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Afiya Pascall

Feminist Legal Theory Workshop

LLM 2010

EUGENICS THROUGH THE AGES

Introduction

Control over some things may be best left out of human hands. When science first

allowed human input into determinations of fertility by enabling safe and easy sterilizations, like

evil mad scientists, humans used this scientific enablement to further skewed, albeit passionately

held eugenic based conceptions of who should be a mother and which “kind” should be

perpetuated. The result was a dark period in American history. Dark, not only because the

conceptions were enthusiastically implemented and this resulted in a loss of reproductive power

to many, but also because the conceptions gained legitimacy by popular acceptance. This

legitimacy was dangerous, not only because it justified the perpetuation of the evil, but also

because it planted and nurtured feelings of inferiority in the victims of the evil. The result? A

unified societal acceptance of the inferiority of some and the superiority of others. A narrative of

misguided, self-righteous condemnation on the one hand and affirmed self-loathing on the other.

Now we see a second wind of science that gives humans control over fertility and those

who were physically unable to reproduce are now able thanks to scientific advancement in

fertility enhancement. The dangers of eugenics turning this control into something evil are

arguably lessened. Firstly, the control is positive, so reproduction is not curtailed, rather it is

enhanced and secondly, replaced societal ideas of what constitutes fundamental rights would

likely result in a rejection of blatantly eugenically motivated acts. But whether one wishes to

accept it or not, conceptions of who is inferior and who is superior still reign; the foundations

solidly built in the dark history of eugenics and racial discrimination in America, though chipped

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away, still have a root. There is therefore place for the question whether humans should even

have positive control over things like fertility. Is it not inevitable that eugenics would play a role

once the perceptions remain?

In this paper I consider this question and posit that although it may be less blatant than in

the first wave of science that facilitated sterilizations, eugenics plays a role in fertility

enhancement decisions. I first provide a framework for my argument by looking at consecutive

laws and initiatives in U.S. policy to show the correlation between eugenics and the

encouragement of the reproduction of a class and race of people that is perceived to be superior

and suppression of another which is perceived to be inferior, namely, poor minority women. In

the first part, I consider eugenics as a concept, looking at its history and the explanations used by

early advocates to justify practices to perpetuate the concept. I then look at the practice of

sterilizations as the first blatant and undisguised attempt to deny offspring to some “inferior”

groups.

I trace the history, development and eventual retraction of this tool of suppression and

oppression (sterilizations) and I look at the themes of (1) fear of draining the resources of

society, (2) belief that traits are genetically inherited, which were used to bolster the “legitimacy”

of the cause for early eugenic enthusiasts and enable them to shift eugenics from their personal

life work and passion to the popular view of society and eventually to a skillfully weaved in,

perpetually present and indomitable structure of U.S. law, policy and government. I point out

that because the “undesirables” of society are inevitably lower classed and of minority race,

eugenics is inescapably class-based and racist.

In part two I use the 2 themes highlighted in the paragraph above to cast a warning that

though the naked ugly expression of eugenics in the form of sterilization is no longer practiced

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and is in fact condemned, there are increasingly subtle forms of class-based and racist eugenics

being perpetuated in government policy, namely, immigration and welfare, and they can be so

identified by considering whether the initiative or law is propelled or can be justified on some

level by the themes.

I end in part three by returning to my first question- whether eugenics plays a role in

fertility enhancement. I try to answer it by looking at some of the issues that arose when two

popular figures in the U.S. utilized the technology, namely, Nadya Suleman and Michael

Jackson. I follow my logic train by looking for the themes. I argue that the presence of the

themes casts a cloud over the use of the scientific advance. Though the possibilities provided by

fertility enhancement are positive and empowering, there is room for exercising caution and

sober reflection in considering this advance which essentially allows inherently prejudiced

human beings to tinker with things originally out of their control.

Part 1

Eugenics

Eugenics is basically the suppression of the reproduction of an undesirable set and the

correlated encouragement of the reproduction of a superior set. Historically, suppressing the

reproduction of specific classes of individuals was justified as essential to maintaining the

welfare of society. This social justification for eugenics was re-enforced by science with the

discovery of genes in the late 19th century. Early scientists saw the possibility of linking genes

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with negative human traits that drained the resources of society like feebleness, pauperism,

prostitution, prostitution and criminality1.

By dangling the economic drain and threat of wellbeing that would be imposed upon

society if certain classes with “defective genes” were allowed to reproduce and justifying the

rationale on a notion as cutting-edge and enlightened as science, early enthusiastic eugenics

advocates, were able infiltrate their views into American policy and law2. One of the earliest

infiltrations of eugenics into law and policy was enacted laws forbidding categories of persons to

marry. The aim of such laws was to ensure the maintenance of a pure white line. In fact Madison

Grant, a prominent lawyer, used eugenics to argue that interracial marriage amounted to “race

suicide” and insisted that “[t]he laws against miscegenation must be greatly extended if the

higher races are to be maintained.”3

By the 1890’s, scientific advance which simplified the sterilization operation (vasectomy

for men and salpingectomy, the cutting and tying of the Fallopian tubes for women) enabled

eugenicists to exercise more direct control over reproductive patterns and ramp up the

effectiveness of their cause by initiating the practice of blatant, undisguised and unapologetic

eugenics- forced sterilizations.

