Mens Pregnancies and Nonbinary Pregnancies in The Law: Ontic Injustice and/or Invisibilization

The law surrounding pregnancy – regulating who can become pregnant with assisted procreation, who can end a pregnancy, and determining the legal consequences of a pregnancy for parental status – fails men and nonbinary people who can and do become pregnant. The law genders the pregnant person’s body at multiple sites of intervention – in determining who can access fertility treatment, in determining who can access abortion, and in determining the legal consequences of birth-giving. At each site of intervention, the law can and does cause substantive harms to individuals, ranging from limiting men and nonbinary people who can become pregnant’s access to procreative services to psychological harms undermining an individual’s sense of self-worth and of self-expression. I argue that the law, in constructing the pregnant person as female, subjects pregnant men and nonbinary people to a serious ontic injustice (Jenkins 2023) and associated moral injury. In other instances, where the law is silent on the matter of men’s pregnancies and nonbinary people’s pregnancies, it subjects individuals to invisibilization (Krajewska and Cahill-O-Callaghan 2020) resulting in both uncertainty and erasure.