[author]Chen Xiyi
[content]
Professor Jennifer Nedelsky's Message to Chinese Readers
Translator: Chen Xiyi
I am delighted to be able to introduce my relational approach to law to the Chinese audience for the Anti-Discrimination Law Review. Let me begin with a general introduction drawn from my book, Law’s Relations: A Relational Theory of Self, Autonomy, and Law (Oxford University Press, 2011). I am very interested to hear reactions from Chinese scholars whose intellectual heritage has recognized the importance of relationships far more than the Anglo-American tradition of liberalism.
Relationships are central to people’s lives—to who we are, to the capacities we are able to develop, to what we value, what we suffer, and what we are able to enjoy. My work makes that relational dimension of human experience central to the concepts and institutions by which we organize our collective lives.
The self, autonomy, and law form a constellation of ideas, practices, and institutions. In the prevailing Anglo–American version, human beings are seen as essentially separate from one another. Relationships exist, of course, but they are not treated as constitutive. I want to reconstruct this constellation so that relationships become central to each part of it. The individual self is, then, constituted in an ongoing, dynamic way by the relationships through which each person interacts with others. The values that people experience as central to their selfhood, to the possibility of their flourishing, are made possible through relationships. Autonomy, for example, comes into being (or is harmed) through relationships with parents, teachers, and employers. And law, including rights, is one of the chief mechanisms (both rhetorical and institutional) for shaping the relationships that foster or undermine values such as autonomy.
My focus is the intersection in law of concepts of self, autonomy, and rights. Law is a powerful means of structuring human relations, and it also an important way in which concepts like self and autonomy take shape in the world. Law is itself also in constant relation with other social norms and frameworks of thought. Thus, a deep shift in relational habits of thought will have to exceed the context of law. But law can both reveal the importance of such a transformation and participate in it.
In this article I look at how the concepts of law, and property in particular, can shape human opportunity and experience. I take the highly contested issue of abortion to see how a relational approach can illuminate the core values at stake.
My most recent work has been on the importance of care: the way it has been devalued in Western societies, and the way the structure of work and of care are intertwined. We can only build healthy and egalitarian relations of care if we restructure both work and care. In Part Time for All: A Care Manifesto (Oxford University Press, 2023) my co-author Tom Malleson and I argue that everyone should contribute about 22 hours of unpaid care and no one should do paid work for more than 30 hours a week. My next project focuses on mutual care to and from the earth. I am completing an essay, “Rethinking Constitutionalism from a More Than Human Perspective,” to appear in The Review of Constitutional Studies.
Attachment: Self introduction of Professor Jennifer Nedelsky
Jennifer Nedelsky received her Ph.D from the interdisciplinary Committee on Social Thought at the University of Chicago in 1977. She held a Killam Post-Doctoral Fellowship at Dalhousie, during which she took 6 law courses. She began her full-time teaching career at the Politics Department at Princeton University (1979-1985). She joined the University of Toronto in 1985 and held a joint appointment between the Faculty of Law and the Department of Political Science until 2018. She left to join Osgoode Hall Law School at York University in part because Osgoode created a 50% appointment for her. Her first book was Private Property and the Limits of American Constitutionalism, followed by Law’s Relations: A Relational Theory of Self, Autonomy, and Law (2011). Her latest book is jointly authored with Tom Malleson, Part Time for All: A Care Manifesto (Oxford University Press, 2023). She is now returning to her book manuscript, “Judgment in Law and Life,” building on the unfinished theory of judgment of Hannah Arendt, her dissertation supervisor. She is also returning to her work on property, to re-envision property law as founded on a sense of mutual care for and from the earth. The property project will be part of a larger project on revisioning constitutionalism from a more than human perspective. She is married to Joe Carens with whom she has two sons, Michael (1987) and Daniel (1990); their care and relationship have shaped all her work. Her appointment at Osgoode will end December 2024 and she looks forward to exploring new opportunities.
The following text is attached:
Property in Potential Life? A Relational Approach to Choosing Legal Categories
Jennifer Nedelsky
Professor at York University Osgoodhall Law School in Canada
*Translator Chen Xiyi
PhD student at Koguan School of Law, Shanghai Jiao Tong University
Research Assistant at the Chinese Academy of Law and Social Sciences
Assistant Editor in Chief of the Asian Journal of Law and Society
Abstract: By using the method of viewing rights as building "relationships", it is possible to go beyond the general binary opposition of using property as a source of autonomy or an exploitative tool, and choose legal categories based on specific relationships that a certain right may promote. If the "potential life" cultivated by reproductive technology (i.e. frozen embryos) is classified as property, it means a predetermined free market and allowing autonomy to exist in an unequal manner. This classification method will instead exacerbate women's exploitation, commodification, and bodily alienation, and distort the expected relationship patterns between society and children, which is not conducive to promoting gender equality, child protection, and enhancing autonomy. The law should respect and protect the attachment relationship between "potential life" and parents, rather than similar ownership, control, and decisive authority over property. This attachment relationship can be directly protected without the application of property laws.
The problem of what property is or should be can take many different forms. The debate can focus on what kinds of powers or entitlements should flow from defining an object as someone’s property, or what the grounds are for limitations on those powers and entitlements. One can ask whether the right to property is the sort of right that should be treated as a constitutional right. One can focus on how to define the contours of a particular kind of property, like land or copyright. Or one can ask what sorts of things should be treated as property. And in fact a legal regime of property rights cannot avoid at least some of these questions; they are entailed in the task of defining and subtly redefining property that is inherent in the ongoing process of adjudication.
Questions of definition, scope, and justification are inherent in all forms of rights claims. My argument is that the best way to reflect on those questions is to understand rights as means of structuring relationships. I have spelled out this general claim elsewhere. Here I want to take a specific form of the problem of which things we should treat as property to show how the framework of rights as relationships helps us deal with it. The problem I have chosen is not hypothetical, but real and serious.
