Kinship, Law and the Unexpected
Relatives Are Always a Surprise MARILYN STKATHERN
University of Cambridge
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Preface
PARI ONt. UlVllJl-n ORKilNS
Introduction: Divided Origins
The Child's Two Bodies A Tool
Divided Origins
Relatives Are Always a Surprise: Biotechnology in an Age
page vit
3
■i
6
9
of Individualism	15
An Age of Individualism	15
Adding Debate	17
Individual and Common Interests	20
recombinant Families	22
Thinking About Relatives	i5
I-mbedded Science	33
Isolated Knowledge	35
Relations Kverywhcrc	37
Kinship Uncovered	43
Caveat	40
Emergent Properties	50
1	51
Multiple Origins	51
An Analogy	55
11	58
Offspring into Property	58
Information into Knowledge	61
Relations into Relations	64
III	67
Kinship and Knowledge	67
The Informational Family	71
V
vi
CONTENTS
r'AKT two, the arithmetic: of ownership
Introduction: The Arithmetic of Ownership
Conception by Imenl
leaving 'Knowledge' to One Side
The Arithmetic of Ownership
4 The Patent and the Malanggan
Introducing [he Body
Enchantment
Kt-iurn to New Ireland - i
Patenting Technology
Return to New Ireland -2
5 Losing (out on) Intellectual Resources I
The Terms of an Agreement Tradition and Modernity
JI
Body Ownership Whole Persons: Things Part Persons; Agents
III
Decontextualisation Intellectual Resources
Divided Origins and the Arithmetic of Ownership
Counting People: Murik Analogous Worlds Counting Ancestors: Omic Owners and Makers Propagating Images
III
Intellectual Products? Ownership of Persons? Single and Multiple Origins Applied Maths
IV
Mutts References Author Index Subject Index
81
Si 83 87
9* 92 94 y6
99 104
111
Ml
112 114
Mi. llfi 120 125
129
130
UÖ
135
138 140
142
144
147
H9
149
1*
155
157
i fin
]o3 201 217
220
Preface
Anthropologists use relationships to uncover relationships. The device is at the heart of social anthropology, and anthropologists also find it at the heart of kinship. This book would not have been possible but tor the wave of anthropological writing that has gone under the name of'the new kinship' (studies), although it dt>es not fall into the genre. I wish to add a footnoteabout the role that appeals to relationality play in anthropological studies of social life and suggest why we should be interested in it Appeals are made to a phenomenon at once contingent (on certain ways of knowing) and ubiquitous (to human society).
One of the enduring methodological conundrums of anthropology is how to hold in the same view what are clearly cultural and historical constructs and what are equally clearly generalities about social existence. The trick is to specify each without diminishing the other. If this is an attempt, by its very nature the present work must he incomplete precisely because of the specific circumstances that have suggested kinship as an intriguing. field tin investigation here. The field already limits ('constructs') the exercise.
The specific circumstances are epitomised in the new kinship, Studies under this rubric focus on the reflexive nature of analytical constructs, and very often on people's dealings with one another under new technological regimes, with the srimulus to indigenous reflexivity that hrings; people come to make new kinds of connections between their lives and the world they live in. Much of the substance of what follows would be familiar to such concerns, especially in the first part. Part 1 touches on contexts in which the new medical technologies have posed questions for families and relatives. These contexts become, in Part II, a toil for comparative analysis. The essays thus move from materials lodged largely in the United States and the United Kingdom, and in the first chapter white Australia, to creating the grounds for talking about Melanesia, Amazonia and (briefly) Aboriginal Australia. They describe the consequences of relationality, both in the data and in the organisation of it; several of the
'4
KINSHIP, LAW AND THE UNEXPECTED
Social anthropology has pointed out sonic of the force of such conceptual or categorical thinking, while its interest in situations where people are simultaneously dealing with interpersonal relations draws it in other directions. Can its own management of relations (conceptual and interpersonal) in tact hold up outside the Euro-American world that anthropology indigenously inhabits? Sometimes it likes to think its practices have origins elsewhere, too.
ACKNOWLEDGEMENTS
I am grateful to Christina Toren for her encouragement at the loot conference on Children in their Places, convened at Brunei University by Suzette Heald, Ian Robinson and Christina Toren; parts of both Introductions were, to my considerable benefit, aired there under the panel rubric 'Children in an information age'
1
Relatives Are Always a Surprise: Biotechnology in an Age of Individualism
We are living in an era of intense individualism.
Margaret Somcrville, on stem cell research, in conversation with Peter Singer. ABC TV Dateline, 16 Angus! 2001
C\ A / H AT KrND OF PEOPLE IS BIOTECHNOLOGY TURNING US INTO? 'WE*
V V are no more or less than the users of it, who might be anywhere, although the attendant issues discussed here reflect specifically Euro-American aspirations and concerns. Over the past twenty-five years, biotechnology has provided some powerful food for thought, challenges to how we users of it imagine society and how we imagine our relations to one another. Public opinion has, for example, seized on the idea that the new genetics is making new kinds of persons out of us.' Some see these new persons as ultra-individuals. But the new genetics also makes new connections, and here there are some surprises - people find themselves related in unexpected ways. Then again, the kind of people we might be becoming will depend a hit on what we already are, and we are not always quite what we seem.1 If ours is an age of individualism, as we constantly tell ourselves, and biotechnology feeds into that, then what exactly is biotechnology feeding? Let me start with a case.
