[雙語翻譯]外文翻譯--發(fā)達國家的生育權(quán)（英文）

1、Reproductive Rights in Affluent NationsRoxanne Mykitiuk, Osgoode Hall Law School, York University, Toronto, ON, Canada Robyn Lee, Banting Postdoctoral Fellow, Brock University, St. Catharines, ON, Canada? 2015 Elsevier L

2、td. All rights reserved.AbstractReproductive rights have historically focused on access to safe, legal contraception and abortion. More recently, reproductive rights have come to include preservation of reproductive heal

3、th and access to assisted reproductive and genetic technologies that facilitate procreation. Recognition of additional barriers to reproductive self-determination experienced by members of marginalized groups has led to

4、demands for reproductive justice that address the concerns of poor women, racialized women, women with disabilities, and LGBTQ individuals.IntroductionBeginning in the nineteenth century and gaining strength in the twent

5、ieth century, the struggles for access to safe, legal contra- ception and abortion have been the most dominant issues in the pursuit of reproductive rights in developed nations. Recent advances in technology have meant t

6、hat assisted reproduction and genetic screening and testing have also become contested sites in struggles over reproductive rights. Earlier accounts of reproductive rights were largely concerned with women’s abilities to

7、 make choices to avoid unwanted procreation, whereas in the contemporary context, reproductive rights have been argued to include a spectrum of rights aimed at preserving women’s reproductive health, enabling procreation

8、, and possibly determining the characteristics of one’s future chil- dren. Whereas earlier struggles over contraception and abortion were framed as upholding women’s reproductive autonomy, recent debates on reproductive

9、justice also include the right to bear and raise children and the determination of genetic characteristics of those children. Complicating this view is the linkage of reproductive rights with social justice developed by

10、organizations advocating for the rights of women of color beginning in the United States during the late 1980s. The concept of reproductive justice arose from recognition of the substantial barriers poor women, racialize

11、d women, women with disabilities, and LGBTQ indi- viduals have always encountered in exercising their reproduc- tive rights. This broader conception of reproductive justice, which recognizes that women from marginalized

12、groups face additional obstacles to reproductive self-determination, has since expanded beyond the U.S. context to address obstacles faced by women worldwide.Reproductive RightsReproductive rights have been grounded in t

13、he recognition that individuals are entitled to bodily autonomy and the ability to make their own reproductive choices. Autonomy is conven- tionally defined in terms of individual control over one’s body and behavior, an

14、alogous to ownership of one’s self. This narrow understanding of autonomy and choice obscures the extent to which behaviors and actions are profoundly affected by broader social influences. Relational autonomy offers ana

15、lternative understanding of autonomy and selfhood that recognizes that we are both shaped through our relationships with others, while at the same time we are autonomous in not being determined by our relationships (Nede

16、lsky, 2011). Under a relational autonomy framework, reproductive rights cannot be limited to protections for individuals from interfer- ence from the state, but must also include necessary supports for bearing and raisin

17、g children. However, reproductive rights in developed nations do not generally follow a relational autonomy framework. Conventional debates on reproductive rights have been animated by a number of distinctions that have

18、contributed to informing their scope and content. Central has been the distinction between negative and positive rights and the distinction between procreative and parental rights. More recently, international law source

19、s and norms have also informed the content and scope of reproductive rights. Traditionally, negative rights are understood as civil and political rights, considered to be guarantees of freedom from state interference. Po

20、sitive rights are understood in terms of social and economic rights, as affirmative obligations on the state to enable certain rights. In the context of reproductive rights, negative rights would include protections agai

21、nst forced sterilization, for example, while positive rights would require the state to provide access to a minimum standard of sexual and reproductive health care. It is important to distinguish between procreative and

22、parental rights, since parental rights do not necessarily follow from procreative rights. Definitions and protections for both of these types of rights vary widely in different jurisdictions. For example, procreative rig

23、hts include whether, how, when, and with whom to procreate. While it is often assumed that parental rights flow automatically from the exercise of procre- ative rights, in some jurisdictions they do not. This has become

24、especially apparent in the case of determining parental status when assisted reproductive technologies (ARTs) are used and multiple parties are claiming parental status. Biological progenitors and/or surrogates who have

25、an embodied rela- tionship with the resulting child may be denied parental rights in relation to the child with whom they have a procreative relationship. Even in circumstances where ARTs are not used, in some jurisdicti

26、ons the doctrine of best interests of the child takes precedence over parental rights; for instance, in the case of child abuse, parental substance abuse or incarceration, and in468 International Encyclopedia of the Soci

27、al the fetus has no legal personhood. However, in many jurisdictions the fetus is granted special legal status as a result of being viewed as a potential person (Harris-Short, 2009). Debates over the status of the fetus