The advent of new forms of reproductive technology has brought into the world forms of life which previously had only existed inside a woman’s body. The actual and potential existence of these forms of potential human life poses a vast array of ethical and legal problems. In Canada, a Royal Commission on New Reproductive Technologies was set up to explore these problems. Of the many papers they commissioned, one was to determine whether these new forms of potential life could and should be dealt with legally as forms of property. The paper argued that the law of property was capable of handling the problems that might arise and concluded, with little argument, that we should in fact treat the various stages of potential life created by these technologies as property. The starting point for the present essay is my view that the legal category of property is probably a bad choice.
In examining this choice of category we can see not only the particular implications of designating something as property in our system, but more generally the enormously complex problems posed by the choice of a legal category. The problems are of such scope that I do not try to address fully all those involved even in this particular issue of treating stages of potential life as property. I try to identify the issues at stake and show how we can better understand and debate them if we focus on the kinds of relationships that are involved and the kinds of relationships we think a given legal regime is likely to foster.
Ⅰ.
The new reproductive technologies (NRTs) have made it possible for several stages of potential human life to exist outside a woman’s body. Should we treat these forms of potential life as property, invoking the law of property to handle the inevitable disputes and policy choices that the NRTs will give rise to? The answer to this question will affect some of the most basic concerns of feminism: the objectification of women; the economic exploitation of women; the denigration of human reproduction and the treatment of women as “baby-making machines”; women’s alienation from their bodies; the commodification and destruction of human values. On the positive side there are the issues of empowerment of women, genuine autonomy for women, equality, respect and priority for children and the nurture they require. This paper offers a means of determining whether property is the optimal legal concept for meeting these concerns and fostering these values.
The choice of legal category is essentially a strategic choice. There is no one concept, such as property, which is intrinsically appropriate or inappropriate. The choice must be based on judgements about the probable consequences of different concepts and there are various ways of framing those judgments. For example, conventional liberal theory might ask which category will best facilitate individual autonomy. A more “economistic” version would move quickly to the question of which would facilitate exchange and innovation (which are thought in turn to foster autonomy and maximize preferences/utility). Feminists might ask which category is most likely to contribute to the empowerment of women, to mitigate their current systemic subordination—and to focus on the ways an enhanced scope of choice for some women may come at the expense of the exploitation of others. Feminists might also focus on the probable effects of a given legal approach on our collective conceptions of motherhood and, more broadly our society’s stance toward children—the way they are valued, the understanding of the nurture they require, and the priority accorded to that nurture.
The underlying problem of choosing a legal category is thus twofold: first we must determine the norms and objectives we think are primary and then we must make judgements about the category(ies) which will best foster them. There are, of course, a wide range of competing, sometimes incompatible, normative positions. And the problem lies not only in choosing among conflicting normative positions, but in predicting the consequences of different legal regimes. People may agree on the normative aspirations and disagree on the best legal means of attaining them, or agree on a legal regime only because they differ in their predictions about its consequences.
The combined problems of normative choice and prediction are formidable. But since we must face the choice of legal categories we must try to make that choice in the most thoughtful and informed way we can. What I offer here is a framework, partially applied, which is a means for choosing among competing normative approaches, and which will facilitate the task of prediction. The framework is also itself normative.
My framework conceptualizes rights as relationship. It turns our focus to the fact that what legal rights do is structure relationships―of power, responsibility, trust, obligation, respect and caretaking. We are still left with the question of which relationsMps we want, but my claim is that once we focus on the relationships entailed in various normative approaches—for example the market-as-the-vehicle-for-liberal-autonomy versus feminist reconceptions of autonomy and liberty—the choices between approaches will be clearer. We will be turning our attention to the questions that matter. When we turn to the choice of legal category, we will be asking what sorts of relationships a given category is likely to foster. Again, the problems of prediction are not eliminated, but in restructuring them around a focus on relationship we can be more specific about the kinds of consequences we are concerned about and thus do a better job of examining them. For example, we can move beyond broad competing claims of property as a source of autonomy versus property as a vehicle of exploitation to the specific sorts of relations we think particular kinds of property rights are likely to foster.
The normative content of the framework itself lies in its claim that it is the interconnections between people, their relationships to one another, that are what really matter in the sorts of issues for which we invoke legal rights. This framework does not deny the value of autonomy, but it fundamentally recasts it in relational rather than individualistic terms: we will better understand autonomy claims when we understand autonomy itself as a capacity which can only thrive in the context of relationships that foster it. My framework is, therefore, not neutral with respect to conventional liberal conceptions of autonomy, which I see as based on a misguided understanding of the value itself. Nevertheless, my framework seeks to offer a better way of understanding the claims even of the positions to which it is clearly unsympathetic.
We shall turn now, in Part Ⅱ, to the competing arguments about property in potential life. I shall discuss and assess these competing visions in terms of three basic issues: exploitation, commodification, and alienation. I shall then turn in Part Ⅲ to the fact that people from normative perspectives in direct opposition to one another advocate the notion that women have a form of property in their bodies—in ways that may readily be applied to ownership of stages of potential life. There we will see most clearly why we must make a strategic choice based on the probable consequences of invoking the term property. In Part IV I will then return to my framework of relationship to see how it helps us sort out competing arguments about the desirability of property as a legal category.
Ⅱ.
The arguments both for and against property in potential life are intuitively compelling. It is easy to see why the idea of treating stages of potential life as property to be bought and sold, contracted and bargained over, seems a direct affront to some of the most basic concerns of feminism: the objectification of women, treating women as “baby-making machines,” the exploitation of poor women, the increasingly destructive commodification of all living things. It is also easy to see why property looks like such an obvious and attractive, autonomy-enhancing legal framework for the potential life that can now exist outside a woman’s body. Let us look more closely at what underlies these positions.
It is not surprising that some feminists as well as conventional liberal theorists advocate property as the legal category for potential life. For both groups the central concern is autonomy, conceived largely in terms of independence and capacity to control one’s life through making choices about the course one’s life will take. The standard argument is that autonomy will be enhanced for two groups of women: (1) women seeking to use NRTs to have children genetically related to them or their spouses and sometimes to carry and give birth to children; and women who might want to provide what the first group of women want, for either altruistic or financial reasons. There is the conventional “market” argument that clear property entitlements are necessary for a flourishing market in “reproductive material,” which would maximize opportunities for poor women and resources for “demanders” (the economistic term for the first group). Even those in favour of a highly regulated and constrained market might argue for (restricted) property rights in potential life on the basis of the same view of the nexus between markets and autonomy.
