The Symbolic Power of Legal Kinship Terminology
| Date | 01 April 2016 |
| DOI | 10.1177/0964663915598664 |
| Published date | 01 April 2016 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2016, Vol. 25(2) 181–203
The Symbolic Power of
ª The Author(s) 2015
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DOI: 10.1177/0964663915598664
An Analysis of ‘Co-motherhood’
sls.sagepub.com
and ‘Duo-motherhood’ in
Belgium and the Netherlands
Frederik Swennen and Mariano Croce
University of Antwerp, Belgium
Abstract
This article provides a theoretically grounded critical analysis of how the Belgian and the
Dutch legal systems are addressing new kinship formations through the production of
new legal terminology. As Belgium and the Netherlands are at the forefront of legal
recognition of minority sexualities and emerging forms of relatedness, statutory Belgian
‘co-motherhood’ and Dutch ‘duo-motherhood’ for ‘lesbian parents’ (both enacted in
2014) cast some light on how European state family laws and policy frameworks are
likely to evolve vis-a`-vis the multiplication of new family formations. After tracing the
developmental trajectory of these new family law categories and their connection to
ordinary language categories, the article claims that legal labels are hardly merely
descriptive, for they exert contradictory effects of recognition, regulation, normalization
and exclusion. By foregrounding the potential frictions between ‘kinship-in-action’ and
‘kinship-in-the-books’ and the possible drawbacks of top-down statutory interventions,
the article contends that, when based on conventional family categories, legal kinship
terminology runs the risk of foisting pre-given narratives upon emerging kinship for-
mations, which would eventuate in the normalization of alternative realities. The article
concludes by drawing a parallelism between partnership labels and parenthood labels and
by advocating the need for deeper ethnographic research before new legal kinship labels
are crafted.
Corresponding author:
Mariano Croce, Research Group Personal Rights & Property Rights, University of Antwerp, Venusstraat 23, B-
2000 Antwerp, Belgium.
Email: mariano.croce@libero.it
182
Social & Legal Studies 25(2)
Keywords
Family, family law, kinship, legal labels, motherhood
Le lait va aussi loin que le sang!1
Introduction
This article deals with the difficulties that legislatures and courts face when they are
called upon to govern emerging kinship phenomena that exceed conventional binary
grids, such as male/female, husband/wife, father/mother and so on. Rules meant to reg-
ulate kinship phenomena incorporate specific representations of kinship formations and
by and large take the shape of definitional labels. When the law cannot revert to conven-
tional terminology, legislators and officials are forced to issue new definitions that may
provide guidance for conduct for those who take on unconventional roles. However, as
we will argue throughout this article, definitional labels are normative instruments that
exert performative effects on those who carry out the roles marked out by legal rules. In
this regard, the production of new labels is a normative activity that not only regulates
but also moulds social practices.
As Belgium and the Netherlands are at the forefront of European legal recognition
of minority sexualities and emerging forms of relatedness, statutory Belgian ‘co-
motherhood’ and Dutch ‘duo-motherhood’ for ‘lesbian parents’ (both enacted in
2014) cast some light on how European state family laws and policy frameworks are
likely to evolve vis-a`-vis the multiplication of new family formations. This is why
we look at them as exemplary cases. In the subsequent pages, we will embark on a the-
oretically grounded analysis in order to understand whether, and to what extent, the
newly created labels reflect the phenomena they intend to regulate. In the first section,
we will explain what kinship terminology is and will give some insights into recent
developments in the regulation of family formations in Europe generally. In the second
section, we will concentrate on legal developments in Belgium and the Netherlands. In
the third section, we will tease out the performative force of legal terminology, which,
in our opinion, can hardly be regarded as a mere representation of social practices in
that it actively contributes to constructing what it intends to govern. Based on this two-
fold inquiry (doctrinal and theoretical), in the fourth section, we will problematize the
recent developments discussed in the preceding sections. Finally, we will claim that
legislatures and courts should take advantage of recent kinship studies and encourage
new socio-anthropological research to bridge the gap between the law and social
practices.
