The Purest Democrat: Fetal Citizenship and Subjectivity in the Construction of Democracy in Poland
2004; University of Chicago Press; Volume: 29; Issue: 3 Linguagem: Inglês
10.1086/381106
ISSN1545-6943
Autores Tópico(s)Soviet and Russian History
ResumoPrevious 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 assigned by the colonies that would become the United States (1987).Reproducing the new capitalist familyAbortion had been a legally protected practice in Poland from the late 1950s, and the possibility of altering the law did not arise until the end of Communist Party government in 1989.8 Between 1989 and 1993, the term abortion became a center point for a wide‐ranging debate over, among other things, the legal status of abortion as a medical procedure; the moral implications of an individual, a family, or the state choosing to end a pregnancy; the role of the Catholic Church in postcommunist Poland; the increasing impact of medical technology; the emergence of "Europe" as a signifier of cultural progress and as an object of desire; and the discourse of "rights." This latter discourse targeted a number of categories of persons who were able to claim rights, such as women, workers, citizens, unborn children, and religious worshippers. It also designated the specific cultural and social formations to which these persons had rights, such as the size of the family, personal autonomy, abortion itself, bodily integrity, "choice," and, of course, life.9 It became clear well before the Polish parliament actually passed any new abortion legislation that reproductive practices themselves constituted a social text to which many cultural contestants laid claim. The number and range of ways of talking about abortion point to the status of reproduction as a text that is porous, open to representational incursions from, for example, nation, church, medicine, and woman. At the same time, questions about the meaning of reproduction in the "new" Poland functioned to provoke anxiety over other social texts, particularly woman, fetus, family, and nation. In other words, abortion practices both enabled and disrupted the new and renewed vocabularies circulating in post‐1989 Poland and throughout eastern and central Europe.10The 1993 end to legal abortion was prefigured by a decision in late 1991, when the physicians' professional association prevented its members from performing abortions unless a pregnant woman's life was in danger (Nowakowska 1991). Called an "ethics code" because it allowed doctors to refuse to perform abortions, it assumed that a pregnant woman's awareness of "fetal deformities" would make her more likely to choose an abortion and thus included a limitation on the conditions under which prenatal testing would be allowed. The penalty for violating the code was a disciplinary hearing and the possible suspension of the doctor's license, although appeals were possible. The decision to make this ethics code mandatory provoked dissent from some doctors at the association meeting yet was definitively instituted (Zielinska 1993).During this time (1989–92), many drafts of antiabortion bills emerged in the Polish parliament. These drafts incited debates among members of parliament and caused the mobilization of social groups, statements from the Catholic Church, and attention from abroad. In February 1993, a new ban on abortion was signed into law, allowing abortion only when medical authorities determine that the life or health of the pregnant woman is at stake, the woman is pregnant because she had been raped, or prenatal testing indicates "fetal deformity" (Plakwicz and Zielinska 1994). However, in September 1996 a newly elected parliament dominated by the Social Democratic Party substantially liberalized these conditions, allowing abortion when the woman seeking it faces economic hardship.Contributing to support for the 1996 liberalization was a growing awareness of the negative effects of an abortion ban on household incomes in a new and unmonitored free‐market economy (Spolar 1996). In the 1993–96 period, private underground clinics sprung up, offering abortions for high fees. Doctors also offered them after regular hours, sidestepping both the law and the physicians' ethics code. Travel services specializing in transporting pregnant women across Polish borders to the Czech Republic also proliferated. At the same time, the government's rapid introduction of capitalist economic relations had caused social and economic dislocation, including falling incomes, an employment environment of competition and uncertainty, and an overall decline in the standard of living. These changes exposed the difficulties inherent in regulating reproduction and aligning such regulation with other policy goals in the post‐1989 context. Often what emerged as "abortion policy" was a myriad of discontinuous and coincidental conditions and practices.Similar to changes in abortion law in other European countries, the 1996 liberalized Polish law did not simply normalize abortion by placing it among other medical procedures offered to those seeking them, nor did the liberalization settle the contest over the moral significance of abortion as a practice. The legislation was a complex package of conditions, categories, and conversations. Pregnancies could be terminated to the twelfth week; both pregnant women and doctors participating in abortions after that period were subject to jail terms of one to eight years. The person seeking the abortion had to submit written agreement and consult two doctors, different from her original gynecologist, at least three days before the procedure (Nowakowska 1996). The consultation functioned to "inform" the woman that help was available should she decide to bring the pregnancy to term and about other birth control methods; to establish her physical condition, especially if she was submitting a request on health or "fetal deformity" grounds; and to give her time to "reflect." It was only after this consultation that the woman became a person who was "fully aware" in her decision to have an abortion (Montgomery 1996).Several European countries instituted new abortion legislation in the 1990s that, like the 1996 Polish law, required