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Reproductive technologies and the Charter Morton, Chantal 1991

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Reproductive Technologies and the Charter by Chantal Morton B.A., The University of Victoria, 1988 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTERS IN POLITICAL SCIENCE in THE FACULTY OF GRADUATE STUDIES POLITICAL SCIENCE  We accept this thesis as conforming to the required standard  THE UNIVERSITY OF BRITISH COLUMBIA December 1991 © Chantal Morton, 1991  In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission.  (Si  Department of  PolitcaSen  The University of British Columbia Vancouver, Canada  Date  DE-6 (2/88)  ii  ABSTRACT Reproductive technologies such as alternative insemination and in-vitro fertilization, and their implementation through surrogacy, have been developed and managed in Canada without enough concern for the interests and needs of women. There is a lack of regulation establishing safety standards and protection for the needs of the women participating. There is also discrimination in determining who shall be allowed access to the procedures. The theoretical basis for the development of the technologies and their discriminatory implementation can be found in the ideologies of motherhood, privacy and notions of formal equality. Woman has been socially constructed by men as an object - an object that is partially defined by her reproductive function. We can only understand reproductive technologies within this context of women's situation - that is, as the 'Other' that men have created. A woman's gendered identity includes the possibility of pregnancy and motherhood. Difference from men based on this biological 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 the technologies. However, the articulation of Charter rights may be constrained by patriarchal assumptions of who should be a mother, notions of public/private that limit Charter applicability and do not recognize state involvement in maintaining a system of inequality, and notions of formal equality that assume that women and men are equal if they are treated as 'the same'. These assumptions remain as potential obstacles to a mobilization of the Charter. In order to challenge the theoretical basis of the development of reproductive technologies it will be necessary to the subordination of women. This will entail the deconstruction of the patriarchal foundations of the social, legal and political systems that identify men as the norm and women as difference. By recognizing and affirming difference in a vision of equality that does not prioritize 'sameness', it will be possible to redefine what motherhood means by including the many experiences of different women. Thus, the technologies will be developed with the interests of women as the primary concern and they will no longer be made available solely to those who conform to the ideologies of motherhood that prioritize heterosexual, middle class women.  111  TABLE OF CONTENTS  flbsiract Acknowlecleicenuir 1. Introduction  p.1  2. The Theoretical Justification for Women's Oppression p.6 p.6 a. The Public/Private p.14 b. The Ideology of Motherhood p.18 c. Equality p.24 d. Summary 3. Reproductive Technologies and the Issues a. In Vitro Fertilization b. Alternative Insemination c. Surrogacy d. Summary  p.25 p.26 p.31 p.35 p.40  4. Abortion and the Charter a. Morgentaler b. Consequences of the Decision c. Privacy d. Ideologies of Motherhood e. Equality f. Summary  p.43 p.45 p.49 p.49 p.51 p.55 p.61  5. A Feminist Reconstruction a. A Feminist Vision b. Brooks c. Equality and Reproductive Technologies d. Summary  p.63 p.64 p.66 p.68 p.70  6. Conclusion  p.75  iv  I would like to acknowlegde the assistance of the following people: Avigail Eisenberg, Isabel Grant, William Dick, Jill Wherrett and Michael Moir.  1  First, a feminist perspective stresses women's own experience; that is, how events, institutions, social groups, and individuals are perceived and interpreted by women. It highlights those elements of women's personal and social experience which are common and shared, as well as those which are distinct and diverse. Second, a feminist perspective is founded upon and fully informed by an awareness of the history and present circumstances of physical, psychological, social, and legal discrimination and oppression which have ordinarily been women's lot in patriarchy. Third, a feminist perspective is guided by a determination to avoid perpetuating or acquiescing in that oppression, and to contribute, wherever possible, to the further understanding and dissolution of sexual inequality. Feminism, both in theory and practice, seeks to challenge the foundations of a patriarchal society that establishes the male as a reference point and the female as difference. This difference is considered justification for the subordination of women. Western legal and political systems have been criticized by feminists because they are based on values that render women powerless. Only by challenging the assumptions of society can we construct a community that does not include the injustices of patriarchy. The world, as a western construct, is split into dichotomies defined as self/other, culture/nature, same/different, public/private and male/female amongst others. Men are associated with the powerful concepts of culture, same, and public, while women are connected to the powerless concepts of nature,  Christine Overall, "Reproductive Ethics: Feminist and Non-Feminist Approaches," Canadian Journal of Women and Law, (referred to as CJWL) 1 (1986): 272.  2 difference and privacy. Men have the power to define themselves and define 'others'. Women are prevented from exercising similar power because the dichotomization of the world, the analytical division of patriarchal society into oppositional dualities, has given men the power to define and dismiss women as the powerless 'other'. Part of the way in which men have defined women is through their reproductive potential. A woman's body in patriarchal society is not solely a biological fact - it is also a cultural 2 construct. The potential to become pregnant appears as the  immutable difference between men and women in the construction of gendered identities and has been represented as the unchanging basis of woman's difference from man.  3  This has been used  politically to explain and reinforce women's subordination to men and ultimately their powerlessness. Specifically, a woman has been constructed by patriarchal society as potentially pregnant and as a mother. The diversity of women is silenced to the extent that a woman's identity is reduced to her capacity to become pregnant.  4  The development and management of reproductive technologies in Canada has been influenced by this equation of womanhood with  2  Ruth Hubbard, The Politics of Women's Biology, (New Brunswick: Rutgers University Press, 1989), p.120. 3  Susan Moller Okin, Gender, The Public and the Private, Toronto: Faculty of Law, University of Toronto, 1989, pp.16-18. 4  Zillah Eisenstein, The Female Body and the Law,(Berkeley: University of California Press, 1989).  3 motherhood. Abortion, alternative insemination and in vitro fertilization are managed in a manner that reinforces the subordination of women. A woman's body has thus become the site of a power struggle between patriarchal interests and women's needs. The potential use of the technologies as a tool for the empowerment of all women is ignored when the focus of attention is upon infertile, heterosexual and married women as the beneficiaries. Lesbians, women of colour, and poor, single or disabled women are denied access by most doctors and clinics because they do not conform to notions of who is best suited to become a mother. If the definition of woman as mother is the result of man's power to define, then in order to challenge this homogeneous construction it is necessary to challenge the unequal power structure. Some Canadian feminists hope that s.15 of the Canadian Charter of Rights and Freedoms will be interpreted in the courts  to provide the basis of that challenge. If conceptions of equality are reconstructed to provide the space for the affirmation and valuation of differences, the dominant position of men would conceivably end. The Supreme Court of Canada has limited Charter applicability solely to state action with its decision in Dolphin Delivery. 5  5  State action can be legislation by either federal or  For a discussion concerning the limitation of Charter applicability to the private sphere see: Donald Buckingham, "The Canadian Charter of Rights and Freedoms and Private Actions: Applying the Purposive Approach," Saskatchewan Law  4 provincial governments, but it also may include government agencies that are poised between the public and private realms. The Canadian system of socialized medicine creates difficulties in deciding whether the Charter is applicable to the development of reproductive technologies. The state provides much of the funding for the medical services in Canada but it has yet to be determined if the hospitals and clinics in which the procedures are performed are subject to the Charter. The Supreme Court has indicated that the level of state involvement in funding and administration will determine whether or not a particular clinic or hospital is considered 'public'. Exactly what this means for the development of reproductive technologies has not yet been determined. State action would ensure the applicability of the Charter. However, there has not been any legislation regarding the development or proliferation of reproductive technologies in Canada. A Royal Commission on Biotechnology was appointed in 1990 to examine the issues surrounding the technologies. It is expected that the recommendations of the Commission will be ready Review 51 (); Donald P. Crann, "How Far Does the Charter Reach? A Theoretical Review of the S.32(1) Debate and Canada's Emerging 'Governmental Action' Doctrine," Toronto Faculty of Law Review 47 (1988); Alan Domes, "The Courts, The Common Law and the Constitutional Imperative: Beyond Dolphin Delivery," Alberta Law Review 27 (1989); Dale Gibson, "The Charter of Rights and the Private Sector:, The Charter of Rights 12 (1982) and "Distinguishing the Governors from the Governed: The Meaning of the 'Government' under Section 32(1)", Manitoba Law Journal 13 (); Robert Howse, "Dolphin Delivery: The Supreme Court and the Public/Private Distinction in Canadian Constitutional Law," University of Toronto Law Review 46 (1988); Hester Lessard, "The Idea of the 'Private': A Discussion of State Action Doctrine and Separate Sphere Ideology," Charterwatch: Reflections on 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 Private Persons?," Canadian Bar Review 63 (1985).  5 in April, 1992, and will provide the foundation for future legislation. An analysis of how the Charter could be interpreted to empower women with respect to the development and implementation of reproductive technologies may provide guidelines for future legislation or be the foundation of Charter challenges to legislation that does not accommodate women's needs and interests. A substantive interpretation of s.15  6  could provide a  means to challenge the power men have in Canada to define women in opposition to themselves. Part I of this inquiry will examine the theoretical basis for the development and implementation of reproductive technologies in a way that has reinforced women's subordination. Part II will discuss the impact of these theoretical concepts on the development and management of alternative insemination, invitro fertilization and surrogacy. Part III will explore an attempt to use the Charter to empower women with respect to their reproductive potential and part IV will examine the potential that a broad interpretation of equality may have for women. A substantive interpretation of s.15 by the Supreme Court of Canada may provide the legal and political legitimation for a notion of  6  S.15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.  6 equality that values diversity and thus works to end the system of hierarchies that have subordinated women based on their difference from men.  7 THE THEORETICAL JUSTIFICATION FOR WOMEN'S OPPRESSION  Reproductive technologies have been developed and implemented in Canadian society within a framework that functions to oppress women. The theoretical foundation for women's subordination includes the creation of a boundary between public and private life that justifies women's marginalization to the private and powerless sphere, an ideology of motherhood that defines a woman by her reproductive potential, and notions of formal equality that assume women's inequality ends when they are treated like men. The Public/Private  The public/private split is constituted in several ways. The primary concern for feminists is the theoretical boundary established between civil society and the state. This dichotomy constitutes the analytical distinction between non-state and state action. Thus the public realm is the area defined by state action and the private realm is the area left unregulated by state action. In mainstream modern theory the public domain is the realm of politics defined as a process set apart from everyday life. The private domain is the sphere in which all other activity takes place. It is signified as the space for the family and other emotional relationships and for freedom from the constraints imposed by the state.' While the public realm is 7  Carole Pateman, "Feminist Critiques of the Public/Private Dichotomy," Public and Private in Social Life, ed. S.I.Benn and G.F. Gaus, (London: Groom Helm, 1983), pp.282-287.  8 identified with men and the accumulation of power, the private realm is identified with women and the presence of harmony and altruism. However, the family is "not really an altruistic institution of sharing and mutual self sacrifice."  8  Women, with  their assigned responsibility for the care of the family, are often the ones making the sacrifices. The original justification for the marginalization of women to the private sphere was their supposed lack of analytical powers, and their link to nature through their reproductive role. 9 Because public institutions uniquely fit the life patterns of men, any woman who might have dared to challenge her banishment to the private sphere was effectively excluded. Today the arguments which confine women to the family depend upon biological determinist claims that a woman's duty to bear and raise children precludes her from participation in the public realm. 19 Linking men to the public and women to the private, through their supposedly natural abilities and biological potential, legitimates the marginalization of women to the private sphere and ignores the oppression of women within the family.  11  8  Frances Olsen, "The Family and the Market: A Study of Ideology and Legal Reform," Harvard Law Review, 103 (1983): 1523. 9  See Jean Bethke Elshtain, Public Man/Private Woman: Women in Social and Political 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.  