Historical development of sterilizations

1 Lori B. Andrews, Past As Prologue: Sobering Thoughts on Genetic Enthusiasm 27 Seton Hall L. Rev 893, at 894

(1997). (Andrews usefully cites writings providing the historical authority for each of the listed traits at footnotes 2-

7 of her note) 2 Paul Lombardo argues that it was no anonymous “State” but rather the persistent lobbying of committed delusional

individuals that were the force behind sterilization laws: Michelle Oberman, Thirteen Ways of Looking at Buck v Bell: Thoughts Occasioned by Paul Lombardo’s Three Generations, No Imbeciles 59 J. Legal Educ 357, at 358

(2010) 3 Aderson Bellegarde Francois, To go into Battle with Space and Time: Emancipated Slave Marriage, Interracial

Marriage and Same-Sex Marriage 13 J. Gender Race & Just 105 at 128 (2009) citing MADISON GRANT, THE

PASSING OF THE GREAT RACE: OR THE RACIAL BASIS OF EUROPEAN HISTORY 47, 56 (1916).

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Three early visible forces behind the legitimization of eugenic sterilization were Harry

Laughlin4, Dr Albert Priddy

5 and Aubrey Strode

6. Harry Laughlin, hailed as the international

expert in eugenic sterilization drafted “A Model Sterilization Law” in 1914. In 1924 Priddy and

Strode assisted in drafting and lobbying for the Virginia Sterilization Act of 1924 which copied

almost verbatim parts of Laughlin’s Model Act7. These advocates justified sterilization as being

humane for the individual concerned as well as necessary for the welfare of the community8.

These advocates joined the cause of others who had long before brought eugenics to a

point of influential political momentum in the U.S. The first State to pass their Sterilization Act

based on eugenic principles was Indiana in 19079. By the 1930’s more than thirty states had

passed similar laws. By these early state laws, sterilizations were justified and authorized as

appropriate procedures to be performed upon those judged to have several “hereditary” defective

traits ranging from insanity and imbecility to drug addiction and criminality10

. Eugenic advocates

used their lobbying power, resources and influence to ensure that sterilization laws were

4 Former teacher from Missouri, funded by leading American Corporate Giants was able to establish a private

Eugenics Research Office in New York to more ineptly research the link between genes and human traits: Oberman

supra note 2, at 359 5Superintendent of the Virginia State Colony for Epileptics and the Feebleminded. Based on his interpretation of a 1916 Virginia law sterilized women on the basis that it benefitted their “physical, mental or moral conditions” until

his enthusiastic but misguided efforts were stalled by Virginia Court which justified sterilization only on the basis of

“medical emergency” rather than broader eugenic grounds: Id., at 360 6 Assisted in the drafting of the Virginia Sterilization Act of 1924: Id. 7 PAUL A. LOMBARDO, THREE GENERATIONS, NO IMBECILES: EUGENICS, THE SUPREME COURT,

AND BUCK V. BELL (THE JOHN HOPKINS UNIVERSITY PRESS 2008) AT 36, 47 8 Oberman, supra note 2, at 361 9 STEPHEN JAY GOULD, THE FLAMINGO’S SMILE: RELFLECTIONS IN NATURAL HISTORY, “CARRIE

BUCK’S DAUGHTER” (NEW YORK: W.W. NORTON AND COMPANY 1985), at 301-31 10Lisa Powell, Eugenics and Equality: Does the Constitution Allow Policies Designed to Discourage Reproduction

among Disfavored Groups? 20 Yale L. Pol’y Rev. 481, at 483-484, fn 16, (2002) (citing Harry Laughlin’s Model

Eugenical Sterilization Law which was the model for many State laws and suggested sterilization of all “socially inadequate classes”, which included the feeble-minded, insane, criminalistic, drug addicts, those with chronic,

infectious diseases, the blind, deaf, deformed and “dependent”, which included “orphans, ne’er-do-wells, the

homeless, tramps, and paupers: HARRY LAUGHLIN MODEL EUGENICAL STERILIZATION LAW, IN

EUGENICAL STERILIZATION IN THE UNITED STATES, A REPORT OF THE PSYCHOPATHIC

LABORATORY OF THE MUNICIPAL COURT OF CHICAGO 445, 447 (1992)

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vigorously enforced and history notes that by January 1935, some 20,000 forced “eugenic”

sterilizations had been performed in the United States11

The high-point of the legitimacy of sterilizations

Buck v. Bell12

marked the highpoint of eugenic sterilization legitimacy as it was a case in

which the Supreme Court added its stamp of approval on the practice. In upholding a Virginia

Statute which provided for the sterilization of the inmates of institutions supported by the State,

celebrated jurist Oliver Wendell Holmes upheld the sterilization of Carrie Buck, an eighteen year

old white woman who was handed up by her foster parents to the State Colony for Epileptics and

Feeble Minded. In declaring the statute within the power of a state under the Fourteenth

Amendment, Justice Holmes, calling upon skewed notions of patriotism and a premature

confidence in the then widespread idea that heredity plays an important part in the transmission

of insanity, imbecility etcetera, justified the sterilization of Carrie Buck13

and other like

(defective) individuals as a means to ensure and promote public welfare and advance , basically

holding that it was the least that society required of her and her kind as payment for “sap”[ping]

the strength of the state”14

.

The decline of sterilizations

11 California and Virginia were notorious states for enforcing these laws and nearly half of the total amount of

sterilizations in the US had been performed in California: GOULD, supra note 9 12 274 U.S. 200 (1927) 13 On the understanding that Carrie was feeble minded as was her mother and child. Later investigations showed

that this trial found “fact” was erroneous and the three unfortunates were only poor women vulnerable to abuse

from others and the state: Oberman, supra note 8, at 362 14 274 U.S. 200, at 207

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Technically Buck v. Bell is still good law as it has never been expressly overruled, but the

case of Skinner v. State of Oklahoma15

significantly undermines it’s authority in declaring

procreation to be a fundamental right necessary to ensure the survival of the human race. That

case involved a challenge to the Oklahoma’s Habitual Criminal Sterilization Act which allowed

a person found by a jury to be a habitual criminal, that is, a person convicted two or more times

for crimes amounting to felonies involving moral turpitude, 16

to be rendered sexually sterile.