However, feminism embraces forms of autonomy which are much less oriented to the market. For example, there is a set of pressing problems raised by NRTs that fall under the heading of medicalization. One of them, the tendency of the male dominated medical profession to take control of the processes of reproduction, is related to issues of women’s autonomy. It might seem that women’s autonomy, power, and control vis-à-vis the medical establishment, might be enhanced not only by the general claim that a woman’s body is her property, but by the position that all stages of potential life issuing from her body are her property—and remain so
even when they are no longer within her body. Similarly, this position might be seen to aid women in struggles over power and oppression with their male sexual partners—both in regard to struggles specifically around reproduction and more generally.
If the potential life a woman generates is not her property, some would argue, then she will inevitably cede control, power, and autonomy to those with the entrenched power to claim it. In our society, property is both a source of power and an indicator of what counts as power. It is a marker of what is valuable, and a means of claiming what is valuable to the owner. Since women’s reproductive capacities are both precious to them and “in demand” surely, one might conclude, they should have the power and protection that property rights would give them.
From another perspective, however, treating a woman’s body and/or potential life as property would exacerbate the oppression women are already subject to—in particular, their exploitation, the commodification and objectification of their bodies, and their own alienation from their bodies. Perhaps the clearest issue is the potential for exploitation. For example, if women have property in their fetuses, and fetal tissue is in demand for life saving procedures, one can imagine women being pressured to conceive for the purposes of abortion. This nightmare scenario is not farfetched and could affect not just poor women desperate for income, but any woman with a family member thought to be in need. There is a general concern (well presented in the “Commercialization” report) that poor women would increasingly sell their reproductive capacities, including the potential life they can produce. This concern is driven not just by a fear that they would not in fact be adequately compensated (“Commercialization” explains why the “prices” would fall to a minimal level), but by the intersection of issues of exploitation and commodification.
Feminists have long argued that one of the ways in which women are not treated as full, equal human beings is that they are treated as objects—of sexual pleasure, of pride of “ownership,” and of reproduction. The fear, of course, is that by treating potential life as property, women will be treated even more as “baby-making machines.” Far from enhancing their power and autonomy, their property in potential life will subject them to control (necessary to ensure that their “products” are adequate) and further denigration as mere instruments for producing life. (One might think that a producer of life would surely be a valued status. But our current society already shows the ability to deny women genuine respect for their reproductive labour and capacities. And the language of the arguments for forced operations shows a shocking ability to move beyond routine denigration to a complete disregard of the mother.)
The issues of exploitation and commodification are interlocked in complex ways. In our society control over commodities, having the power to sell them or use them to bargain for others’ labour power, is the most important source of socially recognized power. But being a commodity, is of course, the opposite of empowerment. It is not only being subject to someone else’s power and control, but being denied status as a person. Property in potential life cuts both ways for women. Those who argue for it (or more generally for a market in reproductive capacities), argue that for poor women in particular property in potential life would give them an important commodity they could sell. Their power, income, and autonomy would be increased if they could put their life-giving capacities on the market. The other side, of course, is that property rights in the products of her body and, indeed, her body itself, will make women themselves into the commodities—more so than they already are. This dilemma arises because the economic options for many women are so bleak that selling their bodies or using their bodies to create potential life for sale might improve their economic position.
Margaret Jane Radin has offered thoughtful reflections on how to handle this dilemma of immediate economic benefits for those in greatest need versus concerns about long term oppression and disempowerment for all women. She points out that as a society we have always made choices about what is suitable to commodification, what is properly “on the market” and what is not, like babies and people as slaves. It might seem that because the potential life in question does become separated from the woman who generated it, that there is less danger of women themselves being seen and treated as commodities—compared, for example, to their working as prostitutes or selling their “gestational services.” But of course there is a very special link between women, their bodies, and the potential life they can produce. I think there are realistic concerns about the commodification of both women and children if the various stages of potential life are treated as property.
Before continuing with the potential impact on children, I want to just note one further feminist concern: women’s alienation from their bodies. Women often relate to their own bodies as objects―to be improved, adjusted, starved, or surgically restructured in an inevitably doomed effort at perfection. They know their bodies are commodities in our society and that women are seen and treated as objects. The sense of alienation from their bodies prevents women from seeing their bodies as dimensions of themselves to be respected, cared for, and loved. But, ironically, the alienation does not prevent women from feeling that they are nothing but a body, an (always inadequate) object, rather than a person with fully human status. Again, I think that designating potential life as property may well exacerbate this sense of alienation from our bodies. Instead of fostering a sense of the uniquely intimate relation between a woman and the life she can create from her body, the language of property―and certainly the prospect of sale—is likely to foster a sense of alienation from her body’s reproductive processes and capacities.
Some of the problems of exploitation, commodification and alienation may flow from the very existence of the NRTs. The question is whether treating stages of potential life as property would mitigate or exacerbate the problems. The same may be said with respect to the issues relating to children. One of the underlying concerns is whether society’s stance toward children will be harmed by an increasing focus on designing and acquiring (often through money exchange) the perfect baby. The new technologies increasingly hold out the prospect of babies produced to specification. They may come to be seen as commodities to be selected and purchased at rates based on desirability. But the creation of property rights and markets in potential life seems certain to exacerbate this transformation. Treating potential life as property will undermine the sense of children as a gift of life. And if potential life is designated as property, there will be strong pressures against regulation to control the disturbing possibilities of genetic engineering and competitive markets in “reproductive material.” In other words, the problems that are inherent in nascent form in the new reproductive technologies themselves are likely to develop more quickly and be less easily subject to control if we choose property as the legal category for potential life. It may be possible to control the commodification of potential life (and women and children) through the kinds of proposals recommended in the report on “Commercialization.” But if property rights are assigned to potential life, a great weight of tradition and argument about freedom, control, and autonomy will seem to weigh in on the side of uncontrolled markets. In short, inherent in the NRTs are deeply troubling consequences for the way we as a society relate to children, and those problems would be both exacerbated and made more intractable if property were the legal framework for potential life.