9 Feminist concerns with the public/private split are based on an understanding that the assumptions upon which the analytical distinction is based are inconsistent with the reality experienced by women. The theoretical split between public and private which posits the private sphere as an area free of state intervention, as a sphere where conventionally defined politics is absent, is not borne out by women's experience. The power which is wielded in the public realm is further exercised in private. The family is not a sphere free from coercion and the "personal is political." Within the family, women are often subordinated to their male partner.  12  For example, historically, married women were  been left unable to retain their property after marriage, legally expected to submit to forced intercourse until 1983, and unable to seek legal protection or remedy for physical abuse. Although these legal inequalities have changed to some extent, the circumstances in which women live do not seem to have improved. Women are still beaten, raped and killed within their families in disturbingly high proportions and the police and the legal system have been reluctant to interfere. The development of reproductive technologies has largely taken place in the private sphere where women often do not have the political, economic or legal power to ensure their needs are accommodated. This means that the technologies themselves are  12  .  Dianne Polan, "Toward a Theory of Law and Patriarchy", The Politics of Law, ed. David Kairys, (New York: Pantheon Books, 1982), p.298.  10 offered in a way that fits the framework of oppression into which women have been slotted. The companies developing the technologies, 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 societal expectations regarding who makes a good mother: that is heterosexual, married, and middle class women.  13  The potential for the regulation of women in the private sphere through the patriarchal control of reproductive technologies cannot be challenged or ended by using the Charter because it is only applicable to the public realm. Mainstream Canadian jurisprudence assumes that there is a boundary between state and private action. The Charter itself has been interpreted by the courts to apply only to the public realm in the case Dolphin Delivery.  14  The decision in Dolphin included the  definition of what is to be considered state action, and how the 13  Susan McDaniel, "A New Stork Rising: Women's Roles and Reproductive Changes", Transactions of the Royal Society of Canada 111 (1988), p.115. 14  Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery, (1986), [1986] 2 S.C.R. 573, [1987] 1 W.W.R. 577 (S.C.C.) [Cited to  S.C.R.] The case concerned the union of ontario workers involved in a strike against Purolator. The Ontario union intended to picket Dolphin Delivery in British Columbia because it had received a substantial amount of Purolator's business during the strike. Dolphin applied for an injunction which was granted. On appeal the union claimed that the common law supporting the injunction violated 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 and association did not apply to picketing so that the injunction was upheld. A further appeal to the Supreme Court of Canada resulted in a decision which drew a line between the public sphere where the Charter was to be applicable and the private sphere which would remain exempt from Charter scrutiny. In effect, the injunction was upheld because it was determined that the Charter did not apply to the court's issuance of an injunction because it was held to be in the private realm. For further debate on the decision see the articles in note 6.  11 Charter is to apply only to those actions which fall within this strict definition. This decision remains a guideline for further Charter adjudication and may limit future attempts to assert women's rights.'  5  If the private realm is not in reality the zone of freedom and caring that is theorized in legal and political discourse, restricting the use of the Charter only to regulate and curtail state control is a limited enterprise. The irony of the public/private split is that the power exercised in the private realm is reinforced and reflected by state action and inaction, while the subordination of women cannot be challenged with the Charter .16 The claim that the state is actually implicated in the maintenance of the private realm through action and inaction is not easily accepted by those firmly committed to the modern construction of the public/private split. However, the definition of state and non-state action as the basis for the boundary between public and private is countered by recognition of the role the state plays in refusing to act to change the structures of the private realm." This refusal legitimizes the status quo 15  See Judy Fudge, "The Public/Private Distinction: The Possibilities of and 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 the  Canadian 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/private split has been constructed in the context of jurisprudence see Henry J. Friendly, "The Public-Private Penumbra - Fourteen Years Later," Morton Howwitz, "The  12 and thus the framework of hierarchies that results in women's oppression in the private sphere.' 8 Further, it is incorrect to assume that the state does not act in the private realm. Frances Olsen discusses the incoherence of attempting to draw a distinction between state interference and non interference. For her, the legal backdrop against which families are formed and dissolved and the decisions that are made to reinforce the legal construct of a family directly implicate the state in the creation of the family. "Laws establish who is married to whom and who shall be considered the child of whom." 19 The state is explicitly implicated in the maintenance of the institutions that have functioned to oppress women, the institutions into which women have been confined in political theory. The family and marriage are legal constructs within which men have been free to coerce and manipulate their wives while the state, through legislation, has been involved in determining the legality of these relationships. Recognition of the political fiction that draws a boundary between state action and non action does not provide acceptable History of the Public/Private Distinction," Duncan Kennedy, "The Stages of the Decline of the Public/Private Distinction," Karl Klare "The Public/Private Distinction in Labor Law," and Robert Mnookin, "The Public/Private Dichotomy: Poltical Disagreement and Academic Repudiation," in the University of Pennsylvania 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 Politics of the Charter", Supreme Court Law Review 8 (1986). 19  Frances Olsen, "The Family and the Market: A Study of Ideology and Legal Reform," p.846.  13 grounds for using the Charter to empower women in the 'private realm'. Women may be forced to accept legislation as the only means to ensure that their interests and needs are protected there. 2° Legislation may establish safety standards that will ensure women's health. It may also secure access for all women by guaranteeing funding and preventing the institution of arbitrary criteria that favour access for heterosexual, middle-class, and married women. Positive legislation may end the discrimination and threat to health that is the result of the unregulated development of reproductive technologies. Unfortunately, legislation that recognizes a woman's right to make personal decisions regarding her bodily integrity while providing the political, economic and legal power to carry out these decisions is unlikely. Although future legislation may include safety standards, there is no guarantee that they will be adequate for women. The development of Deepo Provera, a form of birth control, is an example of how willing the medical community is to experiment with women's bodies without enough concern for the short or long term damage to health.  21  Further, it is  20  For an examination of how state action may be the only means to counter the oppression experienced by so many segments of our society in the private realm 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 Legal Reform," p.863. 21  See Nikki Colodny, "The Politics of Birth Control in a a Reproductive Rights Context," The Future of Human Reproduction, ed. Christine Overall, (Toronto: Womens' Press, 1989); Phillida Bunkle, "Calling the Shots? The International Politics of Deepo-Provera," Test-Tube Women: What Future for Motherhood, (London: Pandora Press, 1984). Although Deepo Provera is not widely available in the United States, it is readily available in New Zealand and Third World Countries. Studies have not determined yet whether or not the contraception  14 possible that legislation will leave access to the technologies up to the doctors and clinics that are offering the services. It may be that the same women who have suffered under state inaction will do so even after there is legislation. The Charter then may be used to challenge the oppressive sections of future legislation but a successful challenge will need to focus on identifying the hierarchical structures that frame the private realm. It must challenge definitions of freedom that rest at lack of state interference and reconstruct a vision of equality that empowers women to redefine themselves and their needs from their perspective. A Charter challenge will encounter the assumptions regarding public and private that are internalized by Canadian judges. Judges may believe that once again the state has no responsibility to 'interfere' in the family realm and thus exempt governments from providing funding for services or ensuring access. A system of socialized medicine will not guarantee access or funding if this is not deemed an important aspect of a woman's identity. The split between public and private is not the only hurdle feminists must overcome in order to challenge legislation that is safe. However, based on information from the women using Deepo Provera there is reason for concern. It may cause cancer, uterine disease, bleeding, infertility, depression and permanent weight gain. Although there is concern that the contraception may cause short and long term harm to women it has been featured in recent American news programmes as an effective form of birth control without potential for serious harm. Because the women presently using Deepo Provera are largely women of colour there is some suspicion that the lack of worry is based on racist unconcern. American proponents of the drug also suggest it would be an effective way to manage the fertility of women of colour and poor women in the United States.  15 does not show an equal concern for women's perspective. Formal reluctance to interfere in the family may perpetuate the subordinate status of women and reinforce her gendered construction as a potentially pregnant woman and mother. The ideology of motherhood and notions of formal equality internalized by the judges may prevent a creative interpretation of Charter rights that would empower women with respect to the development and implementation of reproductive technologies. The ideology of motherhood  The ideology of motherhood is a strong force limiting the claims articulated by women in the legal system. It is based on the construction of difference between men and women which poses women in opposition to men. The ideology of motherhood has had different constructions throughout history.  22  Barbara Katz  Rothman found a change from motherhood as status, as a position women had within the family that entailed a certain amount of power and prestige, to a labour/activity that involves a woman's responsibility to bear children.  23  The ideology of motherhood  that focuses on the woman as a productive force identifies the child as the product of her labour." It commodifies the process and product of reproduction.  22  25  The commodification of  Barbara Katz Rothman, Recreating Motherhood: Ideology and Technology in a Patriarchal Society, (New York: W.W. Norton and Co., 1989). 23  Ibid., p.23.  24  Ibid., p.24,  25  Ibid., p.53.  16 reproduction leads to an evaluation of womanhood that is inextricably linked to motherhood. That is, women will be valued as women based on the children they bear and raise. The patriarchal construct of women as potential mothers is based on assumptions regarding the biological potential of women to have children. It links all women to the definition of mother rather than recognizing that women may or may not become mothers, and will do so at different times in their lives.  26  Because a  woman is solely responsible for gestating a fetus, she is expected to accept responsibility for all other aspects of child care. She is expected to nurture newborns because of her ability to breast feed, and she has often been politically and economically confined to the family to accept primary responsibility for rearing children.  27  Expectations regarding the role of mothers in the bearing and raising of children have restricted women to the family. The patriarchal family is specifically defined by the presence of mother, father, and offspring .  28  Within this unit women are  expected to provide the nurturing environment that will shelter other members from the harsh, competitive aspects of public  26  Lucinda M. Finley, "Transending Equality Theory: A Way Out of The Maternity and the Workplace Debate," Columbia Law Review, 64 (1986): 1131. 27  28  Eisenstein, The Radical Future of Liberal Feminism, p.15.  Carol Pateman, The Sexual Contract, (Cambridge: Polity), 1988; Susan Moller Okin, Gender, The Public, and the Private; Susan B. Boyd, "Child Custody, Ideologies, and Employment," CJWL 3 (1989): 120.  17 life. 29 Because in a patriarchal society men have the power to define and confine women, they have defined her as mother and confined her to the family. That women have been constructed as mothers and held responsible for maintaining an idealized vision of the family may appear natural amidst the assumptions regarding a woman's biological attributes. But it is a political act. Challenging the approach of those theorists who still seem silently to assume that female childrearing and domesticity are 'natural' and therefore outside of the scope of political inquiry, feminist scholars have argued that the domestic division of labour, and especially the prevalence of female child rearing, are socially constructed, and therefore matters of political concern. The role of the court system in reaffirming a woman's role as mother within the family unit is founded in ideologies of motherhood. The ideology of motherhood internalized by judges is illustrated in Susan Boyd's analysis of Canadian child custody cases. nBoyd examined the cases in which men challenged custody decisions after the dissolution of a marriage. 32In many instances she found that judicial decisions depended upon preconceptions concerning maternal behaviour, the construction of the family, and notions of equality. 29  Frances Olsen, "The Family and the Market: A Study of Ideology and Legal Reform". 30  31  (1989). 32  Susan Muller Okin, "Gender: The Public and the Private," p.16, Susan B. Boyd, "Child Custody, Ideologies, and Employment," CJWL 3  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.).  18 The assumption that the mother necessarily is the best parent has ended because of a focus on the ability of either parent to assume that responsibility. The notion that men are equally capable of becoming good parents has led to increased discretion on the part of judges in the awarding of custody "to the parent or parents who can best serve the welfare of the child." 