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“Fetal Rights” and the New Eugenics
by Ruth Hubbard
Ruth Hubbard is a professor of biology at Harvard University. She teaches and writes about interactions of science and society, particularly as they affect women. She is a member of the National Women’s Health Network and has collaborated with the Boston Women’s Health Book Collective on the revision of Our Bodies, Ourselves.
Throughout recorded history, people have had questions about heredity—where our traits come from and why children resemble their parents. However during the nineteenth century attention to heredity became increasingly important for political and social reasons. In earlier times, inequalities in social privilege could be derived from the laws of God or kings, but after the French and American Revolutions had been fought for liberty and equality, hereditarian ideas came to be essential ingredients of the nineteenth century Euro-American belief in a social order based on equal opportunity and meritocracy. Therefore, it became a problem for political and social theorists to reconcile these ideals with the obvious, and often increasing, inequalities between different groups of people—rich and poor, blacks and whites, women and men.
The ready answer was that social inequalities between different groups are the expressions of inborn inequalities between individuals. And since everybody knows that people differ, this easy and unspoken transition from the traits of individuals to group characteristics carried a logic that was readily accepted into the basic assumptions of nineteenth (and indeed of twentieth) century liberalism. Hereditarianism provided an intellectual framework to locate the sources of economic and social inequality within people rather than in social institutions, while eugenics offered a program of action to get rid of such people.
The “Old” Eugenics
The term, eugenics, derives from the Greek word for “wellborn” and was coined by Francis Galton in 1883 as
a brief word to express the science of improving the stock, which is by no means confined to questions of judicious mating, but which, especially in the case of man [sic], takes cognizance of all the influences that tend in however remote a degree to give the more suitable races or strains of blood a better chance of prevailing speedily over the less suitable than they otherwise would have had.1
Galton subsequently became Honorary President of the English Eugenics Education Society which he helped to found, and in the century since he invented the word, he and numerous other advocates of race and class privilege have been busy defining people like themselves as “more suitable” and various groups of other people as less so.
Many readers of Science for the People will be familiar with the history and program of the eugenics movement. (For a recent review, see “The New Eugenics” by Barry Mehler in the May/June, 1983 issue.) Therefore I only want to recall that the eugenics program had two prongs: “positive eugenics,” by encouraging the “fit”—that that is, well-to-do—to have more children; and “negative eugenics,” by preventing the “unfit” from reproducing. An underlying concern of the eugenicists is well represented in a statement by Lewis Terman, one of the chief engineers of I.Q. testing:
The fecundity of the family stocks from which our most gifted children come appears to be definitely on the wane… It has been figured that if the present differential birth rate continues 1,000 Harvard graduates will, at the end of 200 years, have but 56 descendants, while in the same period 1,000 S. Italians will have multiplied to 100,000.2
In this country, negative eugenics (which is what the term, eugenics, usually has come to mean) was implemented by two kinds of legislation: involuntary sterilization laws and the Immigration Restriction Act of 1924. By 1931, some thirty states had enacted compulsory eugenic sterilization laws. Aimed, in general, at the insane and “feebleminded” (broadly interpreted to include many immigrants and other people who did poorly on I.Q. tests because they were functionally illiterate or hardly spoke English), “some of these laws applied to a very wide range of ‘hereditary defectives,’ including ‘sexual perverts,’ ‘drug fiends,’ ‘drunkards,’ ‘epileptics,’ and ‘diseased and degenerate persons.'”3 Though most of these laws were not enforced, by January 1935 some 20,000 people in the U.S. had been forcibly sterilized, nearly half of them in California. Indeed, the California law was not repealed until 1980, and eugenic sterilization laws are still on the books in some twenty states.