AN AGE OF INDIVIDUALISM
Here is a slice of'ordinary life' {after Edwards 2000), even if the circumstances that bring it into public view are not ordinary, It concerns grandparents and grandchildren - two girls - and how much they see of one another. The parents separated just before the birth of the second girl, and the father lived at home with his parents, so these grandparents used to see a lot of the two girls.
15
16
KINSHIP, LAW AND THE UNEXPECTED
RELATIVES ARK ALWAYS A SURPRISE
Grandparents are not the kind of relatives expected to frequenl the law courts.1 Hut it was as grandparents that the couple petitioned for visiting rights to their grandchildren (Dolgin 2002). Some 1« months after the girls' parents separated, their father died. The girls continued to spend time with their father's parents, but the mother thought it was excessive and wanted to limit it and not allow overnight visits. This is what brought the grandparents to court. The trial court ruled that although the children would benefit from spending quality time with the grandparents, it should be balanced with time spent with the children's'nuclear family'. The case went to several appeals (the mother appealed, and then the grandparents appealed against the reversal of the trial court's decision).
At the final appeal, the conclusion followed the common law assumption that the courts should not interfere in a parent's right to raise children as he or she wishes." The 'nuclear family' was invoked, and the grandparents were outside it. The U.S. Supreme Court (ultimate court of appeal) 'found wanting the trial court decision that favored a family of extended kin because that choice failed to defer adequately to the decision of a fit mother about her children's familial relationships' (Dolgin 2002:383). Although observations were made about extra-familial support being important in situations in which there-was only one parent - statistics were quoted by the appeals court judges (in 1996, 28% children under 1H lived in single parent households [population not noted)) - the final ruling found in favour of the mother and her authority over her daughters. This did not just mean that the mother's wishes took precedence over the grandparents' but that her individual right to be the kind of parent she wished to be was endorsed.
The judges rejected an atomistic view of family life,5 but they did endorse parental determination. Many see 'biotechnology' doing what the law did.
Primarily in the form of assisted conception techniques, advances in reproductive medicine have enhanced parental freedom of action. In vitro fertilisation (IVF) and associated procedures have been offered in the name of the nuclear family, enabling couples to have the children who will complete it (see especially Haimes 1990; 1992); in the name of single parents, allowing them to have children without entering into partnerships; and in the name of reproductive choice, recognizing the very determination to have children as possible grounds for claiming parentage. The kind of parenting involved in the court case involving the grandparents is all about social arrangements, whereas biotechnology attends to biology and the body's up.u hies. One is about rearing children, the other is about having them in the first place - nurture and nature, if you like, or rather nurture-helped-by-the-Iaw
and nature helped by technology. But either can be seen as encouraging an individualism of a kind.
This individualism may involve other people, but it is the individualism that refers to the self as the source of choice-making and to the virtues of autonomous action.'" Parental determination is also parental autonomy. Prom some points of view, this may look selfish. Actually, the daughter-in-law read selfishness into her in-laws' motives. She thought that the grandparents were thinking of themselves first and trying to turn the girls into some kind of substitute for their lost son.
ADDING DEBATE
What is interesting about adding biotechnology to such ordinary situations, if I can put it like that, is that one adds debate. Debate has become part of the changing social environment in which the new genetics finds itself (Franklin 2001 b: 337). A doctor talking about the world's thirteenth IVF baby, born in Victoria, Australia, now turned 21, said:
The issues have also changed. Twenty-one years ago doctors were concentrating on women's early morning dash to the hospital for the collection of eggs. Now they are debating the ethical and moral dilemmas of stem-cell research and single women's rights to IVF.
The Age (Melbourne), 24 July 2002
because of the visibility of the 'new' techniques and the problems they pose for decisionmaking, little is left unquestioned. Indeed, the media constantly draw attention to the circumstances under which people choose reproductive interventions, for these appear test cases for the validity not just of this technology but sometimes (it seems) of all technology.
Among other things, biotechnology has turned us into people who are not surprised if intimate medical matters concerning third parties are debated in public and who in an arena heavily dependent on the expertise of the clinician or scientist see the need to weigh different values, bringing together public and private moralities. After all, 'even if one considers a union a private affair, not necessitating | registry | papers, the birth of a child is always a public event' (Segalen 2001: 259). The role of the expert here has turned quite complex.
It is not just a case of science producing dilemmas for society to solve; biotechnology has become an arena in which society speaks back (Nowotny, Scott and Gibbons 2001; d. Franklin 2001b) and in which the public lakes
18 KINSHIP, [.AW AND THE UNEXPECTED
an interest in experts' agendas, including their research agendas. Of course, scientists are not the only experts in the field; biotechnology is making us into people who listen to ethieists and philosophers and lawyers as well. And that is not just because their interventions affect individual lives at the points at which people have to make difficult decisions but also because of what often makes those decisions difficult. This includes the very fact that we imagine these interventions wiU affect the kinds of persons we are,7 for example, how we choose to 'be human'. What is remarkable about the arena of biotechnology is that such a question does not, on the face of it, have to do with excessive violence, greed or the violation of rights hut with applications that can lead to advances in medicine. In truth, violence, greed and violation have all been read into the development of biotechnology, but as the obverse of what we are assured are bound to be benefits, both in terms of medical treatment and in keeping at the forefront of research. What emerged as a contentious issue from the outset (at least in the United Kingdom with the Warnock Report in f Warnock 1985 ]), the question of limits and where to impose them, is still present.