33 This notion of equal capability to parent has combined with expectations regarding the responsibilities of mothers and resulted in an award of custody to the father when the mother does not conform to the expectations regarding maternal behaviour. Boyd found that by making decisions regarding what they perceived to be "in the best interests of the child", judges were more likely to award custody to the parent that conformed to societal norms. 34 Therefore custody was given to fathers who were able to ensure the presence of a female care giver in the home and were financially stable, 36 and to those women who remarried or were willing to curtail their extra-familial  33 34  Boyd, "Child Custody, Ideologies, and Employment," p.116. 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?: Feminist Perspectives on Justice for Women in Canada," The Journal of Human Justice 1 (Autumn 1989): 81.  19 activities in order to remain in the home. 37In most of the cases examined single women with full time work were denied custody because their absence from the home appeared to preclude the environment that judges deemed to be in the best interests of the child.  38  "In many cases, then, the 'successful' parent may  be the person who offers a family structure which most closely resembles the traditional nuclear family, preferably with stayat-home female care for the children."" The judges who awarded custody to fathers did so because of the ability of the fathers to provide an environment that conformed to patriarchal definitions of family. These custody decisions assumed that women must remain at home full time in order to be appropriately maternal, although it was acceptable for the father to be absent as long as he had appointed a woman to take care of the children on a full time basis. The custody decisions that link the best interests of the child to the patriarchal definition of the family with full time female care have reinforced the framework that limits the opportunities of women. Further, they are clear indications of judicial assumptions regarding the criteria for legally 37  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), 49 R.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.  20 constructed motherhood. They highlight the obstacles women may encounter in their efforts to use the court system to gain control over the development and diffusion of reproductive technologies. Those women who conform to the ideology of motherhood will be expected to bear and raise children as a part of their identity while those women who do not conform will be limited in their access to the technologies that assist conceptions. Thus, the ideology of motherhood will affect who is able to use the technologies and how that use will be constructed. Equality  Definitions of equality have been a crucial debating point since the Charter was introduced in 1982 and s.15 came into effect in 1985. Creative definitions of equality have not been universally accepted because entrenched assumptions of formal equality are still considered acceptable." However, feminists are gradually convincing the judiciary to rethink assumptions about equality and inequality. Formal equality means being treated the same as those who have 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  A  male standard as the foundation of equality denies the values and 40  Sheppard, "Equality, Ideology and Oppression: Women and the Canadian Charter of Rights and Freedoms," pp.205-206. 41  Finley, "Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate," p.1155.  21 perspectives of women and results in inequality. The structures of Canadian society actually reinforce and perpetuate a form of injustice that builds hierarchies based on difference and awards power to those who most closely conform to the norm. 42 The difficulty in using the legal system to destroy these hierarchies lies with judicial definitions of equality that largely focus on an egalitarian approach which would have all subjects treated the same way by the law.  43  This approach  serves 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, were the very factors underpinning the dispute in the first place. Formal equality establishes a norm primarily based on male expectations against which equality is measured and provides the foundation of the justification for treating women like men.  45  This does not counter the male standard or provide the impetus for a valuation of concerns specific to women. Notions of formal equality perpetuate the legal assumption that the standards against which the claims of women are measured are neutral and that the equitable distribution of justice depends upon treating and evaluating each individual the same 42  Faith, "Justice Where Art Thou? and Do We Care?: Feminist Perspectives on 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.  22 way. Differences, represented by women, are not perceived as a legitimate reason for reassessing the norms of a patriarchal society which accepts, indeed is founded upon, the subordination of women. What judges perceive as normal, abstract and neutral is based upon their personal experience. The norms and rules which are the basis of adjudication are male and middle class.  46  The  standards by which women are measured in court have little to do with female experience and are unlikely to represent women's needs or desires. Therefore, in order for feminists to use the law to help effectuate change, we must be able to talk about the connection between power and knowledge. This connection must be acknowledged in order to demystify the 'neutrality' of the law, to make the law comprehend that women's definitions have been excluded and marginalized, and to show that the language of neutrality itself is one of the devices for this silencing. The "fictive option of equal access to the protection of neutral laws is a device which removed the private experience of the oppressed as members of a discriminated class from legal relevance."  48  Formal equality cannot answer women's needs  because it does not seek to make adjustments for inequalities that 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 Gendered Nature of Legal Reasoning," Notre Dame Law Review 64 (1989): 897. 48  Hester Lessard, "The Idea of the 'Private': A Discussion of State Action Doctrine and Separate Sphere Ideology", Charterwatch: Reflections on Equality, p.119.  23 In 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 by developing reproductive technologies to free women from the necessity of having children.  5°  Contraception and abortion are  viewed as methods for women to avoid the stress of childbearing. The development of other techniques to conceive and gestate a fetus externally are hailed as a means of perpetuating the species without burdening women with the physical responsibility. The link Firestone draws between a woman's biological capacity to conceive and gestate a child and her subordination to men is a deterministic and reductionist analysis that offers no hope for women's emancipation without technology. Relying upon a biological explanation for women's subordination ignores the impact societal expectations and assumptions have on the way motherhood is defined. Biology is not the explanation for a society that subordinates women because of their ability to reproduce. It is the justification for inequality that has already been established. It is the patriarchal construction of motherhood that results in women's subordination - not their biology. 51 The root of women's inequality must be recognized in the  49  Shulamith Firestone, The Dialectic of Sex: The Case for Feminist Revolution, (New York: Morrow, 1970). 50 51  Ibid. Okin, Gender: The Public and the Private, p.18.  24 societal construction of a woman, including her pregnancy and responsibility for being the primary care giver to her children. To recognize this is to challenge the discourse on reproductive technologies that justifies their development because they may allow women to deny their biological difference from men. The realization that the subordination of women to men based on their ability to bear children is a patriarchal construct would undermine hierarchies based on a woman's conformance to male constructions of her identity. With s. 15 of the Charter calling for equality before and under the law and the equal protection and equal benefit of the law without discrimination, there is hope that a substantial interpretation of equality will take into account the systemic inequalities from which various segments of Canadian society suffer. 52 Analysis that includes sensitivity to the systemic and historical inequalities suffered by women may form the basis for a creative jurisprudence that takes into account their experiences and perspectives in Canadian society. Unfortunately, accommodating different perspectives and needs also poses hazards for women. Recognition of the special treatment needed to alleviate the distress caused by patriarchal expectations may also reinforce stereotypes about a woman's 52  See Andrews v. Law Society of British Columbia, [1989]1 S.C.R. 43, in which "the Supreme Court of Canada stated that the equality rights guaranteed by s. 15 of the Charter should not be read formalistically so as to protect only 'similarly situated' groups, but rather should be given a remedial interpretation so 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.  25 inability to participate in a male world.  53  Because a woman's  reproductive potential has been used to justify woman's subordination to men, it could also be used to reinforce the hierarchy of differences already in place. To avoid this dilemma it will be important to create a vision of equality that deconstructs the hierarchies that have oppressed women rather than creating alternative justifications for their existence. Summary The delineation of the public/private split in legal and political discourse at the boundary of state and non-state action is an arbitrary theoretical construction. It can be deconstructed by analysis that includes a recognition that the state is directly implicated in the maintenance of the private sphere. The marginalization of women into the private sphere has not brought them the freedom and equality enjoyed by men. Instead they lack the power to ensure that their needs and interests are fulfilled. The development of reproductive technologies and their control by patriarchal interests has reinforced women's oppression. It would seem that legislation may be the only opportunity to assert women's control over the development of reproductive technologies. However, it is unlikely that this legislation will answer the needs of women. It may become necessary to use the Charter to ensure women's equality with respect to their health  53  Marie Ashe, "Minds Opportunity: Birthing a Poststructuralist Feminist Jurisprudence," Syracuse Law Review 38 (1987): 1147; See also Martha Minow, "Foreword: Justice Engendered," Harvard Law Review 101 (1987) for a discussion of the dilemma of difference.  26 and access to the technologies. Using the legal system may not help the feminist movement if decisions are based upon internalized expectations regarding a woman's appropriate behaviour. However, a creative interpretation of equality based on s.15 of the Charter may provide women with the legal means to challenge their oppression and to use the courts to legitimize their political goals in society.  27 REPRODUCTIVE TECHNOLOGIES and the ISSUES  The ideologies of privacy and motherhood and notions of formal equality have had an impact on the development of technologies like in-vitro fertilization (IVF) and alternative insemination (AI), and the establishment of the surrogacy industry. The ways in which these technologies have been developed, implemented and distributed are the result of the complex interaction of different expectations regarding a woman's biological potential to fulfil her role and responsibilities as a mother in the family unit.  54  The technologies do not inevitably  mean the further loss of women's independence, but their development and control within patriarchal society may reinforce the ideologies of motherhood that have justified women's marginalization into the private/family realm and their subordination. Reproductive technologies contain within them both the potential to challenge the societal assumptions regarding a woman's status as mother and a very real threat for women. They can be seen as a means to free women from the determinacy of biology and enable them to chose how and under what circumstances they will have children. Yet, they can also be manipulated to ensure that some women are held responsible for bearing and raising children while other women are prevented from exercising 54  For a thorough discussion of the sexist and patriarchal assumptions guiding medicine and science see Linda Birke, Women, Feminism and Biology: The Feminist Challenge, (Brighton: Whitesheaf Books Ltd., 1986).  28 the same opportunity. It is the intention of the feminist movement to enable individual women to regain control over their reproductive potential as a fundamental element of a woman's identity. The 1985 Report on Human Artificial Reproduction and Related Matters, of the Ontario Law Reform Commission 55 dealt with the concerns regarding the development of reproductive technologies. The recommendations offered in the report will be included in the discussion of the technologies to illustrate the way in which future legislation may not view women's interests and needs as the primary concern in the management of the technologies. In Vitro Fertilization In vitro fertilization was developed during the 1970s. Women were encouraged to participate in the experimental programmes because the process was touted as an effective method of 'assisting' infertile women to become pregnant. This was before a child conceived by IVF was even born.  56  Women paid thousands of  dollars 57 to participate in programs that had yet to produce a 55  Hereafter referred to as the OLRC. It is interesting to note that the commission consisted of five men: a commission charged with examining issues fundamental 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 be making an effort to fully inform the women that were participating in their programme, Lesley Brown had the impression that hundreds of women had already given birth to children conceived by IVF before her baby was born. Gena Corea, The Mother Machine: Reproductive Technologies from Artificial Insemination to Artificial 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. Most people have a drug plan which pays 80-90 percent of their drug costs but  29 live birth." The birth of Louise Brown in England gave greater legitimacy to the various clinics but there are still major discrepancies in success claims. The fair estimate hovers at a ten percent chance of a successful birth" - and this often means that the woman has gone through the programme more than once. IVF technology has not been developed in a way that places women as the primary concern of the doctors during the treatments. Undergoing the procedure can be a harrowing and painful process. Women are given hormones to ovulate at a specific time and ensure the release of more than one egg.  60  Then they are put under a general anaesthetic in order to retrieve their ova. Finally, during the pregnancy they are often subjected to a battery of tests (amniocentesis, ultrasound), which pose their own risks for any pregnancy, to determine the  altogether they may end up paying approximately $1,500. Debra Pilon, "Conception without Sex," Healthsharing (Fall 1985): p.22. But in the U.S. health insurance does not make a difference and IVF becomes even more of a procedure for the wealthy. Estimates range from $4 000 to $12 000 per attempt and as three attempts are 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, Susan Himmelweit, and Gail Vines, Tomorrow's Child: Reproductive Technologies in the 90's, (Virago Press: London, 1990). 