The eugenic intent of the Immigration Restriction Act of 1924 was equally explicit. It was designed to decrease specifically the proportion of poor immigrants from southern and eastern Europe (immigration from Asia had been curtailed earlier) so as to give greater predominance to Americans of British and north-European descent. It did this by restricting the number of immigrants permitted to enter the U.S. from any one country in each calendar year to at most 20% of U.S. residents who had been born in that country, as listed in the census of 1890 (34 years earlier). The date, 1890, was chosen deliberately because it established as a baseline the ethnic composition of the U.S. population prior to the major immigrations from eastern and southern Europe that began in the 1890s.4
The eugenic sterilization programs of the earlier part of this century went into decline in the 1940s, partly because of the eugenic excesses practiced in Nazi Germany (see “Nazi Science and Medicine” by Robert Proctor, Science for the People, March/April 1982, pp. 15-20). For although Nazi eugenics, like its American precursor, was aimed initially at the insane and “feebleminded,” it eventually led to the systematic extermination also of homosexuals, Jews, gypsies and other “undesirables.” But there were scientific reasons, as well, why the enthusiasm for eugenic measures declined by the end of World War II. For one thing, it became clear that the inheritance of most traits is far from simple. To the extent that “insanity” or many other diseases or disabilities are biologically inherited—and there is considerable disagreement concerning how much of a role biology plays in the inheritance of most of them and to what extent they are shaped by environmental influences5—their biological inheritance involves interactions among genes that cannot be controlled by eugenic measures.
Even if one prevented people who manifested most “undesirable” traits from having children, the genes that might be responsible for their inheritance are so widely dispersed among people who do not manifest these traits, that the frequency with which these traits occur in the population would hardly decrease at all. And this was shown to be true also for most of the simpler genetic traits whose inheritance can be described more accurately—diseases such as Tay-Sachs disease (a fatal, neurological disease of young children), sickle cell anemia (a blood disease than can be extremely painful and debilitating), or cystic fibrosis (an often fatal disease of the glands involved in digestion and other secretory functions). For most inherited diseases, preventing the people who have them from having children does not appreciably decrease the number of affected babies born because most of the people who can transmit these diseases are not themselves ill and therefore have no way of knowing that their future children may be at risk. This was determined independently by a British mathematician, G.H. Hardy, and by a German physician, W. Weinberg, in 1908. It is interesting that their work put no brake on eugenic theorizing or practices until the 1940s, when the so-called Hardy-Weinberg Law began to be cited as a scientific argument against the implementation of eugenics.
Little was heard about eugenics in the 1940s and 1950s. But in the 1960s and 1970s new forms of eugenic arguments began to appear, mostly cast in terms of the need to limit population, particularly in the poor countries in Asia, Latin America and Africa, as well as among poor people and people of color in the U.S. and in Puerto Rico. A survey of obstetricians, publicized in 1972,
showed that although only 60% favored sterilization for their private patients, 14% favored it for their welfare patients. For welfare mothers who had borne illegitimate children, 97% of physicians favored sterilization… In a 1965 Gallup poll, about 20% of the people surveyed favored compulsory sterilization for women on welfare.6
A survey conducted in 1973 found that 43% of the women sterilized in federally financed family planning programs were black.7
Fetal “Right to Health”
In fact, eugenic thinking was far from dead, but a new language of eugenics was being invented that spoke of “rights” of the unborn to health and well-being. One of its earliest statements, cast in the context of population control, comes from the geneticist, Bentley Glass, in a speech he made as retiring president of the American Association for the Advancement of Science in December, 1970:
In a world where each pair must be limited, on the average, to two offspring and no more, the right that must become paramount is… the right of every child to be born with a sound physical and mental constitution, based on a sound genotype. no parent will in that future time have a right to burden society with a malformed or a mentally incompetent child… [E]very child has the inalienable right to a sound heritage.8 [my emphasis]
Professor Glass did not suggest how this “inalienable right” was to be implemented, but his statement brings the earlier, explicitly coercive, language of eugenics into line with the 1960s and 1970s language of civil rights. Before we go any further, it is important to be clear about the fact that statements about the unborn’s “right” to be born healthy are only a polite way of saying that unhealthy fetuses do not have the right to be born. And, of course, in the real world this means that people don’t have the “right” to have unhealthy or disabled children. This has been said explicitly by the theologian and ethicist, Joseph Fletcher, in a discussion of reproductive rights and risks of genetic diseases. He writes:
Since the United Nations has designated 1979 as the Year of the Child, my thought is that if child abuse is part of its concern we ought to recognize that children are often abused preconceptively and prenatally—not only by their mothers drinking alcohol, smoking, and using drugs non-medicinally but also by their knowingly passing on or risking passing genetic diseases.9
Clearly, such statements about “the unborn” are statements about the control of prospective parents, especially women. To assure the health of “the unborn” before conception requires regulating the reproductive behavior of women and men, while to assure “the unborn’s health” during pregnancy implies controlling the behavior of pregnant women. “Fetal rights” have become familiar as part of the so-called pro-life or anti-abortion movement’s efforts to restrict women’s right to abortion. What I want to call attention to here is that “the unborn” recently has acquired a new set of spokespeople made up of scientists, physicians and attorneys, whose concern is not with the fetus’s “right to life” (indeed, most of them support the U.S. Supreme Court’s 1973 decision in Roe v. Wade), but with its “right to health.” To implement that supposed “right” they are quite ready to curtail women’s rights to equal protection.
