Roxanne Mykitiuk & Dayna Nadine Scott, “Risky Pregnancy: Liability, Blame, and Insurance in the Governance of Prenatal Harm”

Working Abstract

In defence of women’s autonomy, Canadian law has to date refused to assign liability to pregnant women for harms to the fetus before birth, even in situations of her negligence. In critiquing a legislative change in Alberta that threatens to reverse that trend, we confront the non-legal pathways through which blame and responsibility for risks or harms to the fetus are assigned to pregnant women. This “governance from a distance” is effective at influencing women’s behavior, even where direct state regulation resists the translation from risk to blame. In the context of car accidents, however, the availability of insurance complicates the analysis in terms of who is to bear the consequences when ‘risky’ behaviors by pregnant women materialize into real harms. This leads us to reflect on whether contemporary risk governance strategies are necessarily ‘individualizing’ and ‘privatizing’ moves, or whether they can be ‘collectivist’ in some instances as well.

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