60  These hormones are given to women in IVF procedures to stimulate the release of their ova - preferably so that the ova are retrievable at a specific time 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 Father Born: A Lesbian Feminist Critique of the Ontario Law Reform Recommendations on Artificial Insemination," CJWL 1 (1986): 430.  30 status of the embryo/fetus. 61 Some women lose the embryo immediately because it does not implant in the wall of the uterus, while some manage to keep it but suffer later miscarriages, and very few experience the joy of a live birth. 62  The dangers posed by the process are numerous. They include: superovulation which can ultimately end in death; ectopic pregnancies which can end in death or removal of the reproductive organs; multiple pregnancies; similar symptoms to menopause including headaches and the loss of hair; and possible long term damage because of the high doses of hormones.  63  Women are not  always informed of the full extent of their risks." It is not denied that IVF presents a real possibility for overcoming infertility, but it is being developed and implemented without enough concern for a woman's needs and health. Evidence for this lack of concern may be found in the focus on circumventing infertility rather than concentrating on its causes and prevention. This lack of consideration is not countered by 61  The dangers posed by the use of seemingly benign procedures such as ultrasound and amniocentesis are indeterminate. There is increasing concern that these procedures are being used extensively without enough experimentation to ensure their safety. See George Annas, "Is a Genetic Screening Test Ready when the 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 64  Ibid., pp.131-156.  Robyn Rowland, "Technology and Motherhood: Reproductive Choice Reconsidered," Signs (1987): 321.  31 legislation that would identify a woman's health as the primary focus of the procedure. Instead, IVF is presently a procedure that places a woman at risk in an effort to establish a pregnancy. An increasing number of IVF procedures are taking place because of male infertility. 65 Although a woman may be in good health and far more likely to achieve pregnancy with the relatively benign AI, the challenge AI poses for notions of family now makes it more likely that IVF is used. Thus, while IVF is a potentially liberating procedure for women who are otherwise unable to conceive, it can also be used to submit 'healthy' women to intrusive, painful procedures. The use of IVF to bolster and reinforce a patriarchal definition of family is evident when it is recognized that the services of most clinics are limited to heterosexual couples. Like AI, IVF clinics require psychological testing of participants which then label single women and lesbians unfit to take part on the grounds of "increased stress or lack of support, either emotional or financial". 66 IVF also raises concerns regarding a eugenic agenda. There  65  Judith Lorber, "Women's Consent to In Vitro Fertilization in Male Infertility," Hypatia 4 (Fall 1989). Although there are no definitive numbers supporting the view that women are going through IVF for their male partner's infertility this is still widely accepted. The difficulty in determining the extent of male infertility rests in the fact until recently men were not considered 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 doctor or clinic is any more likely to allow a lesbian or single woman to undergo the procedure than a doctor or clinic in another province.  32 is increasing interest in the potential for genetic manipulation of the conceptus in the petri dish before implantation.  67  Scientists hope to be able to alter the embryo in the petri dish to ensure that obvious genetic 'imperfections' are removed. There has also been considerable dialogue concerning the pre-conception selection of sex; that is, a desire to ensure that only XY chromosome carrying sperm fertilize the ova to result in the conception of a male child." The issues associated with IVF highlight the dangers of the unregulated development and implementation of technologies in the private sphere. IVF may be partially funded by the provincial governments and this will vary with specific medical plans. However, the companies inventing and establishing the technologies, as well as the doctors and clinics making decisions regarding access, are effectively functioning in the private domain. The discrimination with respect to accessability, the eugenic agenda, the construction of the patriarchal family, and the lack of enough concern for a woman's health, fit the 67  Shelley Minden, "Designer Genes: A View From the Factory," Test-Tube Women: What Future for Motherhood, ed. Rita Arditti, Renate Duelli Klein and Shelley Minden, (London: Pandora Press, 1984), pp.92-98. 68  See: Helen B. Holmes and Betty B. Hoskins, "Prenatal and Preconception Sex Choice Technologies: A Path to Femicide," in Man-Made Women: The Affect of Reproductive 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 Sex Preselection," in Man-Made Women; Roberta Steinbacher and Helen B. Holmes, "Sex Choice:Survival and Sisterhood," in Man-Made Women; and Dorothy C. Wertz and John C. Fletcher, "Fatal Knowledge? Prenatal Diagnosis and Sex Selection," Hastings Center Report (May/June 1989). There is a sperm washing technique used in North America 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..  33 framework of oppression in which women are positioned in the private sphere. Removing the issue of a woman's ability to reproduce to the private sphere theoretically gives her the power to decide for herself whether or not to participate in IVF programmes. Yet, the procedure has not been developed or offered in a way that extends choice to women. In order for women to take advantage of IVF in a manner that empowers them it will be important to challenge the public/private split that justifies the unregulated development of the technology in a manner that does not prioritize the needs of women. A lack of governmental intervention has created a realm of freedom that allows the development of technologies that may pose short and long term dangers to women's health, and it has done nothing to prevent discriminatory practices in assessing the suitability of particular women for the programmes. Alternative Insemination Alternative insemination, or artificial insemination, is a simple procedure that can safely be performed by the woman desiring pregnancy. 69 But the Canadian medical community has insisted on establishing it as a medical procedure that should be regulated and performed solely by members of the medical profession - specifically doctors." In recommendation 3 the  69  Renate Duelli Klein, "Doing It Ourselves: Self Insemination," Test-Tube Women; Nancy Adamson, "Self Insemination," Healthsharing (Fall 1985): 8. 70  Mary Anne Coffey, "Of Father Born: A Lesbian Feminist Critique of the Ontario Law Reform Commission Recommendations on Artificial Insemination," CJWL 1 (1986): 429.  34 OLRC Report also recommended that AI be legislated as the 'practice of medicine'. Legalizing AI only as a practice of medicine becomes a contentious issue when it results in limitations regarding who may have access to the procedure, for example lesbians and single women. The reasons for establishing AI as a medical procedure have varying degrees of legitimacy in a feminist analysis. There is a definite need to screen donors to ensure there are no risks of sexually transmitted diseases. However, there is no reason why a potential donor could not have the tests done before donation while avoiding the need to have the actual insemination done in the presence of a doctor. The explanation for establishing AI as a medical procedure appears to be an issue of regulation of access. 71With doctors performing AI in formal settings, there is control over who is to receive the benefit of the process. A psychological test of the recipient is intended to weed out those who do not conform to the idealized 'mother'. Single women, women with disabilities, 72 poor women and lesbians are often denied access because they do 71 72  Ibid., p.424.  There are many obstacles encountered by women with disabilities both mental and physical. Much of society, the medical community included, are unable to recognize these women as capable of having and raising children - they are defined as asexual and their needs are ignored. It is important to assert that these women are equally deserving of consideration in any discussion of Reproductive Technologies. While they are more likely to suffer from the more obvious horrors (sterilization) they are also some of those who may most directly benefit if control is gained by women - and exercised by all women. See Janice J. Tait, "Reproductive Technology and the Rights of Disabled Persons," CJWL 1 (1986); Susan Wendell, "Feminist Theory of Disability," Hypatia 4 (1989); and Anne Finger, "Claiming All of our Bodies: Reproductive Rights and Disabilities," Test-Tube Women.  35 not conform to the idealized vision of a 'mother' and their home life does not fit with patriarchal notions of the 'family'. A study conducted by Benjamin Freedman, P.J. Taylor, Thomas Wonnacott' and Katherine Hil1,  73  compared the criteria for  acceptance in adoption and AI. It found that 66% of the doctors surveyed would reject a candidate for AI that did not have a male partner. In recommendation 5 the OLRC Report limited eligibility to stable single women and stable women in stable marital or non marital unions. Although single women and lesbians are not obviously excluded there is ambiguity regarding the definition of 'stable'. Based on earlier discussions concerning the 'best interests of the child'  74  there is reason for concern regarding  the potential limitations on the eligibility of single and lesbian women. A woman deciding to have children by herself, without a man, is seen as attacking the traditional notion of the family. It questions the naturalness of the male/female unit which creates children. It questions the assumption that a woman has to be with a man to have children and be meaningful in this society. It questions the entire basis of the heterosexual family. In so doing, it is an important aspect of our struggle to control our bodies and our reproductive capacities. Further issues surrounding AI include the challenge to the way the family has been constructed legally. In this patriarchal  73  Benjamin Freedman, P.J. Taylor, Thomas Wonnacott and Katherine Hill, "Criteria for Parenting in Canada: A Comparative Survey of Adoption and Artificial Insemination Practices," Canadian Family Law Quarterly 3 (). 74 75  OLRC Report, p.154. Nancy Adamson, "Self Insemination," Healthsharing (Fall, 1985): 9.  36 society the legitimacy or legal status of a child is dependent upon an assumed genetic linkage with the mother's husband.  76  Yet  AI directly refutes this construction of legitimacy because there is no genetic link. Because they are disinclined to rethink legitimacy in a non-sexist manner, authors of articles dealing with the issue would circumvent this difficulty by having the husband of the woman who bears the child declared the legal father.” This is an alternative means of applying a patriarchal definition of legitimacy that assumes the necessity of a male parent. The feminist alternative would be to reconceptualize the issue and recognize the fact that "a child who is born cannot be illegitimate, unless viewed through the lens of male control over reproduction." Th There has not been a decision in Canadian courts regarding a donor's paternal right to children conceived by AI but there has been such a case decided in the American courts. 79A donor claimed legal custody and visitation rights to a child conceived with his donated sperm. He was successful in the courts because the woman who bore the child was single and the courts felt that  76  OLRC, p.133. Referring to the Children's Law Reform Act, R.S.O. 1980. The distinction between legitimacy and non legitimacy has been completely abandoned in Quebec, the Yukon and Ontario. 77  George J. Annas, "Redefining Parenthood and Protecting Embryos: Why We Need New Laws," Hastings Center Report (October, 1984): 51. 78  Susan A. McDaniel, "A New Stork Rising? Women's Roles and Reproductive Changes," Transactions of the Royal Society of Canada 111 (1988): 116. 79  1977).  C.M. v. C.C., 152, N.J. Super. 160 377 A.2d. 821 (Cumberland County Ct.  37 the importance of a father figure justified an award of visitation rights to the donor. In the future it may be possible that mere genetic relation will entitle an individual to custody or visitation rights of a child conceived by AI if this can be shown to reinforce assumptions about the patriarchal construction of the family. Although in Canada there have been no legal decisions awarding parental rights to a sperm donor, the OLRC Report specifically stated that the sperm donor should not have rights to a child artificially conceived. For all purposes, a woman bearing a child through artificial conception in order to rear should be conclusively deemed to be the child's legal mother, and the woman's husband or male partner who consents to the initiation of the artificial conception procedure or procedures ... should be conclusively deemed to be the child's legal father." The OLRC is clearly attempting to reinforce the patriarchal notions of family by bolstering the standing of the husband of the woman who conceives. The attempts at regulation and restriction of AI to reinforce patriarchal constructions of the family illustrate the way that the ideologies of motherhood and family have impacted on the development and implementation of reproductive technologies. Lesbians, poor, disabled and single women suffer discrimination because they are 'different' and because they refuse to conform to societal expectations of family and maternal behaviour. The ideology of motherhood limits the definition of what constitutes 80  OLRC Report, Recommendation 19(1).  38 appropriate maternal behaviour and thus limits who is able to gain access to the reproductive technologies. The management of AI highlights the way in which the technologies are being developed in order to reinforce notions of the family by allowing access to women in heterosexual, stable relationships and limiting access to those women who do not conform to notions concerning who should be a mother. Surrogacy Surrogate motherhood 1 involves a woman's 'offer' to bear a child that will subsequently be relinquished to someone else to raise. The woman who gestates the child for the nine months may conceive by AI, IVF, or be the recipient of an embryo transfer. 