Family (Law) Assemblages: New Modes of Being (Legal)

AuthorFrederik Swennen,Mariano Croce
Publication Date01 Dec 2017
ISSN: 0263-323X, pp. 532±58
Family (Law) Assemblages: New Modes of Being (Legal)
Frederik Swennen* and Mariano Croce**
This article advances a new model for family law to address emerging
non-conventional family formations, particularly between parents and
children. We contend that the conventional model of kinship categories
as static, predefined statuses should be replaced with a model whereby
the state accommodates kinship categories the law users themselves
produce within their fluid and nomadic family assemblages and that
they actively revise when negotiating state recognition. We claim that
this model would better reflect and govern the emerging kinship
system. We corroborate this by drawing on insights from family
research that takes issue with the fragmentation of kinship, particularly
the fragmentation of motherhood. We then elaborate on a conception
of state recognition as the capacity to trace connections and identify
normative frameworks, one that valorizes the self-organizing force of
social practices but at the same time holds onto the filtering role of the
*Research Group Personal Rights and Property Rights, Faculty of Law,
University of Antwerp, BE 2018 Antwerp, Belgium
** Department of Philosophy, Sapienza ± Universita
Ádi Roma, IT 00161
Rome, Italy
We acknowledge the financial support of the Academy of Sciences of the Czech Republic
for the conduct of the research project `Transsexuality and the problem of minority
identity in legal discourse' (GACR 14-35646S) awarded to the Centre for Law and Public
Affairs (CeLAPA), Institute of State and Law of the Academy of Sciences of the Czech
Republic, created under subsidies for a long-term conceptual development (RVO:
68378122). We are also very grateful to the anonymous reviewers for their useful
comments on earlier drafts.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
This article sets out to investigate how the law is dealing with transitions in
the areas of family and kinship, as well as how it could/should deal with
them if other models of legal recognition were available. Our inquiry focuses
on the legal recognition of parenthood, and particularly, of fragmenting
motherhood. Although centred on one specific type of family relation, our
contention is that the mode of legal recognition we delineate in this article
can be generally applied to other vertical and horizontal family relations.
Our discussion ties in with contemporary scholarship on transformations
that are profoundly remoulding the Western family and its role in the overall
Euro-American kinship structure. The historicization of the family as a
transient cultural unit
has filtered down from the order of knowledge to the
order of practice; many key features of the family model that dominated the
last two centuries have now been reduced to possible traits in a rich spectrum
of family formations. Technological advances have removed genetic ties
from their pivotal role, and have accordingly opened up to new ways of
constructing kinship through choice.
Similarly, the number of possible
combinations allowed by new technologies has complicated the idea that a
family comprises two parents and their progeny. Despite this, the law ± as a
special field of social reality
± cannot just allow innovations to take hold
and register social change as it unfolds. Law has its particular way of
1 On the idea of kinship categories being `cultural units', see D. Schneider, American
Kinship: A Cultural Account (1980, 2nd edn.).
2 Although tangentially, it is worth stressing that this is a moot point. For while
technologically-assisted human reproduction seems to be dispossessing biology of
its `status of a prior fact' (see M. Strathern, After Nature: English Kinship in the
Late Twentieth Century (1992) 194), Charis Thompson's studies on infertility clinics
foreground how patients, practitioners, third-party donors, medical techniques, and
regulatory s tandards par take in coordi nate processe s of naturaliz ation and
normalization: C. Thompson, `Strategic Naturalizing: Kinship in an Infertility
Clinic' in Relative Values: Reconfiguring Kinship Studies, eds. S. Franklin and S.
McKinnon (2001). To different degrees, they all contribute to making assisted
reproduction reinstate legitimate and intact chains of descent by elaborating certain
aspects and omitting others. The examples she discusses illuminate people's ability
to manipulate and rework the fine line separating nature from culture in such a way
that the `nature' of biology is preserved exactly through a cultural process of joint,
multi-party elaboration. It is then in this ambivalent remaking of the spheres of
biology and culture that genetic bonds make their comeback as the device that
assures the sameness of kinship models. As Sarah Franklin maintains in her
enlightening study of in-vitro fertilization (IVF), medically assisted procreation
techniques `reproduce, and condense, familiar narratives ± from the naturalness of
reproduction and the universal desire for parenthood to the value of scientific
progress and the benefits of medical assistance ± and the success of IVF is in turn
offered as proof, or evidence, of how these logics fit together': S. Franklin,
Biological Relatives: IVF, Stem Cells, and the Future of Kinship (2013) 6.
3 See P. Bourdieu, `The force of law: Toward a sociology of the juridical field' (1987)
38 Hastings Law J. 814.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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