The issues of exploitation, alienation, and commodification (of both women and children) are related, but distinct.The solution to one may not resolve the others. In the area of exploitation it is easiest to understand, and make choices about, the paradox we began with: property looks to some like the perfect vehicle to power and autonomy and to others like the path to oppression. I think the short answer is that in a market economy where property is a primary means to autonomy, it is inevitably unequal autonomy. Since people’s economic resources will be unequal, the use they can make of property rights in their bodies or potential life will also be unequal. There are good arguments to suggest that a property regime for potential life will actually exacerbate the inequalities to which women are already subject. Although poor women will have an additional resource to “market," they are likely to be paid at minimal rates,21 facilitating their exploitation by wealthy women and men.
The differences between those advocating and those opposing property as a legal framework are thus likely to turn on different judgements about the kind of equality we should aspire to, and more generally about the limits of the property-market autonomy nexus. For some, the inequalities of a free market are an inevitable price (perhaps to be mitigated through tax structures and various forms of regulation) for the freedom and autonomy “the market” is thought to provide. The opposition to this view can take the limited form of efforts to mitigate the inequalities or a deeper rejection of the vision of power and autonomy implicit in the market framework. The choice of property as a legal framework will entail a choice of a particular vision of autonomy, one which has inequality embedded in it.
The distinction between the issues above—exploitation, commodification, alienation—becomes especially important when addressing conscientious efforts to mitigate this inequality. For example, the report on “Commercialization” proposes constraints that would minimize financial incentives to make one’s reproductive capacities available to another, while still making it possible to do so for altruistic reasons. These proposals seek to minimize the danger of exploitation. But even if the proposals succeeded in avoiding the exploitation of women’s economic inequality (vis-à-vis each other as well as men), they might do nothing to address the deeper issues of commodification. And, in turn, the efforts to minimize commodification by a scheme that would enable people to share potential life without inducing them to do so for financial gain, might still do little to avoid the problems of women’s alienation from their bodies (and perhaps their children).
It is important to note here that the altruistic sharing that the “Commercialization” report seeks to enable could take place without treating potential life as property. If the various stages of potential life were treated as property, even highly circumscribed property, the problems of commodification and alienation would be extremely difficult to overcome. And even the efforts to mitigate inequality would be under constant pressure from claims that “if its my property I should be able to do what I want with it.”
Finally, even if it were conceded that treating potential life as property would enhance women’s power, and even if one accepted the arguments that it would particularly enhance the power of the most disadvantaged women, those arguments alone cannot be dispositive. We must still ask whether it is worth acquiring what is treated as power in our society at the cost of other basic values. In addition to focusing on issues of commodification and alienation, feminists have asked us to reexamine our basic conceptions of power, autonomy and liberty. The forms of power, autonomy, and liberty that would be promoted by property rights in potential life may not be the forms of those values that we actually want to promote.
Ⅲ.
The framework of the arguments I have presented so far centres around disagreements about either the values of “the market” in general or about their suitability in the realm of potential life. But before looking further at how to assess these arguments in terms of the probable effects of a property law regime, we need to look at arguments on behalf of property that come in the context of clear opposition to commodification, alienation, and exploitation, and indeed in the context of a suspicion about market values generally. Rosalind Pollack Petchesky offers an especially compelling argument that claiming women’s bodies as their property is a central tool in overcoming commodification, alienation and exploitation.
Petchesky argues that in rejecting the language of property in our bodies, feminists have bought into far too narrow a conception of property. She urges “rethinking the meanings of self-ownership and thereby pluralizing the meanings of property in a direction of permeability, interdependence, communality...it is imperative that feminists reclaim ‘self-ownership’ as a concept of privacy against arbitrary bodily usurpation.” She relies on historical accounts and the rhetoric of contemporary Asian, Latin American and African-American feminists to show that property can have a very different meaning:
if feminists are well advised to abandon the ‘abstractly individualist conception of social life’ contained in the Lockean paradigm, does that mean we must also discard altogether the language of self-propriety, bodily integrity and rights that preceded—and in many ways continued to challenge—that conception? I have tried to show that the idea of self ownership, or a ‘property in one’s person’ arose among folk who either had little interest in or were directly and collectively opposing market relations, not defending them. Originally, this idea was intertwined with notions of sexual autonomy, gender equality, communal identities, democratic participatory values and radical political movements, all of which Lockean thinking aimed to co-opt, rechannel and contain.
Petchesky offers a picture of property in the relational terms central to so much of feminist theory: “understanding ‘selves’ and ‘bodies’ as dialogically created in relation to others (including the state) makes possible a feminist revision of property more generally—including the right of ownership over one’s body—as a relationship of caretaking authority.” And she offers this new (or reclaimed) vision of property as a path out of the sense of alienation from their bodies that women suffer from: “Before our bodies can be ourselves, we have to take them back for ourselves.”
We can see now more starkly why I stated at the outset that the choice of legal category is essentially a strategic choice. There is no intrinsic reason why “property” could not take on the meaning Petchesky advocates. The question is, what are the probabilities that it will. In particular, she is arguing primarily in the context of the rhetoric of practical politics and political theory. (Of course she is talking about the general language of property in our bodies, but the argument could readily be extended to ownership of the potential life that is created from our bodies.) Here our problem is the choice of legal category. The question is what is the likelihood that vesting women with legal property rights in stages of potential life will foster the values she (and many other feminists) care about? What are the chances that it will mitigate rather than exacerbate the problems of alienation, commodification, and exploitation? (Recognizing that since no legal regime can simply eliminate these problems, any proposal must be examined within the context of their ongoing existence.)
