguity regarding the definition of'stable'. Based on earlier discussions concerning the 'bestinterests of the child' 74 there is reason for concern regardingthe potential limitations on the eligibility of single andlesbian women.A woman deciding to have children by herself, without aman, is seen as attacking the traditional notion of thefamily. It questions the naturalness of the male/female unitwhich creates children. It questions the assumption that awoman has to be with a man to have children and bemeaningful in this society. It questions the entire basis ofthe heterosexual family. In so doing, it is an importantaspect of our struggle to control our bodies and ourreproductive capacities.Further issues surrounding AI include the challenge to theway the family has been constructed legally. In this patriarchal73 Benjamin Freedman, P.J. Taylor, Thomas Wonnacott and Katherine Hill,"Criteria for Parenting in Canada: A Comparative Survey of Adoption andArtificial Insemination Practices," Canadian Family Law Quarterly 3 ().74 OLRC Report, p.154.75 Nancy Adamson, "Self Insemination," Healthsharing (Fall, 1985): 9.36society the legitimacy or legal status of a child is dependentupon an assumed genetic linkage with the mother's husband. 76 YetAI directly refutes this construction of legitimacy because thereis no genetic link. Because they are disinclined to rethinklegitimacy in a non-sexist manner, authors of articles dealingwith the issue would circumvent this difficulty by having thehusband of the woman who bears the child declared the legalfather.” This is an alternative means of applying a patriarchaldefinition of legitimacy that assumes the necessity of a maleparent. The feminist alternative would be to reconceptualize theissue and recognize the fact that "a child who is born cannot beillegitimate, unless viewed through the lens of male control overreproduction." ThThere has not been a decision in Canadian courts regarding adonor's paternal right to children conceived by AI but there hasbeen such a case decided in the American courts. 79 A donorclaimed legal custody and visitation rights to a child conceivedwith his donated sperm. He was successful in the courts becausethe woman who bore the child was single and the courts felt that76 OLRC, p.133. Referring to the Children's Law Reform Act, R.S.O. 1980.The distinction between legitimacy and non legitimacy has been completelyabandoned in Quebec, the Yukon and Ontario.77 George J. Annas, "Redefining Parenthood and Protecting Embryos: WhyWe Need New Laws," Hastings Center Report (October, 1984): 51.78 Susan A. McDaniel, "A New Stork Rising? Women's Roles and ReproductiveChanges," Transactions of the Royal Society of Canada  111 (1988): 116.79 C.M. v. C.C., 152, N.J. Super. 160 377 A.2d. 821 (Cumberland County Ct.1977).37the importance of a father figure justified an award ofvisitation rights to the donor. In the future it may be possiblethat mere genetic relation will entitle an individual to custodyor visitation rights of a child conceived by AI if this can beshown to reinforce assumptions about the patriarchal constructionof the family.Although in Canada there have been no legal decisionsawarding parental rights to a sperm donor, the OLRC Reportspecifically stated that the sperm donor should not have rightsto a child artificially conceived.For all purposes, a woman bearing a child throughartificial conception in order to rear should beconclusively deemed to be the child's legal mother, and thewoman's husband or male partner who consents to theinitiation of the artificial conception procedure orprocedures ... should be conclusively deemed to be thechild's legal father."The OLRC is clearly attempting to reinforce the patriarchalnotions of family by bolstering the standing of the husband ofthe woman who conceives.The attempts at regulation and restriction of AI toreinforce patriarchal constructions of the family illustrate theway that the ideologies of motherhood and family have impacted onthe development and implementation of reproductive technologies.Lesbians, poor, disabled and single women suffer discriminationbecause they are 'different' and because they refuse to conformto societal expectations of family and maternal behaviour. Theideology of motherhood limits the definition of what constitutes80 OLRC Report, Recommendation 19(1).38appropriate maternal behaviour and thus limits who is able togain access to the reproductive technologies. The management ofAI highlights the way in which the technologies are beingdeveloped in order to reinforce notions of the family by allowingaccess to women in heterosexual, stable relationships andlimiting access to those women who do not conform to notionsconcerning who should be a mother.SurrogacySurrogate motherhood 1 involves a woman's 'offer' to bear achild that will subsequently be relinquished to someone else toraise. The woman who gestates the child for the nine months mayconceive by AI, IVF, or be the recipient of an embryotransfer. 82The industry has been developed primarily by the lawyerswhich initially set up organizations to make the connectionbetween infertile couples and women who were willing to bear thechild. 83 In the earliest days no payment was made to thegestational mother while the lawyers were collecting considerablesums. Today the standard is $10 000 paid to the woman, not as81 Surrogate motherhood is a misnomer as the woman who bears a child isclearly the mother. "The woman is in no way a surrogate and is in fact thebiological mother of the child. By naming her as a surrogate, commercialenterprises can more easily control and exploit the woman's pregnancy by denyingher biological relationship to her child." Rowland, ""Technology and Motherhood:Reproductive Choice Reconsidered," p.324. See also Barbara Katz Rothman,Redefining Motherhood. However, the term surrogate mother will be used becauseit is easily identified with the issues.82 Embryo transfer (ET) is, quite simply, the process of taking embryosthat have been cultured in the laboratory and replacing them into a female bodyfor (possible) transplantation. Birke et al., Tomorrow's Child, p.138.83 Lori Andrews, Between Strangers, (New York: Harper and Row, 1989).39financial remuneration for relinquishment of the baby, but tocover the costs of medical care, loss of employment and otherinconveniences suffered during the nine months."The most overwhelming concern regarding surrogacy is theview of a woman as a producer of babies. The recommendations ofthe OLRC Report regarding surrogacy seem to highlight this aspectof surrogate motherhood. Throughout recommendations 34-66, thereis a preoccupation with regulating the 'industry' in order toprotect the contracting parent(s). There are no specific criteriafor protecting the surrogate mother from exploitation. Ifsurrogacy is to be the commercialization of reproduction, then itis likely to result in the oppression of women who cannot affordnot to enter into exploitative contracts. The regulation of thearrangements solely to protect the adoptive parents willestablish surrogacy contracts as the legal sanction to exploitwomen through their ability to bear children.However, some women feel, and are made to feel, that theyare participating in a joyous process, a symbol of care andconnection with others. 85 This is an experience which should notbe dismissed or belittled in the interests of criticising thetechnologies. Unfortunately, many women are treated as rented84 There is considerable concern that the amount is still substantialenough that poor women will undertake to enter into a contract as surrogatemother for the money. Marie Ashe, "Law Language of Maternity: Discourse HoldingNature in Contempt," New England Law Review 22 (1988); Lori Andrews BetweenStrangers; Susan Ince "Inside the Surrogate Industry," Rita Arditti, RenateDuelli Klein, Shelley Minden, ed. Test-Tube Women: What Future for Motherhood,(Pandora Press: London, 1984); Barbara Katz Rothman, Recreating Motherhood.85 Andrews, Between Strangers.40wombs;" they feel cheated, used and valued solely for theiroffspring. 