In a lesser register, if Euro-Americans do not ask the question (What kind of people are we turning into?) about humanity then they may ask it about society! what consequences do people's decisions have for the kind of society they would like to live in? Here individual self-interest emerges as the contentious issue. Techniques welcomed to solve the problems of potential nuclear families may be regarded as suspicious if their end result is more single parent families. Although the desire to have a baby may be taken positively as thoroughly natural, the desire to have a child of a particular kind or for a particular purpose can be taken negatively as an example of parental selfishness.* Contemplating the implications for Humanity or for Society is unlikely to be where those closely involved find most difficulty but, fanned by the zeal of the press, which constantly puts these cases into the public eye, it does make difficult how everyone else is to think about the phenomena.
The year 2002 brought reports of a deaf couple who intentionally had a deaf child to match their own condition, their second, the first being four years old. This was by sperm donation and need not have involved any 'biotechnology' at all, but the story fits into the genre of stories about 'genetic manipulation'. It also was about same-sex parenthood because the partners were women. 'Babies, deaf by design' was one headline, to echo debate over designer babies raised by the new genetics (The Australian, 16 April 2002).? 'Being [born) deaf is just a way of life. We feel whole as deaf people and we want to share the wonderful aspects of our deaf community'.
RELATIVES ARE ALWAYS ASURPRI5E 19
Commenting on these words from one of them, The Australian's reporter observed that the parents turned deafness from disability into cultural difference. Their decision thus highlighted the enigma of autonomous choice. What for the couple was design for perfection for others was design for disability. Note that the couple's design for perfection was not to have themselves reproduced, which would have been dependent on the vagaries of genetic recombination, but to create children who replicated their shared elective characteristic of deafness. It was the one characteristic that they wanted to see in their child. They said they felt they could nurture a deaf child with more understanding than a child with normal hearing.
The couple was portrayed as selfish for not thinking of the child. Where they stressed the sense of belonging and sharing that came from being with members of their 'deaf community', the newspaper stressed the fact that the deaf are cut off from mainstream society. 'Sooner or later their children will have to face up to the hearing world', observed the journalist who described the huge technical backup system that assists them to communicate (for example, over telephone). Interests in common at once unite and divide, and mainstream society has sufficient interest in these children to pass highly evaluative judgements on the parents' decisions.
The case, from Maryland (United States), was reported in the Australian press as it was across the world. The question it raises for the public - how we are to think about the parents' decision? - is seemingly ubiquitous. Although these types of questions are debated with local issues in mind and although the regulatory regimes are different, they strike similar chords. The dilemmas travel with the technology, that is, the debates crop up in surprisingly similar forms in many otherwise different contexts."' I already have in mind that, based on her study of couples trying to create families through assisted conception, Bonaccorso (2000) had come to this conclusion about Italian practices. Procedures of litigation may differ, but the way in which values are weighed in favour of certain kinds of family arrangements seems very famiJ-iar, amid a general consensus about the causes for both congratulation and disquiet.
Now lli'.- •.■lulu ■ ■ l 111 v- .v ' couple 11. :■. ..I "ii'.- pii iiuii'. iln.i. choice against general public values. However, I would put it rather that we see an interplay between what are in effect two sets of public values, which in turn may either chime together or clash. On the one hand lies autonomy and the individualism it promotes, and on the other hand lies altruism and interests in common," Both values are written into public reactions U> biotechnology; either can be taken in a positive or a negative direction.
20
KINSHIP, LAW AND i hh UNEXPECTED
RELATIVES ARE ALWAYS A SURPRISE
INDIVIDUAL AMI COMMON 1NTKRESTS
By way oť example. I Incus briefly on issues concerning genetic make-up. Western {Euro-American) imagery routinely rep resents individuality through people's unique and singular bodies, echoed in understandings of the unique genetic template. No one else has quite the same combination of genes, bar identical twins. The perception of individuality and the value of individualism go together, and the significance of the unique genetic template is repeated over and again, a twentieth century discovery so easily absorbed into pre-existing notions about individuality that it is - among other things - the possibility of compromising that uniqueness that makes cloning so threatening.11
Bodily uniqueness is a sign as much as a Euro-American symbol of autonomy and of respect for the person as an individual (for recent discussion, see levies and Nafiine 2(h>] ; James and 1'aimer 2002). Indeed, the integrity of the body is itself the subject of rights. Thus much current questioning over embryo stem cells recalls earlier anguish over embryo research. Paradoxically, the biotechnology that in the eyes of some destroys individual beings also becomes one of the vehicles through which the very 'individuality1 of embryonic features become apparent. And it is the interventionist character of biotechnology that has us formulate obligations: how to treat others." Here the embryo may be depicted as a fragile and vulnerable member of the species who needs special protection.
The individuality of a person's make-up is also made visible through his or her profile of likely health, with an interesting qualification. That genetic diagnosis offers the possibility of being able to make sense of the pei-son's own genome has at thesame time stimulated great interest in the role that heredity-inheritance from others - plays in the transmission of disease. Nonetheless, it is what comes together in the individual genome that will count for the patient, which can be seen as both positive and negative. Chapter Three touches on people's urge to seek out relatives beyond the nuclear family in order to recover information about themselves and their medical prospects. There is also evidence, largely from the United States (Dolgin 2000; Finkler 2000), to suggest that some people trace relatives simply to gain this vital information and give little regard to the possibilities of starting up relationships with them.'"1 This creates (the phrase is Dolgin's) 'genetic families', whose members are first and foremost linked through the information their bodies hold about one another. Individualism flourishes to the extent to which these genetic ties can be disarticulated - severed - from social ones.''
