[National Library of Medicine, 1836 seal]
[Elizabeth Fee:] I'd like to welcome you to a special
lecture in honor of Women's History Month.
Since we seem to be a small and elite
audience, I might suggest you come a
little closer to the podium so that we
can have this more intimate discussion.
Can you? -- Hi [?]. My name's Elizabeth Fee,
and I'm the chief of the History of Medicine Division here at the library.
And it is my great pleasure to introduce our speaker today,
doctor Valerie Hartouni, who teaches in the Department of
Communications at the University of California, San Diego.
Where she is associate professor and university distinguished teacher.
She's a former director of the Critical Gender Studies Program,
and she earned her doctorate from the
University of California and in Santa Cruz in the history of consciousness.
And I was just hearing that
she knew an old friend of mine,
Donna Harraway, who was one of her
advisers for her doctoral thesis. Professor Hartouni has written and
spoken widely on the rhetoric, ethics, politics,
and technologies of gender and reproductive issues,
including such recurring questions as abortion and surrogate parents.
But her interests are abroad. She is currently preparing a manuscript
entitled "Rhetoric of Justice,
Reading Arendt on the banality of evil."
So her topic today? I'd love the title--
"Reproductive technologies andthe post human future.
Are we there yet?"
Please help me welcome, Valerie Hartouni.
[applause]
[greetings exchanged]
[handshakes]
[...]
[Professor Hartouni:] Did you walk off with my talk? You did.
[laughter]
[Elizabeth Fee:] [shrill noise]
[Professor Hartouni:] That would be my fault. Uh. Got it.
[pages of notes sorted out]
That would. And your and your folders over here.
[pages of notes sorted out]
[nervous laughter]
[Professor Hartouni:] Here you go.[Elizabeth Fee:] Ok, thank you.
[rustling and clicking sounds]
[Professor Hartouni:] Thank you so much. It's it's lovely
being here. This is a-- I was a-- invited twice last year,
I had woke up with pneumonia the moment
the morning I was to get on the plane. It seems like when the winter quarter ends,
I hand in my grades and head right to the doctor's office with pneumonia.
But this year is not the case. It's lovely to be here,
and thank you so much for the invitation. I want to start by trying to
explain for you what it is.
What is in some sense of maybe provocative?
Maybe from the perspective of historians,
simply ridiculous title for this talk. Ridiculous to know. What incited me was a op-ed
piece that appeared in the New York Times about a year ago,
mid-January, penned by Adam Cohen. The common headline read as follows.
"A Legal Puzzle: Can a Baby Have ThreeBiological Parents?"
And honestly, as someone who
has written quite extensively on alternative reproductive arrangements
throughout the mid 1980s and 90s,
a period when new reproductive innovations. Practices, collaborative arrangements,
seemed at every turn to generate sordid media and legal spectacles.
My response to this particular headline was your kidding, right?
Actually, it was a little more colorful and perhaps a little less generous.
Someone is still asking this question.
How is this actually still a question posed seriously rather than rhetorically?
Now, what provoked Adam Cohens's piece in the times were two developments
that in some sense
are only superficially linked. There was, on the one hand,
the efforts of researchers at Oregon Health and Science University's Primate Center,
who announced that they had successfully reproduced, defective or replaced defective DNA
in the egg of a monkey with genetic material from another female monkey. Impressive.
But they had then implanted the genetically manipulated egg, and this culminated
in yet a third monkey, and this culminated in the birth of an apparently healthy--
a group of twin monkeys.
Now, researchers speculated that the procedure, called spindle transfer,
would likely work in humans, right? And as such would be one of the first forms of genetic therapies
that would actually combat, and perhaps even eradicate a range of inherited diseases passed
from mothers to their offspring. And that is the promise of for purposes of funding, if nothing else.
That is, of course, always the promise of these practices. Now this, led Cohen.
In the op-ed piece to speculate, with the help of legal scholar Adam Kolber,
that what is fast approaching with such promiscuous exchange of genetic material is an even more
[?semiotically?] confused world than I guess the one we already inhabit,
a world of what he calls "fractional parenthood." Thus, Cohen asked quote,
"Could a baby one day have 100 parents? Could anyone who contributes
DNA claim visitation rights? Can a baby born outside?" This is the killer.
"Can a baby born outside the United
States to foreigners who have DNA from
an American citizen claim US citizenship?" And that would be hard for Congress then,
to have to come up with a a immigration policy that included-- these eggs.
OK. These questions are clearly designed to conjure for their reader.