87The language surrounding the contracts, the medical andlegal construction of the woman, removes the birth motherfrom the experience of pregnancy and nurturing and turns herinto a mere participant in a business matter, an at arm'slength transacqon with a definite end point to her positionas 'surrogate'.The value of a surrogate mother directly relates to thehealth of the baby she bears. In surrogacy contracts women areperceived as baby carriers, the means to an end, and can beignored as caring, feeling, people with their own physical andemotional needs. This creates the danger that women who undertaketo become surrogate mothers for childless persons will be forcedto limit their lifestyles. The OLRC recognizes and accepts thispossibility. Recommendation 55(1) statesThe parties to a surrogate motherhood agreement shouldbe free to include in the agreement terms of their choosing;however, they should be required to consider, and to agreeupon a resolution of , the following issues: (f) prenatalrestrictions upon the surrogate mothers activities beforeand after conception, including dietary obligations and (g)conditions under which prenatal screening of the child maybe justified or required, for example, by ultrasound,fetoscopy or amniocentesis.There is no recognition of the extreme interference this posesfor women's bodily integrity nor is there any explanation of what86 See John Robertson, "Procreative Liberty and the Control of Conception,Pregnancy and Childbirth," Virginia Law Review 69 (1983), in which he states:"The surrogate provides both the ovum and uterine environment in order to enablethe infertile couple to rear a child of the husband's blood." p.422.87 Susan Ince, "Inside the Surrogate Industry."88 Lucinda M. Finley, "Breaking Women's Silence in Law: The Dilemma of theGendered Nature of Legal Reasoning," p.888.41a woman may or may not be forced to do if the prenatal screeningindicates complications with fetus or pregnant woman. That womenare expected to devote their life and health to the gestation ofa baby conceived with donated sperm highlights the way women aretreated as baby carriers and how this treatment is acceptablebecause the value of a woman is related to the children shebears.In Canada there has not been a Baby M89 case for a court tomake a statement concerning the legality of holding women to thecontracts they sign in surrogacy arrangements. 9° If a womanchanges her mind there is no legal precedent regarding who is toreceive custody. The OLRC recommended that the courts step in toplace a child with the contracting parent(s) if the surrogate89 Re Baby M. N.J. Supp. Ct. NoA-39-87; 14 Fam L. Rep. 2007 (Feb. 3, 1988),Reversing in part, 217 N.J. Super. 313, 525 A 2d. (1987) Mary Beth Whiteheadsigned a contract agreeing to gestate a child conceived by AI and, after itsbirth, surrender it for adoption by Mr. William Stern (the biological father) andhis wife Mrs. Elizabeth Stern. Once the child was born she decided that she couldnot give up the child and refused to relinquish custody. A painful and emotionalcourt battle ensued but ultimately the court decided that the surrogacy contractwas enforceable and awarded custody to Mr. Stern. The decision has since beenoverturned by the N.J. Supreme Court which decided that surrogacy contracts areunenforceable. The courts reinstated Mary Beth's parental rights but reaffirmedthe former custody arrangement because altering the situation would not be in thebest interests of the child. This case illustrates the problems which arise whenan attempt is made to apply the laws created in a formal setting to the emotionsexperienced with respect to a woman's ability to bear a child. See Marie Ashe,"Law-Language of Maternity: Discourse Holding Nature in Contempt," for asensitive analysis of the way in which the Baby M. situation was constructed froma male point of view.90 Noel Keane argues that the greatest threat to both contracting coupleand surrogate is the potential of the surrogate to change her mind."Perspectiveson Surrogacy: Risks, Rewards and Personal Choices," Nova Law Review 1 (1989):p.488. An alternative perspective would highlight the greatest threats including:medical complications, regulation and surveillance during pregnancy. This is notto ignore the anguish suffered by a couple denied custody of the child they hopedfor, but the unique bond forged between mother and fetus during pregnancy cannotbe usurped. See Barbara Katz Rothman, "Motherhood:Beyond Patriarchy", andRecreating Motherhood: Ideology and Technology in Patriarchal Society, (NewYork: W.W. Norton, 1984).42mother should change her mind. Reccommendation 49 statesA child born pursuant to an approved surrogatemotherhood arrangement should be surrendered immediatelyupon birth to the social parents. Where a surrogate motherrefuses to transfer the child, the court should order thatthe child be delivered to the social parents. In addition,where the court is satisfied that the surrogate motherintends to refuse to surrender the child upon birth, itshould be empowered, prior to the birth of the child, for areview of the approval of the surrogate motherhoodarrangement, and the judge should be empowered to rescindthe agreement.The conditions of surrogacy contracts and the way the OLRC Reportassumes that the interests of fetus and contracting parent(s) areprimary illustrate the unequal status of the surrogate motherwithin the terms of the arrangement.Many advocates of surrogacy would like to believe that it isa woman's right to enter into such a contract. Formal equalityassumes that if women are equally able to enter into thecontracts then they must be equal participants in thearrangement. However, this construction of the argument missesthe crucial issues that form the basis for most surrogacycontracts. The women who choose to become surrogate mothers areoften much poorer than the contracting parent(s), lack thefinancial or legal resources to contest the terms of thecontracts or to ensure that they are adequately protected beforesigning, 91 and they are increasingly expected to sign away theirautonomy in the interests of the health of the fetus. The context91 Often the legal fees of the surrogate mother are only paid if she usesspecific lawyers recommended by the lawyer arranging the contract. Therecommended lawyers usually have a vested interest in the business and cannot betermed unbiased assistance.43of surrogacy arrangements would seem to preclude any chance ofequality for the surrogate mother and appears to be arelationship based on the power dynamics of a patriarchal andcapitalist society.SummaryAI, IVF and surrogacy are techniques that have beendeveloped and implemented in a way that functions to regulate andsubordinate women. Access to the technologies is circumscribed byexpectations regarding who should become a mother and how. Theeconomic, political and legal inequalities that form theframework of Canadian society impose limits because accessdepends on financial stability and conformance to societal normsof heterosexuality and marriage.The medical, legal and political discourse on thedevelopment of the reproductive technologies does not include thediverse experiences and reactions of different women. Instead,women are posed in opposition to men as a homogeneous groupseeking to affirm their identity through pregnancy. But women arenot uniform in their reactions to the technologies. 92 Women wantto use techniques like AI, IVF and surrogacy because they or92 The technologies impact differently on different women. Poor women,women of colour, the disabled and mentally incompetent are often denied accessfor eugenic reasons and sometimes they are coerced into submitting tosterilization. See Susan Stefan, "Whose Egg is it Anyway?: Reproductive Rightsof Incarcerated, Institutionalized and Incompetent Women," Nova Law Review 13(1989); Laurie Nsiah-Jefferson, "Reproductive Laws, Women of Color, and Low-IncomeWomen," Women's Rights Law Reporter 11 (1989): 17-18.44their male partners are infertile; 93 they are unwilling toparticipate in heterosexual intercourse; or they are concernedabout passing on genetic defects. There must be a focus onwomen's concerns and circumstances to understand why there is aneed for these technologies and how they might safely bedeveloped."Each of the technologies discussed highlights an aspect ofthe constraints upon women with respect to their reproductivepotential. The threat IVF can and does pose to a womn's healthcontradicts the assumption that freedom and security are found inthe private realm. Because the procedure is being developedwithout government regulation to ensure safety standards, womenare left vulnerable to experimentation upon their bodies that mayresult in long term harm.93 The need for infertility treatments must also be contextualized.Infertility can be caused by environmental hazards, (photocopying machines,chemicals, radiation); by sexually transmitted diseases; by medical intervention;and by less easily identifies