28、 occur between those who attribute personhood to the fetus at varying stages of devel- opment and those who deny that it has any legal status until it is born, with a range of positions in between. The debate over fetal

29、protection was active in many coun- tries in the late 1980s and early 1990s and continues today. Women’s rights were overwhelmed by the so-called ‘protective incarcerations’ of pregnant, drug-addicted women, some of whom

30、 received nonconsensual medical treatments. Some women whose infants were born testing positive for drugs were prosecuted for harm alleged to have been caused in utero. Poor, racialized women have been particularly targe

31、ted (Roberts, 1991). Such prosecutions continue in some U.S. states, in addition to repeated unsuccessful attempts to establish legal personhood status for fetuses. The Supreme Court of Canada has to date refused to assi

32、gn liability to pregnant women for harms to the fetus before birth. In the case of Dobson (Litigation Guardian of) v. Dobson (1999), the court considered whether a fetus born alive and viable could bring a tort action ag

33、ainst his biological mother for injuries allegedly caused while in utero as a result of her negli- gent operation of a motor vehicle. Distinguishing between a legal action brought against a pregnant woman by her born ali

34、ve child and one brought against a third party, Justice Corey wrote that the imposition of liability “may make life for women who are pregnant or who are merely contemplating pregnancy intolerable.” The court held that t

35、he liberty and equality rights of women would be violated by a finding of liability in these circumstances and that their privacy and autonomy rights would be jeopardized. In Winnipeg Child and Family Services (Northwest

36、 Area) v. D.F.G. (1997), the Supreme Court of Canada considered whether a pregnant aboriginal woman (Mrs G) addicted to glue sniffing could be involun- tarily detained until the birth of her child and forced to undergo t

37、reatment for her addiction. A majority of the court held that the fetus has no legal rights until born alive and therefore there was no legal person on whose behalf Mrs Gcould be detained. Neither the law of tort nor the

38、 court’s parens patriae jurisdiction can be used to detain and treat a pregnant woman for the purpose of preventing harm to an unborn child. Both of these cases reject fetal personhood and reassert women’s reproductive a

39、utonomy and security of the person. The concept of fetal viability in law is used to limit repro- ductive choices for women. Fetal viability refers to a develop- mental stage in which the fetus can survive outside the wo

40、mb if it were prematurely delivered. In the groundbreaking U.S. Supreme Court abortion case (Roe v. Wade, 1973), the fetus was determined to have limited legal personhood at the point of viability. In Roe v. Wade (1973),

41、 states could regulate to limit abortions in the third trimester except where they were neces- sary to save the mother’s life. But in the later Supreme Court case (Casey v. Planned Parenthood, 1992), the emphasis on the

42、third trimester was changed. Instead, the court ruled that state laws were not to place any undue burden on women seeking abortions up to the point of viability. Viability could arise before the third trimester given adv

43、ances in technology. As a consequence, fetal viability has been constructed as the moment when a fetus gains personhood status under the law, rather than personhood beginning with birth. Although fetal personhood and mat

44、ernal agency are often viewed as competing interests under a traditional liberal conception of subjectivity, a relational understanding of subjectivity allows us to see that the bodily boundaries of fetus and pregnant wo

45、man are actually intermingled. Reconceptu- alizing autonomy through a relational lens allows for the development of laws that recognize a fuller understanding of selfhood as constituted through relationships with other p

46、eople and social institutions, bodily practices, and beliefs (Downie and Llewellyn, 2011; Nedelsky, 2011). Such a view of the relationship between pregnant woman and fetus is also consistent with postmodern feminist desc

47、riptions of the body in which self and other are never fully separated (Haraway, 2013; Shildrick, 1997). However, as Ordolis points out, a rela- tional approach must be reconciled with respect for women’s reproductive au

48、tonomy. This requires going beyond the inev- itably adversarial approach of the courts, recognizing the systemic causes of maternal substance abuse, including discrimination, poverty, and violence, and promoting maternal

49、 and fetal health by supporting women’s capacity to make healthy choices without eroding their bodily integrity (Ordolis, 2008).Reproductive JusticeThe concept of reproductive justice was developed and princi- pally advo

50、cated for by organizations of women of color who were critical of the narrow focus on access to contraception and abortion and called for a broader analysis of the racial, economic, cultural, and structural constraints o

51、n women’s reproductive choices. These choices for marginalized women have been forcefully curtailed as a result of systematic oppres- sion. According to the reproductive justice movement, the pro- choice paradigm of repr

52、oductive rights fails to recognize broader infringements of reproductive rights faced by women of color and aboriginal women, poor women, women with disabilities, and women from other marginalized communities470 Reproduc