Kinship-in-the-Books and Kinship-in-Action
One of the fundamental components of all kinship systems is the existence of a partic-
ular vocabulary that allows directly addressing and indirectly referring to ego’s kin
from generation Gþ2 to generation G2 (Godelier, 2004). Such a nomenclature
Swennen and Croce
183
(Trautmann, 1999) semantically conveys a negotiated social meaning on who ego’s kin
are and which contents their kinship relation has (Gibbons, 1999). It thus allows ego,
his kin and the society at large to position ego within the kinship structure, ‘which pro-
vides a specific place for and within every generation’.2 This ‘kinship-in-action’
reflects how people involved in kinship relations structure and experience the latter
(Ould and Whitlow, 2011).
Kinship nomenclature is also used in legal language, albeit in a different register
(Gibbons, 1999). ‘Kinship-in-the-books’ is how kinship relations are reflected in state
law and state policy when it comes to defining their formation, content and dissolution.
Legal kinship labels refer to a predefined context of rules on kinship. This abstract con-
text will indistinctively apply to any actual kinship formation that is categorized under
the legal label (Berman, 2013; Morrison, 1989). For example, it is instrumental in impos-
ing impediments on formal relationships,3 granting parental responsibility or organizing
rebuttal of parenthood.
Needless to say, there might be gaps between kinship-in-action and kinship-in-
the-books. It is unlikely that kinship-in-the-books and its basic terminology can ever
exhaustively cover the variety of kinship formations. Therefore, inevitably, a good
many incongruities and frictions affect the relationship between the social and the
legal dimensions of kinship and of kinship terminology. In what follows, we will
explain that the proposed legal label and its social counterpart may not coincide, and
that the written legal term is not, as a kind of ‘sediment’, the ‘translation’ of the spo-
ken social word (Berman, 2013; Gibbons, 1999). This is even truer today, as demo-
graphic transitions continue to change the conventional family grid on which ordinary
language and legal kinship nomenclatures are still based. The recent wave of ‘new
kinship studies’ has brought to light a variety of kinship formations other than the
conventional ones enshrined in Western legal systems (Carsten, 2000; Franklin and
McKinnon, 2012; Jallinoja and Widmer, 2011),4 and we would like to capitalize on
these results to put legal kinship terminology to the test. More precisely, this article
sets out to understand to what extent the evolutions in legal kinship terminology in the
Low Countries reflect and, at the same time, govern emerging kinship formations that,
according to many scholars (Collier and Yanagisako, 1987; Freeman, 2007; Hayden,
1995; Weston, 1991), are seriously challenging the conventional family grid and the
range of values, hierarchies and power differentials attached to it. To put it otherwise,
the family grid is no longer affixed to what Fineman (1995) defines as the ‘Sexual
Family’, that is, the state-sanctioned union between two individuals and their progeny
that still lies beneath recent developments of family law and state policy (see also
McCandless and Sheldon, 2010: 177). Because of this, we believe that the very term
‘kinship’, which is mostly used in anthropology scholarship, is better suited to account
for the variety of ‘family’ formations that are developing all over Europe. Moreover,
reference to kinship rather than family invites to expand current legal understandings
of the latter, which is historically grounded on a collapse (Butler, 2004) of kinship
into the model of the family conceived as a legitimately and legally married couple
and their joint progeny. Within the Low Countries,5 we chose to analyse Flanders
– the Dutch-speaking part of Belgium – and the Netherlands because of their shared
Dutch language.
184
Social & Legal Studies 25(2)
New Kinship Formations and Kinship Terminology
There is no vocabulary yet that covers emerging social kinship practices and the evolu-
tions in public perception and that reflects the fuzziness, intricacy and possibilities of
kinship formations. In order not to merge different aspects of the way meanings are used
within different contexts of the social realm, a basic distinction should be made between,
on the one hand, public perception, that is, crystallized social meanings concerning kin-
ship and family, which reflect how civil society at large conceives kinship and, on the
other hand, the meanings produced within flexible instances of kinship-in-action, where
people face the emergence of new situations and develop new meanings to make sense of
their environment. A major cause of incongruities and frictions is the fact that kinship-in-
the-books tends to rely on crystallized social meanings on...
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