Families: Law, Gender and Difference

Defining the Family: Law, Technology, and Reproduction in an Uneasy Age. By Janet L. Dolgin. New York: New York University Press, 1997.

Sex, Preference, and Family: Essays in Law and Nature. By David M. Estlund and Martha C. Nussbaum.New York: Oxford University Press, 1997.

These two volumes nicely complement one another. While both deal broadly with the central issue of what it means to be a family—how families are constituted socially and legally; the "gendering" of persons within families; the revisioning of the family along lines of sexual orientation; and the use of reproductive technologies to make these reconfigurations possible—each volume nonetheless has a distinctive focus.

Janet Dolgin provides an overview of clashing conceptions of family as revealed in the struggle of courts to deal with the impact of various forms of reproductive technology. Dolgin sets for herself the task of tracing the development of two competing legal conceptions of the family, traceable through a series of cases and doctrines, extending back (in American legal history) to the early nineteenth century. One view, the "Traditional" model, "sees families as ideally hierarchical, holistic, and immune from, or at least unlikely to welcome, the manipulations of choice" (15). The "modern" model conceives of families as "ideally egalitarian" where "relationships are understood as grounded in the exercise of autonomy" (16). The hierarchy embedded in the traditional legal and social view of the family consisted in the dominance of "men and adults" over "women and children" (60), and was premised on a view of the family as one grounded in "inexorable and enduring connections" (60). "Within traditional families," we are told, "children love their parents, and parents their children, not because they choose one another, but because the biological bonds that connect them ensure enduring love" (246). "Modern" families are "families-through-choice" (15), a "collection of autonomous individuals, connected only insofar, and only for so long, as the individuals involved chose to be connected" (248). Dolgin links the gradual emergence of the modern model to the familiar construal of legal progress as an incremental supplanting of relationships based upon "status" by those based on "contract." Dolgin tries to show how each model reflects a distinctive view of the role of reproduction. For the traditionalist, reproduction "is the inevitable consequence of natural, and thus unchanging, biological processes. . . ." (2); for the modernist, however, "almost every aspect of human reproduction can, and is, being designed through bargained negotiations" (249).

Much of Dolgin's argument is concerned with legal doctrine, and her general analysis remains narrowly circumscribed by the status/contract dichotomy. Dolgin defends this choice as an accurate reflection of the legal shape of existing family law, and she persuasively argues that many courts and legislatures have sought (desperately, in some cases) to analyze the disruptive effects of new reproductive technologies in terms of the basic dichotomy. Dolgin devotes a substantial portion of the book to the issues surrounding surrogacy—and this is not surprising. For as she points out, surrogacy arrangements are liminal cases for the law: they "depend on contracts and bargained negotiations and yet aim to create loving, usually 'traditional' families" (76). It is here that Dolgin's analysis is strongest. She revealingly examines the briefs and arguments presented in the Baby M, Davis, and Johnson v. Calvert cases, for example, showing how the plaintiffs and defendants invoked conceptions of intent and best-interests to bring their positions within the ambit of one or another model of the family.

Dolgin makes it clear that hers is a descriptive project, an exercise in the "cultural anthropology" of law (x, 245). As such, her book may disappoint those looking for normative argument. No such worries, however, attend Sex, Preference, and Family. The essays in this volume, written by philosophers, lawyers, and political scientists, cover a wide field of interest, but generally fall into several groups dealing with the constitution of the family, questions of gender, and gay and lesbian issues. One of the principal theoretical disputes among the contributors cuts...