Defining the Family

Defining the Family: Law, Technology, and Reproduction in An Uneasy Age

Janet L. Dolgin
Copyright Date: 1997
Published by: NYU Press
Pages: 287
https://www.jstor.org/stable/j.ctt9qg5s4
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    Defining the Family
    Book Description:

    Defining the Family: Law, Technology, and Reproduction in an Uneasy Age provides a sweeping portrait of the family in American law from the nineteenth century to the present. The family today has come to be defined by individuality and choice. Pre-nuptial agreements, non-marital cohabitation, gay and lesbian marriages have all profoundly altered our ideas about marriage and family. In the last few years, reproductive technology and surrogacy have accelerated this process of change at a breathtaking rate. Once simple questions have taken on a dizzying complexity: Who are the real parents of a child? What are the relationships and responsibilities between a child, the woman who carried it to term, and the egg donor? Between viable sperm and the wife of a dead donor? The courts and the law have been wildly inconsistent and indecisive when grappling with these questions. Should these cases be decided in light of laws governing contracts and property? Or it is more appropriate to act in the best interests of the child, even if that child is unborn, or even unconceived? No longer merely settling disputes among family members, the law is now seeing its own role expand, to the point where it is asked to regulate situations unprecedented in human history. Janet L. Dolgin charts the response of the law to modern reproductive technology both as it transforms our image of the family and is itself transformed by the tide of social forces.

    eISBN: 978-0-8147-4423-9
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. PREFACE
    (pp. ix-xii)
  4. ACKNOWLEDGMENTS
    (pp. xiii-xiv)
  5. Introduction
    (pp. 1-13)

    Cultures depend for stability upon axioms: self-evident truths upon which institutions prone to gain civic allegiance may with confidence be built. When such axioms are transformed into suppositions, a rare occurrence, cultures become unstable.

    Among the axioms central to Western culture has been the conviction that the family is rooted in the very nature of things. Definitions of “family” and of “nature” vary. In the Western world, however, consensus has existed that family was as natural as the turning of the sun, as immutable, subject as strictly to intrinsic law, as indispensable to the conduct of life.

    Upon that consensus...

  6. ONE The Transformation of the Family
    (pp. 14-31)

    Contemporary changes in the family have become a subject of intense moral and sociological concern in the United States in the past several decades. The value of alterations in the form and meaning of family life is being debated widely, as are the apparent consequences of those changes for social and political life generally.

    Both surrogate motherhood and the new reproductive technologies challenge traditional understandings of family and have thus entered the debate about family with great force. However, neither development engendered that debate. Thus, understanding social responses to surrogacy and reproductive technology (that is, to assisted reproduction in general)...

  7. TWO Family Law in Transition
    (pp. 32-62)

    The social and ideological changes examined in the last chapter are reflected in the responses of the law to family matters. In the final decades of the twentieth century, family law changed dramatically. After more than a century of opposition to increased choice and individualism within the family, legislators in every state quickly amended old laws and promulgated new ones in the last four decades of the twentieth century. These new rules clearly acknowledge and reflect the demographic and ideological changes that had been altering the scope and meaning of the family for many decades.

    Reproductive technology and surrogacy severely...

  8. THREE Status and Contract in Surrogate Motherhood
    (pp. 63-93)

    The society and the law remain deeply ambivalent and confused about the transformation of the family from a holistic unit, protected by the law as such, to the family as a collectivity of people, protected by the law individually. Social and legal responses to reproductive technology and surrogate motherhood reflect that ambivalence and confusion.

    This chapter considers those responses in the context of surrogacy. Even the labels—surrogate, surrogacy, surrogate motherhood—can be viewed ambivalently, since from a certain perspective the surrogate mother is the real mother. In fact, surrogacy is not really an instance of reproductive technology although it...

  9. FOUR Unwed Fathers and Surrogate Mothers
    (pp. 94-133)

    The irony inBaby M. is evident in other cases as well. In these cases, the American judiciary, confronted with a basic challenge to understandings of family assumed at least since the nineteenth century to reflect inexorable truth, has responded with essentially conservative opposition to the challenge of modernity. And yet its response has aided and abetted the challenge. Thus, unwittingly, the judiciary has undermined its own cause and advanced the cause of its avowed antagonists.

    Many courts in cases involving potential redefinitions of maternity and paternity fail to see the needs that motivate the decisions they reach, or the...

  10. FIVE Social Implications of Biological Transformations
    (pp. 134-175)

    Disruptions to traditional understandings of family presented by surrogacy cases such asBaby M. and by cases questioning the state’s response to unwed fathers are magnified many times in cases occasioned by the new reproductive technologies. Judicial responses toJohnson v. Calvert, reviewed in the previous chapter, suggest the enormity of the disruption.

    Now, the society and the law must determine not only who is the mother, the father, or the baby, but what is a “mother,” a “father,” or a “baby.” The simultaneous challenge to the social facts of family and to the biological facts of family precludes certainty...

  11. SIX The “Intent” of Reproduction
    (pp. 176-212)

    Disputes occasioned by reproductive technology force courts to reconsider—and thus often to reinvent—assumptions that undergird notions of mother, father, child, and family. In cases such asJohnson, McDonald, andDavis, the law is confronted with possibilities that challenge virtually every presumption the society has held about the essence of familial bonds. Moreover, the law is being asked to respond to the disruptions presented by reproductive technology, just as traditional assumptions about the social dimensions of family and the character of kin relations are being questioned and eroded more generally. For the most part the task has fallen to...

  12. SEVEN Suffer the Children
    (pp. 213-244)

    Judicial reliance on intent in cases occasioned by reproductive technology represents an innovative, though ultimately unstable, approach to defining parentage and to understanding the parent-child relationship. That approach has sometimes seemed attractive insofar as it has appeared to recognize the creation of the parent-child relationship in contractual terms without expressly renouncing a traditional ideology of family that for almost two centuries has eschewed the amalgamation of contractual and familial relationships.

    Ultimately, the law’s reliance on intent to define parentage or custody is a temporary measure that fails to provide stable guidance to a society faced with phenomena such as frozen...

  13. Conclusion
    (pp. 245-254)

    In the contemporary debate about the American family, political agendas and deeply felt, often passionate, responses are everywhere evident. This is understandably so, since the debate encapsulates many of the cultural conflicts and social conundrums central to our time, and demands that basic choices be made: between equality and inequality, between community and autonomy, and between freedom and constraint. In such demands, not only ideological intensities, but calls for prophecy and prescription, are immanent.

    For the most part this book refrains from responding either to the intensities or to the calls. Basically a work of cultural anthropology, it is, by...

  14. NOTES
    (pp. 255-272)
  15. BIBLIOGRAPHY
    (pp. 273-282)
  16. INDEX
    (pp. 283-288)
  17. Back Matter
    (pp. 289-289)