For example, Margery Shaw, an attorney, argues as follows:
[O]nce a pregnant woman has abandoned her right to abort and has decided to carry her fetus to term, she incurs a “conditional prospective liability” for negligent acts toward her fetus if it should be born alive. These acts could be considered negligent fetal abuse resulting in an injured child. A decision to carry a genetically defective fetus to term would be an example. Abuse of alcohol or drugs during pregnancy could lead to fetal alcohol syndrome or drug addiction in the infant, resulting in an assertion that he [sic] had been harmed by his mother’s acts. Withholding of necessary prenatal care, improper nutrition, exposure to mutagens or teratogens, or even exposure to the mother’s defective intrauterine environment caused by her genotype… could all result in an injured infant who might claim that his right to be born physically and mentally sound had been invaded.10
And she urges:
[C]ourts and legislatures… should… take all reasonable steps to insure that fetuses destined to be born alive are not handicapped mentally and physically by the negligent acts or omissions of others.11
Of course, one of the big problems with this line of argument is that it not only posits that a fetus has rights, but that these “rights” are different from, and indeed opposed to, those of the mother whose body keeps it alive and who will most likely be the person who cares for it once it is born. Furthermore, it places the burden of implementing these “rights” of fetuses squarely on the individual woman. Shaw does not even suggest that the “reasonable steps” that “courts and legislatures” should take should include making sure that women have access to good nutrition, housing, education and work so that they are able to provide that “proper nutrition” and prevent that “exposure to mutagens and teratogens” that, according to her, every fetus has the “right” to. This language of “rights” is not one that argues for social improvements that could benefit women, children, everyone. It is a language of social control. This control is argued perhaps most clearly by John Robertson, professor of law at the University of Texas. His basic proposition is this:
The mother has, if she conceives and chooses not to abort, a legal and moral duty to bring the child into the world as healthy as is reasonably possible. She has a duty to avoid actions or omissions that will damage the fetus… In terms of fetal rights, a fetus has no right to be conceived—or, once conceived, to be carried to viability. But once the mother decides not to terminate the pregnancy, the viable fetus acquires rights to have the mother conduct her life in ways that will not injure it.12
This being so, “Laws that prohibited pregnant women from obtaining or using alcohol, tobacco, or drugs likely to damage the fetus would be constitutional,”[Ibid., p. 442.[/note] and “statutes excluding pregnant women from workplaces inimical to fetal health… would be valid. “13 Thus:
The behavioral restrictions on pregnant women and the arguments for mandating fetal therapy and prenatal screening illustrate an important limit on a woman’s freedom to control her body during pregnancy. She is free not to conceive, and free also to abort after conception and before viability. But once she chooses to carry the child to term, she acquires obligations to assure its wellbeing. These obligations may require her to avoid work, recreation, and medical care choices that are hazardous to the fetus. They also obligate her to preserve her health for the fetus’s sake or even allow established therapies to be performed on an affected fetus. Finally, they require that she undergo prenatal screening where there is reason to believe that this screening may identify congenital defects correctable with available therapies.14
This analysis gets women into an interesting predicament, though one with a long history. The same Professor Robertson is also a member of a panel that has proposed a model statute to guarantee a person’s right to refuse treatment. Its first proposition is that “A competent person has the right to refuse any medical procedure or treatment… “15 However, we have just seen that a woman loses this right if, once pregnant, she decides to carry the fetus to term. At this point she ceases to be a “competent person” and comes under the control of physicians and judges.