causes such as stress and diet. A focus on fixingthe problem rather than preventing it can profit those who develop the high-techand expensive treatment but does not prioritize the general health and well-beingof women.94 It is largely white middle class women who have been the focus of thetechnologies to overcome infertility so far. Poor women and women of colour inthe United States, and the mentally incompetent in Canada as well as the U.S.,confront a different threat. Often they are the victims of sterilization abuse.Abortions are made contingent upon voluntary sterilization in the case of poorwomen and women of colour, while women incarcerated in mental institutions aresterilized in order to avoid the complications expected regarding their potentialfor reproduction. A study on the Alberta Sexual Sterilization Act found thatyoung, female persons of colour were disproportionately represented as those whowere sterilized. For example, although Indian and Metis constituted 3.4% of thepopulation of Alberta they represented 25.7% of the persons sterilized. Kourieand Somerville, "Comments on the Sterilization of Mental Incompetents in CanadianCivil and Common Law," Revue de Droit de L'Universite de Sherbrooke 509 (1980)It is not within the scope of this paper to discuss adequately the racist andeugenic basis for the development of the technologies with respect to thesesegments of society. See Gena Corea, "The Reproductive Brothel," Man-Made Woman;Andrea Dworkin, Right-Wing Women, (New York: Pedigree Books, 1983); Laurie Nsiah-Jefferson, "Reproductive Laws, Women of Color, and Low-Income Women."45The issues related to AI are examples of the primacy of awoman's identity as mother within the patriarchal family unit.The frequent limitation of access to women in stable,heterosexual relationships indicates a preoccupation withimplementing AI as a means of reinforcing patriarhcalconstructions of the family. Because lesbians, disabled, poor andsingle women do not conform to society's definition of 'mother',they are limited in their opportunities to conceive a child byalternative methods to heterosexual intercourse. Finally,surrogacy is an illustration of the way notions of formalequality may be harmful to women because women are rarely equalparticipants in a surrogacy contract.Attempts to use the Charter in order to empower women andwrest control of the development of reproductive technologies mayencounter stumbling blocks. The abortion issue is a paradigmaticexample of how legislation may restrict a woman's ability to be aself-determining agent, while it also illustrates the limits ofusing the legal system.46ABORTION AND THE CHARTERWhether the Charter can be used to empower women with regardto the development and implementation of reproductivetechnologies is a question that only experience can answer.However, in the case of Morgentaler v. The Queen" the attemptto use the Charter in order to ensure women control over theirright to an abortion illustrated the dangers in using a tool thatis based upon analytical concepts antithetical to feminism. Anexamination of the context of the abortion debate and the way inwhich the Morgentaler decision was argued will highlight theforces with which feminism must engage.Abortion is the only technology to have been the subject ofsubstantial legislation in Canada. The prohibition of abortionwas first criminally codified in 1869 and meant life imprisonmentfor the person procuring the miscarriage. In 1892, the CriminalCode was enacted containing various provisions concerning birthrelated offenses." S.271(1) made it an indictable offensesubject to life imprisonment to cause the death of a child notyet a human being in such a manner that it would have been murderif the child had been born. S.272(2) made it a crime punishable95 R v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385.96 The historical information for this section comes from Shelley Gavigan,"'On Bringing on the Menses': The Criminal Liability of Women and the TherapeuticException in Canadian Abortion Law,", CJWL; Mollie Dunsmuir, Abortion: Constitutional and Legal Developments, (Canada: Library of Parliament, 1989);Monique Hebert, Abortion: Legal Aspects, (Canada: Library of Parliament, 1980 andrevised 1989); and Sharon Walls, Abortion Law and Improved Abortion Services,(Ottawa: National Association of Women and the Law, 1982).47with life imprisonment to attempt to procure a woman'smiscarriage, whether or not she was pregnant. In 1952, the lawwas amended to exclude the term "unlawful". This raised confusionas to whether there could be a 'lawful' abortion.The debate intensified in the 1960s with the births ofthalidomide babies, 97 and numerous deaths from illegalabortions. In 1966 the Canadian Bar Association, the CanadianMedical Association and the United Church of Canada passedresolutions that the law be amended to permit abortions when awoman's health was at risk.In 1967, from October 3 to March of 1968, the StandingCommittee on Health and Welfare held hearings on the issue ofhealth-related abortions. An interim report led to the proposalof Bill C-195 which was added on to a lengthy omnibus billintroduced by the Justice Minister Pierre Trudeau. Due to anintervening election, the bill died on the order paper but it wasreintroduced by the new Justice Minister John Turner as Bill C-150.The new law, passed on August 26, 1969, stated that anabortion was prohibited unless: 1) the health (undefined) of thewoman was at risk and that this was confirmed by a doctor; 2)that the request was approved by an abortion committee of atleast three doctors not including the original consultant, and;3) that the procedure took place in an approved or accredited97 Hebert, Abortion: Legal Aspects, p.5.48hospital."The uncertainties that this created for women in Canada werenumerous. Hospitals were not required to provide the facilitiesfor abortions and the Badgley Report" subsequently found thatthere were vast differences across Canada in the availability ofthe procedure. loo The Committees had inconsistent criteria foradmission so that some approved virtually all requests whileothers would approve very few. Bill C-150 resulted in theconsistent denial of a woman's reproductive freedom because heraccess to an abortion was dependent on the decision of atherapeutic committee. 101MorgentalerIn 1986, Dr. Henry Morgentaler challenged the Supreme Courtof Canada to examine 5.251 of the Criminal Code of Canada todetermine whether it contradicted S.7 1()2 of the Charter.'m Dr.98 Canadian Criminal Code, S.271.99 Report of the Committee on the Operation of the Abortion Law, Supply andServices Canada, Ottawa, 1977.100 Dunsmuir, "Abortion: Constitutional and Legal Developments, p.8.vn This has not meant that women have been the passive 'victims' ofoppressive legislation. The history of abortion includes the history of illegalabortions, painful deaths, and unnecessary sterilization. Women have decided ontheir own when they need an abortion. The legal fiction that a doctor, orcommittee, knows best is refuted by a feminist analysis of the issue with anemphasis on a woman's needs. Women, now and in the past, have assumed theresponsibility for deciding if and when they need an abortion.102 S.7, Everyone has the right to life, liberty and security of the personand the right not to be deprived thereof except in accordance with the principlesof fundamental justice.49Morgentaler claimed that the section violated a woman's rights tolife, liberty and security of the person because it only alloweda woman to have an abortion in strictly limited circumstances andthus greatly limited her opportunities for a safe, earlyprocedure. vn It took four written judgements and 188 pages forthe Court to strike down that section of the Criminal Code. Thevarious judgements of the court illustrate the complexities ofthe abortion issue and also indicate how tenuous victories canbe.By examining whether the courts accept state regulation, thepotential of competing maternal and fetal rights, and thepublic/private dichotomy, we can see how the decision is part ofa larger context that denies women their autonomy. Byestablishing norms of maternal behaviour to which women have nodesire to conform but by which they are judged, the courts areable to frame issues in such a way that their decisions reinforcea woman's lack of power.Chief Justice Dickson (Mr. Justice Lamer, as he then was,concurring) felt that S.251 violated S.7 in two ways. He feltthat:forcing a woman by threat of criminal sanction to carrya