Future world of relational chaos, dystopic worlds,
or worlds in which we have no clear, precise sense of place,
no sense of whose genetic baggage we're carrying, and therefore, at least for some commentators,
no clear sense of identity. And the question also functions, of course, as a reassuring reinscription
through the threat of loss. You know, the response of surely not a reassuring
reinscription of conventional bonds between or alignments of genetics and kinship formations.
Critical, we insist, to the formation of individual identity, but probably more critical still to
the organization of social life. So that is, on the one hand, you have spindle transfer.
But what also framed Cohen's piece was a recent ruling in New Jersey
on what he described as the biggest surrogacy case since Baby M. Now in this case,
the plaintiff who the court refers to as a A.G.R., the name is Angela,
served as a gestational surrogate for her brother and his male partner,
a couple legally married in California but recognized only as domestic partners in New Jersey.
Now D. R. the brother, and S. H., his lover partner husband wanted children
and they wanted to share genetic connection with those children.
So Angela's participation in the sisters participation in this collaboration was designed to allow
both men to feel biologically connected to their offspring.
Even while the eggs that are fertilized with--
the husband's S. H's sperm are not the sisters their donor eggs so you
have this arrangement where these this couple this male, same-sex couple want to genetically connected
but the eggs are are her eggs are
duds so they buy they buy some eggs.
They use the one partner sperm and fertilize the eggs. OK,
so at A.G.R. situated as a stand in for her brother in this arrangement
she's his genetic link by proxy. Even though there's a problem that
the eggs are donated and a vehicle for the reproduction of her brother in laws,
genetic material complicated network here of relations that is mostly symbolic.
So the so the genetic connection here is turns out to be mostly symbolic,
even while it's grounded in some loosely organized sense of genetic heredity.
OK, A.G.R. gives birth to twins from donor eggs fertilized with the sperm of her brother's
spouse with the sperm of her brother-in-law. And she agrees to allow her brother to
adopt the children once they're born and signs a contract, a consent of judgment,
to adoption some two weeks after the twins premature birth in October 2006.
Now she visits the twins, a girl and a boy
periodically until January 2007, when visitation ceases for a
couple of months. And then in March of that year, 2007, when the twins are
approximately 5 months old, she re-enters their lives and spends as
much as three full days a week parenting, parenting them. She's living throughout this period in
a structure on her brother's property, New Jersey, and is, moreover, economically dependent on him.
This arrangement continues until 2009 was approximately 2 years when an economic
dispute occurs between the siblings A.G.R. and D.R. and with this apparent economic
dispute the arrangement falls apart. The brother and the brother-in-law withdraw access to the twins.
A.G.R. sues to reestablish her parental rights and thereby regain access to the twins.
Now, the New Jersey Supreme Court. Which is also the court that issued the Baby M ruling.
They issued a summary judgment. This was in December 2009 and not surprisingly,
the judgment turns on 2 cases. Or turns to two cases to guide and anchor
its findings and I just wanna briefly present these cases to court turns
in the first instance to Johnson v Calvert a 1993 ruling gestational
[AUDIO DEGRADATION]
surrogacy ruling case in California, couple brought a suit seeking declaration
that they were the sole legal parent of a child born of a woman in whom a couples eggs.
The couples eggs fertilized eggs had been implanted and it turns to the now 26
year-old ruling in the Baby M case. Now about Johnson v Calvert first. Very interesting case
for a variety of reasons. This was a racial issue. The racial issue in this case was
absolutely front and center in the Court's ruling in Orange County, California.
The gestational surrogate was black and the contracting couple was of mixed ethnicity,
although for the purposes of the case and the press it would refer to as white and the surrogate
Anna Johnson, woman of color, while bearing no genetic relationship with the child,
claimed that she was nevertheless bonded with, she had nevertheless bonded with the
infant over the course of the pregnancy. Largely through monthly ultrasounds.
That she was required to undergo. To monitor the health of the baby. Now, as an aside,
here you'll you're probably familiar with the role of ultrasound in the pro-life movement.
South Dakota just recently indicated that they would begin to require women
seeking abortions to undergo ultrasound
and then to undergo counseling by individuals of faith as to what they
so that they fully understood what they were doing in seeking an abortion
or obtaining an abortion, anyway. Ultrasound is championed by members of the pro-life movement as an
instrument to foster identification and connection between women seeking
abortion and the fetuses they carry. If you go online and there are several
really interesting sites or disturbing sites, one Project Ultrasound,
the other operation ultrasound sites designed to raise funding.