Thus, by setting up pregnancy as a conflict of rights between a woman and her fetus, attorneys and judges (predominantly male, of course) have injected themselves into the experience of pregnancy and have appointed themselves advocates for the fetus. Judging by other precedents, this new mechanism of social control could be used against women not only when we are pregnant, but could be expanded to cover all women of childbearing age by invoking “rights” not just of the fetus a woman carries, but of a “potential” fetus—the one she may carry at some future date. Stellman and Henifin have shown how the concept of “potential” pregnancy already has been used by some industries to exclude women of childbearing age from more prestigious and more highly paid, traditionally male jobs.16 By this kind of reasoning, women of childbearing age are always either pregnant or “potentially” pregnant, hence always subject to medical surveillance and control.
To present pregnancy as a conflict of rights between a woman and her fetus is entirely inappropriate, for it does not represent women’s experience of a wanted (or accepted) pregnancy—and the above arguments are addressed specifically to accepted pregnancies that will be carried to term. A wanted (or accepted) fetus is as much part of a woman as any part of her body. And, of course, women should have the means to take proper care of it as part of caring for themselves, but it makes no sense, biologically or socially, to pit fetal and maternal “rights” against one another. As long as a woman and her fetus are connected, nothing can happen to the one that does not affect the other. This does not negate the pregnant woman’s right to sever that connection by aborting the fetus. It is her right—rather than, say, her partner’s or her parents’ or the state’s—precisely because the fetus is part of her body. To argue “rights” of the fetus versus those of the mother ignores this organic unity. As long as a fetus is attached to the pregnant woman, her body maintains its life and her body wall bars access to it. Ultrasound now allows physicians to view the fetus inside its mother’s womb, but a pregnant woman must be able to refuse doctors permission to do that and—even more importantly—to refuse permission to puncture or cut her body in order to gain access to her fetus. I agree with the bioethicist, John Fletcher, who recently wrote:
In my view, it would be unwise… to close the issue between fetal interests and parental interests in favor of the fetus. As long as the fetus is not separate from the mother, choices about treatment ought to be made only with her informed consent.17
The Present Status of Prenatal Interventions
At present, several groups of prospective parents are supposed to be warned by their physicians or counsellors that their children may be at greater than usual risk of being born with a disability or disease:18
- women over 35 of the increased risk of their child having Down’s syndrome—a chromosomal condition that can be due to abnormalities in either the egg or sperm (but that is traditionally regarded as though it were always introduced by the egg);
- partners who are both of Ashkenazi Jewish descent of the increased risk of having a child with Tay-Sachs disease;
- partners who are of Afro-American descent of the risk of having a child with sickle cell anemia;
- partners who, because of family history or the previous birth of a disabled child, are thought to be at greater than usual risk of having a child with a disability.
Of course, as more procedures become available and more diseases and disabilities can be diagnosed before birth, increasing numbers of pregnant women will be counselled, tested and/or urged to undergo medical or surgical procedures during pregnancy. And since physicians have been sued for not advising prospective parents of the availability of tests that might have enabled them to abort an affected fetus or to have it treated in utero, they feel increasing pressure to inform prospective parents of the hazards and options for intervention.19 Yet at present, most procedures for prenatal diagnosis and therapy are scarce and expensive. Since many American women do not have health insurance, they, in fact, do not have the choice to use these new screening methods. Furthermore, recent legislative restrictions and federal budget cuts have deprived many teenage and/or poor women of food stamps and other provisions for more adequate nutrition and other prenatal care, as well as of their right to abortion, although these women have a greater than usual risk of having premature, underweight and/or disabled infants and therefore should have ready access to medical options.
At the same time that such services for many pregnant women and their children have been cut, some pregnant women have been confined to hospitals and even forced to undergo Caesarian sections against their will, when physicians have decided these measures were necessary for the health and well being of the fetus.20 In all these cases, attorneys and judges have been called in and have ruled “for the fetus,” which means against the pregnant or birthing woman.
But what shall be termed a “defect” and for what range of “defects” shall a fetus be tested, treated in utero, or aborted? Down’s syndrome? Spina bifida? Wrong sex? With most inborn disabilities no one can predict before the baby is born how serious the “defect” will be and just how it will express itself—in other words, what kind of person the baby will be. To some people, and in some circumstances, the prospect of having a child with a disability, no matter how mild—and as I mentioned, the degree often cannot be predicted—is intolerable. Ten years ago when there were no tests, they might have taken the risk to have a child even when they knew it to be at risk for a specific disability. But now that tests exist they may well decide to have the tests (if they can afford them) and to abort a fetus if there is even a small likelihood that it may be disabled.
