pregnant, women, sport, Trevor Mudge, Australian Medical Association, Pam Smith, Karen Eustace, United States, foetus, Lynch v Lynch, ALISON DELLIT">
and ain't I a woman: Why Netball Australia got it wrong
On June 18, Netball Australia took the extraordinary decision to ban pregnant women from "on-court activities" at any level of play.
More than 1.3 million people compete in Netball Australia-organised activities, an estimated 80% of whom are women. The organisation is intending to review the ban at a forum on pregnancy and sport to be organised in the next two months.
At first glance, the decision appears to be not only discriminatory, but illogical. Condemning the decision, Dr Trevor Mudge, vice-president of the Australian Medical Association, explained there is no evidence of any medical risk to women through playing netball up to an advanced stage of pregnancy.
"In fact, playing sport and keeping fit are beneficial to women during pregnancy and at delivery", Mudge explained. "The social contact elements of organised sport are a great help to women at pregnancy."
Netball Australia has been coy about its reasons for imposing the ban. Its web site concedes that there is no medical evidence supporting the ban, stating only that the decision was taken with "the best interest of the pregnant player, the unborn baby and the Association in mind".
But comments made on Nine's Today show on June 18 imply that it is the latter Netball Australia is most concerned about.
During the show, the association's chief, Pam Smith, was confronted with a very angry pregnant netballer, forced by the ban to leave her team mid-season.
Karen Eustace, who is five and a half months pregnant, told Smith that she was prepared to sign an indemnity statement excluding the association from any liability if she was allowed to keep playing.
Smith snapped back, "Karen can't indemnify anybody against the unborn child!".
It seems that what Netball Australia is concerned about is being sued by someone who claims to have been adversely affected by his or her mother playing netball while pregnant.
Under Australian law, a foetus does not have the same rights as a human being. Unlike in some parts of the United States, no woman has ever been charged with murder on the basis that her behaviour contributed to a miscarriage.
But where the law gets murky is when a foetus survives to become a human being, and claims damages for injuries sustained before birth.
In 1991, an Australian child who suffered cerebral palsy as a result of a pre-natal car accident successfully sued her mother, the driver, for damages. In ruling on the case (Lynch v Lynch), Justice Graves said that the foetus had "legal personality".
Although the full implications of this decision remain untested, increasing uncertainty about the legal status of foetuses is contributing to decisions such as Netball Australia's ban on pregnant players.
Underneath Netball Australia's decision is the fear that it has a direct legal relationship with the foetus, separate to its relationship with the player. If this is true, then the woman and the foetus need to separately waive liability in order to absolve the association of any legal responsibility for an accident.
So the foetus and the woman are viewed as two equal entities inhabiting the same body. Because one of those entities cannot consent to the activity of playing netball, both are denied the right to.
But a foetus is not a separate entity to a woman. Foetal "rights" legislation does not empower foetuses; instead it empowers the state to take control of women's bodies in the name of the foetus.
Playing netball is just one of the choices that foetal "rights" campaigners want to deny pregnant women the right to make. In the US, where precedents have gone much further, some restaurants will not serve alcohol to pregnant women for fear of future litigation.
In any society, some children will be born with injuries caused by pre-natal problems. But this will not be solved by blaming women, or by treating their bodies as state regulated incubators.
The tragedy is that capitalist society views all injuries as individual problems. In the 1991 case, Lynch v Lynch, the mother assisted in her own prosecution, as a way to force the insurance company to pay for the care of her ill daughter.
Such cases, and the blame they demand, would be unnecessary in a really humane society, one which guaranteed quality of life to everyone, regardless of their ability to sue.
BY ALISON DELLIT
[The author is a member of the Democratic Socialist Party.]