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Excerpted from: Isabel Karpin, Vulnerability and the Intergenerational Transmission of Psychosocial Harm, 67 Emory Law Journal 1115 (2018)(95 Footnotes) (Full Document)


Isabel KarpinOne area that has become a particular focus of scientific study has been the psychobiological effects of maternal stress. While much of the research examines the impact of stress during pregnancy on both fetal development and health and well-being once born alive, there are a significant number of studies that consider the preconception effect of stress. In other words, they examine the impact on a future child of stress suffered by a woman before that future child was conceived. Some of these studies are discussed below. These studies draw on developments in the science of epigenetics that provide some of the explanatory mechanisms that underlie the psychobiological effects of stress and its enduring adverse effects on fetal and childhood development. In these studies, the term “maternal stress” is used to describe not just the form of stress that occurs while pregnant or mothering (or that is brought on by pregnancy or mothering), but also when a woman suffers acute stress at an earlier stage in her life, including prior to becoming a mother or conceiving. In that case, it is argued, stress from sources such as child abuse and other early life trauma causes physical changes (neurological, chemical, and epigenetic) to the woman herself, which will pass to her future offspring. Although perhaps unintentional, in some of these studies, women who were subject to stress as children or before they became mothers are recast, through their potential maternality, as conduits for harms to their future children rather than as victims of harm.

Andrea Roberts et al., for example, conducted a study of women who were exposed to childhood abuse and its association with an elevated risk of autism in the offspring of those women. In that study the researchers state: “Our study identifies an intergenerational association between a woman's childhood exposure to violence and risk for a severe developmental disorder in her children.” To support this conclusion, they suggest that “exposure to acute psychosocial stressors may increase secretion of androgen, and some evidence suggests that exposure to high prenatal concentrations of androgen is associated with autistic traits.” They go on to stress, however, that “whether childhood abuse leads to persistently elevated maternal androgens is unknown.” Having identified the possibility that childhood abuse might contribute to autism in the children of those who suffer such abuse, the authors suggest that this has clinical implications.

First, they note it provides “another compelling reason to increase efforts to prevent childhood abuse.” It is unnecessary to point out that we have reason enough already to prevent childhood abuse without the need to show that it hurts future generations too, but it is worth noting two things here: (1) there is an underlying assumption that autism is a harm significant enough to justify these scientific studies and efforts to avoid it, a controversial claim to say the least; and (2) in this justificatory calculus, the woman is framed as a conduit for harm and her own harm--the harm of childhood abuse--is secondary or deferred. Second, the researchers note that they are identifying “a population at elevated risk for having a child with autism, namely, women with a history of moderate or serious childhood abuse,” and third, that the solution offered is the “prevention of adverse perinatal circumstances” that created the risk.

It is not clear how these adverse perinatal circumstances are to be prevented when the researchers have already noted that “[a]ll adverse perinatal circumstances except low birth weight were more prevalent among women abused in childhood.” One area of concern must be the potential for discriminatory or stigmatizing outcomes. In a neoliberal context, where individual responsibility is emphasized and the free market in reproductive technologies is at play, it is possible that a woman, advised of the impact of her childhood abuse on her not-yet-conceived child, might be discouraged from reproducing or, where economic status permits, discouraged from using her own gametes. A study by Sarah R. Brand et al. found that “exposure to child abuse may have transgenerational effects, with offspring of abuse victims showing similar neuroendocrine profiles as their mothers.” Interestingly, they also noted that the effects of “maternal trauma” on offspring “may only be evident under particular circumstances, such as when occurring in combination with additional life stress.” This is both good and bad news. It suggests that more social resources to assist women during their post-abuse life course could avoid or at least mitigate intergenerational transmission of these harms, but it also squarely positions the individual woman as a target for intervention and management of risk. Again using a liberal legal model, individual action and inaction are foregrounded. This is not the case when we shift our framework to a vulnerability model, and I will come to this below.