foetus unless she meets certain criteria unrelated to herown priorities and aspirations is a profound interferencewith a woman:6 s body and thus a violation of the security ofthe person.vn The case was also argued on the basis of S.15 but the judges did notdeal with this issue in their arguments that struck down S.251 of the CanadianCriminal Code.106 R v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385.50Dickson was also concerned because the delay entailed incomplying with the criteria for a legal abortion may inflictunnecessary harm and suffering. The defence provided in S.251(4)was deemed illusory because a woman risked her health in order tocomply with the law when she was situated in circumstances whereaccess to the approved hospital or committee was limited. DicksonC.J. then tried to decide if S.251 could be saved by S.1 of theCharter by determining first, if the objective of the legislationwas of sufficient importance to warrant overriding aconstitutionally protected right or freedom and second, that themeans chosen to override the right and freedom were demonstrablyjustified in a free and democratic society. He concluded thatS.251 was intended to balance the interests of the woman andfetus but that the way in which this was done placed adisproportionate burden on the woman.Mr. Justice Beetz (Mr. Justice Estey concurred) adopted aprocedural approach. He held that the legislated delay to apregnant woman's access to abortion resulted in additionaldangers which deprived a woman of her right to security of theperson. However, he emphasized that the government could stillpass legislation that would require a woman to prove to acommittee that to continue her pregnancy would pose a risk to herhealth.Mme. Justice Wilson took a broader approach. She stated thatthe right to liberty contained in s.7 of the Charter guaranteedautonomy in making decisions of fundamental importance to a51person's private life including a woman's decision to terminateher pregnancy. S.251 clearly violated this right because it gavethe decision over to an abortion committee. Ss. 4 of the s.251 ofthe Criminal Code violated a woman's security because of thecomplicated procedure it expected her to follow in order to havea legal abortion. Wilson included an argument that any criminallaw restrictions on abortion offended freedom of conscienceguaranteed in S.2(a) of the Charter l° and so could never be inaccordance with the principles of fundamental justice. She arguedfor a woman's autonomy but ended this argument by stating thatthe state would, at some point in the development of the fetus,have an interest in the fetus which would outweigh the rights ofthe mother.Mr. Justice Maclntyre dissented (LaForest concurred). Hestressed that it was not the role of the court to use the Charterto solve or seek to solve the abortion issue but simply tomeasure the content of S.251 against the Charter. He held that itdid not infringe upon the life, liberty and security of thepregnant woman. He also denied that the defence in 251(4) couldbe dismissed as illusory.In the Morqentaler decision, all five of the majority judgesagreed that the procedural requirements of s.251, in effect,violated a woman's s.7 right. Only Madame Justice Wilson readvr Everyone has the following fundamental freedoms: (a) freedom ofconscience and religion; (b) freedom of thought, belief, opinion and expression,including freedom of the press and other media of communication; (c) freedom ofpeaceful assembly; and (d) freedom of association.52into s.7 a right to privacy, which included abortion, or theright to make a moral choice based on freedom of conscience foundin S2(a). Although this 'feminist' analysis had the potential tolegitimate women's claims that abortion is a decision for a womanalone, it was limited by Mme Justice Wilson's acknowledgment ofpotential state interest in the fetus. The Court's acceptance ofstate regulation at some point in a pregnancy denied a womancontrol over a fundamental aspect of her identity: herreproductive freedom.Consequences of the Decision The Morgentaler decision cannot be claimed as an unqualifiedsuccess in asserting a woman's right to decide for herselfwhether to have an abortion. Because four of the judges focusedupon procedural impediments to the legislation, there was noquestion concerning whether it was appropriate for the state orany other organization to validate the very personal choice tohave an abortion. Further, allowing for state intervention atsome point in a pregnancy reinforced the view that a pregnantwoman is not always capable of making responsible decisions.Although hailed as a victory initially, the decision has createdfurther difficulties for the feminist attempt to challenge thestructure and form of a society that accepts the oppression ofwomen as the norm.PrivacyFraming the issue of abortion in terms of a woman's right toprivacy meant that the arguments were based upon the53public/private dichotomy. 108 By asserting women's autonomy as anindividual right, Mme. Justice Wilson reaffirmed the privatenature of an abortion and a "legal vacuum replaced the criminalprovisions. In the absence of federal legislation, access to safefunded abortions depended either upon the response of individualprovincial legislatures or individual hospitals." log It hasmeant that the state is not forced to accept responsibility forproviding the funding or services to ensure that each and everyCanadian woman is able to assert her right to bodily integrityand have an abortion if she deems it necessary.Instead of accepting the public/private split, analternative argument would find a right to abortion services as asocially-determined need which would be claimed by the individualbut maintained as part of a collective.Needs, unlike rights, are dynamic and exist only inrelation to individuals in particular concrete socialconditions.... It is important to note, however, that theobjective of conceptualizing abortion as a sociallydetermined need is to transcend the inherent limitations ofliberal individualism, rather than to deny that it is as anindividual that a woman must be able to decide whether toterminate a pregnancy. It is, in fact, fundamental to awoman's self-determination and to the restructuring ofreproductive and sexual relations lAhat the remedy beavailable on an individual basis.108 Deborah L.Rhode, Justice and Gender Sex Discrimination and the Law,(Cambridge: Harvard University Press, 1989).109 Fudge, "The Public/Private Distinction: The Possibilities of and theLimits to the Use of Charter Litigation to Further Feminist Struggles," p.542.The response of the provincial governments has varied from an attempt in B.C. toprohibit funding of all abortions except when there was a serious threat to awoman's health (invalidated by the B.C. Supreme Court) to funding for even thoseabortions performed in clinics.110 Brenda Cossman, "The Precarious Unity of Feminist Theory and Practice:The Praxis of Abortion," University of Toronto Faculty Law Review 44 (1986): 106.54Clearly what is needed is national recognition that funding andaccess to abortion is important for all women. This need shouldbe met by providing the services and money in order to ensurethat each and every woman is able to make her own decision andthat she will have the power to carry out that decision. It isnot up to the court to make these kinds of provisions but, byarguing that abortion belongs in the private sphere, the decisionhad the political effect of legitimating the lack of governmentassistance.The decision in Morcientaler has meant that, withoutlegislation securing funding and access to abortion, women areleft to rely upon the policies of provincial governments,hospitals and clinics in order to obtain abortions. Although thecriminal sanctions have been struck down, this has left abortionin the private realm where women often lack the political andeconomic power to ensure that they can fulfil their needs.Further, the decision in Dolphin Delivery means that the Charterwill be of no use in the courts to secure a positive right toaccess for all women. Because the Charter is limited to definingwhat the state cannot do, Charter rights cannot be used to forcegovernments to act in order to ensure that women's needs andinterests are be fulfilled.Ideologies of MotherhoodWomen who are pregnant are expected to conform to thestereotypical 'mother' - a woman who is caring, nurturing andselfless. The equation of pregnancy and this definition of55motherhood is the foundation of societal assessments of women'sbehaviour - and the justification for sanctions againstdeviation. ni It denies the heterogeneity of womanhood byimposing a universal definition of pregnancy"2 it harms womenin general by ignoring their differences, and it especially harmsthose women who do not conform to society's expectations ofwomanly/maternal behaviour.Using the legal system raises the possibility that judicialassumptions regarding a woman's maternal responsibility tocontinue a pregnancy may force a particular woman to justify herdecision to have an abortion. However, women are forced tojustify their decisions not only because aborting a fetus isconsidered contrary to acceptable maternal behaviour, but becauseof assumptions that there are other interests vested in the birthof the fetus. In North American society the interests of fatherand fetus are increasingly conceptualized and argued in terms ofrights in competition with a woman's right to bodilyintegrity. 	 