Now from the project ultrasound website, I read you this passage.
Between 70 and 95% of abortion minded mothers who see an ultrasound choose life,
but only 40% of crisis pregnancy centers nationwide are equipped with ultrasound
equipment due to their extremely high cost. Project Ultrasound raises awareness
about the effectiveness of ultrasound machines and preventing abortion. But most importantly,
we raise funds for the purpose of assisting crisis pregnancy.
Centers and purchasing ultrasound machines. So ultrasounds are very important
instrument in several ideological battles. But with respect to the Johnson
v Calvert case, it was important because Anna Johnson
had argued that through these ultrasound she had bonded with her baby and she
had recognized that she was its mother. Now the lower court determined that.
However strong Anna Johnson's bond was with the baby,
there was no indication that the baby had bonded with her. In fact,
the lower court found this claim especially dubious. Lower court argued this,
that bonds of the sort Johnson insisted she had formed true
maternal bonds were likely to occur. Only within the sanctity of a
proper family unit among, quote, "married mothers with husbands
whose babies they carry." And I continue the quote. "People that are married and get
pregnant and plan for a child that contributes to the mother's feelings
towards the child she's caring. And in a situation where the plan is
from day one that the child is the genetic child of another couple is
going to be given to that couple to raise exclusively when it's born. That means that there is less
likelihood and should be less likelihood psychologically, of a person carrying the child,
bonding with the child." Anna Johnson, though, was considered by the court to
be a host who provided, quote, a place for the child. To reside, she was,
as a judge saw it, a foster parent. Of sort.
So the California Supreme Court case went to the California Supreme Court,
saw matters a bit differently. They acknowledge that as the birth mother,
Anna Johnson had a claim in California on the birth mother is considered the natural mother.
Court acknowledges it. The birth mother has a claim, but being the genetic mother,
Christina Calvert also had a claim. So there were two women.
Each could provide proof from eternity. Each could provide evidence of a
mother and child relationship. And so these questions before the court.
The question before the court was who then is the real mother?
And this, the California Supreme Court. Not surprisingly, the ACLU, excuse me,
files an amicus brief urging the California Supreme Court to find that the child has two mothers.
It doesn't have to choose between their two mothers. And the California Supreme Court
rejects and it says, quote, even though rising divorce rates have made multiple parent
arrangements common in our society. We see no compelling reason to recognize such a situation here.
The Calverts are the genetic and intending parents on this phrase. Intending becomes very important
to the California Supreme Court, in part because they then appeal to.
Copyright law. To round their findings,
the court turns away from authorizing alternative cultural formations.
It opts instead to address the question of maternal authenticity, and to do so
if foregrounds is question of intention. Which it argues is expressed through an
inscribed in genetic material. Right. The coming together of egg and sperm
represents the attention of the parents. This union of egg and sperm inscribes
the intention of the appearance. The intended parents are the first cause.
Little Aristotle here the prime movers of the procreative relationship, but for them their intent.
But for them there would be no child. Now this was the argument in Baby M.
Judge Sorko also made the argument, but for him there would be no trial,
rendering Elizabeth Stern
entirely invisible in the procreative moment.
[audio hum still present]
As an aside, Justice Kennard of the
California Supreme Court wrote a dissent
and he points out in his dissenting opinion that this is
the rationale used by the court, as I indicated, is basically the rationale that informs
the protection of intellectual property. Quote an idea belongs to its creator
because the idea is a manifestation of the creators particular personality
or self, represents their intention, but for the creator there would be no product.
So this, this, this appeal to intellectual property law in finding who in determining who
is a real parent is a interesting
move by the California Supreme Court. We found that while there are two women
who can demonstrate a maternal claim, the court insisted that in the intent
of the genetic mother to be the exclusive determinant in this case,
and the exclusive determinant not only of the surrogacy question but also the
question of the child's best interest, the intending mother serves a child's
interest because the child's interest, quote are likely unlikely to run
contrary to those of the adult who is bringing it into being.
[audio hum]
The New Jersey Supreme Court judge in this
most recent case rejects this reasoning. He notes that whereas California
takes the position that is disrespectful towards women to not allow them to enter into contractual,
arrangement contractual pregnancies, New Jersey takes a more protective
stance with respect to women and acknowledging and seeking to foreground
the potential devastation surrogates are likely to experience upon
surrendering their children at birth. So California basically goes with liberty of
contract and New Jersey says oh in, in, in. In some cases, we need women are more vulnerable,
and they need protection. Protection of the law. In the state of California law makes
only vague gestures in the direction of considering the best interests of the child.