For the answers I think we must look in part to the current power of market ideology. Petchesky herself acknowledges that all the prevailing norms work against her project: “Of course, in a world where the language of social need and common ownership is rapidly disappearing in the universal babel of the market, this [her project of redefining property] would mean practically turning the world upside down.” And the norms within the legal world are even clearer. The fact is that almost all the cases that courts have experience with, and past opinions they rely upon, treat property in the context of market transactions that presuppose economic inequality and take as starting presumptions exclusivity and unqualified alienability. The framework within which they work is not the possible one Petchesky outlines, but the currently dominant one shaped by norms of economic inequality, commodification, an autonomy-market nexus, and individualistic conceptions of rights and liberties.
It is one thing to argue that we could gain common ground with feminists all over world by invoking the rhetoric of property in our bodies, and simultaneously work toward a new conception of property. It is another (and Petchesky might well agree) to take an unreformed legal concept of property and apply it to the extraordinarily delicate, complex and important domain of potential life. I am in favour of using Petchesky’s image of “caretaking authority” to make legal arguments to transform the meaning of property in the domains where that concept already clearly applies. But because that will be an extremely difficult, long-term project, I am not in favour of putting any new areas under the powerful sway of the traditional conceptions of property—particularly potential life.
Of course, the legal concept of property has the scope for great flexibility and variation. Both historically and at present one can find examples of “property” which have attention to common needs built in (like the common law of water rights which authorized use as long as “enough and as good” was left for other riparian owners) and which are highly circumscribed (like land whose use is subject to restriction for environmental reasons). Not all forms of legally recognized property are simply exclusive, unqualified, and individualistic. But these are the starting presuppositions. No matter how common qualifications and regulations have
become (or to what extent, historically, qualifications were built into the meaning of property), the presumption of ownership is unqualified exclusivity. Qualifications and limits always require justification. In choosing a legal category perhaps the most important starting point of inquiry is what the presumptions are, what will require justification, what norms will have to be argued against, what values will be taken as given.
If potential life were to be designated as property, the presumptions would not be those Petchesky is seeking. They would line up on the side of commodification—since property in our system is the primary means of designating which things are to be treated as commodities—and exploitation, since our current system is premised on economic inequality. It would be possible to design regulations aimed at combatting the problems of commodification and exploitation, but a property framework would make that an uphill battle. The basic presuppositions are simply not those optimal for handling the problems of potential life. In this case the common sense flinching at thinking of a fetus as property, and horror at the prospect of conception for the purpose of aborting a fetus for sale, are not simply emotional responses that we should discount. They reflect a correct sense of the inappropriateness, and indeed dangers, of the concept of property applied to potential life. The worst case scenarios are, of course, not inevitable, but the presumptions of property would work for rather than against them.
The choice of legal category is a strategic one. And the first step of the strategy is to ensure that the category will facilitate, rather than obstruct, the outcomes we most care about. It is not enough to show that a category like property has the technical scope to encompass all the regulations, exceptions, qualifications that would be necessary to adapt it to the purpose. In this new, unique, and difficult area we need legal tools that will not divert our energies (and skew our perceptions) by requiring us to rebut presumptions that were never appropriate in the first place.
Before moving to the altematives to property, I should note one further argument some feminists might make on behalf of property. I have already noted that feminists might disagree about the compromise we should make when faced with the dilemma that a legal regime that we think would do long term damage (commodification, alienation, exploitation) might create immediate economic benefits for poor women. Some argue for fully legalized, unrestricted, unpenalized prostitution on these grounds. But there are also more complicated arguments for legally protected prostitution. The idea is that whatever disrupts the current images of women is a good thing; it enhances our power to reconstruct the meaning of “woman.” The image of powerful, economically successful sex-trade workers, protected (like
any business) rather than harassed by the law is an image that has the capacity to transform not only the “matemalized” image of women, but even the image of women as sex objects. One could imagine similar arguments on behalf of women in the business of producing potential life for sale, claiming all the protection and facilitation of a private property regime.
Here again the basic questions are the kinds of values we want to achieve and our strategic calculations about what kind of legal regime will get us there. The somewhat different twist to the “disruption” approach is that the disruption itself becomes the (or a) central object. (I think the underlying argument is that all we can know for sure at this stage is that we need the “space” to recreate meanings; we cannot know what the new meanings should look like until we have begun to dislodge the old.) We have to assess the kinds of disruption we think could be achieved and weigh that against the short and long terms costs-and against the possibility that we can in fact already have useful visions to aspire to. In my own view, the potential benefits of, say, disrupting conventional images of women’s maternal nature by creating a thriving market for women’s property in potential life seem highly speculative and intrinsically questionable. The potential damage seems far clearer, more likely, and seriously destructive.
IV.
So far, I have identified a set of arguments and issues at stake in a choice to make property the legal category for potential life. Now I want to spell out a bit more how a focus on relationship provides a useful framework for exploring these issues and arguments more fully. As I said at the outset, legal rights structure basic relationships in our society. In choosing or designing legal concepts for dealing with the problems posed by potential life, I think the relationships we must have in mind are these:
1. Relationships of respect and appreciation for children. A society characterized by such relations to their children would be characterized by collective as well as individual attention—respectful, inquiring, imaginative attention—to the nurture children require to thrive as individuals, as members of their communities, as citizens. Their needs would be given high priority, because they stand in relation to us as both our dependents and our future. In my own view, the stance of appreciation for children would also be characterized by a sense of wonder in the face of new and developing lives. The question then is what impact on our relationship
to children can we foresee if we treat potential life as property. And if we reject property, how can we design new legal rules so that they are shaped by a concern with their impact on how we see and treat children?
2. Relationships of respect for women and honouring of their reproductive capacities and labour.
3. Relations of equality, between people of all classes and backgrounds as well as between men and women.
Of course the first two are closely related to each other. There is no relationship more important for a young child than that with her primary caregiver (usually the mother). And we cannot expect mothers to be capable of forming optimally loving, attentive, and respectful relationships with their children unless the mothers themselves live within a pattern of relationships that expresses respect for them as individuals and respect and appreciation for their work as parents (including the labour of pregnancy and childbirth). And if the work of parenting were genuinely respected, men would assume a greater role (and vice versa)—to the vast benefit of everybody. Indeed, it is probably impossible to create relations of care, respect, and equality among men, women, and children until men do take an active role in childrearing.