82 The industry has been developed primarily by the lawyers which initially set up organizations to make the connection between infertile couples and women who were willing to bear the child. 83 In the earliest days no payment was made to the gestational mother while the lawyers were collecting considerable sums. Today the standard is $10 000 paid to the woman, not as 81  Surrogate motherhood is a misnomer as the woman who bears a child is clearly the mother. "The woman is in no way a surrogate and is in fact the biological mother of the child. By naming her as a surrogate, commercial enterprises can more easily control and exploit the woman's pregnancy by denying her 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 because it is easily identified with the issues. 82  Embryo transfer (ET) is, quite simply, the process of taking embryos that have been cultured in the laboratory and replacing them into a female body for (possible) transplantation. Birke et al., Tomorrow's Child, p.138. 83  Lori Andrews, Between Strangers, (New York: Harper and Row, 1989).  39 financial remuneration for relinquishment of the baby, but to cover the costs of medical care, loss of employment and other inconveniences suffered during the nine months." The most overwhelming concern regarding surrogacy is the view of a woman as a producer of babies. The recommendations of the OLRC Report regarding surrogacy seem to highlight this aspect of surrogate motherhood. Throughout recommendations 34-66, there is a preoccupation with regulating the 'industry' in order to protect the contracting parent(s). There are no specific criteria for protecting the surrogate mother from exploitation. If surrogacy is to be the commercialization of reproduction, then it is likely to result in the oppression of women who cannot afford not to enter into exploitative contracts. The regulation of the arrangements solely to protect the adoptive parents will establish surrogacy contracts as the legal sanction to exploit women through their ability to bear children. However, some women feel, and are made to feel, that they are participating in a joyous process, a symbol of care and connection with others. 85 This is an experience which should not be dismissed or belittled in the interests of criticising the technologies. Unfortunately, many women are treated as rented 84  There is considerable concern that the amount is still substantial enough that poor women will undertake to enter into a contract as surrogate mother for the money. Marie Ashe, "Law Language of Maternity: Discourse Holding Nature in Contempt," New England Law Review 22 (1988); Lori Andrews Between Strangers; Susan Ince "Inside the Surrogate Industry," Rita Arditti, Renate Duelli Klein, Shelley Minden, ed. Test-Tube Women: What Future for Motherhood, (Pandora Press: London, 1984); Barbara Katz Rothman, Recreating Motherhood. 85  Andrews, Between Strangers.  40 wombs;" they feel cheated, used and valued solely for their offspring. 87 The language surrounding the contracts, the medical and legal construction of the woman, removes the birth mother from the experience of pregnancy and nurturing and turns her into a mere participant in a business matter, an at arm's length transacqon with a definite end point to her position as 'surrogate'. The value of a surrogate mother directly relates to the health of the baby she bears. In surrogacy contracts women are perceived as baby carriers, the means to an end, and can be ignored as caring, feeling, people with their own physical and emotional needs. This creates the danger that women who undertake to become surrogate mothers for childless persons will be forced to limit their lifestyles. The OLRC recognizes and accepts this possibility. Recommendation 55(1) states The parties to a surrogate motherhood agreement should be free to include in the agreement terms of their choosing; however, they should be required to consider, and to agree upon a resolution of , the following issues: (f) prenatal restrictions upon the surrogate mothers activities before and after conception, including dietary obligations and (g) conditions under which prenatal screening of the child may be justified or required, for example, by ultrasound, fetoscopy or amniocentesis. There is no recognition of the extreme interference this poses for women's bodily integrity nor is there any explanation of what 86  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 enable the infertile couple to rear a child of the husband's blood." p.422. 87 88  Susan Ince, "Inside the Surrogate Industry."  Lucinda M. Finley, "Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning," p.888.  41 a woman may or may not be forced to do if the prenatal screening indicates complications with fetus or pregnant woman. That women are expected to devote their life and health to the gestation of a baby conceived with donated sperm highlights the way women are treated as baby carriers and how this treatment is acceptable because the value of a woman is related to the children she bears. In Canada there has not been a Baby M 89 case for a court to make a statement concerning the legality of holding women to the contracts they sign in surrogacy arrangements.  9°  If a woman  changes her mind there is no legal precedent regarding who is to receive custody. The OLRC recommended that the courts step in to place a child with the contracting parent(s) if the surrogate  89  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 Whitehead signed a contract agreeing to gestate a child conceived by AI and, after its birth, surrender it for adoption by Mr. William Stern (the biological father) and his wife Mrs. Elizabeth Stern. Once the child was born she decided that she could not give up the child and refused to relinquish custody. A painful and emotional court battle ensued but ultimately the court decided that the surrogacy contract was enforceable and awarded custody to Mr. Stern. The decision has since been overturned by the N.J. Supreme Court which decided that surrogacy contracts are unenforceable. The courts reinstated Mary Beth's parental rights but reaffirmed the former custody arrangement because altering the situation would not be in the best interests of the child. This case illustrates the problems which arise when an attempt is made to apply the laws created in a formal setting to the emotions experienced with respect to a woman's ability to bear a child. See Marie Ashe, "Law-Language of Maternity: Discourse Holding Nature in Contempt," for a sensitive analysis of the way in which the Baby M. situation was constructed from a male point of view. 90  Noel Keane argues that the greatest threat to both contracting couple and surrogate is the potential of the surrogate to change her mind."Perspectives on 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 not to ignore the anguish suffered by a couple denied custody of the child they hoped for, but the unique bond forged between mother and fetus during pregnancy cannot be usurped. See Barbara Katz Rothman, "Motherhood:Beyond Patriarchy", and Recreating Motherhood: Ideology and Technology in Patriarchal Society, (New York: W.W. Norton, 1984).  42 mother should change her mind. Reccommendation 49 states A child born pursuant to an approved surrogate motherhood arrangement should be surrendered immediately upon birth to the social parents. Where a surrogate mother refuses to transfer the child, the court should order that the child be delivered to the social parents. In addition, where the court is satisfied that the surrogate mother intends to refuse to surrender the child upon birth, it should be empowered, prior to the birth of the child, for a review of the approval of the surrogate motherhood arrangement, and the judge should be empowered to rescind the agreement. The conditions of surrogacy contracts and the way the OLRC Report assumes that the interests of fetus and contracting parent(s) are primary illustrate the unequal status of the surrogate mother within the terms of the arrangement. Many advocates of surrogacy would like to believe that it is a woman's right to enter into such a contract. Formal equality assumes that if women are equally able to enter into the contracts then they must be equal participants in the arrangement. However, this construction of the argument misses the crucial issues that form the basis for most surrogacy contracts. The women who choose to become surrogate mothers are often much poorer than the contracting parent(s), lack the financial or legal resources to contest the terms of the contracts or to ensure that they are adequately protected before 91 signing, and they are increasingly expected to sign away their  autonomy in the interests of the health of the fetus. The context  91  Often the legal fees of the surrogate mother are only paid if she uses specific lawyers recommended by the lawyer arranging the contract. The recommended lawyers usually have a vested interest in the business and cannot be termed unbiased assistance.  43 of surrogacy arrangements would seem to preclude any chance of equality for the surrogate mother and appears to be a relationship based on the power dynamics of a patriarchal and capitalist society. Summary AI, IVF and surrogacy are techniques that have been developed and implemented in a way that functions to regulate and subordinate women. Access to the technologies is circumscribed by expectations regarding who should become a mother and how. The economic, political and legal inequalities that form the framework of Canadian society impose limits because access depends on financial stability and conformance to societal norms of heterosexuality and marriage. The medical, legal and political discourse on the development of the reproductive technologies does not include the diverse experiences and reactions of different women. Instead, women are posed in opposition to men as a homogeneous group seeking to affirm their identity through pregnancy. But women are not uniform in their reactions to the technologies.  92  Women want  to use techniques like AI, IVF and surrogacy because they or  92  The technologies impact differently on different women. Poor women, women of colour, the disabled and mentally incompetent are often denied access for eugenic reasons and sometimes they are coerced into submitting to sterilization. See Susan Stefan, "Whose Egg is it Anyway?: Reproductive Rights of Incarcerated, Institutionalized and Incompetent Women," Nova Law Review 13 (1989); Laurie Nsiah-Jefferson, "Reproductive Laws, Women of Color, and Low-Income Women," Women's Rights Law Reporter 11 (1989): 17-18.  44  their male partners are infertile;  93  they are unwilling to  participate in heterosexual intercourse; or they are concerned about passing on genetic defects. There must be a focus on women's concerns and circumstances to understand why there is a need for these technologies and how they might safely be developed." Each of the technologies discussed highlights an aspect of the constraints upon women with respect to their reproductive potential. The threat IVF can and does pose to a womn's health contradicts the assumption that freedom and security are found in the private realm. Because the procedure is being developed without government regulation to ensure safety standards, women are left vulnerable to experimentation upon their bodies that may result 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 fixing the problem rather than preventing it can profit those who develop the high-tech and expensive treatment but does not prioritize the general health and well-being of women. 94  It is largely white middle class women who have been the focus of the technologies to overcome infertility so far. Poor women and women of colour in the 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 poor women and women of colour, while women incarcerated in mental institutions are sterilized in order to avoid the complications expected regarding their potential for reproduction. A study on the Alberta Sexual Sterilization Act found that young, female persons of colour were disproportionately represented as those who were sterilized. For example, although Indian and Metis constituted 3.4% of the population of Alberta they represented 25.7% of the persons sterilized. Kourie and Somerville, "Comments on the Sterilization of Mental Incompetents in Canadian Civil 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 and eugenic basis for the development of the technologies with respect to these segments of society. See Gena Corea, "The Reproductive Brothel," Man-Made Woman; Andrea Dworkin, Right-Wing Women, (New York: Pedigree Books, 1983); Laurie NsiahJefferson, "Reproductive Laws, Women of Color, and Low-Income Women."  45 The issues related to AI are examples of the primacy of a woman's identity as mother within the patriarchal family unit. The frequent limitation of access to women in stable, heterosexual relationships indicates a preoccupation with implementing AI as a means of reinforcing patriarhcal constructions of the family. Because lesbians, disabled, poor and single women do not conform to society's definition of 'mother', they are limited in their opportunities to conceive a child by alternative methods to heterosexual intercourse. Finally, surrogacy is an illustration of the way notions of formal equality may be harmful to women because women are rarely equal participants in a surrogacy contract. Attempts to use the Charter in order to empower women and wrest control of the development of reproductive technologies may encounter stumbling blocks. The abortion issue is a paradigmatic example of how legislation may restrict a woman's ability to be a self-determining agent, while it also illustrates the limits of using the legal system.  46 ABORTION AND THE CHARTER  Whether the Charter can be used to empower women with regard to the development and implementation of reproductive technologies is a question that only experience can answer. However, in the case of Morgentaler v. The Queen" the attempt to use the Charter in order to ensure women control over their right to an abortion illustrated the dangers in using a tool that is based upon analytical concepts antithetical to feminism. An examination of the context of the abortion debate and the way in which the Morgentaler decision was argued will highlight the forces with which feminism must engage. Abortion is the only technology to have been the subject of substantial legislation in Canada. The prohibition of abortion was first criminally codified in 1869 and meant life imprisonment for the person procuring the miscarriage. In 1892, the Criminal Code was enacted containing various provisions concerning birth related offenses." S.271(1) made it an indictable offense subject to life imprisonment to cause the death of a child not yet a human being in such a manner that it would have been murder if the child had been born. S.272(2) made it a crime punishable  95  96  R v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385.  The historical information for this section comes from Shelley Gavigan, "'On Bringing on the Menses': The Criminal Liability of Women and the Therapeutic Exception 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 and revised 1989); and Sharon Walls, Abortion Law and Improved Abortion Services, (Ottawa: National Association of Women and the Law, 1982).  