Arguing that it involves unnecessary governmental interference, whereas.
California regards the intentions of the contracting parties as determinant.
New Jersey has determined that the intentions of the contracting parties are of no consequence.
And here the court insists that an understanding of the salient legal issue in the matter is
articulated in the case of Baby M. In this case, you'll remember procreative
collaboration between Mary Beth Whitehead and Bill and Elizabeth Stern.
Commissioning couple met a very dramatic, complicated end when Mary Beth
Whitehead determined that she was unable to relinquish the baby she had gestated on behalf.
And with whom she she share on their behalf and with whom she shared a genetic link.
This is this was a traditional surrogacy case, not a gestational surrogate.
Traditional surrogacy is when a surrogate contributes to genetic material.
A gestational surrogate is when the
surrogate nearly carries the genetic material of somebody else. The Baby M case,
very low tech arrangement, basically entails a turkey baster.
In any event, quite caught up in the intensity or confusion of the moment, the Baby M case
the presiding judge, [Harvey] Sorkow declared himself, unsettled legal terrain in the
wake of new reproductive innovations and sought to establish order by
reestablishing the law of the father. But for him, as I indicated earlier, there would be no child.
The biological father pays the surrogate for her willingness to be impregnated
and carried his child to turn at birth. He does not purchase the child.
He cannot purchase what is already his. And the surrogate, Mary Beth Whitehead,
the judge argued, was merely a stranger who preserved a stranger's seed.
I I love this ruling. I love this ruling, in part because it goes right back to the Greeks,
the founding moment, the Aristophanes,
where you have a Athena called upon to determine, in this case,
who is the the real parent, and she determines that the parent is the one who mounts. No,
no closer could you have gotten a
ruling than in this case where the judge determines refound patriarchy
or paternal the paternal order.
She was, he argues. She's a stranger who preserved the stranger seed.
Her rights could be terminated because, as she never really had been the
baby's mother, she never really had any rights to to begin with.
Now, on appeal to New Jersey Supreme Court, once Baby M case more or less reversed,
the lower court, lower courts ruling found
that reproductive innovation was traditional. That was traditional. Surrogacy had not catapulted
the court onto someone. The legal frontier. It maintained that it could restabilize
the social relations, practices, categories and identities and identities
disrupted or apparently disrupted by this collaborative arrangement.
Within existing law and public policy. By simply clarifying and extending both,
the New Jersey Supreme Court invalidated the surrogacy contract between Bill
Stern and Mary Beth Whitehead, arguing that surrogacy for payment
clearly constituted a form a baby seller and Bill Stern had paid for a product
rather than a process as he claimed. And even if he hadn't exactly purchased the child,
he had in fact purchased a mother's wife to her child.
In the words of the Court, in a civilized society,
there are some things that money cannot buy.
All right, back to the December 2009 case. Appealing then to the courts
finding in the case of Baby M, the judge determined that the contract
A.G.R. had signed terminating
her claim to the children was void and therefore that adoption
of the children by her brother was void.
Quote: " A contract alone, even though entered into voluntarily,
cannot terminate parental rights
by virtue of having given birth to the child. She is the natural mother."
But we might wonder here, would the judge have had a slightly more
difficult time time ruling in this matter? Have D. R. and S. R.
been a heterosexual married couple? Would their desire to constitute
a heteronormative family been more legible to the judge and thus forced
him to take a closer look at matters he otherwise dismissed out of hand?
So, back to Cohen's legal puzzle, can a baby have three biological parents?
The twins in the story obviously can and do have ties to three individuals
biologically the sperm donor, the egg vendor, and the gestational surrogate.
Is out of this biological mix that the twins emerge. Their biological origins or the
biological plot of their story is fairly straightforward and at this juncture,
perhaps even little mundane. Perhaps the truly interesting component
of the story applaud or thread that has never developed has to do with the eggs.
And their movement from one body or bioeconomic system to another.
The conditions of this procurement, the processes by which they are
depersonalized or symbolically recategorized, stripped of identity and individual history,
converted into viable products for unspecified end users, and preserved for a specialized
group of specialists. Until they're purchased and re-embodied the process which then creates in
them and through them a set of new identities and allows them to reenter
the symbolic reviewed with meaning. All of this. This redistribution of organic material
from one site instead of meetings to another constitutes a pretty interesting component of the story.