On the other side, of course, genes are not u n ique at all. Again, we find both positive and negative values. The combinations might be unique, but the genes
themselves are replicas. People share the same range with everyone else on the planet, and the same basic genetic mechanism with all living things - even as they share the genetic make-up found in millions of human bodies built in similar ways, almost but not quite identical to one another. For however long this has been true, it is biotechnology that moves people to make declarations about genetic solidarity. Heredity become heritage, and the appeal is to the macro community this creates:
The concept of genetic solidarity and altruism might be summarised as follows: We all share the same basic human genome, although there are individual variations which distinguish us from other people. Most of our genetic characteristics will be present in others. This sharing of our genetic constitution not only gives rise to opportunities to help others but it also highlights our common interests in the fruits of medically based genetic research.
HGC 2002:38
What comes to mind are objections to 'patenting genes' (DNA), which, some argue, puts common resources into private hands."1' The argument was heard over the decoding of the human genome and the spectre of patenting, a race fuelled by visions of public against private property, the common interests of humankind against capital accumulation by a few. There are in tact two rather different positions here. Membership of the human species confers belonging, common membership arousing a sense of identity with other human beings. The notion of common interests, however, starts raising questions of ownership of a quasi-property kind.'7 That is, insofar as the features of a common humanity can be made to yield a resource, there is .some competition as to who should enjoy its fruits: what disabilities should be treated, who has access to the information it yields, who can benefit from the development of pharmaceuticals. It also makes clearer what is implicit in the model of common humanity, thai a sense of inclusiveness at one level (we all have [more or less] the same genome) is exclusiveness at another (other species do not count).
Now the case of heredity concerns people working out the consequences of discovering genetic connection, whereas the case of heritage amounts to abstract justifications for ethical behaviour. Despite these differences, I suggest that both prompt attitudes that are thoroughly familiar from Western (Euro-American) images of the 'nuclear family. Now on the face of it nothing could seem further apart than the dispersed network of relatives in which ties are treated inst rumen tally (the so-called genetic families) with only the tiniest units corning together to form (nuclear) families, and the inclusive body of human beings that form a unity1" at a fundamental level no one should
KINSHIP. I AW AND TIIK UNEXPECTED
Kt I VI l\ I s \K| M WAYS \ SI KI'UIM
»3
tamper with. Vet shift perspective a bit, and if the exclusive family appears like an individual writ large, then the community of humankind - in this view internally undifferentiated - appears like an exclusive family writ large. Whether, as in the instance of the Washington grandparents, close relatives do not count, or whether protection extends only to the notion of what we share with other human beings, the family looks after its own.
Some of the hold that biotechnology exercises over the imagination is its power to intervene in realities that already play a role in the way people think about themselves. Heredity or heritage, one can think of genes in narrower or broader contexts in human affairs. And the boundary images of family' do their job twice over. Al the same time this particular imagery is highb selective. There are many other things we know about families. So let us not assume what they are; lei us stand back a second time, then, and return to the ordinary family we have already encountered.
RECOMBINANT FAMILIES
Mere lies a surprise. The Washington grandparents who petitioned for visitation rights found that the courts put different weight on the nuclear family. But what was this nuclear family?" By the time of the first hearing, the mother had already remarried. The family household in which the girls were now living included their mother, her new husband who subsequently adopted them, a child from the new marriage, ihive, hildren from an earlier marriage of hers, and two children from the new husband's previous marriage: eight offspring in all, although none of the couples had had more than two or three together. In fact, a British anthropologist, Simpson, punned of similar kinds of arrangements in the United Kingdom that the resulting constellations produce families that are 'unclear1 rather than 'nuclear1.
Simpson (1994; 1998) was commenting on a phenomenon that appears in many post-divorce arrangements in Britain. There does not immediately seem anything untoward about such family arrangements - similar ones can be ton nd in ma ny times and places, as for instance in the French example of repeated divorces over three generations given by Segalen (2001:262-3) - except that it does not fit into the model of the 'family' we have been considering. It is neither narrow nor wide, it has no clear boundary. Rather, bits originating in other families have come together to make a new one. The surprise is in seeing what is happening: dissolution often leads to recombination let'. Bell 2001: 386).
The background is familiar enough. Britain has the highest divorce rate in Europe-"; with more than halt of divorced couples in 1990 having a child
under sixteen, it may now have reached a plateau, hul it is a plateau with a distinctive configuration. I >espite the break tips, holh families and marriage remain popular (one in three marriages is a remarriage) (Simpson 1998; viii). That same figure is true of Australia (roughly a third of all marriages is a remarriage).:| Ten things you didn't know about Australian families' is how ihe SKHWeruM(Sydncy) (23 January 2000) greeted a swathe of statistics, dating to 1996 1998, intended to provoke surprise both al how traditional Australian family arrangements persist and how prone to change they are. The changes are, for instance, in the direction of rising divorce rates (40% ol all marriages after 30 years, edging to the United Kingdom's 50%) and a rising age of women having children, ye! tradition is evident in the fact that mosi children are born to parents who are married (70%), and over 70% of children under 18 who currently live with their parents live in a nuclear family (mum, dad and the children they had together)." However, a sense of change is introduced by the projection that 30% children under four will be in single parent families by 2021 (the present figure is 20%, of which the majority are single mother families). The traditional and non-traditional exist side by side.