47  with life imprisonment to attempt to procure a woman's miscarriage, whether or not she was pregnant. In 1952, the law was amended to exclude the term "unlawful". This raised confusion as to whether there could be a 'lawful' abortion. The debate intensified in the 1960s with the births of thalidomide babies,  97  and numerous deaths from illegal  abortions. In 1966 the Canadian Bar Association, the Canadian Medical Association and the United Church of Canada passed resolutions that the law be amended to permit abortions when a woman's health was at risk. In 1967, from October 3 to March of 1968, the Standing Committee on Health and Welfare held hearings on the issue of health-related abortions. An interim report led to the proposal of Bill C-195 which was added on to a lengthy omnibus bill introduced by the Justice Minister Pierre Trudeau. Due to an intervening election, the bill died on the order paper but it was reintroduced by the new Justice Minister John Turner as Bill C150. The new law, passed on August 26, 1969, stated that an abortion was prohibited unless: 1) the health (undefined) of the woman was at risk and that this was confirmed by a doctor; 2) that the request was approved by an abortion committee of at least three doctors not including the original consultant, and; 3) that the procedure took place in an approved or accredited  97  Hebert, Abortion: Legal Aspects, p.5.  48 hospital." The uncertainties that this created for women in Canada were numerous. Hospitals were not required to provide the facilities for abortions and the Badgley Report" subsequently found that there were vast differences across Canada in the availability of loo  the procedure. The Committees had inconsistent criteria for admission so that some approved virtually all requests while others would approve very few. Bill C-150 resulted in the consistent denial of a woman's reproductive freedom because her access to an abortion was dependent on the decision of a therapeutic committee. 101 Morgentaler In 1986, Dr. Henry Morgentaler challenged the Supreme Court of Canada to examine 5.251 of the Criminal Code of Canada to determine whether it contradicted S.7  98  1()2  of the Charter.'m Dr.  Canadian Criminal Code, S.271.  99  Report of the Committee on the Operation of the Abortion Law, Supply and Services Canada, Ottawa, 1977. 100  Dunsmuir, "Abortion: Constitutional and Legal Developments, p.8.  vn  This has not meant that women have been the passive 'victims' of oppressive legislation. The history of abortion includes the history of illegal abortions, painful deaths, and unnecessary sterilization. Women have decided on their own when they need an abortion. The legal fiction that a doctor, or committee, knows best is refuted by a feminist analysis of the issue with an emphasis on a woman's needs. Women, now and in the past, have assumed the responsibility for deciding if and when they need an abortion.  102  S.7, Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.  49 Morgentaler claimed that the section violated a woman's rights to life, liberty and security of the person because it only allowed a woman to have an abortion in strictly limited circumstances and thus greatly limited her opportunities for a safe, early vn procedure. It took four written judgements and 188 pages for  the Court to strike down that section of the Criminal Code. The various judgements of the court illustrate the complexities of the abortion issue and also indicate how tenuous victories can be. By examining whether the courts accept state regulation, the potential of competing maternal and fetal rights, and the public/private dichotomy, we can see how the decision is part of a larger context that denies women their autonomy. By establishing norms of maternal behaviour to which women have no desire to conform but by which they are judged, the courts are able to frame issues in such a way that their decisions reinforce a 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 felt that: forcing a woman by threat of criminal sanction to carry a foetus unless she meets certain criteria unrelated to her own priorities and aspirations is a profound interference with a woman:6 s body and thus a violation of the security of the person. vn  The case was also argued on the basis of S.15 but the judges did not deal with this issue in their arguments that struck down S.251 of the Canadian Criminal Code. 106  R v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385.  50 Dickson was also concerned because the delay entailed in complying with the criteria for a legal abortion may inflict unnecessary harm and suffering. The defence provided in S.251(4) was deemed illusory because a woman risked her health in order to comply with the law when she was situated in circumstances where access to the approved hospital or committee was limited. Dickson C.J. then tried to decide if S.251 could be saved by S.1 of the Charter by determining first, if the objective of the legislation was of sufficient importance to warrant overriding a constitutionally protected right or freedom and second, that the means chosen to override the right and freedom were demonstrably justified in a free and democratic society. He concluded that S.251 was intended to balance the interests of the woman and fetus but that the way in which this was done placed a disproportionate burden on the woman. Mr. Justice Beetz (Mr. Justice Estey concurred) adopted a procedural approach. He held that the legislated delay to a pregnant woman's access to abortion resulted in additional dangers which deprived a woman of her right to security of the person. However, he emphasized that the government could still pass legislation that would require a woman to prove to a committee that to continue her pregnancy would pose a risk to her health. Mme. Justice Wilson took a broader approach. She stated that the right to liberty contained in s.7 of the Charter guaranteed autonomy in making decisions of fundamental importance to a  51 person's private life including a woman's decision to terminate her pregnancy. S.251 clearly violated this right because it gave the decision over to an abortion committee. Ss. 4 of the s.251 of the Criminal Code violated a woman's security because of the complicated procedure it expected her to follow in order to have a legal abortion. Wilson included an argument that any criminal law restrictions on abortion offended freedom of conscience guaranteed in S.2(a) of the Charter l° and so could never be in accordance with the principles of fundamental justice. She argued for a woman's autonomy but ended this argument by stating that the state would, at some point in the development of the fetus, have an interest in the fetus which would outweigh the rights of the mother. Mr. Justice Maclntyre dissented (LaForest concurred). He stressed that it was not the role of the court to use the Charter to solve or seek to solve the abortion issue but simply to measure the content of S.251 against the Charter. He held that it did not infringe upon the life, liberty and security of the pregnant woman. He also denied that the defence in 251(4) could be dismissed as illusory. In the Morqentaler decision, all five of the majority judges agreed that the procedural requirements of s.251, in effect, violated a woman's s.7 right. Only Madame Justice Wilson read  vr  Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.  52 into s.7 a right to privacy, which included abortion, or the right to make a moral choice based on freedom of conscience found in S2(a). Although this 'feminist' analysis had the potential to legitimate women's claims that abortion is a decision for a woman alone, it was limited by Mme Justice Wilson's acknowledgment of potential state interest in the fetus. The Court's acceptance of state regulation at some point in a pregnancy denied a woman control over a fundamental aspect of her identity: her reproductive freedom. Consequences of the Decision  The Morgentaler decision cannot be claimed as an unqualified success in asserting a woman's right to decide for herself whether to have an abortion. Because four of the judges focused upon procedural impediments to the legislation, there was no question concerning whether it was appropriate for the state or any other organization to validate the very personal choice to have an abortion. Further, allowing for state intervention at some point in a pregnancy reinforced the view that a pregnant woman is not always capable of making responsible decisions. Although hailed as a victory initially, the decision has created further difficulties for the feminist attempt to challenge the structure and form of a society that accepts the oppression of women as the norm. Privacy  Framing the issue of abortion in terms of a woman's right to privacy meant that the arguments were based upon the  53 By asserting women's autonomy as an public/private dichotomy. 108 individual right, Mme. Justice Wilson reaffirmed the private nature of an abortion and a "legal vacuum replaced the criminal provisions. In the absence of federal legislation, access to safe funded abortions depended either upon the response of individual provincial legislatures or individual hospitals."  log  It has  meant that the state is not forced to accept responsibility for providing the funding or services to ensure that each and every Canadian woman is able to assert her right to bodily integrity and have an abortion if she deems it necessary. Instead of accepting the public/private split, an alternative argument would find a right to abortion services as a socially-determined need which would be claimed by the individual but maintained as part of a collective. Needs, unlike rights, are dynamic and exist only in relation to individuals in particular concrete social conditions.... It is important to note, however, that the objective of conceptualizing abortion as a socially determined need is to transcend the inherent limitations of liberal individualism, rather than to deny that it is as an individual that a woman must be able to decide whether to terminate a pregnancy. It is, in fact, fundamental to a woman's self-determination and to the restructuring of reproductive and sexual relations lAhat the remedy be available 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 the Limits 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. to prohibit funding of all abortions except when there was a serious threat to a woman's health (invalidated by the B.C. Supreme Court) to funding for even those abortions 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.  54 Clearly what is needed is national recognition that funding and access to abortion is important for all women. This need should be met by providing the services and money in order to ensure that each and every woman is able to make her own decision and that she will have the power to carry out that decision. It is not up to the court to make these kinds of provisions but, by arguing that abortion belongs in the private sphere, the decision had the political effect of legitimating the lack of government assistance. The decision in Morcientaler has meant that, without legislation securing funding and access to abortion, women are left to rely upon the policies of provincial governments, hospitals and clinics in order to obtain abortions. Although the criminal sanctions have been struck down, this has left abortion in the private realm where women often lack the political and economic power to ensure that they can fulfil their needs. Further, the decision in Dolphin Delivery means that the Charter will be of no use in the courts to secure a positive right to access for all women. Because the Charter is limited to defining what the state cannot do, Charter rights cannot be used to force governments to act in order to ensure that women's needs and interests are be fulfilled. Ideologies of Motherhood Women who are pregnant are expected to conform to the stereotypical 'mother' - a woman who is caring, nurturing and selfless. The equation of pregnancy and this definition of  55 motherhood is the foundation of societal assessments of women's behaviour - and the justification for sanctions against It denies the heterogeneity of womanhood by deviation. ni imposing a universal definition of pregnanc  y"2  it harms women  in general by ignoring their differences, and it especially harms those women who do not conform to society's expectations of womanly/maternal behaviour. Using the legal system raises the possibility that judicial assumptions regarding a woman's maternal responsibility to continue a pregnancy may force a particular woman to justify her decision to have an abortion. However, women are forced to justify their decisions not only because aborting a fetus is considered contrary to acceptable maternal behaviour, but because of assumptions that there are other interests vested in the birth of the fetus. In North American society the interests of father and fetus are increasingly conceptualized and argued in terms of rights in competition with a woman's right to bodily integrity.  In American and Canadian courts this has led  judges to balance the interests/rights of father and fetus  111  Zillah Eisenstein, The Female Body and the Law, (Berkeley:University of California Press, 1988). 112  Ibid., p. 8. See also Marie Ashe, "Law-Language of Maternity: Discourse Holding Nature in Contempt," p.536. 113  See Dawn Johnsen, "The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection," Yale Law Journal 95 (1986); Patricia King, "Should Mom be Constrained in the Best Interests of the Fetus?," Nova Law Review 13 (1989); Sheila L. Martin, "Using the Courts 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).  56 against those of the woman. By phrasing a woman's need for autonomy in terms of a right to life, liberty and security of the person, in the Morgentaler decision, an opening was provided for others to assert the rights of the father and of the fetus. Men often believe that they have a right to expect a woman 114 to carry a fetus to term. They believe that part of what it  means to be a woman is to bear children. 'Woman', as a gendered construct, is a pregnant woman. When women challenge this construct by refusing pregnancy, they challenge the image men have created and the foundations upon which a paternalistic society is built.  in  Until now the courts have been reluctant to award a father rights which would be used to prevent a woman from obtaining an abortion. Although in the United States and Canada several fathers have attempted to assert paternal rights by obtaining injunctions to prevent a woman from having an abortion, all have ultimately failed. In the case Mock and Infant Doe v. Brandanburg, the applicant sought an interim or interlocutory injunction to prevent the respondent from having an abortion. The judge found that the father met the criteria required by the test to determine the granting of an injunction, but that ultimately, given the intimacy of the relationship of the 114  Cossman, "The Precarious Unity of Feminist Theory and PRactice: The Praxis of Abortion," p. 90. in  Shelley Gavigan, "No Man's Land? Men's Intervention in Abortion and Pregnancy," p.4.  