Skinner was thrice convicted for crimes of moral turpitude17

and judgment was declared against

him that he undergo a vasectomy. In finding the state legislation to run afoul of the Equal

Protection Clause of the Fourteenth Amendment, Justice Gordon, in delivering the opinion of the

Supreme Court, noted firstly that the statute could not be upheld under the police power of the

State because of the uncertain state of scientific authorities respecting the inheritability of

criminal traits18

and secondly that the statute constituted “clear, pointed, unmistakable

discrimination since it allowed for the sterilization for those who were repeatedly convicted

larceny but not those repeatedly convicted of embezzlement19

though both were felonies20

.

15 316 U.S. 535 (1942) 16 Id., at 536 17

Stealing chickens once and robbery with firearms twice: id., at 537 18 Id., at 538 19 Id., at 541 20 Note that despite the Supreme Court’s disapproval with ordering sterilization as punishment for crimes, over time,

many lower courts have been receptive to the idea of ordering sterilization, temporary or otherwise as a condition of

probation or a term for plea bargaining. An example of such a practice by the lower court is the story of Carisa

Ashe, a single 28 year old African American woman with six children on welfare, who, in an act of desperation,

shook her 5 week year old daughter to death. Ashe pled guilty to the charge of manslaughter before Fulton County

Superior Court Judge Rowland Barnes and, to avoid jail time, agreed to five years probation under the condition that

she undergo sterilization: Rory Riley, A Punishment That Does Not Fit The Crime: The Use of Judge-Ordered

Sterilization as a Condition of Probation, 20 Quinnipiac Prob. L. J. 72, 72 (2006)

Also, several states have since implemented laws mandating to permitting “chemical castration” of certain sex

offenders: see Jeffrey L. Kirchmeier, Let’s Make a Deal: Waiving the Eighth Amendment by Selecting a Cruel and

Unusual Punishment, 32 Conn. L. Rev 615, 627, n. 105 (stating that California, Florida, Georgia, Iowa, Louisiana,

and Montana have laws permitting chemical castration)

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The Recurring Themes- (1) Genetic Transference and (2) Protecting Society

In making those two perceptive observations, the Supreme Court in Skinner v. Oklahoma

placed its finger on recurring themes in the application of eugenics that are still highly relevant

today. That is, firstly, the reliance on notions of genetic transference to suppress the reproduction

of an “inferior” sect and secondly, framing the justification for the suppression as necessary to

further the legitimate purpose of “protecting” society from the offspring of degenerates who are

fated to be no different from their parents.

Eugenics and Class

But the Court’s observation in Skinner v. Oklahoma takes the issue even further and

provides a framework for the analysis in this paper. The Court identifies the state law to be

discriminatory in trying to suppress the reproduction of one type of criminal as opposed to

another- Larceny (exemplified by petty desperate crimes like stealing chickens and armed

robbery) as opposed to the more sophisticated embezzlement. The poorer of society is restricted

to the former and those with more means can pursue the latter. By looking at the state law

through these lenses we see an illustration of the inextricable link between eugenics and class

and understand that a type of the inferiority which eugenics aims to suppress is low class.

Therefore we see the law could, under the seemingly neutral and patriotic façade of

promoting good order, quench an “undesirable” class of society. The Supreme Court is to be

applauded for perceiving and speaking out through the mouthpiece of its dicta to protect the

oppression of the lower class. But only on rare occasions can a thing which is carefully hidden be

perceived. A subtle evil, which is made even more so by laudable justifications is likely to be

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allowed to continue unabated and encouraged even by the most honorable, passionate and best

intentioned persons.

Eugenics and race

Race featured neither in Buck v. Bell (as Carrie Buck was a poor white woman) nor

Skinner v. Oklahoma (where the discrimination was based on class), but it would be naïve to

divorce eugenics from race, or even class from race for that matter. Although Carrie Buck was

the test case to legitimize the Virginia Sterilization Laws one writer notes after reviewing history

that “the eugenics movement that ensnared (Carrie Buck) was disproportionally concerned with

regulating the reproductive lives of women of color”21

. Further in true application of the chicken

and egg dilemma, one is left to wonder, after reading the history of eugenics, whether the issue

was one of suppressing the propagation of “inferior” human traits like insanity or deformity or

suppressing the race that inevitably manifested such degenerative traits.

Early eugenicists believed the highest stage of human progression was that of the white

race, individuals of African descent were at the lowest rung and races of mixed origin were

placed at different levels between the two extremes based on the composition of the mix22

. They

also believed that they could predict all manner of traits e.g., truthfulness versus criminality,

based on the racial background of the individual. Early scientist and eugenic advocate Robert

Yerkes23

used IQ testing on members of the US army enlisted to fight World War 1 to “verify”

his hypothesis that whites were superior24

. Even modern eugenic advocates make the link

21 Oberman supra note 2, at 375 22Rachel Silber, Eugenics, Family & Immigration Law in the 1920’s, 11 Geo. Immigr. L.J. 859, at 862 (1997),

citing CHARLES B. DAVENPORT, HEREDITY IN RELATION TO EUGENICS 8, 80 (1911) 23 Began his career as an assistant professor of psychology at Harvard University in 1905: Silber, supra note 22, at

863 24 Id.

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between race and eugenics when seeking to persuade others of their viewpoints. A pointed and

disappointingly recent example of such a link being made was by James Hart in the 2004

congressional election in Tennessee advocating for a “war on poverty genes”, namely those of

the “African race”25

.

Eugenics and Gender

Although eugenics also targets men26

, as will be confirmed in the discussion below, the

impact and focus of the large amount of eugenic based policies more acutely affects women.