Though I strongly support every woman’s right to make her own decision about whether and when to have a child—and that must include the right to abortion—there is a big difference between deciding to abort a fetus because one does not want to have a child (or, at any rate, not just then), and, while wanting a child, aborting a particular fetus because one does not want that one. That decision to abort can be much more problematic and difficult. And though, of course, a woman has the right to make such a decision, she must also feel free not to make it, even if the fetus is known to have a disability.
Personally, I have problems with these so-called choices, because of the intrinsic unpredictabilities of bearing and raising children. No matter how hard we try, we cannot know what kind of children we will have, whether they will be healthy and able-bodied and remain so, and what sort of people they will grow up to be. Prenatal testing cannot guarantee any of that, because having children is intrinsically risky. For any one of us, the chances are very small that we will have an ill or disabled child unless, because of family history, we have reason to know otherwise. Therefore it would make better sense to work on providing the kinds of social and economic supports that would make it easier for us to cope with the unforeseen than to zero in on the individual pregnant woman and her fetus. Disabling accidents or illnesses can happen at any point in life, not just before birth, and at any of those times we will need better supports than are now available to cope with disabilities. Furthermore, all the measures used to monitor pregnancy introduce their own risks. For example, the effects of ultrasound, which is widely used to monitor fetal health and development, are far from understood and there is reason to be concerned that it may introduce its own hazards.21 I believe that we have the best chance of successful parenthood if we are prepared to accept our children, whoever they are, and do the best we can to help them accept themselves and, hopefully, us as well.
People with disabilities have begun to speak out about this. They say—and I agree—that all children should be welcome, and that it is short-sighted to think we can circumvent the uncertainties of childbearing and rearing by aborting “defective” or “wrong” fetuses. And they rightly point out that the focus on preventing the birth of disabled children is increasing the unfair stigma to which people with disabilities, as well as their parents, are exposed.
Another, quite different, issue that we must be aware of is that the increasing emphasis on prenatal testing reinforces this society’s unfortunate tendency to individualize people’s problems: disability becomes a personal problem to be dealt with by individual parents.22 Yet parents on their own cannot possibly provide for a disabled child who may outlive them by decades. The logical solution: don’t have one! Logical maybe, but not practicable because, as I have said before, many inborn disabilities cannot be predicted or prevented. Indeed, the incidence of disabilities that result from accidents or exposure to chemicals or radiation after a child is born is likely to increase rather than decrease in the near future. Prenatal screening, diagnosis and therapy can help a relatively small number of prospective parents solve their individual problems and therefore can make a few lives better. But it makes better sense to regard people’s mental and physical disabilities as social, not personal, issues. Many of them—whether inborn or acquired later in life—are the results of social circumstances: accidents, inadequate living conditions, chronic poisoning by heavy metals or drugs, workplace exposure to radiation, mechanical or chemical hazards, and so forth. They cannot be dealt with by victim-blaming individualizations, but only by social measures.
Whereas the U.S. government has become increasingly lax about proposing or enforcing legislation to ameliorate such problems (or even has opposed these kinds of legislation), it has begun to interfere more and more with women’s rights to control our own childbearing. The outcome which we must worry about and forestall, is that women—and men—will lose the admittedly limited choices we now have if the new eugenicists step in and in the guise of “fetal rights to health” legislate how pregnant women must behave.23 Nor must we permit women to lose the right to refuse medical interventions that are aimed at the fetus—that ideal patient who cannot talk back. If, as John Robertson urges, the state becomes able to survey pregnant women’s behavior and mandate prenatal screening “with criminal penalties for the woman who fails to obtain it,”24 this society will have taken a giant step towards the Brave New World in which the state can regulate who is fit to bear children and who is fit to be born.
- Francis Galton, Inquiries into Human Faculty, London: Macmillan, 1883, pp. 24-25, cited in Allan Chase, The Legacy of Malthus, New York: Knopf, 1977, p. 13.
- Lewis Terman, “The Conservation of Talent.” School and Society, no. 483, 29, March 1924, p. 363, cited in Steven Rose, “Scientific Racism and Ideology: The IQ Racket from Galton to Jensen.” In Hilary and Steven Rose, eds., Ideology of/in the Natural Sciences, Cambridge, MA: Schenkman, 1980, pp. 87-116: 108.