In American and Canadian courts this has ledjudges to balance the interests/rights of father and fetus111 Zillah Eisenstein, The Female Body and the Law, (Berkeley:Universityof California Press, 1988).112 Ibid., p. 8. See also Marie Ashe, "Law-Language of Maternity: DiscourseHolding Nature in Contempt," p.536.113 See Dawn Johnsen, "The Creation of Fetal Rights: Conflicts with Women'sConstitutional Rights to Liberty, Privacy, and Equal Protection," Yale LawJournal 95 (1986); Patricia King, "Should Mom be Constrained in the BestInterests of the Fetus?," Nova Law Review 13 (1989); Sheila L. Martin, "Using theCourts to Stop Abortion by Injunction: Mock v. Brandenburg," CJWL 3 (1989-1990);Sanda Rodgers, "Fetal Rights and Maternal Rights: Is There a Conflict?," CJWL 1(1986).56against those of the woman. By phrasing a woman's need forautonomy in terms of a right to life, liberty and security of theperson, in the Morgentaler decision, an opening was provided forothers to assert the rights of the father and of the fetus.Men often believe that they have a right to expect a womanto carry a fetus to term. 114 They believe that part of what itmeans to be a woman is to bear children. 'Woman', as a genderedconstruct, is a pregnant woman. When women challenge thisconstruct by refusing pregnancy, they challenge the image menhave created and the foundations upon which a paternalisticsociety is built. inUntil now the courts have been reluctant to award a fatherrights which would be used to prevent a woman from obtaining anabortion. Although in the United States and Canada severalfathers have attempted to assert paternal rights by obtaininginjunctions to prevent a woman from having an abortion, all haveultimately failed.In the case Mock and Infant Doe v. Brandanburg, theapplicant sought an interim or interlocutory injunction toprevent the respondent from having an abortion. The judge foundthat the father met the criteria required by the test todetermine the granting of an injunction, but that ultimately,given the intimacy of the relationship of the114 Cossman, "The Precarious Unity of Feminist Theory and PRactice: ThePraxis of Abortion," p. 90.in Shelley Gavigan, "No Man's Land? Men's Intervention in Abortion andPregnancy," p.4.57respondent and the fetus, the length of the normalgestational period, the potential physical and psychologicaleffects on the respondent, I am of the view that on theaspect of the balance of convenience, the position of therespondent requires grave consideration. 116Although the injunction was dismissed, it is disturbing torealize that a judge considered it reasonable to "balance theconvenience" of two conflicting parties with regard to theintegrity of a woman's body. The personal integrity of a woman isthreatened if the court can contemplate forcing her to continue apregnancy to serve the interests of a third party.The assertion of "fathers' rights" shows a disturbing viewof a woman's body and the fetus within it. It would seem thatthere are times when a woman will be considered a "walkingwomb" - a means to the birth of the father's child or thecontinuation of the human species. Although there has not yetbeen any recognition of a father's right to force a woman tocarry a fetus to term, the fact that the court gave seriousconsideration to the possible existence of that right, whetherformally awarded or not, is a threat to the reproductive freedomthat is an essential feature of women's identity.The decision in the case was a victory for woman's rightsbut it also indicated the tenuous nature of a woman's position.If there were legislation passed that awarded men specific rightsin relation to their 'potential progeny', there may beconsiderable reason for women to fear that future decisions might116 Mock and Infant Doe (Mock) v. Brandanburg, 61 A.L.R. (2d) 235 (Q.B.).58be the result of a judicial balancing of competing claims inwhich the ideologies of motherhood, fatherhood and family play apart.In the United States there has been a greater incidence ofstate legislatures attempting to pass restrictive legislationwhich would require women to inform their partners of theintention to obtain an abortion and, in some instances, to gainthe man's consent. 117 So far, such legislation has been struckdown as unconstitutional. 118 However, with an increasinglyconservative Supreme Court there is some concern that Roe v. Wademay be overturned in the future. Although the impact of Americanjurisprudence on Canadian judgements is indeterminate, it may bewise to look to the American experience in order to prepare forfuture threats to a woman's autonomy.EqualityThe issue of equality for feminists is confounded by theassumption of a male norm against which everything else is117 Maria F. Walters, "Who Decides? The Next Abortion Issue: A Discussionof Fathers' Rights," West Virginia Law Review 91 (1988): 165-189.118 The Supreme Court has made only one decision in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976)re challenging a Missouri statutewhich stated that "No abortion shall be performed prior to the end of the firsttwelve weeks of pregnancy except:...(3) With the written consent of the woman'sspouse, unless the abortion is certified by a licensed physician to be necessaryin order to preserve the life of the mother." Act of June 14, 1974, 1974 Mo. Laws809 (codified as amended at Mo. Ann. Stat. 188.101-.085 (Vernon 1983) Lower courtdecisions regarding spousal consent and notification are Wynn v. Scott, 449 F.Supp. 1302(consent) and (notification) Scheinberg v. Smith, 482 F. Supp. 529(S.D. Fla. 1979), aff'd in part, vacated in part and remanded, 659 F.2d (5th cir.1981) (if the abortion would present more than a de minimus risk to mothers'abilities to procreate, the spousal notification statue is notunconstitutional.), on remand, 550 F. Supp. 1112 (S.D.Fla. 1982) (Statuteunconstitutional since abortion poses less than a de minimum risk to procreativeabilities of the mother); Doe v. Deschamps, 461 F. Supp. 682 (D. Montana 1976);H.L. v. Matheson, 450 U.S. 398 (1981).59measured. The power of patriarchy to confine and regulate womenby defining them as something different, and therefore lessvaluable, is based upon a hierarchical system of dichotomies thatvalues men. The societal condemnation of those women who seekabortions is thus rooted in the way pregnancy has beenstructured. Hegemonic legal and political discourse perpetuatesthe definition of woman as potentially pregnant and reaffirms herresponsibilities as a mother. Thus the interests and needs of awoman are subordinated to a societal interest in herfetus/children and the imagined needs and interests of the fetus.To be able to envision supporting the needs of a fetusagainst those of a woman it must be possible analytically toseparate the fetus from the woman and to consider the interestsof the fetus as more important than those of the woman. Thisissue has been raised in several cases including the case ofBorowski v. Canada (A.G.). It was the intention of Mr. Borowskito have subsections (4),(5) and (6) of s.251 declaredunconstitutional because they allowed the "killing of babies"whose right to life was provided under s.7 of the Charter. 