This is unremarkable given the traditional view that women best served a baby-making, home-

making function and their health was to be protected mostly only because their “physical well-

being was essential to preserving the strength and vigor of the [human] race”27

. Though society

has considerably evolved from such ancient perceptions28

, this perceived role of women still

shadows in the manifestation of the other half of eugenics, that is, the call for the perpetuation of

the “superior” race.

One writer29

argues that this other prong of eugenics features in the anti- immigration and

anti-choice movement where, in response to a projected shift in the U.S. demographic

composition, politicians and other persons of influence rue the day of Roe v. Wade30

since it has

resulted in the “killing” of millions of American babies who could have taken the work-force

25 Lombardo , supra note 7, at 275 26 Criminal Sterilization laws applied to men as well as women as exemplified in Skinner v. Oklahoma supra 27 Muller v. Oregon 208 U.S. 412, 421 (1908) 28 This is exemplified by among other things, 19th Amendment prohibition of denying the right to vote on account of sex and the grant of reproductive freedom to make autonomous decisions on whether or not they wished to abort a

pregnancy in the watershed case of Roe v. Wade 410 U.S. 113 (1973) 29 Priscilla Huang, Anchor Babies, Over-Breeders, And The Population Bomb: The Reemergence of Nativism and

Population Control in Anti-Immigration Policies, 2 Harv. L. &Pol’y Rev 385 (2008) 30 410 U.S. 113 (1973)

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space of unwanted immigrants31

. Not only does this statement and like statements seek to revert

women to the role of child bearers, incapable of making their own reproductive decisions and

with no purpose in life but to contribute to the promulgation of the human race and nurture a

family, but, as the writer notes, “there is a racial undertone to such assertions” as, since the

mainstream reproductive rights movement being criticized is mostly composed of “white,

middle-class feminists, there is an implicit understanding that the millions of children killed by

abortion would have been white”32

The shift in demographics which is slowly but surely resulting in a U.S. population

composition where white Americans are losing majority population status to other races which

were previously in the minority is causing sheer anxiety in many U.S. conservatives who

perceive the shift as a threat to their political and economic power33

. Hence the duty call is going

out to white American middle class women that they “make more babies”34

and predominantly

white fundamentalist religious groups which take the Bible’s words “be fruitful and multiply”35

as a religious mandate from God are made into television celebrities36

and encouraged as the

31

Theory advanced by former Democratic Senator turned Republican Zell Miller at an anti-choice fundraiser:

Michael Roston, Tom DeLay Tells College Republicans that Abortion, Illegal Immigration Are Linked, The Raw

Story (July 17, 2007) http://rawstory.com/news/2007/Tom_DeLay_tells_College_Republicans_that_0718.html 32Huang, supra note 29 at 403-404 33 Rich Benjamin, White Racial Resentment Bubbles Under the Surface of the Tea Party Movement, AlterNet,

February 5, 2010 (discussing, among other things, the resentment expressed by members of the conservative Tea

Party Movement over the facilitated over-breeding of minorities), available at :

http://www.alternet.org/news/145560/white_racial_resentment_bubbles_under_the_surface_of_the_tea_party_move

ment (last viewed April 15, 2010) 34 The Big Story with John Gibson (Fox News television broadcast, May 11, 2006) 35 The Holy Bible, Genesis 9:7 36 E.g. Michelle and Jim Bob Duggar, stars of the hit TLC series 19 Kids and Counting (fundamentalist Christians

who have 19 children and follow the evangelical Christian movement called the “Quiverful” which teaches that

children are a gift from God and husbands and wives should happily welcome every child they are given and not use

birth control): Bob, Considine, Fuller house: Arkansas mom pregnant with 18th child, Today msnbc.com, May 9,

2008, available at : http://today.msnbc.msn.com/id/24537885/ (last viewed April 15, 2010)

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most potent strategy in the desperate race for babies against the non-white who already start out

at an “advantage” by virtue of them being “over-sexed and immoral”37

by nature.

So we see that the stakes to promote the “superior” race are potentially even higher than

they were at the start of the eugenic movement in the 18th century since, at that time the aim was

to maintain an existing social hierarchy while now there is a definite and predictable threat to the

status quo being shifted. It is only sensible to expect, given that persons who hold dear to

eugenic beliefs (whether consciously or unconsciously or nicely clothed in other justifications

like uncontrolled illegal immigration or fear of criminality) are still in positions of power and

influence in U.S. government and policy, that the suppression prong of eugenics is still alive and

well. I now show its presence and aim in modern government policies, the aim being to repress

the reproduction of poor women of color.

Part Two- Government Policies and Eugenics

Immigration and Eugenics

One writer notes that restrictions upon immigration marked the greatest triumph of the

American eugenics movement38

. Shifting immigration trends where firstly, the “old” stock

immigrants from Western Europe were being displaced in number by the “new” stock

immigrants from Eastern and Southern Europe and secondly, husbands were migrating to the

U.S. first to later send for their family after they had established themselves, alerted eugenicists

of the need and urgency of acting quickly to restrict the entry of less desirable immigrants39

37 These assertions were the result of fecundity studies by eugenicists who collected “unbiased” and “accurate”

statistics that proved this “fact”: Silber, supra note 22, at 863 38 GOULD, supra note 9 39 Silber, supra note 22, at 867

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With the support of Congress,40

consecutive immigration acts were passed to “sift” the

quality of person allowed on US shores, ensuring that only those with “certain physical and

moral qualities” were permitted41

. Therefore early Immigration Acts of 188542

and 189143

were

premised upon the goal of, among others, “excluding undesirable immigrants”44

. The

Immigration Acts of 1903 and 1907 incorporated the Public Charge Law of 188245

which barred

from entry “any person unable to take care of himself or herself without becoming a public

charge”, a provision still used by consular officials today to refuse some immigrants’

applications for a U.S. visa46

. The Immigration Act of 191747

incorporated literacy tests which

premised entry on meeting a minimum literacy requirement. This was clearly a “facially neutral”

qualifying factor that would have discriminated against those of lower class who would not have

had the same access to education as those of a higher class. The Immigration Quota Acts of

192148

and 1924 reflects, by their mechanisms, clear attempts to shift the demographic of

immigrants by seeking to exclude specific undesirable traits.