Finally, at the broadest level, we also need to pay attention to the conditions that foster people’s capacity to form caring, responsible and intimate relationships with each other—as family members, friends, members of a community, and citizens of a state.
Of course there remains a great deal of work to be done to understand what these conditions are and to elaborate what relations of equality and respect would actually look like. (I offered a little elaboration with respect to children because they are so frequently neglected in these discussions, that I thought it might be less obvious how even to begin such an inquiry.) All I will do here is make one general point and then use a few examples to show how these questions can inform our choice of legal category.
My general point has to do with autonomy. Achieving respect and equality for women will require enhancing women’s autonomy. Almost all feminists agree on that. But, as we have already seen, there are different visions of what autonomy consists in and what will promote it. And there often seems to be a tension between the desire to enhance individual women’s scope for choice, control, or autonomy, on the one hand, and meeting collective goals such as equality for all women or optimal conditions for children, on the other. These tensions generally arise out of the vision of autonomy that underlies and emphasizes the exercise of autonomy through market exchange. If we shift our attention to what makes it possible for everyone’s capacity for autonomy to flourish and develop, some of the tension will disappear or be recast.
The kinds of relationships needed for autonomy to flourish—relationships with parents, teachers, friends, and state officials—will very often turn out to be the same kinds of relationships necessary to establish relations of equality and respect. The tension arises in some instances because autonomy is simply postulated as a human faculty, and claims about the market as a suitable, or even crucial, vehicle for the exercise of autonomy proceed without inquiry into what actually makes human autonomy possible. This posited autonomy and its vehicles of private property and market exchange then appear to come in conflict with other values—e.g., I can’t do anything I want in my employment practices because of legal restrictions in the name of equality (whether anti-discrimination law or exploitation-protection laws like minimum wage). Similarly, in the name of collective concerns about equality and respect (and the way they would be undermined by commodification and exploitation), women could be denied the legal tools for selling their reproductive capacities and the potential life they produce. This might appear as an infringement on their autonomy. However, if one were persuaded that a market in “reproductive material” would encourage people to relate to both women and children as commodities, thus seriously harming their capacity for autonomy (as well as dignity and equality ), then the demand to have the right (in the name of autonomy) to sell the potential life one has helped create can be seen to be like any other demand to exercise one’s will regardless of the destructive consequences. Of course, conventional liberal conceptions of harm to others as a limit on autonomy can be used to deal with this problem—once it is recognized to be a problem through attention to what kinds of relations foster or undermine the capacity for autonomy. But the vast problem of which harms are to be treated as legal limits and which not, will quickly lead us back to the need to focus on the structure of relationships that make autonomy, dignity, and equality possible.
My general claim is, then, that when we spell out the patterns of relationships entailed in a given conception of autonomy—such as the conventional autonomy market nexus—we will be much better able to evaluate the desirability or persuasiveness of that conception. Similarly, we can best assess which predictions of the consequences of legal rules or categories are more persuasive if we look to the particular relationships a legal regime is claimed to foster.
Let me turn now to some examples of how we can use the focus on relationship to make sense of actual cases. I am using the U.S. cases in which property rights in potential life were invoked. This will serve the dual purpose of offering a little more specificity in how this relationship framework can be applied and of showing that we do not need the concept of property to handle the problems in these cases. In one case, a married couple participated in an in vitro fertilization procedure. “The physician removed an ovum from Mrs. Del Zio, fertilized it in vitro using sperm from her husband, and then stored the culture in an incubator. However, the chairman of the department of obstetrics and gynaecology at the hospital, on discovering this, took the view that in vitro fertilization was experimental and ought to be discontinued. Accordingly he destroyed the culture, without the knowledge or consent of the Del Zios. The Del Zios brought an action claiming damages for (1) conversion of their property and (2) intentional infliction of emotional distress. The judge allowed these claims to go to the jury, which found against the Del Zios on the conversion claim but awarded them damages of $50,000 for intentional infliction of mental suffering.”
It seems intuitively obvious that the hospital chairman did something wrong in destroying the culture without the knowledge or consent of the Del Zios. For the woman involved, creating such a culture involves invasive procedures and sometimes the risk of drugs. For both the man and the woman the whole process is usually a source of great anxiety. To summarily destroy the potential life they created through pain, risk, stress, and, presumably passionate hope, seems clearly a violation of rights that deserve legal protection. But that, of course, is far from saying that they had “property” that was taken from them. On the one hand, one can understand why a lawyer might have reached for the language of property to define the violation of a novel right. Lawyers always look for what is available in previous cases, and there is some sense in which we might want to say that something that was “theirs” was taken from the Del Zios. But let us look more closely at what this sense of the culture being “theirs” is really about, and whether the language of property is the best way to capture that sense.
The sense that the potential life they created (with the technical assistance of the hospital) “belongs” to them reflects, I think, the idea that the Del Zios did and should feel a sense of attachment to that potential life. It issued from their bodies, they cared deeply (presumably) about what happened to it, they hoped to be able to nurture it in Mrs. Del Zio’s body so that it could develop into a baby, whom they would continue to nurture. To destroy the culture without their knowledge or consent was to violently disregard this sense of attachment. And to offer no legal protection against such disregard is to say that, as a society, we do not think it matters whether such attachment (as well as the risk, pain, and stress born of the hope for that attachment) is respected.
It probably makes sense to stipulate through legislation that such cultures cannot be destroyed without the consent of the couple involved in their creation 3 But the reason is not that they “own” the culture, but that we think that, as a society, we should honour and protect the sense of attachment they feel. If we did not, we would show a failure to respect people in the feelings that both constitute part of their humanity and which we think are essential for an optimal society. Respect for such feeling is almost certainly necessary to the relations of respect and appreciation of children and respect and honouring of women's reproductive capacities.
