Defining the Family

Law, Technology, and Reproduction in An Uneasy Age

Janet L. Dolgin

• Publisher: NYU Press
• Year: 1997
• ISBN:
  9780814721070
• Topic: Law
• Subtopic: Family Law
• Index: Law

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.

NOTES

Notes to the Introduction

1. As used in this book, the term “ideology” may include, but does not primarily refer to, a set of political beliefs. Rather, the term refers to the pervasive forms in terms of which people understand what it means to be human. This definition is similar to that of the French anthropologist and Indologist, Louis Dumont, who wrote:

Our definition of ideology thus rests on a distinction that is not a distinction of matter but one of point of view. We do not take as ideological what is left out when everything true, rational or scientific has been preempted. We take everything that is socially thought, believed, acted upon, on the assumption that it is a living whole, the interrelatedness and interdependence of whose parts would be blocked out by the a priori introduction of our current dichotomies. (Dumont 1977, 22)

2. Insightful analyses of the development of new images of family—and new forms of family—during the nineteenth century are found in Demos (1986); Ehrenreich and English (1978, ch. 1); Mintz (1983); and Mintz and Kellogg (1988, ch. 3).

3. Uniform Status of Children of Assisted Conception Act (1988), promulgated by the National Conference of Commissioners on Uniform State Laws and found at 9B U.L.A.152 (Supp. 1994).

4. See, e.g., Orford v. Orford, 49 Ont. L.R. 15 (1921).

5. See, e.g., Doornbos v. Doornbos, 23 U.S.L.W. 2308 (Super. Ct. Cook City., 111., Dec. 13, 1954), appeal dismissed on procedural grounds, 12 111. App.2d 473, 1249 N.E.2d 844 (1956).

6. See, e.g., Strnad v. Strnad, 190 Misc. 786, 78 N.Y.S.2d 390 (N.Y. Sup. Ct. 1948).

7. See e.g., People ex rel. Abajian v. Dennet 184 N.Y.S.2d 178 (1958).

8. Ga. Code Ann. tit. 74 Sec. 101.1 (1964).

9. Stephanie Coontz (1992) provides a detailed analysis of the myth of traditional family life.

10. Coontz (1992), 15.

11. De Tocqueville ([1835] 1945); (reprinted in Bremner (1970) vol. I, 347–50).

12. See Eisenstadt v. Baird (1972); see also discussion of Eisenstadt in chapter 2.

Notes to Chapter 1

1. Fox (1993), 123.

2. Strathern (1993), 22 (citation omitted) (draft on file with author).

3. Marc Bloch describes medieval families to have had a “dual character.” Maternal relations (e.g., the mother’s brother) were almost as important as paternal relations. Children’s names, for instance, came variously from the maternal or paternal side. Bloch (1970), 137.

4. Barnett (1976); Barnett and Silverman (1979); Dumont (1967), especially Appendix (1977).

5. For direction in the description of the feudal order I am grateful to Charles T. Wood, The Daniel Webster Professor of History at Dartmouth College, and to the works of Philippe Aries and Georges Duby, eds. (1988); Marc Bloch (1968, 1970); Georges Duby (1978, 1980); and David Herlihy (1985).

6. Duby (1980), 59.

7. Quoted in ibid.

8. Ibid., 71.

9. Capitularia Regum Francorum (A. Boretins and V. Krause, eds. [1883–97]), cited in ibid., 363 n.9.

10. Duby (1980), 70.

11. Duby (1978), at 6.

12. Shaw, St. Joan, Sc. 4.

13. Today, this is less true of Catholicism than of other social institutions, and to that degree Catholicism presents a contemporary counterpoint to the transformation of life in the West away from feudal forms of hierarchy and holism. Increasingly, however, feudal forms seem less and less certain even here.

14. Demos (1986), 28.

15. Mintz and Kellogg (1988), 19, 20, 108.

16. Ibid., 108.

17. For my understanding of the development of the family in the years after the late eighteenth century I am especially grateful to the following works: Coontz (1992); Demos (1986); Grossberg (1985); Mintz (1983); Mintz and Kellogg (1988); and Shanley (1994).

18. Schneider (1980), 50.

19. Ibid., 48–49.

20. May (1991), 583–87.

21. Seib (1993).

22. Strathern (1993), 22.

Notes to Chapter 2

1. Chester (1992), 160.

2. Ibid., 66–70.

3. Mintz and Kellogg (1988), 170.

4. In the mid-1990s a number of state legislatures began to consider bills aimed at limiting the development of no-fault divorce. A Michigan bill, for instance, proposed that no-fault divorce be unavailable in both cases involving children and cases in which one party preferred not to divorce (Rhode 1996). Such restrictions on no-fault divorce suggest the continuing conce...