The Immigration Quota Act of 1921, among other things, limited immigrants of a

particular nationality to three percent of the number of individuals from that country residing in

the United States and counted as a citizen during the 1910 census49

. The Quota Act of 1924

decreased the percentage allowed to two percent and, on the recommendation of influential

40 A notable number of lawmakers were eugenicists and to bolster, Harry Laughlin was appointed by the House

Committee on Immigration and Naturalization and arranged an important display which further increased

Congressional support for eugenic principles: id., at 872 41 1891 Congressional Report: Immigration Investigation, H.R. Rep. No. 3807 51st Cong. 2nd Sess (1891) 42 Immigration Act of Feb 26, 1885, ch 164, 48 Stat. 332 (1885) 43 Immigration Act of 1891, Mar. 3 1891, ch 552, 51 Stat 1084 (1891) 44 Bina Kalola, Immigration Laws and Immigrant Woman 1885-1924, 11 Geo. Immigr. L.J. 553, 557 (1997) 45 22 Stat 214 (1882) 46Kevin R. Johnson, Public Benefits and Immigration: The Intersection of Immigration Status, Ethnicity, Gender

and Class, 42 UCLA L. Rev. 1509, 1521 (1995) 47 39 Stat 874 (1917) 48Immigration Act of May 19, 1921, 42 Stat. 5 49 42 Stat 5 § 2(b)(1921)

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eugenicists who had Congress’ ear, changed the determinative date of the census from 1910 to

1890, a date which was influenced by the principles of the 1920’s genetic science50

These initiatives in immigration policy had their desired effect of substantially decreasing

the immigration prospects of many, but also, it has been argued, particularly severely affected

the immigration prospects of and discriminated against women51

. For the purpose of illustration,

In relation to married women, the Quota Acts made it difficult for women to reunite in the U.S.

with their men who left before them52

.This resulted in a sharp increase of the number of

separated families- incidentally the traditional bedrock of procreation. Some legislators,

observing the effects of the Act on family structure, tried to propose amendments to the 1924

Immigration Quota Act that would facilitate the reunion of families, however, by 1926

eugenicists were successful in blocking any amendments with this remedial purpose53

.

But the eugenic intent behind immigration laws to limit the reproductive capacities of

specifically women of color can be probed even further. There are documented repeated

occasions where, under the justification of enforcing immigration policy, pregnant immigrant

women of color have been made the target of harsh removal practices54

. The number of such

50 Silber, supra note 22, at 881-882 51

Kalola supra note 44 ; see also Silber supra note 22, at 885-896 (where she illustrates how the immigration acts

detrimentally affected women of different statutes- women married to male American citizens, women of American

citizenship married to a male of another citizenship, women of Asian descent and single women) 52See Silber supra note 37 ( generally where she discusses with detail how the mechanism of the Immigration Acts

had this effect) 53Id., at 885 54 Richard Jacques, RHS Senior Deported: Parents Concerned, Roswell Daily Rec., Dec 8, 2007, available at

http://reswell-record.com/main.asp?Search=1&ArticleID=49&SubSectionID=112S=1 (deportation of Karina

Acosta, pregnant 18 year old girl from Mexico who was arrested for a traffic ticket and handed over to ICE for

deportation; Pregnant Mother’s Arrest at School Sparks Outrage, NEW AM. MEDIA, Dec 21, 2007, available at

http://news.newamericamedia.org/news/view_article.html?article_id=0840 (arrest and deportation of Maria Ramirez, married high school student who was eight months pregnant; Nina Bernstein, Protests Brew Over Attempt

to Deport a Woman, NY Times, Feb 14, 2006, at B5(Jiang Zhen Xing, Chinese woman pregnant with twins

miscarried after federal immigration officers suddenly decided to forcibly deport after residing in the US for 10

years and being given the assurance by immigration officials that she could remain in the country “under

supervision” as long as she attended routine check in interviews with ICE officials.

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stories has caused some to “question whether pregnancy has become a red flag for removal by

Immigration and Customs Enforcement officials”55

.

One such narrative is that of Cynthia Lamah, Cameroonian woman who was denied legal

right to remain in the U.S. with her permanent residing husband, who had been granted political

asylum, and son who was a U.S. citizen. She was four months pregnant when detained in

Ramsey County jail to await her deportation. She experienced dizziness, back pain, vaginal

cramps and bleeding but was still denied medical care and eventually miscarried in jail. She was

subsequently deported without being able to attend her child’s funeral56

Application of the themes

The welfare justification for decreasing the number of “undesirables” on U.S. soil has an

interesting twist in the immigration debate. Added to the usual “social welfare” argument based

on the myth that immigrant do not pay taxes and overuse social service programs leaving a

burden on U.S. citizen taxpayers who must “pick up the tab” 57

is an “ecological equilibrium”

argument which asserts that the over-crowding of the U.S. by immigrants and their children is

drain on the natural resources of the U.S. and detrimental to the environment58

. Secondly, the

expressed aim of early immigration laws to exclude those who carried “undesirable” physical

betrays a reliance on the indefeasibility of transmission of negative genetic traits- A fear that

unfit immigrants would procreate and flood U.S. soil with their kind.

