Genes, Gestation, and Social Norms

Law and Philosophy 31 (3):243-268 (2012)
Abstract
The case law surrounding surrogacy, in vitro fertilization, genetic donation, and legal parenthood is notoriously confused. Yet the issues involved in these cases are of fundamental importance to our most basic rights. To make matters worse, ongoing developments in technology continue to push the conceptual limits of both our legal and moral schemes. In this paper I argue that the concept of ‘parenthood’ is deeply ambiguous and attempt to carefully untangle the notion into two distinct concepts – one biological and largely descriptive, and the other social and profoundly normative. I argue that the social notion of parenthood is a complex function of intentions, actions, and emotional states. It is a concept both defined and constrained by social norms. The biological notion of parenthood, for its part, cannot be understood in strictly genetic terms. I offer, instead, a more fleshed out view that treats biological parenthood as a family resemblance concept. Finally, I discuss the role of gestation in the context of a powerful feminist critique and argue that although gestation is a biological phenomenon, it is a mistake to think that its relevance is limited to biology. In fact, what is special about gestation, in the context of parenthood and obligation, is its distinctly social role. By shifting the discussion of gestation away from biology and toward the realm of the social, we can make better sense of the disputes that manifest themselves in the literature and in the law
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