Without which, in fact, there would be no story. But legally? It's a part of the story.
That's bracketed. In other words, legally it's utterly irrelevant, right?
There are some things money can buy.
So the issue is not whether a child can have biological ties to
three or more individuals through redistribution of organic material,
though these children are linked to three individuals biologically,
as a simple matter of fact, the question is what significant force to attach to this fact,
especially since it challenges traditional systems representation where there are clear alignments
between life forms and forms of life. Were the sets of signifiers mother, father, baby, son,
daughter, family are supposed to simply fall into place? In other words,
especially since it unsettles relationships that have traditionally
been anchored in and stabilized by our representatives stabilized by nature.
Can a child have biogenetic ties to three individuals? Clearly yes.
But can a child has three or more parents? The answer, of course, is legally no.
Now the California Supreme Court noted,
children often find themselves in alternative kinship arrangements where there are three or more
parents or parental figures, or where there are three or more adults engage in particular
kinds of caretaking practices, with all the various attendant responsibilities we typically
think of as parental. But three parents as a possibility of the law today has rejected,
and hence Cohen's legal puzzle for which biology is an interesting kind of alibi.
Because the legal puzzle seems to me clearly have very little to do with
particular biological configurations, and emerges rather from tenuously grounded cultural one.
Alternative reproductive arrangements or development of ever more
sophisticated reproductive techniques. Expansion of for profit industries
organized around body parts and substances, the possibilities of having more promiscuous
genetic transfers and exchanges. All of these practices fundamentally
alter the facts in terms of which the nuclear family claims its origin
and upon which it claims to rest. And what is the legal puzzle in the end?
But the collision of the origin stories we felt and the real histories we find ourselves now living.
[audio hum]
In every opinion James Boyd White writes,
a court not only resolves a particular dispute one way or another, it validates or authorizes
one form of life or another. The making of law as he sees it,
is also the making of life, the means by which one life form of life is authorized and codified
against other forms. And we see this very clearly whenever collaborative reproductive
arrangements made possible by reproductive techniques land in the courts and the court finds as
a lower court did in Johnson V Calvert that had three parent kinship group
creates not possibilities for connection, but conditions quote right for crazy making.
There can be no doubt about the ways in which the court itself functions
as a kind of reproductive technology. Or functions in the service of particular configurations and
practices of kinship and identity, compelling things to be as it recognizes they are,
even as a conventional or naturalized basis. Justifying these practices erode
until this brings me finally to the question of the posthuman. And by this I'm not talking
about the end of humanity, but rather loosely following Katherine Hayles,
the Posthuman, as a point of view. As the end of a certain conception of the human,
and she specifically has in mind the way we think about humans autonomous free willed,
self-determined creatures who could escape nature by controlling it.
There was of course a second wave, and this is parenthetical second wave. Feminism, right?
That imagined liberation. The only way to free women from the tyranny
of reproductive biology was to control it. And even engineer it.
This is showing us [Shulamith] Firestone vision of Ectogenesis or Marge Piercy's vision,
the technological mastery of reproduction Women on the Edge of Time. Marge Piercy puts it this way.
And I went back to this, as I was thinking about this talk,
still remembering the excitement of this particular moment. She put it this way.
"It was part of women's Long Revolution, when we were breaking all the old hierarchies fondly
there was that one thing we had to give up to. The only power we ever had in
return for no power for anyone. The original production, the power to give birth.
Because as long as we were biologically in shade, we'd never be equal.
And males never would be humanized to be loving and tender. So we all became mothers."
Every child has three. To break the nuclear bonding, right?
So this is a the vision of of escaping nature by controlling.
I wonder at this historical juncture what it would mean to take as a kind of point of departure,
not controlling nature to escape it, but to take as a point of departure,
in a seriously literal, material way, Donna Haraway's observation or claim that.
To be one.
Is always to become with many. And I suppose from one framework, this portends a world at this
location of fractional parenthood, of competing genetic claims, semiotic confusions,
and the loss of the sense of familial embeddedness generationally.
Indeed, from within its stock frameworks, this undoubtedly looks like as a judge thought,
other situation right for crazy making. But how much more sane is a culture's
romance with origins and origin stories? They prefer myth to history,
and they make less and less sense of relational complexity all the way down.
To be one is always to become this many, and this would certainly be
a a vision of a post human. This is a modest and at the same time radical shift in perspective.
