The Purest Democrat: Fetal Citizenship and Subjectivity in the Construction of Democracy in Poland

Previous articleNext article FreeThe Purest Democrat: Fetal Citizenship and Subjectivity in the Construction of Democracy in PolandJanine P. HolcJanine P. HolcLoyola College, Baltimore Search for more articles by this author Loyola College, BaltimorePDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreIn 1997 the highest court in Poland declared that the right to abortion was unconstitutional. The justification for the decision—articulated at length and published with both supporting and dissenting opinions—pivoted on the category of the "conceived child." According to the decision, abortion at any stage of pregnancy is a procedure that violates such a person's right to life (Trybunału Konstytucyjnego [1997] 2000). Significant in the wording of the decision, however, was the wide scope of the aspects of political and social life threatened by abortion rights. According to the Constitutional Tribunal, the "conceived child" must be protected from legal abortion practices because it is entitled to the constitutional protection not only of its life but also of its civil rights, health, and "undisturbed development." The court's discourse constructed not only a presumption of fetal personhood but a space in which the fetus becomes a subject of the state—here, the subject of state authority and social welfare goals.With this decision, however, the tribunal went even further than designating the "conceived child" a subject of legal rights and social benefits. The opinion offers a representation of the fetus as a legal person who may act on its interests and whose status is a crucial marker of a genuine democracy. In this representation, the fetus enjoys a "legal capacity" to "claim redress" against "the mother" for any damaging actions she may have taken while pregnant. Legal abortion is also unconstitutional because it "denies the child the possibility of acquiring its property inheritance from the mother, limiting its rights in a manner that is contradictory to the principles of a democratic legal state and the principles of equality" (Trybunału Konstytucyjnego [1997] 2000). In mobilizing these distinct legal discourses into a single narrative about reproduction, the court makes the "conceived child" nothing less than an unborn citizen, whose future embodiment, signaled by conception, incorporates an already existing readiness to defend its rights to life, liberty, and the pursuit of property.The context for the court's decision and the wide scope of its articulated concern for the "unborn" is Poland, a country for which the nature and stability of democratic political forms are still contested issues. In 1989, Polish government and opposition elites negotiated a transformation of state power from exclusive Communist Party rule to a governmental system partially open to the opposition; by 1990, eastern and central European governments had collapsed, and non‐Communist candidates competed in elections for the presidency. The new democratic government in Poland introduced a much freer market, a push toward the privatization of industries and trade, and restrictive family and social welfare policies. Throughout the early 1990s, many individuals and groups in Poland resisted these policies; for example, labor unions protested the unemployment brought on by the new economic formations, women's organizations fought changes in family policy, and Catholic groups—including the Catholic Church itself—opposed the new social norms of consumerism, materialism, and the perceived breakdown of moral codes (Swierdzewska 1998; Aulette 1999; Ekiert and Kubik 2000). As the opportunities for the articulation of plural voices grew, so did disagreement about the appropriate form and scope of capitalism, social freedoms, and democratic institutions.Complicating the tensions of a newly pluralized political environment was the simultaneous renewal of nationalist ideologies, sparked by the "victory" over a state socialism viewed as imposed by the Soviet Union. Democratization in Poland—as well as elsewhere in Europe—has taken place alongside a resurgence of nationalisms. Many of these point to the decline of "traditional" moral codes and the opening of Poland's markets to foreign investment and competition with foreign goods as threats to the integrity of the nation. Here as elsewhere, nationalist discourses evoke a unified, singular tradition and destiny as necessary to the survival of an "authentic" motherland. These discourses position themselves as correctives to the increased fragmentation and pluralization of voices and interests that democratization affords.That this dynamic of democracy and nationalism has particularly and negatively affected women has been well documented (Einhorn 1993; Fuszara 2000; Gal and Kligman 2000). Within the logic of nationalism, women, as the subjects who physically give birth and symbolically reproduce the citizenry, are marked as vessels of the nation's moral integrity, survival, and coherence (Yuval‐Davis 1996). Thus, reproductive politics—particularly restrictive abortion laws—have become the territory on which conservative social ideologies play out fantasies of the ideal female‐as‐mother. At the same time, as I will discuss below, liberal reproductive policies have contributed to the construction of a "new capitalist family" in which the female head of the household is allowed reproductive agency only to the extent that such agency enables a specific vision of economic order.In this article, I have two aims in my reading of Poland's abortion policies of the 1990s. First, I interrogate the link between reproductive rights discourse and not merely "fetal personhood" but also a "fetal citizen."1 While the court did not use the term citizen in its decision, it created a category of personhood that incorporates not only