It is nothing new to observe that there seems as much value put on marriages and families as ever; how they are made up is another matter. In Australia, a high proportion of children live with both 'biological' parents, but there are also many who live with only one. It may be in a single parent family, or it may be in a recomposed one, 'Recomposed' it Scgalen's (2001: 259) word for families, as in the Washington instance, that form after the break-up of previous ones.Ji The high degree of divorce in present times throws those recomposed families into relief, and makes them visible. Divorce is the point at which marriage is officially dissolved but it is also the point at which the principles, assumptions, |and| values... surrounding marriage, family and parenting are made explicit' (Simpson 1998; 27), Indeed, Simpson suggests that what is new is the extent to which such recompositions have become part of the fabric of society. Marriages might dissolve and many would regret the rate it has reached, but families reform. Creeping up on us, as it were, is a new-realisation of ways of arranging the relationships.
Embedded in these ordinary circumstances are pointers to what is also interesting about biotechnology. It has become part of the social fabric: 'ART [assisted reproductive technology! is now clearly an integral part of society', to quote an observation from Western Australia (Cummins 2002). What has been creeping up on lis is ,1 world m which, for example, the thought ol replacing parts of bodies - or even the bodies of lost persons - follows not far behind knowing about techniques of organ transfer or hearing of claims on a deceased spouse's reproductive material. Assisted conception procedures
■M
KINSHIP, LAW AND THK UNEXPECTED
HKLATIVES ARE ALWAYS A SURPRISE
that offer remedy to those unable to have children also encourage people to organise careers with an expectation of late parenthood. Obviously in this area (ol assisted conception), but also where family members must make decisions in relation to one another, for example over prolongation of life at birth or death, biotechnology has itself become a factor in the way people manage their lives. It adds its own field of recombinations in what it takes to conceive children. And it is partly the degree to which the applications of biotechnology have in turn intervened in the formation of families that has given us recomposed families. From her French perspective, Segalen writes:
[By adoptingl new legal dispositions reflecting the new attitudes towards marriage, and also echoing the development of biotechnologies since the 1970s, jurists have disarticulated marriage and filiation [the recognised relation of succession between parent and child]. More children... enjoy the benefits of a paternal presence though the father [is not what he seems J... .The father, according to the Napoleonic Code, was the man who gave his genes, gave his name, and daily raised the child in his home. These three components of filiation have been disassociated in recomposed families.
Segalen 2001; 25914
The jurists might have taken apart marriage and filiation but, as people tell themselves, reproductive technology has already taken apart filiation and conception. If you look at the regular nuclear family, you may well find that the parents have been helped by a donor. What is true, then, of families legally recomposed through divorce and adoption is also true of biorechnological parentage, ai Icasi insofar as the U-\M,.- uir.-.p... 11..■ 11:.,:I■. 11 go in make up :i ihiid maybe drawn from diverse sources, diverse bodies.
We might surmise that families composed of other families, with children already conceived, would be largely distinct from families seeking augmentation through gamete donation or IVF. But the two kinds of recomposition can come together. Again, divorce or separation makes that coming together visible, and following the break-up of partnerships we hear much about, for example, disputed rights of disposal over fro2en embryos.15 This is the moment at which combinations have to be disentangled/* To take one example, the judgement in the Washington grandparents' petition was subsequently cited in a Rhode Island case involving a same-sex couple who had separated, in which one of the pair applied for visiting rights to a child born to her partner through artificial insemination that she had helped organise (Dolgin 2002: 402-4). What weighed with the judges was the 'parent-like relationship' she had had with the child for the four years they lived together, even though once the visitation privileges had been won she forfeited her claims to parentage
as such. In this case, the authority of the child's 'biological mother' had to be balanced against the interests of the other party asserting co-parental rights,
A complex nexus of possibilities is afforded not just by the law, then, but also by biotechnology. Indeed, and to follow Franklin's (1003:81) use of'recombinant' as an epithet for certain kinds of conceptual relations, we might borrow the metaphor again: such families are nothing if they not recombinant. It would be to draw on a simple notion from a complex cellular process, namely, that the techniques involving recombinant DNA were, at least when new, described as permitting the 'combination of genetic information from very different organisms' (Berg et al. 2002: 320), Biologists' ability Lto splice and recombine different DNAs' dates from 1973 (Reiser 2002: 7).
'Recombinant' is an apt term for the social forms these new families take17; 1 luu formation is not just a matter of shuffling parts around or submerging parts in an undifferentiated whole but ofcutting and splicing so that elements work in relation to one another indistinct ways. In some extent, the elements can be kept conceptually discrete. (You cannot undo a conception, although a baby's DNA will carry imprints that can separately identify each of its parents/" You can block the social connotations of that conception, as routinely happens when donor anonymity cuts off donors from their reproductive act.) I mean recombinant, then, in the sense that in taking apart different components of motherhood and faLherhood one is also putting them together in new ways, in both conception procedures and in rearing practices, and then all over again in combinations of the two.
THINKING ABOUT RELATIVES
There is much more going on than the 'fragmentation' of society. Euro-Americans know that the thought of biotechnology marshals an extraordinary range of hopes and fears; scientists' own particular concerns with the development of recombinant technology also date from the 1970s (Reiser 2002:7). They know technology itself is not to 'blame', yet many people cannot help thinking that the new techniques draw out of them a new impetus to social fragmentation in the form of selfishness.^ The hopes and fears somehow get aligned, so that somewhat utilitarian hopes of medical advance or improved treatments are pitched against fears about damage to society or even damage to humanity in the way they think about themselves as ethical creatures. I have wanted to put the complexity of some of the applications of biotechnology into an arena of interpersonal relations already made complex by the kinds of decisions that ordinary people - with or without the help of the law - make-all the time.
l6
KINSHIP, LAW AN O THE UNEXPECTED
RELATIVES ARE ALWAYS A SURPRISE
^7
This is where relatives have the capacity to surprise us. Divorce rises; the family remains popular. How can (his be (he case? Although particular families break up, relationships often endure. We could even say the family dissolves but the kinship remains."11 have already -touched on the tact thai in Hiiro-American culture, the body, insofar as its boundaries seem self-evident, can stand as a symbol of the integrated person. Connections between persons are generally thought of as lying outside the body, through all kinds of communication and forms of association. Kinship, though, is where Westerners think about connections between bodies themselves.9 Indeed, if they use the body to think about the uniqueness of the individual, they also use it to talk about the way persons are connected to one another, not through what they share in a general way, as we might speak of all humankind as kin, but through what has been transmitted in particular ways. So they trace specific connections l genealogies) and the network lells them how closely they are related (degrees of relatedncss). Modern knowledge of genetics endorses this way of thinking: genes make each individual unique ami connects it to many immediate as well as countless more distant - others.