Which respect with respect to what it means to be human. In the social organization that
both reflects and sustains it, it begins with what we already know, that everything about who
and what we are as human, as conditioned in mediated by our interdependence. And it assists, finally,
that we find ways to respect, materially, cultivate, representing the body,
the fact that intermittent interdependence rather than bracket and raise, both socially and legally.
That which means the eye and I'll stop there and take questions if you have them or not.
Thank you.
[applause]
[Elizabeth Fee:] If you have questions or comments,
you might just press the little button on your mic. Says easier to hear in the back, yes?
[audio level too low]
[Audience:] But has anybody looked the ethical dimensions?
[Professor Hartouni:] Well, people are looking at the ethical dimensions all over the place.
Yes, absolutely. And,
and you have some ideas about the effort.
[man off microphone]
[low audio level]
[Professor Hartouni:] It's an interesting.
I mean where do you begin and end? That becomes the question, right.
And if you and and and in what economy are you entering right.
Can you sell, I mean selling body parts, why can we sell eggs? Mean you go to any college campus
[?] UC San Diego and there are long ads in the back descriptions of
egg donors. We are seeking you know 5 foot, six straight A student, blonde hair,
white skin to donate eggs. You know of that sort of thing, right? So you put in your, so.
Why can we sell eggs and not lungs?
Why can we sell, you know? Which? So these kinds of questions
jobs are all over the place. People are.
[low audio level]
[Professor Hartouni:] It varies from state to state right?
New jerseys is is gonna claim that women need protection from the market and
California argues that women can't are adults and can enter and have the liberty
of contract they can enter into it. So where they come down is going to be differ.
So it varies from state to state on.
Do we want a national policy? I mean, England has a has a
a policy that that outlaws.
Surrogacy for surrogacy contracts,
you can do, you can enter into Good Samaritan relations, but they're
highly, you know, discouraged.
[silence]
[Audience:] I don't know much about this,
but I kind of question your assumption of biological relatedness of the
gestational surrogate. So when I think about a biological relation, there's got to be some
sharing of genetic material. Now in that can be either or combination
between the DNA and egg and a sperm, it can be mitochondrial DNA and the ovum.
But in the case of the gestational surrogate, I don't see where there's any
genetic link to the child. At all.
[Professor Hartouni:] So what you're saying?
Yes, absolutely right. Some, some, some people will agree with you.
Others will say you cannot just take
a fetus for nine months and not be
contributing to its overall growth.
And so in that in that respect, you have some kind of relationship
with the fetus you're carrying and like you disagree with this.
[Audience:] A relationship, yes, but a biological relationship, no. So is it,
is it quite possible that the immune system of the baby was stimulated by
the antibodies in the mothers body? Yes. But is there some, any sort of genetic connection?
I don't see it. And when I think of a biological connection, I think of a genetic connection.
[Professor Hartouni:] Ok, so part of part of the story we tell
ourselves about this is that there is a genetic connection, right.
And this is, this is about the genetic mother trying to decide between is it the birth mother
that is the real mother or is it the donor? Is it the intending parent that's the real mother?
Is part of the confusion in the courts have the courts see pregnancy as being
a biologically based activity right? So caring to term is is to be
engaged biologically in the making of a of an infant and the court
also has referred to that periodically as genetically contributing to the child.
[Audience, female:] You're also only thinking in one direction,
they are finding evidence, you can find the child's
mitochondrial DNA in the woman who carried a body. [Professor Hartouni:] That's right.
[Audience, female:] [affirmative head nod to male audience member]
[Audience:] I was wondering how the kind of the trend towards focusing on women putting
their fetuses at risk and this idea of the the mother as as the host has
played into changing ideas about the responsibilities of the surrogate?
I mean, you know, you talk like there wasn't a national standard because
there are state by state differences, but you think it's played into the general dialogue as well.
[silence]
[audio level drops lower]
[Professor Hartouni:] [?]
[Audience:] I'm just thinking about the
so the idea that if you are carrying a fetus that you know, there are certain states which have
put laws into place to privilege the health of the fetus over the health of the mother
or to arrest women who seem to be jeopardizing supposedly the health of the fetus,
and so there's been scholarship on that trend as being this kind of idea that
now the the the rights of the fetus now trump the rights of the host as as the
mother is now being seen and does that play into the surrogacy debate too, have you seen that?
[audio level to low to detect speech]
[Professor Hartouni:] [?]
[audio level to low to detect speech]
[Professor Hartouni:] They want to bring a fetus in to testify. Now, what does it mean to
bring a fetus in to testify? It means hooking the fetus up
to hooking the pregnant woman up
and with with sound speakers so that you can hear the heartbeat, you can hear the movement,
the gurgling, and this to testify.