Abuse is just one kind of stress identified by these studies. Quetzel A. Class et al., for instance, used death of a first-degree relative of the mother as the determinant of stress in their study Maternal Stress and Infant Mortality: The Importance of the Preconception Period. That study showed that preconception stress increased the risk of infant mortality whereas prenatal stress did not. Mallory Bowers and Rachel Yehuda, in their study Intergenerational Transmission of Stress in Humans, remark that “[s]evere stress exposure in a parent--the kind that can result in mental disorders such as depression, anxiety, or post-traumatic stress disorder (PTSD)--is a risk factor for a number of adverse outcomes, including psychopathology, in offspring.” Throughout their paper they refer to sources of stress as diverse as the Holocaust, the Dutch famine, and terrorism. They attempt to distinguish between stress exposures that occur before conception, at the time of conception, at the time of pregnancy, or in the early postnatal period. They go on to say, “Studies consistently demonstrate that offspring of extremely stressed or traumatized parents are at higher risk for mental and physically adverse outcomes. This has been demonstrated in instances where exposure predated conception or exposure occurred during pregnancy, supporting the idea that transmission can occur via gametes and/or the fetus.”

For cases in which stress is the direct result of illegal behavior such as child abuse or assault, the question of an appropriate institutional and legal response arises. If we accept that we are all vulnerable and that legal systems should be crafted around vulnerability and dependence rather than fortification and independence, it would be possible to create a society in which resources would be directed to buffer the impact of stress rather than to individualize it.

Instead, however, while DOHaD research has embraced the idea “that the early life environment has widespread consequences for later health,” the target of this research is not the inequality prevalent in social environments but the women who are subject to that disparity. One has to assume that if women are subject to environmental stress, then so too are men. Yet there are significantly fewer peer reviewed articles on “paternal stress” compared to “maternal stress.” Although still far fewer, there are DOHaD studies that are drawing links between preconception stress or “effects” in males and the health implications for their offspring. Despite these findings, the emphasis remains very much on the consequences of maternal stress.

As Fineman makes very clear, “while human vulnerability is universal, constant, and complex, it is also particular,” and as she also notes our “experience of vulnerability varies according to the quality and quantity of resources we possess or can command.” So it may seem odd to consider it problematic that there is an over-resourcing of scientific studies into the impact of maternal stress compared to paternal stress. However, a vulnerability approach requires attention not just to the level of resourcing but how those resources are deployed and to what purpose. For a model in which individual responsibility is attributed without regard to differing levels of life, opportunity, and access to social and economic advantages, those resources can be deployed to police rather than assist, or to diminish access to opportunities rather than to promote them. In this model, rather than tackling social inequality, women may be constituted as hostile or as potentially hostile environments for future people. If the net effect of these studies is to identify women who have been stressed at some stage in their life as the cause of harm to their future children, it is not hard to imagine a solution in the form of more regulatory and social constraints on women.

Although it is never explicitly stated, in a system where the lines of responsibility are individualized and privatized, one logical conclusion is that the women, the subject of these studies, should not be reproducing at all. Yet as most women know, the very act of being in the world for a woman can constitute a threat to her well-being. Sarah M. Woods et al.'s 2010 study Psychosocial Stress During Pregnancy revealed that 78% of pregnant women reported low-moderate psychosocial stress, with 6% reporting high levels. Depression, panic disorder, drug use, domestic violence, and having more than two medical comorbidities were significantly associated with high psychosocial stress during pregnancy. Naomi Swanson's 2000 article Working Women and Stress highlights that many women report occupational stress, often at high levels. It states that common workplace stressors for women include sexual harassment, discriminatory hiring practices, and conflict between work and family roles. Finally it notes that there are significant health effects associated with workplace stress, including psychological distress, increased sickness and absenteeism, depressive symptoms, significantly increased blood-pressure, shorter menstrual cycles, and even cardiovascular complications.

Drawing on Martha Fineman's vulnerability theory, I argue, consistent with feminist and disability studies critiques, that the ideal of the autonomous individual as “normal” is unsustainable. Rather than demanding that women find a way to defend themselves against the insults of the environment, the vulnerability thesis tells us that the state must create a society in which resources function to support the very essence of a human--a vulnerable (dependent) embedded and embodied subject.

Michael Thomson and Sam Lewis argue in relation to neuroscience that vulnerability theory can provide a theoretical framework that more effectively and justly translates contemporary life science claims into state responsibilities. Vulnerability theory has a similar and vital contribution to make in the field of DOHaD.