legal rights (beyond the right to life) for a fetus. The decision's language additionally presumes that the fetus occupies the category of "person" in a citizenship mode—it is poised to actualize its rights in a specific political context.2 Thus, the court legally asserted not only a specific type of category of personhood but a degree of cognition and agency on the part of the subject intended to occupy this category. While scholars have noted the prevalence of policy and cultural narratives that assert "rights" for the fetus (e.g., Daniels 1993), the implications of the emergence of an unborn‐citizen subject position for particular political communities have not been deeply explored.3Further, since abortion politics is almost always an argument about the "subject status" or possible personhood of an as‐yet‐not‐born human being, abortion discourse inevitably references the processes by which other, nonfetal subject positions are generated and maintained. A subject is always imagined in contrast to an "other," and the "other" disavowed by the assertion of a fetal subject is most clearly "woman." When rights come into the picture, the implications of this disavowal take on specific political and material consequences for women's agency, as Rachel Roth (1999), among others, has argued. Moreover, the liberal democratic state's ability to claim legitimate intervention on behalf of both rights‐bearing subjects and citizens allows it to assert a unique claim on the processes and technologies of reproduction and the bodies of those who are able to bear children. Thus, moving from a fetal subject to a fetal citizen—even a potential one—brings stronger legitimacy for the claims of state and nation over "the mother."The second aim of my argument is to go beyond the literature that documents the effects of fetal subjecthood on women to explore the particular relationship of fetal subjectivity to a number of "others." Specifically, in the context of a democratizing political community such as Poland's, all citizenship identities are in the process of reformulation and reimagination. Tellingly, the Constitutional Tribunal's decision—a significant turning point in reproductive rights in Poland—situates "unborn" citizens as privileged markers of the health of both democratic processes and the integrity of the nation. When it appears that "the nation" itself is at stake in the outcome of the democratization process, the fetal citizen's particular contours and inclinations have consequences for a number of subject positions, not only "woman."Why did the court offer such a wide‐ranging statement about the unconstitutionality of abortion, and why did it do so specifically in 1997? One response is to note that the introduction of a citizenship identity for the fetus brings with it a new terrain on which the anxieties of nationalism and democracy play out. The fetal citizen is the "purest" citizen because he or she can be inscribed with the (yet to be actualized) practices, intentions, and rationality of the ideal liberal and democrat. The tribunal's decision can be productively read as beckoning the state to intercede on behalf of this citizen and in opposition to those "other" citizens and subjects in Poland who resist the imperatives of democratization in a myriad of ways. In other words, one effect of such "abortion talk" is to actualize fears and uncertainties about the radically democratic potential of a rapidly pluralizing national community.1The idea that a fetus is a person has appeared in a number of cultural contexts; e.g., pregnant women in the United States have been prosecuted for harming a fetus through their drug use. See Schroedel 2000.2A wide‐ranging literature exists on the concept of the "citizen." My aim here is to distinguish a category of "subjection" to state authority—a "subject"—from a category of "citizenship" in which the subject is allowed more secure legal privileges than a noncitizen and allowed to participate in political decisions on some level. See Mamdani 1996 for an example of how this distinction evolved in concretized form in colonial Africa.3The analysis presented here uses subject position to mean a discursively produced space through which people are allowed to voice political, cultural, and social identities, while subjectivity involves interior, psychically generated processes of identification as well. It draws from the work of Elizabeth Grosz (1995), John Rajchman (1995), and Judith Butler (1997), among others. In the case at hand, the tribunal used an imagined agency of the fetus to create an imagined subjectivity.Feminist approaches to fetal personhood and reproductive policies in eastern EuropeIn the past two decades, a rich literature has emerged on the construction of the fetus as a privileged legal, medical, and cultural subject and the consequent disenfranchisement, disembodiment, and marginalization of women (see Ginsberg and Rapp 1991 for a review). Scholars such as Emily Martin have examined the variety of modes by which reproductive practices, including abortion, become invested with meanings and enable the disciplining of women's agency (Martin 1987). Most of this work in the United States has focused on the "technologies of reproduction," particularly the medical tools for surveilling women's bodies and "finding" and documenting the fetal "person" inhabiting a woman's womb (Rothman 1989; Balsamo 1997; Franklin and Ragone 1998). In these modes, the presumed naturalness of pregnancy and the authority of medical expertise reinforce each other to enable claims for fetal personhood to trump the selfhood of the pregnant woman. Literature on the legal basis of fetal personhood demonstrates how the fetus, identified through technology, comes to have rights in competition with the pregnant woman whose body encompasses, it seems, two persons with separate legal identities (Roth 1999). In addition, scholars