119 Hebased his claim for constitutional status on the fact that, atthe moment of conception, an embryo was alive and thusconstituted a human being. IN The Supreme Court of Canada didnot rule on this particular case because it became moot when the119 Borowski v. Canada (Attorney General), [1989] 3 W.W.R. 97 (S.C.C.).120 Catharine Totton, "Medicolegal Implications of Constitutional Statusfor the Unborn: 'Ambulatory Chalices' or "Priorities and Aspirations',"University of Toronto Faculty of Law Review 47 (Fall 1988): 5.60Morgentaler decision struck down s.251.On March 21, 1991, in R. v. Sullivan, the Supreme Court ofCanada determined that "it is clear from the wording of s.206that a foetus is not a 'human being' for the purposes of theCriminal Code. „ 121 The Court was deciding whether or not a fetusin the birth canal was included under the definition ofperson/child for the purposes of the Criminal Code then s.203.The legal definition of child was to be found in s.206:a child becomes a human being within the meaning of theAct when it has completely proceeded, in a living state,from the body of its mother whether or not a) it hasbreathed, b) it has an independent circulation, or c) thenavel string is severed.The Court agreed with the decision made in the B.C. Court ofAppeal that, "if Parliament considers it appropriate to protect achild during the birth process from criminally negligent acts bythose attending and assisting at the birth, that is a matter uponwhich Parliament can legislate.” 122 The Charter cannot be usedpresently to assert the rights of a fetus, but this does notpreclude the state from legislating fetal rights, subject to theCharter, in the future.Although legislated rights for a fetus may appear farfetched it is intimidating to realize that society, and somemembers of the legal profession, are willing to claim rights onthe part of the fetus and to take these claims to court. Thus, itis important to determine why it is possible to think of the121 R. v. Sullivan, 63. C.C.C. 3d.,p.106.122 Ibid.,p.10461fetus and woman as separate entities and how this has impacted onthe abortion issue.Previous discourse on the abortion issue focused onfertility, sexuality and morality. 123 Abortion has beenstigmatized because it was directly related to promiscuity. 124Now that sex itself does not involve the same societal taboos,the antiabortion group has focused upon the image of the fetus -reified through pictures and video 125 - and has attempted toprevent abortions through emotional intimidation.In the last few decades society has focused primarily on thefetus as an adversary to a woman. In part, the analyticalseparation is the result of the technical ability to see andtreat a fetus without, in some senses, harming or seeing thewoman. 126 Amniocentesis, sonograms, and electronic fetalmonitoring enable the medical profession to garner informationspecifically about the fetus - information that is perceived asseparate to that of the woman. 127 By this separation of fetusand woman the medical community is able to conceptualize the123 Shelley Gavigan, "On 'Bringing on the Menses': The Criminal Liabilityof Women and the Therapeutic Exception in Canadian Abortion Law," p. 290.124 Rosalind Petchesky, Abortion and Women's Choice: The State, Sexuality, and Reproductive Freedom, (New York: Longman, 1984).125 Rosalind Petchesky, "Fetal Images: The Power of Visual Culture in thePolitics of Reproduction," Feminist Studies 13 (1987).126 Ibid., p.271.127 Lawrence Nelson, Brian P. Buggy, and Carol J. Weil, "Forced MedicalTreatment of Pregnant Women: 'Compelling Each to Live as Seems Good to theRest'," The Hastings Law Journal 37 (1986): 711-712.62treatment of two patients and to focus on the care of the fetusalone. Further, "the medical model's emphasis on separability hasestablished a construct of pregnancy according to which thematernal body in normal pregnancy has come to be regarded asseparate - or even adversarial - in relationship to thedeveloping child.The political act of constructing a discourse that pits awoman against her fetus, externalized and individualized throughthe use of photographic, technological, and spoken imagery,creates and reinforces the means for the oppression of women. 129Videos and television have broadcast the image of the fetus onthe screen and society is made to believe that the fetus is afeeling, thinking entity just as the "Silent Scream" uses trickphotography to make us think that the fetus screams as it isaborted. The distortion that allows us to view the fetus asseparate from the woman's womb allows us to contemplate treatingthe fetus apart from the woman.' 3° This separation furthersupports the construction of a woman and fetus as adversaries andreinforces the political subordination of a woman to interestsvested in the fetus.Women do not necessarily experience a wanted pregnancy asthe presence of a separate entity. The separation of fetus andlza Marie Ashe, "Law-Language of Maternity: Discourse Holding Nature inContempt," p.540.129 Petchesky, "Fetal Images: The Power of Visual Culture in the Politicsof Reproduction," p.272.130 Ibid., p.265.63woman is an artificial construct of patriarchal society. Insteadof focusing on a paternalistic view of what pregnancy means, (ie.motherhood, fatherhood, and family), it is important to acceptthe diverse ways in which a woman experiences her pregnancy. Thepersonal experience of each woman must be accepted if we are notto impose a homogeneous definition of womanhood and motherhood.Recognizing these differences will remove the basis ofhierarchies that establish women as subordinates when they ceaseto conform to patriarchal expectations. Ultimately, "abortionmust remain a moral decision for the individual woman unless sexinequality is to be governmentally institutionalized. " in Toaccept a woman's experience of pregnancy would enable the stateand judiciary to accept a woman's autonomy over making personaldecisions.However, the state has historically been unwilling to trustwomen to make the ethical decisions concerning their reproductivechoices. 132 As Christine Overall argues, a male-determinedsociety has largely perceived women, pregnant or not, as anunpredictable force.Women's bodies have traditionally been regarded as darkand dangerous places, threatening to the men which use themsexually and even to the babies which emerge, not alwaysintact, from them. The twin manifestations of this dangerare female evil and female weakness. Now, however, thefemale body is seen as dangerous even to the embryo/fetus131 George J.Annas, "Predicting the Future of Privacy in Pregnancy: HowMedical Technology Affects the Legal Rights of Pregnant Women," Nova Law Review13 (1989): 38.132 Susan Alter Tateishi, "Apprehending the Fetus En Ventre Sa Mere: AStudy of Judicial Sleight of Hand," Saskatchewan Law Review 53 (1989): 13664because the pregnant woman cannot be trusted not to abuseit, or pass on defective genes to it, or even to kill it,let alone to protect it from environmental harm and givebirth to it safely: 33In order to challenge the male expectations against whichwomen are judged it is important to articulate a definition ofequality that deconstructs hierarchies based on conformity tosocietal norms. Each and every woman is different. Each hasdifferent needs and will make different claims upon the state andsociety. Thus, equality should include a recognition of a woman'sneed to control her reproductive potential as a part of heridentity. That is, it should include an equal respect for herautonomy. 134 S.15 may provide the courts with the justificationfor interpreting a woman's right to equality as including theright to an abortion in order to ensure equal respect for herbodily integrity.SummaryThe Morgentaler decision illustrates how legal challengesmay not be the final solution to women's subordinate status inCanadian society. The assumptions of privacy,womanhood/motherhood, and equality may prevent women from usingthe legal system as a means of empowerment with respect to thedevelopment and proliferation of reproductive technologies. Womenmay be judged according to how well they conform to expectations133 Christine Overall, "'Pluck a Fetus From its Womb': A Critique ofCurrent Attitudes toward the Fetus," p.86.134, Stephanie Ridder and Lisa Woll, "Transforming the Grounds: Autonomy andReproductive Freedom," Yale Journal of Law and Feminism 2 (1985).65of maternal behaviour. They may be ignored because the oppressionoccurs in the private realm and left to defend their basic rightto bodily integrity in the face of challenges from those claimingan equal interest in their bodies.Although the Morcientaler decision shows feminists that aliberal mobilization of the Charter may not ensure long termgains, it also illustrates that the Charter is not in and ofitself confined to liberal interpretation. Mme. Justice Wilson'sfeminist interpretation of s.7 was an indication of what can beaccomplished