the woman seeking an abortion to first undergo counseling or petition for the permission of "experts." Hungary's 1992 law required counseling to focus on the "negative consequences" of abortion but, like the Polish law, created special allowances for women in "a crisis situation" (Einhorn 1993; Corrin 1994; Population Division of the United Nations Secretariat 1994b). In the Czech Republic, the law requires medical counseling and that the woman articulate a precise "social" or medical reason for the abortion, although it seems these requirements are rarely enforced (Heitlinger 1993; Population Division of the United Nations Secretariat 1994a). Croatia, Portugal, and Spain each have carefully articulated conditions involving extensive counseling and require permission from medical professionals to a greater degree than Slovakia and Belgium, where a physician's permission and some counseling are legislated (Cook, Dickens, and Bliss 1999). Perhaps the most interesting comparison to the 1996 Polish law is the German "Compromise Agreement" of 1992 and the subsequent constitutional court's decision overturning it and asserting a right to life for a fetus.11In contrast to the German case, Poland's legislature added a "hardship" clause to the counseling requirements in the 1996 law. This aspect of law gave it the appearance of a "liberalization" because it expanded the possible avenues a woman might take in her argument for an abortion. The clause, written by lawmakers, singled out women who faced "economic or social hardship," interpreted to mean that women lacking resources to support themselves or, more likely, women who already have children would simply not be able to sustain a household without the ability to terminate pregnancy. The "social hardship" clause is interesting because it constructed women as both crucial to the viability of a "household" and the mark of the household's downfall. Women in this context produce a family through giving birth to children but can only maintain that family economically by not giving birth. The disciplining of reproduction in the 1996 law thus incorporates abortion into the concept of family (more precisely, household) in the difficult economic times of postcommunist capitalism.8Although abortion was legal, it was not a "settled" issue. Abortion was contested as a legitimate practice during this period in discursive arenas other than that of public law. Conversations I have had with women who had abortions in the 1970s and 1980s support the idea that family, friends, partners, and medical practitioners held a variety of views on the meaning of abortion.9For an overview of abortion politics in Poland, see Zielinska 1993, 2000; Plakwicz and Zielinska 1994; and Githens 1996.10The idea of a social text that is both appropriated by a number of different "constituencies" and productive of a number of different identities draws from Judith Walkowitz's study of Victorian representations of danger (1992).11After enormous political debate, the new law required women seeking an abortion to undergo counseling, which must include reference to the "value of unborn life" (Wuerth 1999). In response, the Federal Constitutional Court supported the law's emphasis on the "right to life" of the fetus but argued that women could not be prosecuted for having abortions; the state was barred from funding abortion, and mandatory counseling could include church as well as lay experts (Minkenberg 2003). The effect was an uneasy legal coexistence between a fetal person, a woman whose cognitive selfhood is limited without counseling, and legal permission for abortion practice."A nation that kills its children is a nation without a future": The Catholic Church and fetal citizenshipThe 1996 liberalization of abortion law generated strong oppositional responses from the Catholic community both within and outside of Poland. The most authoritative voice among those Catholics within Poland objecting to the 1996 liberalization was that of the pope, John Paul II. In a strongly worded statement issued from the Vatican, John Paul stated that "a nation that kills its children is a nation without a future" (Reuters 1996; Kulczycki 1999). This formulation, which the pope and others who opposed legal abortion in the past had frequently invoked (Krasko 1994), was taken up by a number of voices protesting President Aleksander Kwaśniewski's intention to sign the 1996 liberalization into law. A frequent official spokesman for the Catholic clergy in Poland, Bishop Tadeusz Pieronek, argued that "it would be quite bad [if Kwaśniewski signed] because this is a bill which we from the beginning stressed was damaging to the Polish nation, and even to its biological existence … following its logic we will not have a future" (Rzeczpospolita1996). The head of the Polish Federation of Movements to Defend Life appealed to Kwaśniewski to "feel as if you are also the president of Poles not yet born" (Olczyk and Zdort 1996).The pope's statements, while powerful, did not prevent further contestation over abortion or disallow further legislation; Kwaśniewski signed the 1996 liberalization even while John Paul strenuously opposed it. However, John Paul's rhetoric, with its vivid imagery of abortion as the ultimate violation of human rights, linked the survival of a fetal citizen with the moral destiny of democratic Poland in a manner that has proven difficult to challenge within Polish culture. The particular form of the pope's condemnation of legal abortion was a part of the discursive context of the tribunal's 1997 decision, and his visit to Poland in June 1997, immediately after the decision was announced, contributed to the appearance of finality on the issue.This pope has had a particular authority and effect in Poland; the media has covered his periodic, ritualized visits to Poland so extensively that little space is left for any other topic. An icon of national unity and international prestige, the pope has the effect of reprivileging the Catholic "ethos" and sensibility from among other cultural currents in Poland. That an ethnic Pole became leader of all Catholics as well as a vocal supporter of the Polish "nat
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