Recombinant DNA, that is, DNA in its characteristic of separable and re-arrangeable segments, invites human intervention. There is a tendency when thinking about genes to stress connection, whether narrowly (the unique individual as the product of the nuclear family) or widely (all of humankind). Recombinant DNA further invites us to ponder the disconnections, the ability to take things apart and thus make them potentially parts of fresh constellations. 'Cents aren't us', the ethicist Julian Savulescu was reported as stating in The Age 119 June 2002). He went 011 to say that we are not the sum of our genes and genes do not determine who we are. I suggest that this is true in quite a profound sense that would mimic the possibilities that biotechnology affords them if they did not already antedate it. Ordinary knowledge about genetic connection gives a choice; there might be no choice about recognising the kinship constituted in the genetic connection itself (cf Strathern 1999b), but people may or may not make active relationships out of these connections. They may decide to ignore potential links. So fresh connections mayor may not ensue: persons 1 an disappear completely from one's life, or never seem to leave it. In valuing or devaluing their relationships, relatives thus become aware of the way they are connected and disconnected (cf. Edwards and Strathern 2000; Franklin 2003). Recombinant families just make this very visible, showing how cutting off ties leads to making others, or how household arrangements otter innumerable permutations on degrees of disconnection.
So people already act out diverse ways of thinking about themselves: not just as isolates set apart or as members of collectivities or groups but also as
beings who value their connections to others, who - when things are going well, that is - manage being at once autonomous and relational.^ The social relations of kinship, we might say, set that process of management in train.
How to deal with ones attachment to kin while also detaching oneself from them is central to kinship in Western (Huro-American) society. Western kin-ship regimes take to extremes the idea of bringing up a child to be independent, not only as an independent 'member of society' but also as independent from family and relatives. It does not take an expert to say this; Euro-Americans already know it in the way they act. But in contrast to the huge investment they make in the language and imagery of individuals or groups, they need fresh ways of telling themselves about the complexities and ambiguities of relationships.
There are two outcomes from all this for the way Euro-Americans implement their values. The first is evident in recombinant families and the opportunities for new connections. Divorce reorders kinship. If they take their eyes off the units that are reformed and look instead at the trail of relationships, they find families interconnected in new ways. Divorces link children, that is, children now living in different families are linked through the dissolved marriages of their parents":
If we talk of family in an uncritical way, the creative possibilities inherent in
kinship for the structuring of interpersonal relations are obscured____The study
of divorce as a cultural expression of kinship, rather than as a social problem with family, demonstrates the distinctiveness of western patterns of relational organisation ... I and I it offers the prospect of locating distinctively Huro-American patterns of kinship and putting them into comparative perspective,
Simpson 1994: 832
Simpson thus makes the positive suggestion that we should treat these linkages as phenomena in their own right. It is clear that in valuing their relationships, people already do.
The second outcome for the way Euro-Americans implement their values concerns disconnections. In addition to dislocating kinship from families, what about the way in which relationships, as the ongoing activation of social ties, may be dislocated from kinship in the sense of genetic connection? Do not the new 'genetic families', based as they often are on medical data kinspersons share, give new dimensions to individualism (the self-reference of the medical patient)? Dislocating relationships from kinship is of course inherent in donor anonymity and is always the alternative after divorce or separation. Thus Segalen's (21x11: 260) recomposition may indeed add to pre-existing family networks, so that, say, biological father and stepfather co-exist and work out a
28
KISMIIK LAW AM) nil I MX I'M TED
RELATIVES ARK ALWAYS A SLKPKlSL
2<J
modus vivendi.bui in Ir.iiKv.u lensi this lends u> he especially trueof relatively affluent, middle class families. In other sectors of society, recombination can also erase previous unions, usually cutting off ties with the old father where the new father adopts the children and gives them his name. And it can lead to diverse ways in which the new units are viewed. One British instance (Simpson 1994: 834-5)-14 invites us to consider the perspective of the grandparents: the husband's parents speak of having six grandchildren where the wife's parents speak of three; husband and wife would like to see all six of their children, the offspring of four different marriages, treated equally, but the wife's parents only give treats to their own child's children (by two marriages).
