Fourteenth International Conference on Interdisciplinary Social Sciences

Abstract

How the judiciary reason about women and female autonomy in the context of reproduction profoundly affects the laws around wrongful birth and conception, use of gametes, contraception, sterilisation, caesarean sections, care during pregnancy and labour, abortion, IVF, and surrogacy. Reproduction does not only involve women, but many aspects of it necessarily centre on the female body and so affect women in unique ways. To critically appraise those laws, we need to understand how and why judges reason about women as they do. The paper explores the hypothesis that the (pre-dominantly male) judiciary share ways of thinking about women, many of which rest on stereotypes/familiar tropes about the female experience that lack an evidence base, or on assumptions about female experience extrapolated from male or (supposedly) non-gendered perspectives in necessarily gendered contexts. Such thinking may result in a failure to account for differential impacts some laws have on women as a result of their gendered experience of reproduction; and may also shape judicial understanding of concepts such as ‘liberty’, ‘best interests’, ‘harm’, and ‘competence’ in the reproductive context. Examples might be how male judges conceptualise the ‘competence’ of a woman in the throes of labour pain, the pregnant state, and its impact on a woman’s bond with her unborn child. This paper identifies patterns of judicial language and thinking via readings of case texts from a variety of disciplinary approaches to draw out ways of speaking and thinking about women that might be evidenced in judicial practice.