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In 2007, there was a  dust-up regarding feminist activist and author Jessica Valenti because, as she so eloquently put it,

I had the gall to show up to a meeting with my breasts in tow.

It’s a good thing she wasn’t pregnant, because apparently if you are, you have to get permission from the man who impregnated you to go anywhere with your fetus in tow.

Erick Eckholm at The New York Times profiles the case of Sarah McKenna, a (former) marine and firefighter, who had the gall to go to college and bring her fetus with her.

McKenna and the Olympic skier Bode Miller had a brief relationship in California that resulted in McKenna’s pregnancy.  Early in the pregnancy, when McKenna invited Miller to come to an ultrasound appointment, he refused, texting her, “U made this choice against my wish.”  When she was in her third trimester, she left for New York to attend Columbia University under the Yellow Ribbon Program, which offers special support for veterans.

Miller had since decided that he wanted to be a father and felt this gave him the right to determine where McKenna could take her pregnant body.  What is truly appalling is that he got a judge to agree with him:

Mr. Miller accused [McKenna] of fleeing to find a sympathetic court, and a New York judge agreed, castigating Ms. McKenna for virtually absconding with her fetus. This allowed a California court to subsequently grant custody of the baby, a boy, to Mr. Miller…

Note that the “baby” in question had not been born.  It resided where McKenna did because it lived in her body.

A court in New York came to a saner conclusion, saying,

Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.

But when the baby was a few months old, a Family Court rebuked McKenna for “unjustifiable conduct” and “forum shopping” and decided to leave the case in California, even though McKenna began living in New York before the baby was born.  According to the Times,

While Ms. McKenna “did not ‘abduct’ the child,” the court said, “her appropriation of the child while in utero was irresponsible, reprehensible.”

The definition of the verb “appropriate” is to “take (something) for one’s own use, typically without the owner’s permission.”

McKenna apparently thought her body was hers, and that she could bring its entire contents to college.  On Slate’s DoubleX, Emily Bazelon notes that “the dilemma posed by parents who both love their children, but don’t want to or can’t live near each other, is both common and confounding,” but that when parents can’t reach an agreement, “courts step in after a child is born.”

In a Juvenile Justice Bulletin, Patricia M. Hoff explains that the Uniform Child Custody Jurisdiction and Enforcement Act is “designed to deter interstate parental kidnapping and promote uniform jurisdiction and enforcement provisions in interstate child custody and visitation cases.”  As an amicus brief filed on McKenna’s behalf by a dozen groups* states,

The plain language and clear intent of the UCCJEA make obvious that it may only be applied to live, birthed children. The Act grants no authority to courts to determine custody, or jurisdiction of custody cases, based on the location of embryos, fetuses, or by necessity, the associated pregnant women.

The UCCJEA does not define pregnant women as “persons” who may be found to have engaged in “unjustifiable conduct” by “removing” or “absconding” with the fertilized eggs, embryos or fetuses they carry, nurture, and sustain.

A pregnant woman cannot help but dictate the geographic itinerary of the egg, embryo, or fetus that by biological necessity goes where she goes.

Temporary custody has since been granted to McKenna (note the very important information in the headline that McKenna is blond).  

University of Florida law professor Lee-Ford Tritt told Slate’s Bazelon,

I’m outraged by this idea that [the courts] even ask about her motive. Columbia is a phenomenal school, but I don’t care if she just liked the bagels and pizza in New York better.

Maybe it will be decided that eating bagels is unhealthy for pregnant women and they can get in trouble for that too.  In fact, maybe women could get in trouble for behaviors others don’t sanction when they are “pre-pregnant.”  Because if a woman’s body isn’t hers when she is pregnant, it isn’t hers at all.  And if men’s bodies are not restricted because that violates men’s human rights, then what are we saying about the humanity of women?

*The groups filing the brief are National Advocates for Pregnant Women; New York Civil Liberties Union; MotherWoman, Inc.; National Organization for Women in New York City; Choices in Childbirth; Service Women’s Action Network; Planned Parenthood of New York City; and the Reproductive Justice Clinic at New York University School of Law.
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