We have seen that both the generalised universal 'family of man' and the close domestic family - which probably calls itself'nuclear', recomposed or otherwise - alike embody notions of exclusion. Those values of exclusion make all the difference between families that defend boundaries and families that emphasise recombinant relationships (so to speak) and thus live out their idea of themselves as overlapping with others. In the former, when kin are cut from one another, it is to extrude one set from outside the circle of the other set, like the hapless Washington grandparents. Cutting thus externalises {the grandparents then ha ve to n ego tiate access] .Inthelattercase,h 0 wever, cutting tklinci the conditions under which fa mi lies overlap, is internal to the ensuing network. If there were no separation, no severance of couples at divorce, there would be no recombination.35
Euro-Americans3* have no difficulty in imagining persons as different combinations of elements - from gene-, and their environment, to the baby and its nurturersy*7 to someone's relatives and circle of friends - and each such combination bestows an identity made distinct through the person's relations with the world. What biotechnology adds - especially through the ARTs -is the prospect of reading disiinci social identities back into the very process of conception (for instance, via gamete donation and its proliferation of social sources}.'* Yet in one sense indigenous {Euro-American) notions of kinship already make persons combinations of other persons. This is not a question of losing one's identity but of specifying it: the fact that everyone is a part of someone else is held to conserve the individuality of each recombination.
THIS IS less A CONCLUSION THAN A shut IN REGISTER. BEING PARTS Ol-
others carries its own responsibility; how we (users of biotechnology) take decisions entails how we define those responsibilities. Two debates from
Australia are the impetus here. The first is an academic one, largely in response to the way legal thinking has been influenced by the technology, and is inevitably inconclusive. The second concerns changes in clinical practice that conclusively implement a response to public questions.
In their book, Are Persons Property?, the Australian feminist and legal theorists, Davies and Naffine, write about autonomy with reference to notions of self-ownership and about the particular problem that a thoroughly ordinary and everyday phenomenon, the pregnant woman, presents for the law. 'The pregnant woman and foetus are one legal person and that is the woman* {2001: 84}. The counter-action, as we well know, is to claim the uniqueness of the fetus, even to the point of claiming that it is a person in its right (Savill 1002: 50). But the law must continue to be equivocal. In their words, the facts of reproduction render incoherent the notions of individualism on which these views are based. The complexities of this situation are compounded by technological interventions that produce embryos outside the body. We return to die issue ol ownership, indeed persons as property, in Chapters Kive and Six. Mere I pursue die observation th.i: biotechnology has provided new ways of conceptualising the individuality of the fetus.1* If ever we needed new ways of thinking about persons as parts of persons, by contrast, the pregnant woman is a paradigmatic case.
The remark is hardly new. Reassessing 'The mother of the legal person', Savill (2002)'" notes how close the law can get. When the (British) Law Lords had to take a decision on culpability in an appeal over a fetus killed through injury done to the mother, speakers referred openly to the modern science ol human fertilisation and the light it had thrown on the reality of embryologieal and fetal separateness. This in turn elicited a strong statement that there was nonetheless 'an intimate bond' between a mother and the fetus dependent on her body for its support. Lord Mustill is quoted as saying:
But the relationship was one of bond not identity. The mother and the foetus were two distinct organisms living symbolically, not a single organism with two aspects.
Savill 2002: 44
The view was not powerful enough to displace the doctrine that the fetus has no legal personality (it lacks lull autonomy; as an incomplete human being, it is in corporeal terms nii generis.)-. It also left out the extent to which the maternal body is changed by pregnancy, and indeed becomes in ils new stale dependent on the fetus for the completion of its developmental trajectory. This is the point at which Savill (2002: 66) quotes Karpin's illuminating suggestion
30
KINSHIP, LAW AND IHK UNHXIMl TI b
RELATIVES ARE ALWAYS A SURTRtSK
33
that we conceptualise the maternal body as a 'nexus of relations1. Karpin does not mean:
a relationship in which mother and fetus... are equal partners because that would rely on a basic premise of distinction. The value of a nexus-of-relations perspective is that it makes obsolete a notion of subjectivity that is dependent for its subject status on distinction, separation and defensive opposition to others.
Karpin 1994: 46
I have one disagreement.41 I do not think we need be afraid of distinctions and separations. In the same volume, Gatens (2002:168) turns to Spinoza for his understanding that individuals:
are not 'atoms' or 'monads' but are themselves made up of 'parts' that are in constant interchange with each other... |such that1 tin ..in individual to endure requires exchange, struggle and cooperation with other individuals, who arc also made up of parts.
Spinoza's ethical-political ontology, she remarks, 'facilitates understanding difference as enabling identity and relation's of interdependence as enabling autonomy1 (2002: 169, my emphasis). Biotechnology has introduced into the domain of body management the kinds of separations, cuts and combinations that have always characterised relations between persons.
Yet the fact remains that Euro-Americans do not always talk about relations very clearly. Some of their current dilemmas stem from those areas in which the vocabulary for the interests at stake is exhausted.411 have suggesied that certain aspects of biotechnology, such as recombinant genetics, offers fresh ways of thinking about social arrangements and indeed about biotechnology's own interventions. Franklin (2003) provides an arresting account of people moving in and out of the discourses of genetics in dealing with kin relations. If so, the virtue is less the novelty of these discourses than their capacity to bring people back to what they already know. They already 'know' that mother and fetus are both separable and parts of each other; what is lacking is an adequate language for this kind of relation, This limits the way in which responsibilities are conceptualised. It is as though Euro-Americans could only speak of each as either merged with or external to one another, an exclusive unity or an exclusion of the one from the other's interests. Yet (to put Spinoza's words into another frame) it is their separability that is at the basis of their interdependency. If literal separation is the precondition for recombination in the case of families, then in the case of mother and fetus separation is integral to any relationship between them.49
1 would repeat that people already know this. But one reason for theshortage of relational idioms is the overdetermination of other idioms. For when it comes to legislation and litigation, a relationship is not (and cannot be) a legal subject in Western (Euro-American} law. This is a problem we shall have to live with. St) the arguments remain fascinating but inconclusive.