- Kenneth M. Ludmerer, Genetics and American Society: A Historical Appraisal, Baltimore: Johns Hopkins University Press, 1972, p. 92.
- The effects of the eugenics movement on U.S. immigration policies are discussed in Ludmerer, Genetics and American Society.
- This very distinction between hereditary and environmental effects is probably inappropriate since internal and external factors interact mutually, in non-additive ways, to shape our biological and social characteristics.
- Helen Rodriguez-Trias, “Sterilization Abuse.” In Ruth Hubbard, Mary Sue Henifin and Barbara Fried, eds., Biological Woman—The Convenient Myth, Cambridge, MA: Schenkman, 1982, pp. 147-160: 149.
- Bentley Glass, “Science: Endless Horizon or Golden Age?” Science, vol. 171, 1971, pp. 23-29: 28.
- Joseph F. Fletcher, “Knowledge, Risk, and the Right to Reproduce: A Limiting Principle.” In Aubrey Milunsky and George J. Annas, eds., Genetics and the Law II, New York: Plenum, 1980, pp. 131-135: 131.
- Margery W. Shaw, “The Potential Plaintiff: Preconception and Prenatal Torts.” Ibid., pp. 225-232: 228.
- Ibid., p.229.
- John A. Robertson, “Procreative Liberty and the Control of Conception.” Virginia Law Review, vol. 69, 1983, pp. 405-464: 438.
- Ibid., p. 443.
- Ibid., p. 450.
- Legal Advisors Committee, Concern for Dying, “The Right to Refuse Treatment: A Model Act.” American Journal of Public Health, vol. 73, 1983, pp. 918-921.
- Jeanne M. Stellman and Mary Sue Henifin, “No Fertile Women Need Apply: Employment Discrimination and Reproductive Hazards in the Workplace.” In Hubbard, Henifin and Fried, eds., Biological Woman—The Convenient Myth, pp. 117-145.
- John Fletcher, “The Fetus as Patient: Ethical Issues.” Journal of the American Medical Association, vol. 246, 1981, pp. 772-773
- The social and ethical parameters of genetic screening and of other prenatal interventions are discussed more fully in Ruth Hubbard and Mary Sue Henifin, “Genetic Screening of Prospective Parents and of Workers: Some Scientific and Social Issues.” In James M. Humber and Robert F. Almeder, eds., Biomedical Ethics Reviews: 1984, Clifton, NJ: Humana Press, 1984, and in Ruth Hubbard, “Personal Courage Is Not Enough: Some Hazards of Childbearing in the 1980s.” In Rita Arditti, Renate Duelli-Klein and Shelley Minden, eds., Test-Tube Women: What Future for Motherhood, London and Boston, Routledge & Kegan Paul, 1984.
- “Intrauterine Dx Option Becomes Obligation.” Ob-Gyn News, Sept. 1-14, 1982.
- Kenneth Edelin, M.D., personal communication, March 4, 1982; George J. Annas, “Forced Caesarians: The Most Unkindest Cut of All.” Hastings Center Report, vol. 12, no. 3, June 1982, pp.16-17,45; Ruth Hubbard, “Legal and Policy Implications of Recent Advances in Prenatal Diagnosis and Fetal Therapy.” Women’s Rights Law Reporter, vol. 7, no. 3, spring 1982, pp. 201-218, especially discussion and footnotes on pp. 211-214.
- Melvin E. Stratmeyer and Christopher L. Christman, “Biological Effects of Ultrasound.” Women and Health, vol. 7, 1982, pp. 65-81.
- See also Barbara Katz Rothman, “The Meanings of Choice in Reproductive Technologies.” In Arditti, Duelli-Klein and Minden, eds., Test-Tube Women.
- This could happen at local or state levels as well as at the level of the federal government. Just the other day the New York City council passed legislation to require bars, liquor stores and restaurants to post signs reading: “Warning: Drinking alcoholic beverage during pregnancy can cause birth defects.” (New York Times, November 16, 1983.) Not a word about dangers of drinking by men being able to damage their sperm. Only women must look out for the fetus!
- Robertson, “Procreative Liberty and the Control of Conception,” p. 449.