Here, as is often the case with potential life, the better analogy is to children rather than property. We say the children are “ours,” that they “belong” to us. But we do not confuse this sense of intimate connection with ownership. And even though there are areas of overlap between property and the law relating to children, neither the law nor our common language confuses the two. The law gives parents lots of rights of control and decision-making authority, but we do not say that children are the property of their parents. Parents also have responsibilities to their children and for their children's acts (e.g., of destruction). Again, despite the fact that these responsibilities are somewhat akin to the responsibilities people have with respect to animals they own, we do not think of parents owning their children.
We are likely to find similar issues of control, decision-making authority, and perhaps even responsibility with respect to potential life. In each case, as with the Del Zio story, if we look closely at what is actually at stake, we will find that the analogies with property are superficial. The analogies with children will also be imperfect, but they may help us avoid making the mistake of thinking in property terms. What is required is to consider specifically what we think needs protection and why. We can then structure legal remedies accordingly. In the Del Zio case a legislative prohibition on destruction without the consent of the couple involved will handle the problem without invoking inappropriate legal categories.
The next case raises similar issues. It is worth repeating the facts only to show the bizarre situations in which property claims have been made. In each case one can understand why the obvious injustice called forth the language of property—and in each case one can easily see why it is unnecessary and fails to capture what we actually care about in the situation.
“In York v. Jones Mr. and Mrs. York enroled [sic] in an IVF program at the Jones Institute in Virginia. They signed a form which outlined both the nature of the cryopreservation procedure that would be utilized by the Institute to preserve their pre-zygotes and also their rights in relation to the frozen pre-zygote. During the course of the treatment the Yorks moved to California. They sought to transfer a single remaining frozen pre-zygote at the Jones Institute to a similar institute in Los Angeles. Both their personal request for such a transfer and a request made on their behalf by a physician associated with the Los Angeles facility were denied. The Yorks filed suit against the Jones Institute with a view to compelling the transfer. They asserted, amongst other things, that the Institute was in breach of contract and, as well, that it had committed the tort of detinue. This tort protects property interests and is proved if a person with a right to immediate possession of a chattel requests the return of the chattel and is improperly denied.”
Here again it seems clear that the attachment that we expect and hope the Yorks would feel toward the pre-zygote generated from their bodies should be honoured. The report on “Property Law” does not tell us what arguments the Jones Institute came up with to justify their refusal to transfer the pre-zygotes. But it is hard to imagine an argument that would persuade us that the nature of their “interest” in the pre-zygotes should supersede the attachment the Yorks felt. To foster the values and attachments we care about for an optimal society and for respect for individuals, people in the York’s position should have legal assurances that as long as they want to try to bring the pre-zygote to life as their child, they have first claim to doing so. Again, legislation can stipulate such claims clearly without the use of the concept of property.
In fact, designating pre-zygotes as property would work against fostering the sense of attachment at issue here. If potential life is conceived of as property the central implication is that the “owners” have the right to sell or otherwise dispose of it. To protect the couple's attachment to potential life by a concept that implies their right to dispose of it distorts the underlying value. The couple should have claims on the potential life that are protected, but the claims are not those of property.
The York case might also tell us that it is important that legislation stipulate whose claims are to take priority, what is to happen in the event of disagreement between the man and the woman who shared in the creation of the potential life, etc.; these issues should not be left to ad hoc private contracts. The agreement the Yorks signed seemed to have specified their rights clearly, yet the dispute had to be resolved in court.
The last case, Davis v. Davis is the most bizarre and the most complicated. Mr. and Mrs. Davis were participants in the IVF program at a Tennessee fertility centre. After several unsuccessful implantations seven embryos were placed in cryogenic storage for future use. Subsequently the Davis' marriage disintegrated. In their divorce proceedings the couple fought for “custody” of the embryos. Mrs. Davis sought to have the embryos implanted. At trial she successfully asserted that the embryos were living persons and their custody should be determined on the basis of the traditional test of “best interests of the child”. Mr. Davis argued that the embryos were property with the potential of becoming human beings. On this basis he sought an order that the parties be given joint control over the embryos. Young J. of the Tennessee Circuit Court expressly rejected the notion that the embryos were property, and concluded that the embryos were human beings as of the moment of conception. Accordingly, custody of the embryos was determined by family law principles and not property law. Because the embryos were human beings in need of protection the doctrine of parens patriae and its attendant “best interests of the child” test was applied. Young J. took the view that it was in the “manifest best interest of the children, in vitro, that they be made available for implantation to assure their opportunity for live birth”. For this reason, Mrs. Davis was awarded custody.”
By the time the case was heard by the Court of Appeal, “both Mr. and Mrs. Davis had remarried and neither wished to have a child parented by the other. However, Mrs. Davis wished to make the ‘pre-embryos’ available to others.” The Court of Appeal overturned the trial judgement and awarded the parties “joint control of the fertilized ova...with equal voice over their disposition.” The Court apparently found that both Mr. and Mrs. Davis had a right to ensure that procreation using the potential life they created would only proceed with their consent.
The report on “Property Law” moves quickly to the suggestion that property is an appropriate category for handling the conflict between Mr. and Mrs. Davis. The report says that the fundamental issue in the case is who ought to have control of a frozen embryo.
If we decide that, as a matter of policy, the gamete donors ought to have joint control, we may also view property law as an appropriate mechanism by which to achieve that policy goal. Property law has the capacity to recognize that the gamete donors have joint ‘ownership’ of the frozen embryo. However, it does not necessarily follow that the ‘own jointers’ should be able sell their property (indeed, existing law precludes this), or pass it on to their heirs, or consent to its being used for scientific research. These issues give rise to different policy considerations, and may require different legal responses.
Why would we invoke the concept of property here, when almost none of the usual incidents of property seems likely to be appropriate? The report seems to try to answer this question by claiming that “property law is capable of responding responsibly to political concerns which are implicated by standard property analysis.” As evidence the report offers the following startling analogy: “Just because progenitors of an embryo have joint rights in the embryo in its in vitro stage does not mean that after implantation they continue to enjoy joint rights. The doctrines of accession and fixtures in property law are analogues which demonstrate property law's capacity to view ownership as having changed upon the affixation of an object of property.” Can this possibly be the best analogy we can come up with? Is “affixation of property” the way we want to think about the implantation of embryos? The law of property is indeed diverse and ingenious, but that does not make it well suited to potential life.
