Women and Law: Greater Autonomy - Essay Example

Women and law: greater autonomy Introduction: If there is one topic of discussion that creates as much heat as global warming, it is the issue of women, their roles and their level of autonomy. It is indeed a difficult task to play down the view that Courts have had of women and their call for autonomy. Whether the case focuses on forced marriages, abortion, sexual orientation or forced caesarians, there is very rarely a balanced approach to the rights of the woman per se. In recent times, there has been an attempt, albeit half-hearted, to bring in a semblance of equality. The term 'substantive equality' is one such effort that speaks of "affirmative action" that tries to facilitate the inclusion of women into hitherto male-dominated job areas. (Bartlett, 5). This situation is not just limited to the job market that is open to women. In cases where discrimination is justified in the name of tradition and culture, the courts are left with no recourse but to honor the cultural norms of people of different ethnic origins. The Supreme Court's view in Oregon v. Smith (Case 1, 5) could be applied to the case of a young Hindu or Muslim girl who would have to fall in line with the general dress codes in public places, even though this contravened the cultural norm. This was also upheld in Boerne v. Flores (Case 2, 5) with an added edge, which gave a much needed boost to minority rights in general and women's rights in particular. The roles of women - the changing milieu: Making choices seem to have become an inevitable part of life for most women today. These choices need to be made not just with the roles that they are called upon to play, but also on the basic values that they hold dear to themselves. The question of women's rights, vis--vis abortion or forced marriages, for instance, open up a Pandora's box of unanswerable questions without much of the vital element of hope, beneath them all. This is a not a situation that has geographical limitations. It is as universal as the fact of male domination in most sections of private and public life today. It is in this changed and charged scenario that women need to raise their voices, either individually or in unison, against the prevailing lack of respect for their own autonomy, both in and out of courts. A brief look at control exercised by women in relation to abortions: Who decides and more importantly when - these are some of the painful issues that keep flitting through the mind of a woman who is burdened with an unwanted pregnancy. There are conflicting views however, on this, as is always the case. Lord Ellenborough's Act of 1803 calls for stringent action against the right of a woman to have an abortion after the eighteenth week of pregnancy. (Ellenborough, 5). The Offenses Against the Person Act and The Infant Life (Preservation) Act of 1929 insisted that abortion could not be condoned unless there was sufficient reason to believe that the foetus had to be eliminated as there was a potential danger either to the mother or to the unborn child. This was done to ensure that no danger would befall the unborn foetus, so incapable of defending itself. In Rex v. Bourne (Case 3, 5) where a doctor was charged under the provisions of the acts mentioned earlier, for having performed an abortion on a fifteen year old girl (a rape victim), the court found him not guilty of the offence. This judgement was because of the discernment of the court in the treatment of an abortion case which, if not done, would have resulted in the deterioration of the mental and physical health of the rape victim. It was decided that the riddance of the unborn child, when weighed against the more valued life of the mother, was in every sense of the term, perfectly justified. This case of Rex v. Bourne was reflective of the judgements and opinions in Halsbury (Hailsham Edn.) (Case 4, 5). In C vs. S, there was a debate on the status of the foetus and the viability of the same at a particular stage in pregnancy (Case 5, 5). The Abortion Act of 1967 passed in the United Kingdom to regulate the performing of abortions by medical practitioners through the National Health Service ensured that foetuses up the age of 24 weeks could be removed clinically. Any effort to do so after the prescribed 24 weeks would attract penalization. This act was further strengthened and abortion made legal in the UK (till the 24 week deadline) by the introduction of The Human Fertilization and Embryology Act (1990). People who look at the issue of abortion from a religious point of view would have strong arguments against abortions at any stage. Considering life as a gift from god, they would be aghast at the taking of it, not bothering about the autonomy of the woman or her decision making capacity. The issue of forced caesareans: The use of the c-section in infant delivery has for long been a medical alternative that has been viewed with a lot of uncertainty. The point here to be made is the capability of the adult who is called upon to make the decision. In Sidaway v. Governor of Bethlem Royal Hospital, it was allowed that an adult could make decisions, however irrational they may sound, if the person concerned was competent to make the same (Case 6, 5). The issue then shifted focus to the assessment of competence. In Re C (1994) (Case 7, 5) competence would include the premise that the patient was in sound mind and capable of assessing the good and bad points of the decision that had to be made. Conclusion: While on the subject of more autonomy for women, feminists like Germaine Greer (Greer, 5)talk about the need for women having defining roles in all walks of life. She is joined by Mary Joe Frug, (Frug, 5) whose views on postmodern feminism talk about the need for a debate not between the sexes, but within the sexes themselves, in order to establish firm identities. In a country or society where coercion is not viewed as such, but is done because it is presumed that a woman 'knows no better', it is common to find instances of forced marriages and forced medical treatments, much against the wishes of the female patients. Issues such as female infanticide and foeticide do not seem to be disturbing to the majority of the male population, in general. Moreover, there are larger issues of choice and of assertion of the female identity that cannot be set aside by judgements passed in a few cases or by enactments and amendments on the way. With growing awareness on feminism and women's autonomy, there is maybe a little flicker of hope that the law would help redefine the roles of women in society. References: Bartlett, K.T. & Harris, A. (1998) Substantive Equality in Randall V. (ed.) Gender and the Law (261-262). Dayton. Greer, G. (1999) The Whole Woman. Doubleday Frug, M.j (1992) Postmodern Feminism, London. Routledge Legal Case References & Acts: Case 1: Oregon v. Smith, 494 U.S. 872 (1990). Case 2: Boerne v. Flores, 521 U.S. 507, 536 (1997). Case 3: Rex v. Bourne, (1939) 1 K.B. 687, 3 All E.R. 615 (1938) Case 4: Halsbury (Hailsham Edn.), Vol. 9, pp. 458 - 460, paras. 783 - 785 Case 5: C v S [1987] 1 All ER 1230, Heilbron J: Case 6: Sidaway v Governor of Bethlem Royal Hospital [1985] AC 871 Case 7: Re C (Refusal of Medical Treatment) [1994] 1 FLR 31{OHP} Lord Ellenborough's Act, 1803. 43Geo. 3, C. 58 The Infant Life (Preservation) Act, 1929. 19 & 20 Geo. 5, C. 34 Offenses Against the Person Act, 1861. 24 & 25 Vict., C. 100, section 58. The Abortion Act, 1967, United Kingdom. The Human Fertilization and Embryology Act, 1990, United Kingdom Read More