I and I can't quite remember what the what.
But this is how it's actually described
we will bring a fetus to testify. So this all of this stuff. I mean we can say that
all of this stuff is mostly symbolic, but it works for the production of the fetuses person.
I mean, right. And so whereas 30 years ago the notion
that the fetus had independent life out.
That was a strange.
A strange idea, it seems to me. Now we've we see a situation where.
In all these other ways, it's produced as this independent
person sort of just hanging out.
Waiting to make its appearance.
You know, I used to think that that it would be that things would really unravel when you still have
abortion practices according to one framework of argument and, you know,
person that according to another. But we, we see this tension.
Coexistence very different conceptual frameworks.
It's the keep abortion legal and that
continue to boost produce [?].
So that's a roundabout way, but.
We see terrific and in these cases do capture that these kinds of [?unintelligible?].
[silence]
[Audience:] I want to I want to have your opinion on parenthood in general. This.
The question that you asked was, can a baby have ties to three or more biological ingredients?
And then you went on to talk about this is different from
having three or more parents. Now here we're talking about a biological versus a social,
legal differences between what a parent is. And so what is it? What,
what is the trend and is it more towards the social legal entity as opposed to a biological
definition of what a parent is?
[Professor Hartouni:] I think that the court still take our
still appeal to some understanding of what
is nature and I think that the kinds of gymnastics
you see these courts doing so that intellectual property law becomes
a law that finally guarantees a kind of biological parenthood.
The courts are reinventing
nature in any way possibleto hold in place
of arrangements. You know, the normative family, the normative parenthood, that's.
[audio dropout]
Our understanding. Parenthood is about set of social practices, and that's what the ACLU and
their amicus brief tried to foreground genetics [?]
To ways in which we organize a social world and the court still
finds that view unacceptable.
So and and I think that. You know, as you let us say, that
something like spindle transfer becomes a.
A common practice for addressing, or a practice for addressing particular
kinds of genetic inheritance and disease.
You know what kind of Cohen anticipates such terrific confusion about who is the
real parent under those circumstances linking parenthood to genetics?
But genetics is just one origin story among it's irrelevant, it seems to me,
to these other categories.
How we organize our social world?
[Elizabeth Fee:] Other comments, questions?
[Audience:] I did have a quick question.
So if if biologically, if biology and genetics are irrelevant
to the question of parentage. Then would you also be against laws, say,
implementing an assumption of paternity for a married individual to his wife?
Or say like this male abortion thing where a man who's the acknowledges
that he's the biological father of a child can terminate his parental
relationship before the child was born in a legal sense?
[Professor Hartouni:] No look, what I'm saying is that you're fundamentally
within particular, a particular organization of familial relationships, rounded in
an origin story about genetics, which is basically what we have and in law that intervenes to
police these relationships, you can't do this kind of piece meal thing. You can't say, OK,
under these circumstances this is irrelevant and therefore suddenly parent
men can terminate their responsibilities in these in these instances, right?
This is not what I'm talking about. I'm talking about fundamentally reconceptualizing.
What counts as family formation, right? And under those circumstances,
the kinds of ways in which we police them. Parental relation. The paternal relation.
And the maternal relation would be fundamentally refigured. It's it's it's in.
It's another version of Percy's utopic vision.
Some people say dystopic but utopic vision. Right.
That insists that we that our problem is not around the although she says it's around the biological.
I would say today it's not about mastering nature in order to liberate oneself,
it's about mastering or reconfiguring these social categories.
Reconfiguring what counts as family, reconfiguring what counts as
relationality and you know it take
out of out of many common one. To paraphrase
[?] insight. You know, foregrounding, relationality.
Lead you in different places lead you to a different place.
[audio drops out]
[Audience:] It was kind of interesting
the New Jersey case really wasn't about parenting, but it was based on economics. [Professor Hartouni:] Exactly.
It was this financial argument between brother and sister that triggered this whole thing. [Professor Hartouni:] Absolutely.
So if there were going fine everything would have been hunky-dory and and I don't know if you had
any kind of rulings you know?
[Professor Hartouni:] This is what's so interesting. It is rarely the biological
arrangement that produces the right. It's it's social arrangement exactly
right and economic dependencies and the brother decides they're not going
to support her anymore and she then makes a claim for support basically.
So it, it's an interest and that's what comes before the court.
