Last Friday, the Nebraska Supreme Court ruled that Judy Iwanski could not sue her gynecologist and employer for having sex with her or for the suicidal urges caused when Dr. William Gomes terminated their sexual relationship. Once jilted, Iwanski had sued Gomes in District Court. When the decision did not go her way, Iwanski then appealed to the Supreme Court, which affirmed the lower court. In doing so, Supreme Court Judge Gerrard stated, "Not only does Iwanski's own testimony indicate that she was able to consent, but also that Iwanski was aware of the decisions she was making…"
The decisions Iwanski made included having sex in Gomes' van at a truck stop, post-PAP smear intercourse, having sex in the office during work hours, and repeated refusals to have sex when she wasn't in the mood…all over an eight-year period. Yet Iwanski claimed she had been unable to render true consent "due to the pressures exerted on her by the surrounding circumstances." Gerrard pointed to the fact that she had often withheld consent as evidence that she could do so.
Mainstream and radical feminists are almost certain to view the legal decision as a setback for women. There is great irony in this. In the 19th century, women fought diligently for the right to consent and to be held legally responsible for doing so, especially by entering into their own contracts. In her essay entitled "Legal Disabilities of Women" – a famous plea to have women's consent taken seriously – the individualist feminist Sarah Grimke compared the legal status of married women to that of slaves. She wrote, "All contracts made with her, like those made with slaves by their owners, are a mere nullity."
Grimke did not want women be taken seriously only when it was to their legal advantage. She wanted women to bear legal responsibility for their bad acts as well. For example, she decried a law that stated, "A wife is excused from punishment for theft committed in the presence, or by the command of her husband." Grimke considered this law to "destroy the responsibility of woman as a moral being, or a free agent….[S]he may break the eighth commandment with impunity, as far as human laws are concerned." Such pioneering feminists struggled not only for women's rights but also for women's responsibilities so that their sex could stand erect and equal with men. They would be appalled by the attack on women's responsibility that has been led by feminism in the last two decades.
Radical feminism has declared repeatedly that intelligent adult women are incapable of rendering consent for one reason or another. Pornography has been labeled "violence against women" regardless of whether the women involved willing pose for and consume it. In her book "Surviving Sexual Violence," Liz Kelly offers a typical definition, "Sexual violence includes any physical, visual, verbal or sexual act that is experienced by the woman or girl, at the time or later, as a threat, invasion or assault, that has the effect of hurting her or degrading her and/or takes away her ability to control intimate contact."[Emphasis added] In other words, the woman can say u2018yes,' then later change her mind and nullify the consent. Prostitutes are all abused women who have lost the capacity to make a healthy choice.
In the feminist attack on surrogacy, a key element has been a contention that the surrogate mother's contract is invalid. In general, the feminist case against surrogate contracts rests largely on two arguments: the woman is selling herself into a form of slavery and this invalidates any contract; and, the woman cannot give informed consent because she does not know how she will feel later about the child.
1) The woman is selling herself into slavery. But there is no difference in kind between a woman u2018renting' her womb and doing the same with other parts of her body. A physical therapist rents her hands and a lawyer rents her brain. So what constitutes slavery?
An essential aspect of slavery is alienation of the will. That is, a person sells not only the use of her body but also her moral and legal jurisdiction over it. This is the difference in kind between a slave and a wage earner. A slave transfers her self-ownership to another person, whereas a wage earner temporarily rents out an aspect of herself. Clearly, a surrogate mother does not surrender the moral and legal jurisdiction over her own body. This is clear from the fact that she is not deprived of the right to breach the contract and pay penalties for doing so. The real problem with surrogate contacts is not that they constitute slavery but that the partial rights being temporarily relinquished and the consequences of a breach are usually ill defined.
2) The surrogate mother cannot give informed consent because she does not know how she will feel in the future. This is not an attack on surrogacy so much as the negation of the possibility of contracting itself, since a similar statement could be made about almost every contract. If I sell my family home, for example, I do not know how much I will miss the memories it holds until later. If I agree to paint a portrait, I do not know how emotionally attached I will become to the work until it is finished. If I agree to mow a lawn on Saturday, I do not know how personally important free time might be to me until Saturday rolls along. To say that I am able to breach a contract with impunity simply because I have second thoughts is, in essence, to make the act of contracting impossible.
If women cannot be bound by consent and contract – if they cannot legally assume the rights and responsibilities of being taken seriously – then radical feminists will have returned them to the status of slave from which they claim to be rescuing them. It is enough to make a self-respecting woman long to erase the last century of feminist theory and return to the day of Sarah Grimke and her sister Angelina.
In her essay "Human Rights not Founded on Sex," Angelina proclaimed, "Human beings have rights, because they are moral beings….Now if rights are founded in the nature of our moral being, then the mere circumstance of sex does not give to man higher rights and responsibilities, than to woman. When human beings are regarded as moral beings, sex, instead of being enthroned upon the summit, administering upon rights and responsibilities, sinks into insignificance and nothingness….My doctrine then is, that whatever it is morally right for man to do, it is morally right for woman to do."
And, as the logical corollary that 19th century individualist feminists eagerly willingly embraced, whatever it is morally improper for a man to do, it is improper for a woman to do. This includes, first and foremost, denying responsibility for actions willingly taken.
June 15, 2000
Wendy McElroy is author of The Reasonable Woman. See more of her work at ifeminists.com and at her personal website.