55 Huang, supra note 29, at 402 56 Hana Bielliauskas, Jailed Immigrants lack adequate health care, rights group say, AXcess News Tues 8, July

2008, Heartland Alliance National Immigrant Justice, available at

http://www.immigrantjustice.org/resourcespolicy/policydocs/inamaguahearingarticle.html 57 Huang supra note 29, at 396 58 Id., at 395

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Welfare and Eugenics

Government still makes effort to shape reproductive patterns. The same anxiety about the

over-breeding of the poor and how it threatens the majority foothold of the middle-classed white

fuels a new eugenics disguised as welfare. If scrutinized, this seemingly benign and generous

government initiative has several aspects which are implicitly designed to curb the number of

children born to poor, black women59

. Racist and classist judgments about who deserves to bear

children are skillfully masked behind the timeless “legitimate” eugenics rationales.

Reproductive curbing intents are clear from provisions of the Temporary Assistance to

Needy Families (TANF), passed by Congress in 1996 (hereinafter called “The Welfare Act”)60

,

which expressly seeks to discourage childbearing among “groups most likely to bear children

out-of-wedlock61

” and which replaced the earlier income support program for the poor, Aid to

Families with Dependent Children (AFDC). By The Welfare Act, States receive monetary

bonuses for reducing births among these groups62

and there is little oversight of the methodology

used by the states to reduce these births63

. They may use TANF money to provide contraception

or sterilization even though they may not use it for any other medical service including prenatal

care or abortion64

. Further, TANF authorizes states to impose “family caps” on welfare

recipients, that is, deny additional benefits for children born to women who are already receiving

public assistance thereby removing the incentive for women to get pregnant.

59 In a proposal for welfare reform, an editorial in the Philadelphia Inquirer proposed Norplant, a semi-permanent,

invasive contraceptive as a solution for the high poverty rate of Black children: Donald Kimelman, Poverty and

Norplant: Can Contraception Reduce the Underclass, Philadelphia Inquirer, Dec 12, 1990, at A18 60 The Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) OF 1996, Pub. L. No. 104-

193. 110 Stat. 2110 (codified in scattered sections of 42 U.S.C.). 61 Id 62 The Welfare Act §2118 (e.g. the five states that reduce out-of-wedlock births the most receive $20 million each) 63 Nicole Huberfeld, Recent Development: Three Generations of Welfare Mothers Are Enough: A Disturbing Return

to Eugenics in the Recent “Workfare” Law, 9 UCLA Women’s L.J. 98, 99 (1998). 64 The Welfare Act §2137

17

Outside of TANF one can also see government’s attempt to control reproductive patters

in the welfare arena by encouraging the use of contraceptives. A major tool, though now

withdrawn from the market only because of severe medical side-effects to women65

, was

Norplant, a contraceptive which, once inserted in a woman’s arm can cause temporary

sterilization for up to five years66

. Before its recall, several States seriously considered offering

cash incentives to women on welfare who used Norplant67

. Further, indirect intent to suppress

one kind of reproduction can be gleaned from the fact that there is Medicaid support for

sterilization, but not for other forms of reproductive healthcare, such as treating infertility- the

latter incidentally being a significant problem among poor, black American women who suffer

disproportionately from infertility secondary to sexually transmitted diseases.68

And just who are all of these initiatives aimed to target? Cultural images of the “black

welfare queen69

” have become strongly associated with Black mothers as a facilitator of

irresponsible child bearing70

. “Welfare Queen” as ascribed to black women is an unfair label

65 Leslie Berger, N.Y. Times, After Long Hiatus, New Contraceptives Emerge, December 10, 2002 ,available at

http://www.nytimes.com/2002/12/10/health/womenshealth/10BIRT.html?ex=1040500&pagewanted=3 (last visited

April 9, 2010) 66 Kimberly A. Smith, Conceivable Sterilization: A Constitutional Analysis of an Norplant/ Depo-Provera Welfare Condition 77 Ind. L.J. 389 at 396 (2002) 67

See Kan. H.B. 2089, 74TH

Ged., 2d Sess (1991)(providing women receiving AFDC a $500 cash bonus for

inserting Norplant, as wee as an additional $50 each year continued use. Similar proposals were also considered in

New Jersey and Wisconsin

See Martha Davis, War on Poverty, War on Women N.Y. Times, Aug 3, 1991, at A19 68 According to Centers for Disease Control and Prevention, poor African American Women have disproportionately

high rates of sexually transmitted diseases which subsequently cause infertility: see U.S. Department of Health and

Human Services, womenshealth.gov, available at http://www.womenshealth.gov/faq/sexually-transmitted-

infections.cfm (last visited April 9, 2010) 69 The idea of the welfare queen and the accompanying negative stereotypes was legitimized by Ronald Regan who

told the fictional story of the Chicago Welfare Queen who had 80 names, 30 addresses, 12 Social Security cards and

collected benefits from four non-existent husbands, bilking the government out of over $150,000.: Edward Rhymes, Misdirections and Misconceptions: Welfare and Affirmative Action Part 1, March 27, 2008, OpEdNews.com

available at http://www.opednews.com/articles/opedne_edward_r_080326_misdirections_and_mi.htm (last visited

April 8, 2010) 70 Martin Gilens, Race and Poverty in America: Public Misperceptions and American News Media, 60 Pub. Opinion

Q. 515 (1996)

18

since most families who receive welfare are actually white71

yet black women disproportionately

rely on this form of government aid to support their children72

. It therefore follows that welfare

policies that curb childbearing would disproportionately affect black rather than white women.

Application of the Themes

But do these “facially neutral” initiatives pass the eugenics test? Are they targeted to curb

the reproduction of black women? One can answer this question by applying my hypothesis- Are

the recurring themes present?

The answer is an inescapable Yes! The public resources drain theme is obvious enough.