57 respondent and the fetus, the length of the normal gestational period, the potential physical and psychological effects on the respondent, I am of the view that on the aspect of the balance of convenience, the116 position of the respondent requires grave consideration. Although the injunction was dismissed, it is disturbing to realize that a judge considered it reasonable to "balance the  convenience" of two conflicting parties with regard to the integrity of a woman's body. The personal integrity of a woman is threatened if the court can contemplate forcing her to continue a pregnancy to serve the interests of a third party. The assertion of "fathers' rights" shows a disturbing view of a woman's body and the fetus within it. It would seem that there are times when a woman will be considered a "walking womb" - a means to the birth of the father's child or the continuation of the human species. Although there has not yet been any recognition of a father's right to force a woman to carry a fetus to term, the fact that the court gave serious consideration to the possible existence of that right, whether formally awarded or not, is a threat to the reproductive freedom that is an essential feature of women's identity. The decision in the case was a victory for woman's rights but it also indicated the tenuous nature of a woman's position. If there were legislation passed that awarded men specific rights in relation to their 'potential progeny', there may be considerable reason for women to fear that future decisions might  116  Mock and Infant Doe (Mock) v. Brandanburg, 61 A.L.R. (2d) 235 (Q.B.).  58 be the result of a judicial balancing of competing claims in which the ideologies of motherhood, fatherhood and family play a part. In the United States there has been a greater incidence of state legislatures attempting to pass restrictive legislation which would require women to inform their partners of the intention to obtain an abortion and, in some instances, to gain the man's consent.  117  So far, such legislation has been struck  down as unconstitutional.  118  However, with an increasingly  conservative Supreme Court there is some concern that Roe v. Wade may be overturned in the future. Although the impact of American jurisprudence on Canadian judgements is indeterminate, it may be wise to look to the American experience in order to prepare for future threats to a woman's autonomy. Equality The issue of equality for feminists is confounded by the assumption of a male norm against which everything else is 117  Maria F. Walters, "Who Decides? The Next Abortion Issue: A Discussion of 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 statute which stated that "No abortion shall be performed prior to the end of the first twelve weeks of pregnancy except:...(3) With the written consent of the woman's spouse, unless the abortion is certified by a licensed physician to be necessary in order to preserve the life of the mother." Act of June 14, 1974, 1974 Mo. Laws 809 (codified as amended at Mo. Ann. Stat. 188.101-.085 (Vernon 1983) Lower court decisions 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 not unconstitutional.), on remand, 550 F. Supp. 1112 (S.D.Fla. 1982) (Statute unconstitutional since abortion poses less than a de minimum risk to procreative abilities of the mother); Doe v. Deschamps, 461 F. Supp. 682 (D. Montana 1976); H.L. v. Matheson, 450 U.S. 398 (1981).  59 measured. The power of patriarchy to confine and regulate women by defining them as something different, and therefore less valuable, is based upon a hierarchical system of dichotomies that values men. The societal condemnation of those women who seek abortions is thus rooted in the way pregnancy has been structured. Hegemonic legal and political discourse perpetuates the definition of woman as potentially pregnant and reaffirms her responsibilities as a mother. Thus the interests and needs of a woman are subordinated to a societal interest in her fetus/children and the imagined needs and interests of the fetus. To be able to envision supporting the needs of a fetus against those of a woman it must be possible analytically to separate the fetus from the woman and to consider the interests of the fetus as more important than those of the woman. This issue has been raised in several cases including the case of Borowski v. Canada (A.G.). It was the intention of Mr. Borowski to have subsections (4),(5) and (6) of s.251 declared unconstitutional because they allowed the "killing of babies" whose right to life was provided under s.7 of the Charter.  119  He  based his claim for constitutional status on the fact that, at the moment of conception, an embryo was alive and thus The Supreme Court of Canada did constituted a human being. IN not rule on this particular case because it became moot when the 119  120  Borowski v. Canada (Attorney General), [1989] 3 W.W.R. 97 (S.C.C.).  Catharine Totton, "Medicolegal Implications of Constitutional Status for the Unborn: 'Ambulatory Chalices' or "Priorities and Aspirations'," University of Toronto Faculty of Law Review 47 (Fall 1988): 5.  60 Morgentaler decision struck down s.251. On March 21, 1991, in R. v. Sullivan, the Supreme Court of Canada determined that "it is clear from the wording of s.206 that a foetus is not a 'human being' for the purposes of the Criminal Code.  „  121  The Court was deciding whether or not a fetus  in the birth canal was included under the definition of person/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 the Act when it has completely proceeded, in a living state, from the body of its mother whether or not a) it has breathed, b) it has an independent circulation, or c) the navel string is severed. The Court agreed with the decision made in the B.C. Court of Appeal that, "if Parliament considers it appropriate to protect a child during the birth process from criminally negligent acts by those attending and assisting at the birth, that is a matter upon which Parliament can legislate.”  122  The Charter cannot be used  presently to assert the rights of a fetus, but this does not preclude the state from legislating fetal rights, subject to the Charter, in the future. Although legislated rights for a fetus may appear far fetched it is intimidating to realize that society, and some members of the legal profession, are willing to claim rights on the part of the fetus and to take these claims to court. Thus, it is important to determine why it is possible to think of the 121 122  R. v. Sullivan, 63. C.C.C. 3d.,p.106. Ibid.,p.104  61 fetus and woman as separate entities and how this has impacted on the abortion issue. Previous discourse on the abortion issue focused on fertility, sexuality and morality.  123  Abortion has been  stigmatized because it was directly related to promiscuity.  124  Now 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 to prevent abortions through emotional intimidation. In the last few decades society has focused primarily on the fetus as an adversary to a woman. In part, the analytical separation is the result of the technical ability to see and treat a fetus without, in some senses, harming or seeing the woman. 126 Amniocentesis, sonograms, and electronic fetal monitoring enable the medical profession to garner information specifically about the fetus - information that is perceived as separate to that of the woman. 127 By this separation of fetus and woman the medical community is able to conceptualize the 123  Shelley Gavigan, "On 'Bringing on the Menses': The Criminal Liability of 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 the Politics of Reproduction," Feminist Studies 13 (1987). 126 127  Ibid., p.271.  Lawrence Nelson, Brian P. Buggy, and Carol J. Weil, "Forced Medical Treatment of Pregnant Women: 'Compelling Each to Live as Seems Good to the Rest'," The Hastings Law Journal 37 (1986): 711-712.  62 treatment of two patients and to focus on the care of the fetus alone. Further, "the medical model's emphasis on separability has established a construct of pregnancy according to which the maternal body in normal pregnancy has come to be regarded as separate - or even adversarial - in relationship to the developing child. The political act of constructing a discourse that pits a woman against her fetus, externalized and individualized through the use of photographic, technological, and spoken imagery, creates and reinforces the means for the oppression of women.  129  Videos and television have broadcast the image of the fetus on the screen and society is made to believe that the fetus is a feeling, thinking entity just as the "Silent Scream" uses trick photography to make us think that the fetus screams as it is aborted. The distortion that allows us to view the fetus as separate from the woman's womb allows us to contemplate treating the fetus apart from the woman.' 3° This separation further supports the construction of a woman and fetus as adversaries and reinforces the political subordination of a woman to interests vested in the fetus. Women do not necessarily experience a wanted pregnancy as the presence of a separate entity. The separation of fetus and lza  Marie Ashe, "Law-Language of Maternity: Discourse Holding Nature in Contempt," p.540. 129  Petchesky, "Fetal Images: The Power of Visual Culture in the Politics of Reproduction," p.272. 130  Ibid., p.265.  63 woman is an artificial construct of patriarchal society. Instead of focusing on a paternalistic view of what pregnancy means, (ie. motherhood, fatherhood, and family), it is important to accept the diverse ways in which a woman experiences her pregnancy. The personal experience of each woman must be accepted if we are not to impose a homogeneous definition of womanhood and motherhood. Recognizing these differences will remove the basis of hierarchies that establish women as subordinates when they cease to conform to patriarchal expectations. Ultimately, "abortion must remain a moral decision for the individual woman unless sex inequality is to be governmentally institutionalized. "  in  To  accept a woman's experience of pregnancy would enable the state and judiciary to accept a woman's autonomy over making personal decisions. However, the state has historically been unwilling to trust women to make the ethical decisions concerning their reproductive choices.  132  As Christine Overall argues, a male-determined  society has largely perceived women, pregnant or not, as an unpredictable force. Women's bodies have traditionally been regarded as dark and dangerous places, threatening to the men which use them sexually and even to the babies which emerge, not always intact, from them. The twin manifestations of this danger are female evil and female weakness. Now, however, the female body is seen as dangerous even to the embryo/fetus 131  George J.Annas, "Predicting the Future of Privacy in Pregnancy: How Medical Technology Affects the Legal Rights of Pregnant Women," Nova Law Review 13 (1989): 38. 132  Susan Alter Tateishi, "Apprehending the Fetus En Ventre Sa Mere: A Study of Judicial Sleight of Hand," Saskatchewan Law Review 53 (1989): 136  64 because the pregnant woman cannot be trusted not to abuse it, or pass on defective genes to it, or even to kill it, let alone to protect it from environmental harm and give birth to it safely: 33 In order to challenge the male expectations against which women are judged it is important to articulate a definition of equality that deconstructs hierarchies based on conformity to societal norms. Each and every woman is different. Each has different needs and will make different claims upon the state and society. Thus, equality should include a recognition of a woman's need to control her reproductive potential as a part of her identity. That is, it should include an equal respect for her autonomy.  134  S.15 may provide the courts with the justification  for interpreting a woman's right to equality as including the right to an abortion in order to ensure equal respect for her bodily integrity.  Summary The Morgentaler decision illustrates how legal challenges may not be the final solution to women's subordinate status in Canadian society. The assumptions of privacy, womanhood/motherhood, and equality may prevent women from using the legal system as a means of empowerment with respect to the development and proliferation of reproductive technologies. Women may be judged according to how well they conform to expectations  133  Christine Overall, "'Pluck a Fetus From its Womb': A Critique of Current Attitudes toward the Fetus," p.86. 134,  Stephanie Ridder and Lisa Woll, "Transforming the Grounds: Autonomy and Reproductive Freedom," Yale Journal of Law and Feminism 2 (1985).  65 of maternal behaviour. They may be ignored because the oppression occurs in the private realm and left to defend their basic right to bodily integrity in the face of challenges from those claiming an equal interest in their bodies. Although the Morcientaler decision shows feminists that a liberal mobilization of the Charter may not ensure long term gains, it also illustrates that the Charter is not in and of itself confined to liberal interpretation. Mme. Justice Wilson's feminist interpretation of s.7 was an indication of what can be accomplished with a creative interpretation of the enumerated rights. Perhaps the section that will do the most for women with respect to their reproductive potential will be s.15. It may be possible that the influence of feminist jurisprudence on a legal reconstruction of equality will provide the basis for the end to women's inequality. Thus the Charter may be used as part of a greater political strategy to empower women and ensure their political, legal and economic equality in Canadian society.  66 A FEMINIST RECONSTRUCTION  The development of reproductive technologies in Canada poses the potential for causing harm to the women who intend to participate in the programmes, and the management of the technologies has resulted in discrimination against women who do not conform to notions of the appropriate mother. Further, the establishment of the surrogacy industry has created the potential for the 'legitimate' exploitation of an entire class of women deemed valuable for the children they gestate. Ideologies of motherhood and privacy, and notions of formal equality, have affected and shaped the way reproductive technologies have impacted on women's lives in Canada. The theoretical justifications for women's oppression has remained in place because women have not been able to challenge them successfully in the past. It is because of man's power to label woman as 'other' and marginalize her to the private sphere by defining her as 'mother' that these assumptions have the political effect to confine and oppress women. For women to wrest control of the technologies they will have to challenge the notion of formal equality that privileges 135  men. The confinement of women to homogeneous opposition and 135  For a thorough discussion of equality see: Marie Ashe, "Mind's Opportunity: Birthing a Poststructuralist Feminist Jurisprudence," Syracuse Law Review 38 (1987); Lucinda M. Finley, "Transcending Equality Theory: A Way Out of the Maternity and the Workplace Debate;" Christine A. Littleton, "Equality and Feminist Legal Theory," University of Pittsburgh Law Review 48 (1987); Catharine MacKinnon, Toward a Feminist Theory of the State, (Cambridge: Harvard University Press, 1989), and Feminism Unmodified: Discourses on Life and Law, (Cambridge: Harvard University Press, 1987); Frances Olsen, "Unravelling Compromise," Harvard Law Review 103 (1989); Jana Sawicki, "Foucault and Feminism: Toward a Politics of Difference," Hypatia 1 (Fall 1986); and Joan W. Scott, "Deconstructing  67 subordination can only be challenged effectively with a vision of equality that recognizes and values diversity between men and women, and amongst men and women, without reestablishing a system 136 of hierarchies. The work of feminists on concepts of equality  in the area of American and Canadian jurisprudence will provide the basis for the articulation of an equality that recognizes and values difference. S.15 of the Charter raises the possibility of reconstructing such of vision of equality in the Canadian courts and it may be that this will provide the legitimate foundations of a real change in society. By refusing to accept formal notions of equality that attach value to conformity and powerlessness to difference, a substantive interpretation of equality may prevent the arbitrary creation of hierarchies that are based on the devaluation of divergence from the norm. The Canadian Supreme Court has appeared to accept a feminist interpretation of equality through their analysis of s.15 in Brooks v. Canada This decision may be the foundation of further Safeway. 