with a creative interpretation of the enumeratedrights. Perhaps the section that will do the most for women withrespect to their reproductive potential will be s.15. It may bepossible that the influence of feminist jurisprudence on a legalreconstruction of equality will provide the basis for the end towomen's inequality. Thus the Charter may be used as part of agreater political strategy to empower women and ensure theirpolitical, legal and economic equality in Canadian society.66A FEMINIST RECONSTRUCTIONThe development of reproductive technologies in Canada posesthe potential for causing harm to the women who intend toparticipate in the programmes, and the management of thetechnologies has resulted in discrimination against women who donot conform to notions of the appropriate mother. Further, theestablishment of the surrogacy industry has created the potentialfor the 'legitimate' exploitation of an entire class of womendeemed valuable for the children they gestate.Ideologies of motherhood and privacy, and notions of formalequality, have affected and shaped the way reproductivetechnologies have impacted on women's lives in Canada. Thetheoretical justifications for women's oppression has remained inplace because women have not been able to challenge themsuccessfully in the past. It is because of man's power to labelwoman as 'other' and marginalize her to the private sphere bydefining her as 'mother' that these assumptions have thepolitical effect to confine and oppress women.For women to wrest control of the technologies they willhave to challenge the notion of formal equality that privilegesmen. 135 The confinement of women to homogeneous opposition and135 For a thorough discussion of equality see: Marie Ashe, "Mind'sOpportunity: Birthing a Poststructuralist Feminist Jurisprudence," Syracuse LawReview 38 (1987); Lucinda M. Finley, "Transcending Equality Theory: A Way Out ofthe Maternity and the Workplace Debate;" Christine A. Littleton, "Equality andFeminist Legal Theory," University of Pittsburgh Law Review 48 (1987); CatharineMacKinnon, Toward a Feminist Theory of the State, (Cambridge: Harvard UniversityPress, 1989), and Feminism Unmodified: Discourses on Life and Law, (Cambridge:Harvard University Press, 1987); Frances Olsen, "Unravelling Compromise," HarvardLaw Review 103 (1989); Jana Sawicki, "Foucault and Feminism: Toward a Politicsof Difference," Hypatia 1 (Fall 1986); and Joan W. Scott, "Deconstructing67subordination can only be challenged effectively with a vision ofequality that recognizes and values diversity between men andwomen, and amongst men and women, without reestablishing a systemof hierarchies. 136 The work of feminists on concepts of equalityin the area of American and Canadian jurisprudence will providethe basis for the articulation of an equality that recognizes andvalues difference.S.15 of the Charter raises the possibility of reconstructingsuch of vision of equality in the Canadian courts and it may bethat this will provide the legitimate foundations of a realchange in society. By refusing to accept formal notions ofequality that attach value to conformity and powerlessness todifference, a substantive interpretation of equality may preventthe arbitrary creation of hierarchies that are based on thedevaluation of divergence from the norm. The Canadian SupremeCourt has appeared to accept a feminist interpretation ofequality through their analysis of s.15 in Brooks v. Canada Safeway. 137 This decision may be the foundation of furtherlegal, political and social recognition of a feminist vision ofequality that will shatter the structures of inequality thatoppress women.A Feminist VisionEquality-versus-Difference: Or, the Uses of Poststructuralist Theory forFeminism," Feminist Studies 14 (Spring 1988).136 Finley, "Breaking Women's Silence in Law: The Dilemma of the GenderedNature of Legal Reasoning," pp.1167-1170.137 Brooks v. Canada Safeway, [1989] 1 S.C.R. 1219.68The feminist challenge to formal equality is a politicalchallenge to male norms - it asserts the importance ofalternative perspectives grounded in differences of sex, class,age, ableness, and race.To do anything else is to buy into the politicalargument that sameness is a requirement for equality, anuntenable position for feminists (and historians) who knowthat power is constructed on and so must be challenged fromthe ground of difference. 0Such an equality would be the result of a radical pluralism thatseeks to recognize and value differences without creating ahierarchy based on the gaps between identities.Feminist jurisprudence needs to provide the foundations fora legal perspective that would include the perspectives of women,people of colour, the disabled, the incompetent and the poor.In a politics of difference, difference can be aresource insofar as it enables us to multiply the sources ofresistance to particular forms of domination and to discoverdistortions in our understandings of each other and theworld.This jurisprudence would not claim a neutral stance that, inreality, was actually only one perspective. 140 In order to avoidthe many inequities caused by the 'neutral', 'objective' approachused in the past, there would be a radical recognition ofdifference, an acknowledgment of one's own perspective, valuefound in diversity, and the deconstruction of hierarchies.138 Scott, "Deconstructing Equality-vs-Difference: Or, the Uses ofPoststructuralist Theory for Feminism," p.48.139 Jana Sawicki, "Foucault and Feminism: Toward a Politics of Difference,"p.32.140 MacKinnon, Toward a Feminist Theory of the State, p.239.69Practically, it would mean interpreting existing law fromdifferent viewpoints and redrafting legislation so that itprovides space for different voices. 141 The Charter might be apowerful tool for a feminist jurisprudence. The Canadian SupremeCourt has made decisions that indicate a willingness to adopt asubstantive interpretation of s.15 that recognizes the structuresof inequality women are forced to face in society. In Brooks v. Canada Safeway, the court examined whether an employee benefitplan discriminated against women on the basis of sex because itclearly discriminated against pregnant women. A ruling in Bliss v. A.G. of Canada 142 had previously determined thatdiscrimination because of pregnancy was not discrimination basedon sex. Because not all women become pregnant, not all women werediscriminated against. In Brooks however, the Supreme Courtrecognized the systemic nature of discrimination against womenbased on their biological capacity to reproduce.Brooks Brooks v. Canada Safeway involved a complaint on the part ofthree employees that they were discriminated against on the basis141 See Martha Minow, "Foreword: Justice Engendered," for a thoroughexplication of what this would mean for judicial strategy in the courts.142 Bliss v. A.G. of Canada, [1979] 1 S.C.R. 183, [1978]6 W.W.R. 711(S.C.C.) The Supreme Court of Canada ruled that the denial of 'regular' benefitson account of pregnancy did not discriminate on the basis of sex nor deny womenequality under the law. Feminists were mobilized during the drafting of theCharter to ensure that the wording of s.15 would prevent this kind of decisionfrom being repeated. In the U.S. a similar decision to Bliss was made in Sears Roebuck % Co. v. EEOC, 581 F.2d. 941 (D.C. Cir. 1978) For a thorough discussionof this decision and the implications for equality theory see Joan W.Scott,"Deconstructing Equality-Versus-Difference: Or, The Uses of PoststructuralistTheory for Feminism."70of sex in the employee benefit package because of provisions thatexcluded coverage for pregnant women. The Canada Safewayemployees benefit plan did not provide for coverage of pregnantwomen ten weeks before the week of their confinement, the week ofconfinement and six weeks after the birth of their child.Pregnant women could not claim benefits during this seventeenweek period even if they were forced to miss work for an illnessunrelated to the pregnancy.Susan Brooks, Patricia Allen and Patricia Dixon filedcomplaints with the Manitoba Human Rights Commission allegingthat the differential treatment of pregnancy in the planconstituted discrimination on the basis of sex contrary to s.6(1)of The Human Rights Act of Manitoba. The adjudicator dismissedthe claim and the Court of Queen's Bench and the Court of Appealupheld the adjudicator's decisions. The case was brought to theSupreme Court.With Brooks the Supreme Court of Canada indicated awillingness to adopt an expansive interpretation of equality