The public image of the welfare queen is one of a morally irresponsible woman on welfare who

has children that she can’t afford and who the state must step in to assist. State input causes

resentment in tax payers which is fueled by conservative politicians. We see a remnant of the

eugenicist’s argument- the need to “reduce the cost of subsidizing the unfit”73

The welfare initiatives are a little more sophisticated than primitive sterilizations laws,

making no direct statement of a need to squelch specific genetic traits, but the genetic heritability

link underlies and if The Welfare Act is probed, one would see that the logic of dis-encouraging

the reproduction of welfare recipients mirrors the “transmissibility” rhetoric of the eugenics

movement74

. The Welfare Act models the Sterilization Laws that sought to prevent “future state

wards” that were genetically bound to turn out like their parents. It states that “children born-out-

of wedlock are more likely to experience…child abuse…have lower cognitive scores, lower

71 Rhymes, supra note 69, 72Dorothy Roberts, The Only Good Poor Woman: Unconstitutional Conditions and Welfare, 72 Denv. U. L. Rev

931, at 944 (1995) 73 Id., at 944 74 Powell, supra note 10, at 491-492

19

educational aspirations, a greater likelihood of becoming teenage parents themselves and are

three times more likely to be on welfare when they grow up”75

.

The inevitability of transferring negative traits was even hinted at in calls by a passionate

campaigner, Margaret Sanger, whose life work has been dedicated by a desire to improve the

health of poor women. In advocating abortion, she has urged that society “stop breeding [poverty

and ignorance] and stop bringing birth children whose inheritance cannot be one of health or

intelligence”76

further she has advocated “a stern and rigid policy of sterilization and segregation

to that grade of population whose progeny is already tainted or whose inheritance is such that

objectionable traits may be transmitted to offspring”77

And if the existence of the themes is not enough to provide a different lens from which

one may view welfare initiatives aimed at curbing reproduction, if one looks closely enough, one

would detect the play out of the “other half” of eugenics- the encouragement of reproduction of a

superior sect- in government subsidization programs. These are in the form of indirect

government policies that encourage reproduction through tax deductions or child allowances78

.

Just as the incentive in welfare to curb reproduction disproportionally affects black women, so

this form of subsidization disproportionately benefits property holders, traditionally viewed as

more wealthy white women.

Part Three- The New Wave of Science

75 The Welfare Act §2111 76Oberman supra note 2, at 374 citing, Margaret Sanger, What Every Boy and Girl Should Know 140 (United Sales

Co. 1915) 77 Oberman supra note 2, at fn 78 citing, Margaret Sanger, A Plan for Peace, Birth Control Review, Apr. 1932, at

106 78 Oberman, supra note 2, at 362

20

In Vitro Fertilization, Surrogate Birth and Eugenics

Increasing technology is producing medical marvels. In vitro fertilization (“IVF”) and

surrogate birth are fertility enhancement methods that enable those, who years ago might have

been deemed irretrievably barren, to give birth. Each method manipulates human cells through

the use of advanced scientific development in one form or the other.

IVF involves the aspiration of ova from the follicles of a woman’s ovaries, fertilization of

these ova in a petri dish using the sperm provided by a man and the transfer of the product of this

procedure (called an embryo or pre-embryo) into the uterus of the woman from whom the ova

were taken to result in pregnancy and the birth of a child79

.

If the fertilized ova are transferred to the uterus of a “surrogate mother” who carries

through with the pregnancy and birth for the “gamete-providers” or donation to a genetically

unrelated person or couple this procedure is instead called surrogate birth80

.

To maximize birth rates, physicians who perform IVF often transfer multiple embryos,

but this increases the chances of multiple births81

. This was the story behind the creation of

“Octomom”, Nadya Suleman, the single, unemployed woman of Iraqi descent who already had

six children when she underwent an IVF procedure which resulted in octuplets82

. Nadya

Suleman, the only child of her parents, lives with her mother and fourteen children in a three-

bedroom house83

. Her father has declared his intention to return to his native Iraq to earn money

79 Davis v. Davis 842 S.W.2d 588, 591(1992) 80 Id., at 591 81 Schieve LA, Peterson HB, Meikle SF, Jeng G, Daniel L, Burnett NM, Wilson LS, Live-birth rates and Multiple

birth risk using in vitro fertilization, PubMed.com, Nov 17, 1999, available at http://www.ncbi.nlm.nih.gov/pubmed/10573274 (last viewed April 9, 2010) 82 Mike Celizic, Everything I Do Revolves around my Children, Today msnbc.com, February 11, 2009, available at

http://today.msnbc.msn.com/id/29135612/ns/today-parenting_and_family// (last viewed April 25, 2010) 83 Kimi Yoshimo, Records: Home of Octuplets’ grandmother in default, Los Angeles Times, Feb 18, 2009, available

at http://www.chron.com/disp/story.mpl/hotstories/6269493.html (last viewed April 25, 2010)

21

as a driver and translator to financially support his daughter and his grandchildren84

. The

American public is enraged by Suleman’s state of affairs, seeing the situation as nothing but an

avoidable burden on tax-payers85

. The physician that performed the IVF has also been heavily

criticized as “burdening the social system with an unprecedented family unit” and may face a

revocation of his medical license86

.

Suleman certainly presents a unique case. Given the “reality show” craze in the U.S., one

would think that U.S. television networks would view Suleman as a gold mine and be begging

her to present her life on their channels. The opposite has been the case though. Public

perception does not view her favorably and channels have stated that they would feel “icky

inviting Suleman into their programming family”87

What makes Suleman so unattractive and other large families who have achieved reality

television stardom so attractive88

? There are certainly some pointed differences in the mothers.