have explored the categories of "mother" and "motherhood" that have resulted from the increased visual and cultural presence of fetal subjects (Kaplan 1994; Rapp 1994, 1999).However, technology and the medicalization of pregnancy should not be seen as the only factors enabling the fetus to silence the woman. Pregnant or potentially pregnant women have, of course, been specific targets of legal, social, and cultural disciplinary practices in many contexts without reference to sonograms or lasers, and indeed Anne Balsamo asks us to "understand technological formations as cultural formations" (1997, 96). Recent works by scholars such as Laury Oaks and Lynn Morgan have contextualized fetal personhood and shown how meanings of the fetus may shift in time and place (Morgan 1996; Oaks 2001).4 Reproduction is a special fixation of culture and state, and reproductive policies frequently become sites of intersectionality, at times even interweaving conservative religious traditions with biomedical modes of conception (Kahn 2000; Inhorn 2003).This fixation has something to do with the process by which pregnancy and birth symbolically enact the process by which subjects themselves are created and come into being. The state attempts to govern us by coercing or tempting us to become subjects, that is, to subject ourselves to its authority. One condition of this process, as Mary Poovey (1992, 249) points out, is the (rule of law) state's conflation of embodiment with legal categories of personhood. Subjects seem to be most often vulnerable to legal regulation (and gain access to legally guaranteed privileges) by virtue of their physicalized expressions as racialized, gendered, and sexed bodies.5 At the same time, as individuals we are also governed by psychically generated attachments, associations, and fears, and birth is a metaphor central to how we imagine ourselves becoming embodied, and thus becoming subjects.6 State control of reproductive practices promises the control of how individuals "see" identity categories and how they see themselves as subjects (Hartouni 1997).Identity requires difference, and any bounded community generates anxieties about the stability of shared identities of insider versus the "other" outsider. However, the formations of state and nation deserve particular scrutiny in their processes of marking privileged subject positions, in part because of their claims to disciplinary modes unavailable to other communities. For example, the ability of the state to invoke its claimed monopoly on violence and legal authority gives it a special power over—and interest in—policing the process of who becomes a subject of the state and on what basis.7 In any case, the distinctions between a subject of state governance, a full person, a person with some rights, and a citizen are profoundly implicated in the cultural and political control of reproductive processes.Ultimately, however, women's potential to give birth regardless of the state's intentions frustrates these aims and, at the same time, reinvigorates them in new forms. Dorothy Roberts's work has perhaps gone the furthest in documenting the range of U.S. efforts to determine the conditions of African‐American reproduction over time, developing new strategies as women gain voice and power (Roberts 1997). Recent work on migration and immigration shows how the growth of migrating kinship structures has both prompted the European state to enact new identity categories such as "guest worker" to maintain racialized labor distinctions and created new avenues for subverting the intent of those distinctions (Soysal 1994); "refugees" both facilitate and confound official disciplinary goals as well (Bhabha 1999).Similarly, in countries such as Hungary, the Czech Republic, Slovakia, and Romania, state goals and women's resistance to those goals have made the legal status and medical availability of abortion an arena of flux and contestation (Kligman 1992; Gal and Kligman 2000). In Poland in particular, abortion, legal during Communist Party rule, has been criminalized, relegalized with conditions, and recriminalized between 1990 and 1997, and indeed played a role in social fears about joining the European Union in 2003. Well‐developed activist groups as well as a strong Catholic Church have ensured that strong protest has accompanied each alteration in the status of abortion rights, and the legality of abortion has been an important issue in many electoral campaigns, although it is often conspicuously avoided as well (Chalubinski 1994; Fuszara 1994). Reproductive practices and their legal status have become a collective site on which newly empowered voices of personal autonomy and women's rights compete with claims on behalf of "traditional" forms of motherhood and family in the context of religion and morality.4Patricia Hill Collins and Anne McClintock are among the scholars who focus on the intersection of race, national/colonial power, and reproduction in specific cultural and historical contexts and who demonstrate the differentiated effects of reproductive policy on racialized categories of "women" (McClintock 1995; Collins 1998).5The work that delves into how the physical "matter" of the body becomes encoded with various meanings that support or subvert (or do both simultaneously) hegemonic cultural norms is Butler 1993.6The prevalence of the birth image as an infant's body may be why technologically assisted conception at the cellular or embryonic level is difficult to assimilate culturally into our reproductive fantasies of how we become persons.7For example, Jacqueline Stevens has theorized on the state's fusion of citizenship categories with the specific unities of genealogy and kinship (1999), and Derrick Bell has examined the long‐term consequences for state identity of the category of a three‐fifths person, to which legally enslaved Africans and their future children were