137 legal, political and social recognition of a feminist vision of equality that will shatter the structures of inequality that oppress women. A Feminist Vision Equality-versus-Difference: Or, the Uses of Poststructuralist Theory for Feminism," Feminist Studies 14 (Spring 1988). 136  Finley, "Breaking Women's Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning," pp.1167-1170. 137  Brooks v. Canada Safeway, [1989] 1 S.C.R. 1219.  68 The feminist challenge to formal equality is a political challenge to male norms - it asserts the importance of alternative perspectives grounded in differences of sex, class, age, ableness, and race. To do anything else is to buy into the political argument that sameness is a requirement for equality, an untenable position for feminists (and historians) who know that power is constructed on and so must be challenged from the ground of difference. 0 Such an equality would be the result of a radical pluralism that seeks to recognize and value differences without creating a hierarchy based on the gaps between identities. Feminist jurisprudence needs to provide the foundations for a legal perspective that would include the perspectives of women, people of colour, the disabled, the incompetent and the poor. In a politics of difference, resource insofar as it enables us resistance to particular forms of distortions in our understandings world.  difference can be a to multiply the sources of domination and to discover of each other and the  This jurisprudence would not claim a neutral stance that, in reality, was actually only one perspective. 140 In order to avoid the many inequities caused by the 'neutral', 'objective' approach used in the past, there would be a radical recognition of difference, an acknowledgment of one's own perspective, value found in diversity, and the deconstruction of hierarchies. 138  Scott, "Deconstructing Equality-vs-Difference: Or, the Uses of Poststructuralist Theory for Feminism," p.48. 139 p.32. 140  Jana Sawicki, "Foucault and Feminism: Toward a Politics of Difference," MacKinnon, Toward a Feminist Theory of the State, p.239.  69 Practically, it would mean interpreting existing law from different viewpoints and redrafting legislation so that it The Charter might be a provides space for different voices. 141 powerful tool for a feminist jurisprudence. The Canadian Supreme Court has made decisions that indicate a willingness to adopt a substantive interpretation of s.15 that recognizes the structures of inequality women are forced to face in society. In Brooks v. Canada Safeway, the court examined whether an employee benefit plan discriminated against women on the basis of sex because it clearly discriminated against pregnant women. A ruling in Bliss v. A.G. of Canada 142 had previously determined that discrimination because of pregnancy was not discrimination based on sex. Because not all women become pregnant, not all women were discriminated against. In Brooks however, the Supreme Court recognized the systemic nature of discrimination against women based on their biological capacity to reproduce. Brooks Brooks v. Canada Safeway involved a complaint on the part of three employees that they were discriminated against on the basis  141  See Martha Minow, "Foreword: Justice Engendered," for a thorough explication 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' benefits on account of pregnancy did not discriminate on the basis of sex nor deny women equality under the law. Feminists were mobilized during the drafting of the Charter to ensure that the wording of s.15 would prevent this kind of decision from 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 discussion of this decision and the implications for equality theory see Joan W.Scott, "Deconstructing Equality-Versus-Difference: Or, The Uses of Poststructuralist Theory for Feminism."  70 of sex in the employee benefit package because of provisions that excluded coverage for pregnant women. The Canada Safeway employees benefit plan did not provide for coverage of pregnant women ten weeks before the week of their confinement, the week of confinement and six weeks after the birth of their child. Pregnant women could not claim benefits during this seventeen week period even if they were forced to miss work for an illness unrelated to the pregnancy. Susan Brooks, Patricia Allen and Patricia Dixon filed complaints with the Manitoba Human Rights Commission alleging that the differential treatment of pregnancy in the plan constituted discrimination on the basis of sex contrary to s.6(1) of The Human Rights Act of Manitoba. The adjudicator dismissed the claim and the Court of Queen's Bench and the Court of Appeal upheld the adjudicator's decisions. The case was brought to the Supreme Court. With Brooks the Supreme Court of Canada indicated a willingness to adopt an expansive interpretation of equality that will benefit feminists in the future. The court rejected the Bliss decision that had been the justification for the  adjudicators dismissal of the claims by recognizing that it is difficult to conceive that distinctions or discriminations based upon pregnancy could ever be regarded as other than discrimination based upon sex, or that restrictive statutory conditions applicable only to pregnant women did not discriminate against them as women. The Court refused to accept the similarly situated test used in 143  Brooks, p.1243-1244.  71 Bliss to argue that pregnant women are not discriminated against on the basis of sex because not all women are subject to the same discrimination. It recognized that "a distinction based on pregnancy is not merely a distinction between those who are and are not pregnant, but also between the gender that has the capacity for pregnancy and the gender which does not.  „ 144  By acknowledging that discrimination on the basis of pregnancy is the result of the distinctions between gender, that is, the socially constructed differences between men and women, the court created the space for further challenges to a system of inequality that appears natural in a society defined by men. The court was willing to recognize that inequality is not the inevitable outcome of the differences attributable to nature, but rather the result of the way differences are used to justify already existing inequality. 145 Equality and Reproductive Technologies Presently women are allowed access to abortion, AI, and IVF based on their ability to convince those in charge that they have a right to bear a child (or not) because they conform to the idealized vision of a mother. Lesbians, single women, poor women, and the disabled are not able to take advantage of the technologies because they do not conform to societal expectations concerning motherhood. For an egalitarian society that did not establish hierarchies based on difference, access to reproductive 144 145  Quoted from factum of appellants, p.1244. MacKinnon, Toward of Feminist Theory of the State, p.218.  72 technologies would be certain because the societal infrastructure would ensure women had the psychological, political and economic power to choose. The ideology of motherhood would cease to be the foundation of decisions and women would not be judged or subject to sanctions according to how well they conformed to male norms. It remains to draw a link between the discrimination women suffer with respect to reproductive technologies and sex discrimination. In Brooks the Supreme Court recognized that discrimination on the basis of pregnancy is discrimination on the basis of sex. That is, because part of a woman's gendered identity includes her potential to become pregnant, discrimination against a pregnant woman is discrimination against women 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 of the discrimination women encounter with respect to reproductive technologies. This discrimination is possible because of the system of inequality men have established based on a woman's potential to become pregnant. Thus the root of women's lack of control over reproductive technologies can be found in her position of inequality in society, that is, as a direct result of the way her identity has been constructed based on sex. As part of the political challenge to this subordination, women may be able to use s.15 of the Charter to assert their right to an equality defined in feminist jurisprudence.  73 However, women cannot take men to court as a group to challenge the system of hierarchies that forms the framework of Canadian society. Instead, the Charter and the legal system may provide a forum for the articulation of alternative constructions of equality and inequality that will help empower women in their effort to change society. Therefore, there may be a recognition that those presently in control of the development and management of reproductive technologies are making decisions based on assumptions of motherhood, privacy, and equality, and that they do so because they have the power to label women as mothers and confine them to the private sphere. Summary The decision in Brooks may provide the basis for continued success in the courts. Further, the symbolic power and legitimation process of the court system may provide the political impetus to end the hierarchical structures that have ensured women's oppression in the past. By interpreting equality as a recognition and appreciation of difference, the courts may legitimate a vision of equality that does not devalue women because they are different from men. In order for women to have safe and secure access to the reproductive technologies it will be necessary to assert a woman's equality throughout society. Using the court system may provide the legitimization essential for any real change in the Canadian community. If women are no longer posed in homogeneous opposition to men, no longer expected to conform to specific  74 behaviour as mothers, no longer expected to become mothers, the decisions made in the development and management of reproductive technologies will no longer reflect the assumptions of motherhood, privacy and equality that have justified the confinement and oppression of women in the past.  75 CONCLUSION  Woman has been socially constructed by men as an object - an object that is partially defined by her reproductive function. We can only understand reproductive technologies within this context of women's situation - that is, as the "Other" that men have created. A woman's position in society is that of man's complement - the caring wife and mother. A woman's gendered identity includes the possibility of pregnancy and motherhood. Difference from men based on this biological potential is used to justify inequality. A woman's difference manifested as pregnancy is essential to the subordination of women in society. The Charter may be a means to assert women's rights to control of the technologies. However, if the articulation of Charter rights is constrained by patriarchal assumptions of public/private, motherhood and formal equality, there may not be an opportunity to end the unequal power relationship between men and women. The Charter may appear as a powerful way in which women can challenge male hegemony, but it must also be used with caution. Judicial interpretation of the Charter may be based on assumptions of a public/private dichotomy which could justify government exemption from providing the funding for services, securing access, or regulating the private companies to follow strict safety standards, and it may preclude the Charter itself from being applied at all. Women, defined as mothers and in  76 opposition to men, will be unable to initiate a legal challenge to their inequality. To end women's subordination to men it will be necessary to deconstruct the patriarchal foundations of the social, legal and political systems that identify man as the norm and woman as difference. A substantive interpretation of s.15 in Canadian courts may be a valuable legimization process in the effort to end women's political subordination throughout society. A woman's potential to reproduce is a fundamental aspect of her identity whether she decides, and is able, to embrace or reject it. But this biological circumstance has been socially constructed to mean that a woman is her capacity to reproduce. This reduction of potential to actuality, of diversity to monolith, is what feminism is challenging. A feminist jurisprudence will have to challenge the tendency of law to base decisions on the assumptions which have resulted in women's marginalization into a sphere of powerlessness: the ideologies of motherhood, privacy and notions of formal equality. Reproductive technologies have been developed in a context that assumes the definition of women as pregnant/mothers. If women have the power to challenge this monolithic construct perhaps the technologies will be developed with the concerns of the women at their centre. Lesbians, single women, and the disabled, those who do not presently conform to definitions of what a 'mother' should be, would have a right to the technologies based on a vision of equality that recognizes how important it is  77 to be self directed in the fulfilment of one's identity. A woman's use of reproductive technologies to control her fertility would therefore make the technologies much more than a medical procedure. They would be recognized as a political challenge to societal assumptions of gender roles, and a woman's subordination to homogeneous societal definitions of motherhood and womanhood. By affirming differences amongst women, it may be possible to deny the biological basis of their gendered construction, wrest control of their reproductive capacity and deny their political, legal, and societal subordination.  78 BIBLIOGRAPHY  Abramowitz, Susan. "A Stalemate on Test Tube Baby Research." Hastings Centre Report (February, 1984): 5-9. Adamson, Nancy. 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