Now the court is gets preoccupied with the genetics of it, right.
And that's what, that's their first start, OK? If we can figure out what what
these ties are we can figure out what our ruling has to be.
But first we have to we have to figure out these these ties.
The economic question gets completely [?].
[Elizabeth Fee:] This is another common question.
[Audience:] I was just wondering about where the
dialogue will come from that will help the courts to think about this
reconfiguring relationships into social categories rather than genetics.
What are the examples you gave about media reporting with this kind of
exaggeration and the the Frankenstein science that we see a lot of in
relation to these issues is there, first of all, is there anywhere where we can look for a a more
nuanced dialogue that's going on in in the media about these topics?
And then what is the likelihood of getting that kind of dialogue to de-privilege genetic arguments
at a time when genetics is kind of that powerhouse of medical understandings of the world?
[Professor Hartouni:] So, you know, I think that first off we where you end up going to is law journals, right?
Because it's the courts are turned to the discussions in these law journals.
It's basically, you know, something like. You take the right to privacy.
All through the 1950s, Douglas's writing, publishing and law journals all
about Penumbras and the Penumbras of the constitution and and privacy is one.
So what happens is that, you know, by the 1960s, he's there.
It's entered into this kind of interpretive community, this notion. It's an argument.
Not everybody's on board with it, clearly. About this, but it.
Of conversation, of part of
the meeting of conversation. And I think the same with
with these kinds of of issues. You see them circulating,
you see conversation. Circular. [audio drop out]
Well. That's where part of it happens, right?
The other part is that over time, social arrangements are changing, right?
They're dramatically changing. You have same sex folks marrying
have same-sex folks reproducing.
You have families that don't normally think family anymore.
And you have a multiple arrangements
some same sex lesbian their donor as
a parent of a legal parent these kinds of arrangements and and heterosexual
couples as well have what is you know what called blended families.
These kinds of arrangements. And where the nuclear family is
less and less the dominant family, although our romance with it is.
continues.
[Audience:] I wonder if one example of privileging social arrangement over the genetic is
adopted adoption and adoptive families. But as a comment, I know a number of my friends who are
adopted who somehow feel second class. So I wonder if that in fact reinforces
the genetics as the primary connection.
[Professor Hartouni:] Do you know, I think that when
if you look at social conditions, they're really do pretty [?] and particular kinds of identities
that I think that the judge was not entirely off when he said this is right for crazy making.
Well, certainly it's right for crazy making in a context in which you still privilege these
particular family form, right so.
I do think that it's on. Adopted feel.
Because you have people of
semiotic system organized around
belonging of that's that locates, you know primal belonging
to a genetically constituted family, you know? No. [Audience:] Does that make a difference?
Whether the adopted person knows that person is adopted or not?
[Professor Hartouni:] Whether they know they're
themselves could be adopted, yeah. [Audience:] And to take that a step further,
as the children of donated oocytes get to be old enough that they begin to
wonder or they have to be told because of genetic reasons that their birth
mother is not their genetic mother, do you anticipate that will play
out in this conversation as well? [Professor Hartouni:] I think that that in that in a context
that privileges as ours do this this kind
of searching for origins and origins meaning the original
parent yeah, I think that you're gonna, you know, unless there's some gradual shift now,
more and more people, I mean, if infertility continues to expand as
it is and more and more people opt for
these kinds of alternative arrangements and clearly the conversation was
gonna change a little. I have, I had a godson,
The test is a was born through
donated sperm and his his
The babysitter's a graduate student who was trying to decide whether or not to reproduce.
And he was three or four at the time, and he ran upstairs to the desk.
Where the the capsule that the sperm had come in and ran back
downstairs and said it's really easy, all you do is take this.
Yeah I'm kind of confused understanding but you know. He was, it was part of this story
about and and other kids, of course, have similar kinds of stories.
For origins. [Audience:] But in a lot of cases, at least, it's my understanding that the
women who use these outside donations don't tell the children. So it may or may not play out later
in life when there's a genetic thing that has to be revealed. Why don't I have this predisposition
when you have it right, right? [Professor Hartouni:] Well, maybe in the context of heterosexual relations,
there is a different. It it signifies differently to be using
donor sperm in the same in the context of same-sex relations, it's it's...
[?]
It's not available sperm, the infecting agent who's not on site.
[chuckle]
[Elizabeth Fee:] Don't see anymore red lights. So I'd like to thank Doctor Hartouni
for a very interesting and provocative presentation and also to thank you,
the audience for participating.
[applause]