thatwill benefit feminists in the future. The court rejected theBliss decision that had been the justification for theadjudicators dismissal of the claims by recognizing thatit is difficult to conceive that distinctions ordiscriminations based upon pregnancy could ever be regardedas other than discrimination based upon sex, or thatrestrictive statutory conditions applicable only to pregnantwomen did not discriminate against them as women.The Court refused to accept the similarly situated test used in143 Brooks, p.1243-1244.71Bliss to argue that pregnant women are not discriminated againston the basis of sex because not all women are subject to the samediscrimination. It recognized that "a distinction based onpregnancy is not merely a distinction between those who are andare not pregnant, but also between the gender that has thecapacity for pregnancy and the gender which does not. „ 144By acknowledging that discrimination on the basis ofpregnancy is the result of the distinctions between gender, thatis, the socially constructed differences between men and women,the court created the space for further challenges to a system ofinequality that appears natural in a society defined by men. Thecourt was willing to recognize that inequality is not theinevitable outcome of the differences attributable to nature, butrather the result of the way differences are used to justifyalready existing inequality. 145Equality and Reproductive Technologies Presently women are allowed access to abortion, AI, and IVFbased on their ability to convince those in charge that they havea right to bear a child (or not) because they conform to theidealized vision of a mother. Lesbians, single women, poor women,and the disabled are not able to take advantage of thetechnologies because they do not conform to societal expectationsconcerning motherhood. For an egalitarian society that did notestablish hierarchies based on difference, access to reproductive144 Quoted from factum of appellants, p.1244.145 MacKinnon, Toward of Feminist Theory of the State, p.218.72technologies would be certain because the societal infrastructurewould ensure women had the psychological, political and economicpower to choose. The ideology of motherhood would cease to be thefoundation of decisions and women would not be judged or subjectto sanctions according to how well they conformed to male norms.It remains to draw a link between the discrimination womensuffer with respect to reproductive technologies and sexdiscrimination. In Brooks the Supreme Court recognized thatdiscrimination on the basis of pregnancy is discrimination on thebasis of sex. That is, because part of a woman's genderedidentity includes her potential to become pregnant,discrimination against a pregnant woman is discrimination againstwomen as a group and thus on the basis of sex.Women are marginalized to the private sphere and labelled as'mothers' because of their potential to become pregnant as well.A male construction of pregnancy and motherhood is the cause ofthe discrimination women encounter with respect to reproductivetechnologies. This discrimination is possible because of thesystem of inequality men have established based on a woman'spotential to become pregnant. Thus the root of women's lack ofcontrol over reproductive technologies can be found in herposition of inequality in society, that is, as a direct result ofthe way her identity has been constructed based on sex. As partof the political challenge to this subordination, women may beable to use s.15 of the Charter to assert their right to anequality defined in feminist jurisprudence.73However, women cannot take men to court as a group tochallenge the system of hierarchies that forms the framework ofCanadian society. Instead, the Charter and the legal system mayprovide a forum for the articulation of alternative constructionsof equality and inequality that will help empower women in theireffort to change society. Therefore, there may be a recognitionthat those presently in control of the development and managementof reproductive technologies are making decisions based onassumptions of motherhood, privacy, and equality, and that theydo so because they have the power to label women as mothers andconfine them to the private sphere.SummaryThe decision in Brooks may provide the basis for continuedsuccess in the courts. Further, the symbolic power andlegitimation process of the court system may provide thepolitical impetus to end the hierarchical structures that haveensured women's oppression in the past. By interpreting equalityas a recognition and appreciation of difference, the courts maylegitimate a vision of equality that does not devalue womenbecause they are different from men.In order for women to have safe and secure access to thereproductive technologies it will be necessary to assert awoman's equality throughout society. Using the court system mayprovide the legitimization essential for any real change in theCanadian community. If women are no longer posed in homogeneousopposition to men, no longer expected to conform to specific74behaviour as mothers, no longer expected to become mothers, thedecisions made in the development and management of reproductivetechnologies will no longer reflect the assumptions ofmotherhood, privacy and equality that have justified theconfinement and oppression of women in the past.75CONCLUSIONWoman has been socially constructed by men as an object - anobject that is partially defined by her reproductive function. Wecan only understand reproductive technologies within this contextof women's situation - that is, as the "Other" that men havecreated. A woman's position in society is that of man'scomplement - the caring wife and mother. A woman's genderedidentity includes the possibility of pregnancy and motherhood.Difference from men based on this biological potential is used tojustify inequality. A woman's difference manifested as pregnancyis essential to the subordination of women in society.The Charter may be a means to assert women's rights tocontrol of the technologies. However, if the articulation ofCharter rights is constrained by patriarchal assumptions ofpublic/private, motherhood and formal equality, there may not bean opportunity to end the unequal power relationship between menand women. The Charter may appear as a powerful way in whichwomen can challenge male hegemony, but it must also be used withcaution.Judicial interpretation of the Charter may be based onassumptions of a public/private dichotomy which could justifygovernment exemption from providing the funding for services,securing access, or regulating the private companies to followstrict safety standards, and it may preclude the Charter itselffrom being applied at all. Women, defined as mothers and in76opposition to men, will be unable to initiate a legal challengeto their inequality.To end women's subordination to men it will be necessary todeconstruct the patriarchal foundations of the social, legal andpolitical systems that identify man as the norm and woman asdifference. A substantive interpretation of s.15 in Canadiancourts may be a valuable legimization process in the effort toend women's political subordination throughout society.A woman's potential to reproduce is a fundamental aspect ofher identity whether she decides, and is able, to embrace orreject it. But this biological circumstance has been sociallyconstructed to mean that a woman is her capacity to reproduce.This reduction of potential to actuality, of diversity tomonolith, is what feminism is challenging. A feministjurisprudence will have to challenge the tendency of law to basedecisions on the assumptions which have resulted in women'smarginalization into a sphere of powerlessness: the ideologies ofmotherhood, privacy and notions of formal equality.Reproductive technologies have been developed in a contextthat assumes the definition of women as pregnant/mothers. Ifwomen have the power to challenge this monolithic constructperhaps the technologies will be developed with the concerns ofthe women at their centre. Lesbians, single women, and thedisabled, those who do not presently conform to definitions ofwhat a 'mother' should be, would have a right to the technologiesbased on a vision of equality that recognizes how important it is77to be self directed in the fulfilment of one's identity.A woman's use of reproductive technologies to control herfertility would therefore make the technologies much more than amedical procedure. 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