The mothers of the hit reality show series are white, wealthy and married. Suleman is of minority

race, poor and single. Casting aside the extremeness of Suleman’s situation, which may well

justify an objective disapproval of her present state, it does allow one to consider the probing

question-Do the former adjectives better qualify a person for motherhood? Further, the societal

welfare theme is evident; citizens are complaining that Suleman’s irresponsible child bearing is a

strain on tax-payers

84

Octuplets’ Family Filed for Bankruptcy, CBS News, January 30, 2009, available at http://www.cbsnews.com/stories/2009/01/30/earlyshow/health/main4764432.shtml (last viewed April 25, 2010) 85 Bryant Carleton, Report: Octuplets likely to cost taxpayers millions, The Washington Times, Feb 11, 2009,

available at http://www.washingtontimes.com/weblogs/out-context/2009/Feb/11/report-octuplets-likely-to-cost-

taxpayers-millions/ (last viewed April 9, 2010) 86 Docblawg, Should Octomom’s Fertility Doctor be penalized, January 11, 2010, available at http://docblawg.com/

(last viewed April 9, 2010) 87 The Live Feed, Octomom Reality Show reports premature, most networks cringe at prospect, April 15, 2009,

available at http://livefeed.hollywoodreporter.com/2009/04/octomom-reality-show.html (last viewed April 9, 2010) 88 E.g. “Jon and Kate plus 8”, “19 Kids and Counting”.

22

IVF has created new possibilities in controlling the genes of one’s offspring. Since the

fertilization of egg with sperm occurs in a controlled environment outside of the womb there is

freedom to choose donors that best resemble a person’s ideal concept of what they would like to

see reproduced and call their own. What people generally want to see reproduced is apparent in

the human gamete (eggs and sperm) market. Statistically it has been shown that high demand

eggs are typically those of tall, educated white women and people spare no expense for these

valuable genetically correct babies.89

From the look of things, certainly “white” was an important adjective for Michael

Jackson when he chose eggs and sperm donors for his three children, who, according to

entertainment news sites were born via surrogate IVF and are not biologically related to Michael

Jackson.90

He clearly wanted his “offspring to look more like he did immediately before his

death and less like the brown skinned boy wonder that entered the entertainment industry. Some

may call his efforts with plastic surgery self-mutilation, but, if one looks the issue only from the

plane of his fatherhood, one could extrapolate that by progressively replacing his African

American features for Caucasian, he sought to make himself, as best as science allowed, into the

picture of the fit “procreator” and, with the further use of science, produced his idea of a

“desirable” kind.

In choosing to create children of one genetic background, he also made the choice not to

create children of another type of genetic background- the type that would have looked like he

did at his birth. In this way he exercised the choice granted to him through the IVF procedure to

stifle a reproduction of his former brown-skinned self.

89 Sherri A. Jayson, Comment, Loving Couple Seeks Woman Age 18-31 To Help Have Baby. $6,500.00 Plus

Expenses and a Gift: Should We Regulate the Use of Assisted Reproductive Technologies by Older Women?, 11 Alb.

L.J. Sci. &Tech, 287, 329 &n. 293 (2001) 90 Patricia J. Williams: He Became A More Brilliant, Frightening Version Of The Mad Hatter Than Even Tim Burton

Could Conjure, The Nation, July 20, 2009

23

The eugenical implications raised by Michael Jackson’s choices and the gamete market

are endless. Michael Jackson’s re-creation of his physical self shows a discontentment with his

original features and returns us to the discussion in the initial paragraphs of this essay,

illustrating the narrative of affirmed self-loathing. Monetary resources enabled Michael Jackson

to go to the extreme in recreating himself to look more Caucasian, but the extensive use of

cheaper “feature changing” products like skin-lightening creams by members of the African

American community to enable them “to be more accepted in the society”91

betrays a more

widespread desire to become less black.

The gamete market too, shows a public perception of white as a superior sect which is

more desirable to reproduce. Michael Jackson use of IVF shows the personal application of a

decision to choose the reproduction of one sect over another. The rationale that looms in the

background of the use of IVF procedures is a reliance on the inheritability of genes, the belief

that some genes are superior to others. Donors with desirable traits are chosen on the assumption

that their amazing genes would be re-created. The scientific assumptions that guide what can

fairly be described as a choice enhancing development, increasing the opportunities for persons

to have children, are the same that guided the oppressive evil practice of eugenically

sterilizations.

Therefore, one sees from the narratives of Nadya Suleman and Michael Jackson that the

themes that serve to identify whether a policy has eugenical underpinnings are most present in

the application and use of IVF technology. This observation is not to denounce the use of IVF.

As noted above, the procedure certainly provides positive benefits. It is not my aim in this essay

91

Catherine Saint Louis, Creams Offering Lighter Skin May Bring Risks, NY Times, Jan 15, 2010, at A1, (relaying the stories of several dark skinned African Americans who have used skin lightening creams for reasons all connected to looking more like what they perceived to be more acceptable) available at http://www.nytimes.com/2010/01/16/health/16skin.html (last viewed April 21, 2010)

24

to state with certainty that the presence of the themes without more categorizes an act or policy

as eugenic in intent. Other circumstances are relevant and usually it’s the presence of the themes

combined with other factors that betray a devious intent. It is my aim rather to point out some

troubling issues connected to the use of the IVF procedure; issues that call for reflection and

perhaps even regulation of such use.

Conclusion

To practice eugenics is to exploit oneself and humanity. Both the exploiter and exploited

are injured because both become locked into myopic perceptions about the proper order of things

and thereby place limitations on themselves and the world. Society has come far in denouncing

blatant eugenics, but it still has far to go because a more sophisticated and subtle form of

eugenics is still apparent in its structures. Looking at the narratives of those bound up in the past

and present of eugenics is a useful exercise for the thoughtful. It provokes reflection,

introspection, discussion and change.