If the scientific findings regarding the relationship between stress and its impacts on future children that I have described above are accepted at face value--and the gendered construction of stress is one reason not to do so--a real concern arises that the wrong legal and moral responses will be activated, thus burdening women with the impossible responsibility of avoiding gamete and uterine-environment-damaging stress. For example, referring to recent DOHaD research on the epigenetic impact of obesity on future children, Megan Warin et al. argue “that reproduction (and more specifically women's reproduction) is now a key discursive site in which intergenerational cycles of obesity are being culturally produced and reproduced.” They argue that “[a] new and powerful meta-discourse has emerged in which women are blamed for both their reproductive physiology and their social role as mothers, thus constructing women as potentially contaminating future generations by creating obesity lineages.” This is fantastically evocative language. Warin et al. astutely note such meta-discourse, when “[c]oupled with a neoliberal agenda that emphasises self-governance and individual responsibility,” leads to gendered individualization of the responsibility for the harm. But which harm exactly? Given that research increasingly demonstrates that “childhood sexual abuse might be a key predictor of obesity and overweight in adulthood,” it seems clear that obesity may itself be a marker of environmental stress and psychosocial harm. It is not insignificant then that there are legal cases in which mothers have been prosecuted for neglect and abuse for raising obese children.

Is this individualization of blame a real concern? Certainly we know that mothers have been blamed for not protecting their young children from domestic violence, and so it seems all too plausible then that they may be held responsible for the epigenetic consequences of their own obesity, especially when the relevant research purports to demonstrate the connection between maternal adiposity prior to pregnancy and detrimental outcomes. A study in Denmark by Rodriguez et al., for example, claims to show that “[c]hildren of women who were both overweight and gained a large amount of weight during gestation had a 2-fold risk of ADHD symptoms ... compared to normal-weight women,” and a study of 2,734 mothers and children undertaken in Boston claims to have found a connection between maternal prepregnancy obesity and pregestational diabetes with a risk for autism spectrum disorder (ASD). The list of potential harms is diverse and includes links between maternal obesity and childhood asthma, altered brain development, and more. What then might the legal response be (and what should it be) to new scientific claims that psychosocial harm is transmitted intergenerationally? How might the law respond, for instance, to studies such as that of Claudia Buss et al. that claims “[h]igh pregnancy anxiety during mid-gestation is associated with decreased gray matter density in 6-9-year-old children”? The authors of that study state that “[a]ltered gray matter volume in brain regions affected by prenatal maternal anxiety may render the developing individual more vulnerable to neurodevelopmental and psychiatric disorders as well as cognitive and intellectual impairment.” What might the moral response be and, coextensively, how might law respond? Do we as individuals make a choice to put ourselves in position where stress is going to affect the outcome of our pregnancies? If I know I am a particularly anxious person, should I make a different choice?

Rather than being drawn into this neoliberal account of responsibility, we should try to challenge the social circumstances in which harmful stress is pervasive for women.

As I have noted elsewhere, government health advisory bodies and professional organizations advise women who are pregnant or contemplating pregnancy to take vitamin supplements, remain fit, refrain from drinking alcohol and taking drugs, and, rather extraordinarily, to avoid stress. Not only are stresses experienced by pregnant women (and women contemplating becoming pregnant) likely to have a negative impact on the health outcomes of their children but, in all likelihood, one of the manifestations of that psychosocial harm may well be an overly anxious child. In other words, stress of this kind may result in “anxiety lineages” just as prepregnancy obesity research has led to what Warin et al. evocatively described as “obesity lineages.” In addition to depression and anxiety, the research has also found that ASD and ADHD, schizophrenia, and psychopathology, among other conditions, are triggered by maternal stress--if not entirely caused by it. Research by Meriem Hamza et al. titled Epigenetics and ADHD: Toward an Integrative Approach of the Disorder Pathogenesis claims that “[b]esides the genetic component of ADHD, epidemiological studies have highlighted several pre and perinatal environmental risk factors predisposing to the disorder including toxic exposure, maternal stress during pregnancy, low birth-weight, and psychosocial adversities.” Notably there is also some discussion of paternal genetic transmission of ADHD and environmental factors such as paternal chronic alcohol consumption, but the maternal psychosocial factors were cited as leading to “long-lasting changes in epigenetic marks and thus modulate gene expression.”“Maternal stress during pregnancy especially in the third trimester was associated to an increased risk of ADHD and has been correlated with the symptoms severity.”