Other problems are shifted, and the consequences of how people make decisions bave evident effect in the conclusions people draw.
Children born of donated gametes, and given the nature of the procedures it is more likely to have been the sperm donor rather than the egg donor who has been completely separated from the results of conception, are now in the position of having to decide whether or not pursue their genetic paternity. Members of Sydney's Donor Conception Support Croup are reported as saying: They just want to find out who they are. They don't want replacement parents' (Sydney Morning Herald, 29 November 2001). Certain donors do not wish even that, the same article goes on, 'I would much prefer them to simply say thank you, enjoy their mothers and fathers and get on with their lives', said one donor who threatened to take legal action if he was identified. Or it may be a mother who makes such a decision on behalf of her child, as in the case of the sperm donor who went to the Family Court in Melbourne to seek access to a two-year-old boy; the Court was told that the child was not being denied a relationship, just 'an active parental relationship' (Sun Herald, Sydney, 27 January 2002)."14 Other decisions follow, such as an IVF clinic trying to eliminate anonymous donations altogether from their procedures because of the ethical problems to which they give rise. 'Nowadays, the clinic advises clients to ask a friend or relative to provide sperm', said a nurse (Sydney Morning Herald) 29 November 2001).
'Or relative'! A final surprise, then, sprung by relatives, in this case by relatives who - like friends - are willing to donate to kin they know. If one-recalls all those early debates about anonymity being needed to protect the nuclear family, saving it equally from intrusive strangers and the shadow of incest, a wheel seems to have turned full circle. Seemingly, that problem has been pushed to one side, and pre-existing kinship comes into its own,45 Of course, it is not without complications. Edwards (1999; 2000) offers an account, and it is one of the few fully ethnographic accounts, of the way English kinsfolk weigh up such matters. I hompson (2001:174) describes a Californian fertility clinic where friends and relatives are involved in gamete donation, and where 'certain bases of kin differentiation are foregrounded and rec rafted while other are minimized'. Although this may be so that the intending parents come out 'through legitimate and intact chains of descent as the real parents', my focus is on the separations and recombinations that make this possible. In one case,
kinship, law and the unexpected
for example, the surrogate asked to gestate eggs and sperm from a husband-wife pair was the husband's sister. It was not counted as incest. It was a near thing, though, and the sister joked that it was lucky she had her tubes tied because that ensured that none of her own eggs would meet any sperm that might accidentally be transferred with the embryo. A further case Thompson (2001:187) cites is a co-venture of a kind that came to the fore from the early days of JVF, namely mothers and daughters assisting one another, in this case the daughter providing an egg to be inseminated by her mother's husband. The fact that he was her step father helped, but the fact that the egg contained genetic endowment from the daughter's father (mother's former husband) was not mentioned. In this case, the daughter was happy to have helped her mother, but did not like thinking about the spare embryos that were not used and that, outside her mother's body, simply remained the creation of herself and her stepfather.
Yet however painful, casual, taken for granted or requiring great effort it is, relatives can probably handle the complex business of negotiating closeness and distance, separating themselves from this part of procreation in order to associate with that part. Is it because, regardless of what happens in other parts of their lives, kinship has taught them to be adept at managing two kinds of relations at once, not just connections but disconnections as well?
ACKNOWLEDGEMENTS
Considerable thanks to the Julius Stone Institute and to J lelen living and the Law Faculty at the University of Sydney for the opportunity to participate in the 2002 Macquarie Bank Lecture series Bistechnobgpes Between Expert Knowledges and Public Values. The (lender Relations Centre and Department of Anthropology at the Research Schoo I of Pac i f ie ai i d Asi an St u d ies, A u si ral ia n National University, Canberra, also my hosts, provided much further discussion; warm personal thanks to Margaret Jolly and Mark Mosko. I remain g ra tefu 1 to the other a uthors of Tech ticfogies of Procreation fortheircontinuing insights; however, I have probably drawn more on Sarah Franklin's (2001b; 2003) re-conceptualisations than I realise. Janet Dolgin once again provided me with something of a base, as did AJain Pottage. Monica Bonaccorso's study proved very informative, and Maria Carranza gave exceptional help in acquainting me with current affairs in Australia,
2 CI*;
Embedded Science
Our picture ol'sLiii'iicc is still heavily impregnated with epistemology-that is, the'theory' of knowledge.
lohn Ziman, 2000: 6
7N 2003 THE INTERNATIONAL COUNCIL FOR SCIENCE PREPARED TO launch what it regarded as one of its most important strategic reviews ever. This was a review of the responsibilities of science and society. A fascinating phenomenon of the last decade or so has been the international circulation of the idea that science needs society as much as society needs science. 'Science and Society' programmes seem to spring up on all sides. In summoning the combined skills of experts and nonexperts alike, such programmes try to make explicit the interdependence of the two. Thus a central formula in U.K. science policy has recently undergone a shift in that direction: from the Public Understanding of Science to the concept of Science and Society.' The call is for a greater understanding of how society is implicated in science, and how science might be made accountable to society: a 'new social contract'.2 In thinking about what stands for society, how one knows when it has been engaged, society becomes itself an explicit object of inquiry. There is considerable interest here for a social anthropology engaged with what is made explicit and what is left implicit. For anthropologists frequently claim that much knowledge is embedded in habits and practices that render it implicit. If the same claim were to be made for Western (Euro-American) science in its societies of origin, where would one look for a tacit or embedded science?
Supposing science is already 'in' society, then, where is it? What do 1 need to make explicit in order to find examples of its embedding? I am going to introduce certain knowledge practices. I shall argue that Euro-Americans