When a Single Man Wants to Be a Father: Revealing the Invisible Subjects in the Law Regulating Fertility Treatment
| Author | Rachel Cahill-O’Callaghan,Atina Krajewska |
| Date | 01 February 2020 |
| DOI | 10.1177/0964663919826352 |
| Published date | 01 February 2020 |
| Subject Matter | Articles |
Article
When a Single Man Wants
to Be a Father: Revealing
the Invisible Subjects
in the Law Regulating
Fertility Treatment
Atina Krajewska
University of Birmingham, UK
Rachel Cahill-O’Callaghan
Cardiff University, UK
Abstract
This article takes the example of single men who wish to become single fathers, using sur-
rogacy, as a case study to examine the nature of legal subjectivity and the process by which
persons acquire social visibility through legal mechanisms. The article investigates the notion of
the absent subjects in law and examines the ways in which single men have been rendered
invisible in the area of assisted reproduction. It investigates the emergence of legal subjectivity
through the acquisition of rights in the context of fertility treatment. In this respect, it analyses
the recent jurisprudence of the English courts and the changes in the human rights law that
helped construct single men as subjects of law. The article proposes the concept of (in)visi-
bilization for a number of reasons. It allows us to observe and examine the slow and contingent
emergence of legal subjectivity in law. It illuminates ways, in which aspects of the critique of
human rights as an inadequate vehicle of social inclusion can be overcome. In both respects,
the concept of (in)visibilization provides a diction, in which we can analyse legally relevant
experiences, which have not yet crossed the threshold into the formal system of law.
Keywords
HFE Act 2008, (in)visibilization, invisible subjects, legal inclusion, legal subjectivity, single
persons
Corresponding author:
Atina Krajewska, Birmingham Law School, University of Birmingham, Edgbaston, Birmingham B15 2TT, UK.
Email: a.krajewska.1@bham.ac.uk
Social & Legal Studies
2020, Vol. 29(1) 85–106
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0964663919826352
journals.sagepub.com/home/sls
Introduction
Law confers protection upon those privileged by its umbrella who are seen as legal
subjects, but it can also maintain patterns of difference and perpetuate inequality (Diduck
and Wilson (1997). This article examines the ways in which the law can cast aside those
who sit at the margins of social norms, who are not in the conception of the lawmakers –
the invisible subjects. It analyses the mechanisms through which law denies and grants
individuals legal visibility and examines the processes by which legal subjectivity is
acquired in the area of law regulating assisted reproductive technologies (ARTs). The
article draws on a case study of single men who wish to become fathers using ARTs who
remained invisible for years, but who have recently acquired visibility through human
rights litigation before English courts.
1
The analysis of the developments in this contro-
versial area of law, which typically focuses on legal subjectivity on women, provides a
particularly apposite case study which serves to identify the social and legal factors
underlying the processes of (in)visibilization and subjectivization.
First, the article sets out a theoretical framework for the analysis of the acquisition of
legal subjectivity in the field of assisted reproduction and it addresses the role of rights in
this process. It discusses the interrelation between legal personhood, legal subjectivity
and the concept of rights, paying particular attention to the feminist critique of individual
rights. The article proposes the concept of (in)visibilization for a number of reasons. It
allows us to observe and examine the slow and contingent emergence of legal subjec-
tivity in law. It illuminates ways, in which aspects of the human rights’ critique as an
inadequate vehicle of social inclusion can be overcome. In both respects, the concept of
(in)visibilization provides a diction, in which we can analyse legally relevant experi-
ences, which have not yet crossed the threshold into the formal system of law.
Second, the article examines the causes and consequences of legal exclusion by
tracing the ways in which single men have been rendered invisible in the legal frame-
work constituted by statutes regulating ARTs in the United Kingdom – the HFE Act
1990 (c. 37) and the HFE Act 2008 (c. 22) – and other relevant pieces of legislation.
Drawing on historical studies of singleness, the article argues that the absence of single
men in this field of law can be linked to the centuries of marginalization of single persons
in the area of family life. Subsequently, using data collected in 2016–2017 from publicly
funded fertility clinics and content analysis of regional National Health Service (NHS)
fertility policies and Internet websites of fertility clinics, the article demonstrates that
exclusion from the law has resulted in the absence of single men from the policies and
official statistics concerning fertility treatment in the United Kingdom. The invisibiliza-
tion of single men in this context, inextricably linked with uncertainty in family life,
renders them particularly vulnerable in certain sociolegal settings.
Finally, at a more general conceptual level, the article examines the notion of the
transformative power of law by tracing the process by which persons obtain visibility
through human rights litigation. It analyses the recent jurisprudence of the English courts
that contributed to the appearance of single men in the legal realm of fertility treatment.
It shows how human rights arguments assume an inclusionary function that helps to
bring legal subjects from absence into presence, from obscurity to light, creating new
forms of legal subjectivity. In this respect, it contributes to the debates seeking to revisit
86 Social & Legal Studies 29(1)
To continue reading
Request your trial