Kinga Polanska et al. conducted a study of “[m]aternal stress during pregnancy and neurodevelopmental outcomes of children during the first 2 years of life.” In this study, the researchers concluded that “prenatal exposure to maternal stress is significantly associated with decreased child cognitive functions.” Rebecca Slykerman et al. linked depression in early adolescence with stress during pregnancy and Nadja Reissland linked hand preference to maternal stress. Finally, Olena Babenko et al. explored whether stressful experiences during pregnancy exert long-term consequences on the future well-being of the mother and the baby. Concerned with the transgenerational effects of stress and possible links to ADHD, anxiety, ASD, and schizophrenia, they proposed that the fetal brain is highly susceptible to an adverse maternal environment (and here we see the use of the environment metaphor) and potentially mediated by epigenetic regulation. Stress in this context ranges from non-pregnancy-specific mildly stressful events like moving house to chemical experiences in utero. The conclusion of this study is that prenatal stress is one of the most powerful influences on mental health.

How we respond to the fact that women who are stressed are not just being harmed in and of themselves but as mothers will be crucial as the law moves forward in a postgenomic era.

. . .

Fineman argues that the “theoretical task of reconceptualizing the role of the state requires that we imagine responsive structures whereby state involvement actually empowers a vulnerable subject by addressing existing inequalities of circumstances that result from undue privilege or institutional advantage,” and I think we can do that here.

On the one hand, the identification of maternal stress and psychosocial harm as a cause of negative outcomes in children may burden women with an impossible responsibility to avoid such harms. Yet it is also possible that science describing the harmful intergenerational effects of a stressful, hostile, or discriminatory environment on both women and their future progeny will lend support to the argument for shifting the burden away from the individual (specifically the maternal figure) toward a societal responsibility for systemic inequalities and discrimination and violence.

Epigenetics blurs the distinction between the physical and the psychological by revealing a physical register for psychological harm through changes to methylation and the epigenome. Thus, we might feel that here, at last, is a way of proving what we already suspected about the physical consequences of an unequal society--not just for the people most immediately affected but also for the multiple generations that are born out of such environments. This is the kind of evidentiary trail that is particularly appealing to law. Therefore, if epigenetics can lend support to this, it may give rise to initiatives that shift the burden away from the individual in favor of state or societal responsibility for inequalities and gender-based discrimination and violence.

. . .

Fineman argues that vulnerability is universal for all humans and that “[d]ependency and vulnerability are not deviant, but natural and inevitable.” She replaces the liberal subject--as the central figure around which social institutions are organized--with the vulnerable subject that is both embodied and embedded. Once vulnerability is accepted as inevitable, she argues, this impels a responsive state, namely, one which recognizes that both it and its institutions are the means by which individuals gain access to resilience and resources that they require to navigate the practical implications of our shared vulnerability.

This Essay is a provocation to rethink the logics of law along epigenetic lines to incorporate an inevitable bio-intergenerational sociality that emphasizes our embedded and interconnected vulnerability. It argues that by using Fineman's vulnerability thesis it might be possible to craft a legal remedy for psychosocial harm to future people that does not place the central burden on women. Indeed, the intention would be to shift the burden away from individuals by recognizing that the harm is systemic, cumulative, continuous, and somatic.

Without a direct intervention into the scientific literature--and this is where vulnerability theory is vital--it seems clear that the argument for the socialization of that responsibility could be lost and this body of scientific literature co-opted to the interests of a neoliberal individualism. My concern is that responsibility would be situated in the individual maternal figure constituting her as the hostile environment. Our very difficult task then, as legal thinkers, is to find a way to deploy this new research to socialize responsibility rather than to individualize it, and vulnerability theory offers us a pathway there.

Distinguished Professor, Faculty of Law, University of Technology Sydney, Australia.