by the that become the United States the new capitalist had been a legally protected in Poland from the and the possibility of the did not the of Communist Party government in and the term abortion a point for a wide‐ranging among other the legal status of abortion as a medical the moral implications of an a or the state to a the role of the Catholic Church in the of medical the emergence of as a of cultural and as an of and the discourse of discourse a number of categories of persons who were able to claim rights, such as women, unborn and religious It also the specific cultural and social formations to which these persons had rights, such as the of the personal abortion integrity, and, of course, It well the Polish any new abortion that reproductive practices themselves a social to which many cultural The number and range of of about abortion point to the status of reproduction as a that is open to for example, and woman. At the same time, about the of reproduction in the Poland to over other social particularly fetus, and nation. In other words, abortion practices both and the new and in Poland and eastern and central to legal abortion was by a decision in the its from a pregnant woman's life was in an because it allowed to to it that a pregnant woman's of "fetal more to an abortion and thus a on the conditions which be The for the was a disciplinary and the possible of the although were The decision to this from some at the was this time many of emerged in the Polish These among of and the of social from the Catholic and from In a new on abortion was into abortion only medical determine that the life or health of the pregnant woman is at the woman is pregnant because she had been or "fetal and 1994). However, in 1996 a newly by the Party these conditions, abortion the woman it economic to support for the 1996 was a of the effects of an abortion on household in a new and 1996). In the for also them both the and the in pregnant women Polish to the Czech also At the same time, the introduction of capitalist economic had social and economic including an environment of competition and and an decline in the of These changes the in reproduction and such regulation with other policy goals in the what emerged as "abortion was a myriad of and conditions and to changes in abortion in other European the 1996 Polish did not abortion by it among other medical to those did the the over the moral of abortion as a The was a of conditions, and be to the both pregnant women and in that were subject to of one to The person the abortion had to and two from at the procedure 1996). The to the woman that was should she to the pregnancy to term and about other birth control to physical she was a on health or "fetal and to give time to It was only this that the woman a person who was in decision to have an abortion European countries new abortion in the the 1996 Polish the woman an abortion to or for the of to focus on the of abortion the Polish created special for women in (Einhorn 1993; 1994; of the United In the Czech Republic, the requires medical and that the woman a or medical for the abortion, although it these are 1993; of the United and each have articulated conditions and from medical to a degree than and a and some are and 1999). the most to the 1996 Polish is the of and the constitutional court's decision it and a right to life for a contrast to the case, Poland's a to the in the 1996 of it the of a because it the possible avenues a woman take in argument for an The by out women who or social to mean that women to support themselves more women who already have children not be able to a household without the ability to The is because it constructed women as both crucial to the of a and the of the in this context a family through birth to children but can only maintain that family by not The disciplining of reproduction in the 1996 thus incorporates abortion into the concept of family in the difficult economic times of abortion was legal, it was not a was contested as a legitimate during this in other than that of I have had with women who had in the and support the idea that and medical a variety of on the of an of abortion politics in Poland, see 2000; and 1994; and idea of a social that is both by a number of and of a number of identities draws from Judith of of political the new women an abortion to which must reference to the of unborn 1999). In the Constitutional the on the to of the fetus but that women not be prosecuted for the state was from abortion, and as well as The effect was an legal between a fetal person, a woman whose selfhood is without and legal for abortion nation that its children is a nation without a The Catholic Church and fetal 1996 of abortion generated strong from the Catholic community both and of The most voice among those Poland to the 1996 was that of the John In a statement from the John that nation that its children is a nation without a 1996; 1999). which the and who legal abortion in the past had frequently was taken by a number of voices to the 1996 into A official for the Catholic in Poland, that be because this is a which we from the was damaging to the Polish and even to its its logic we will not have a The head of the Polish of to to to as are also the of not and while did not further contestation over abortion or further the 1996 even while John However, John with its of abortion as the of human rights, the survival of a fetal citizen with the moral destiny of democratic Poland in a manner that has difficult to Polish The particular form of the of legal abortion was a part of the context of the tribunal's 1997 decision, and to Poland in 1997, the decision was contributed to the of on the has had a particular authority and effect in the has to Poland so that space is for any other of national and the has the effect of the Catholic and from among other cultural in an of all as well as a of the Polish