As before, we can handle the problem in the Davis case straightforwardly—or as much as ever possible in the tangled emotional web of marital conflicts involving offspring. Why might we think decisions about the disposition of pre-embryos should involve both of the original partners? Because we think a sense of attachment and concern about the potential life one shared in creating is appropriate and desirable. We might well judge that this sense of attachment should be honoured even in the form of permitting one partner to refuse to allow the potential life to develop into a child under circumstances over which he or she could have no control. Sometimes those feelings of attachment and responsibility do seem to have a property like quality: “I want any child from my genes to ‘belong’ to me (and vice versa).” But that does not seem to be the sort of spirit that would promote the respect and appreciation for children that we should be aiming at. A sense of concem and responsibility for the future of the children one has participated in bringing into the world may, however, be thought to be grounds for granting even a “veto power” stipulated of joint control. But, of the course, such terms of control can be legislatively stipulated without recourse to the language of property.
Perhaps what is most important about the argument in the “Property Law” report is that it rests on a basic conceptual error. It is an error likely to underlie all such arguments for the language of property. That error is to think that whenever the issue at stake is who has control or the authority to make decisions with respect to something, that something must be property. The report clearly shows a reliance on this error:
Although new reproductive technology gives rise to a wide range of legal questions, the central issue is essentially the same, namely, the allocation of control and ‘decisional authority’. As Professor John Robertson states: “The question of decisional authority is really the question of who owns or has a property interest in early embryos. Applying terms such as “ownership” or “property” to early embryos risks misunderstanding. Such terms do not signify that embryos may be treated in all respects like other property. Rather, the terms merely designate who has authority to decide whether legally available options with early embryos will occur, such as creation, storage, discard, donation, use in research. and placement in a uterus. Although the bundle of property rights attached to one’s ownership of an embryo may be more circumscribed than for other things, it is an ownership or property interest nonetheless.”
The report also relies on I. Kennedy’s argument that the (United Kingdom) Warnock Committee’s rejection of property in human embryos amounted to a “hoax” or “nonsense” because “the Report’s recommendations pertaining to use, alienation and destruction of embryonic materials, create property by conferring on various persons, including the ‘couple,’ incidents of control” (my emphasis). But the nonsense is Kennedy's not the Committee's; decision-making authority is not the same as ownership. As I noted before, the law confers a wide range of powers of control and decision-making authority upon parents with respect to their children. Yet we do not mistake children for property. Of course children are not “things.” But then it is not obvious that the various stages of potential life should be treated as “things” either; that is part of the question underlying the appropriateness of property as a legal category.
The report is not wrong that the legal category we choose or create for potential life will have to be able to handle basic issues of control and decisional authority. But we have already seen that we can go directly to those issues, trying to determine why we think certain people should have particular powers of decision, trying to predict how those powers will affect the structures of relationships we care about. We do not need the concept of property. It adds nothing desirable (the examples of the law of bailment and accession and fixtures show the limits of the attractiveness of the available analogies). And it brings with it, as I have noted earlier, a whole set of presuppositions which are inappropriate for potential life. The report repeatedly reminds us that we need not accept these presuppositions; this property regime could be a highly circumscribed one. But why should we select a framework all of whose working assumptions will have to be argued against? Why set up a false notion of what needs to be justified—i.e., exceptions to the usual incidents of property?
The complex issues of control and decisional authority should be addressed as such without the distortions of the conceptual framework of property. The entire process of inquiry will be facilitated by a direct inquiry into the values we want to promote by permitting and protecting certain kinds of control. If we articulate why we think powers of decisional authority are appropriate, it will not be hard to specify them in legislation. The concept of property will add nothing and will continually skew the inquiry toward the very dangers we must try to avoid: commodification, exploitation, and alienation. Some of these problems will be so difficult to overcome in any legal framework for the potential life NRTs have made possible, that it is crucial that we not select a legal concept that will exacerbate the problem rather than facilitate its solution.
V.
Powerful emotions lie behind the debates over new reproductive technologies. At issue is the particular anguish of women unable to bear children without the aid of technology as well as the more general, but also urgent, need to enhance the power and autonomy of women. The concept of property holds out promises of hope: to improve women’s control over their own reproduction; to increase the availability of technological assistance through a market in potential life; to expand the scope of women’s power in the market and improve their economic prospects. It is not easy to sort out the competing concerns raised by this debate. And the abstractions of legal debate often add to the difficulty. Emphasis on parallels of language often dominates legal debate, creating misleading, but seemingly compelling arguments. We have already seen one such argument: that because issues of control and decision-making authority are at stake in the debates over potential life, and because property is essentially about rights of control and decision-making authority, it must follow that such rights with respect to potential life are property rights, and should be treated as such. In closing this essay I will return to another even more serious version of this sort of lawyerly argument whose claim to irrefutable logic rests on superficial parallels of language: since a woman should have the “choice” about whether to carry a baby to term, it follows that she should have the “choice” to sell her reproductive capacities and “products.” One of the virtues of the relational approach is that it helps us to cut through this apparent logic to see what is really at stake.
In the case of property as the legal category for potential life, I think a relational analysis reveals that the promises of hope are illusory, at least in the long run, and that the concept of property will not help, but will distort our understanding of what matters in disputes over potential life. The values at stake in the cases turn out to be about honouring and protecting the kind of attachment to potential life that is appropriate for fostering relations of respect and appreciation of children. I think the issues in the cases also touch the most general concern of fostering people’s capacities to form relationships of intimacy, trust and responsibility. These issues involve allocation of control and decision-making authority, but they are not about ownership.
In trying to unravel the competing claims about the desirability of property as a legal category, we found that the initial intuitive appeal of both sides broke down when we asked these sorts of questions: under a given legal regime would people be more likely to relate to women and children as commodities? would relations be structured in ways that invite and facilitate exploitation? under a given legal regime would the reflections women see of themselves in the practices and attitudes of those around them exacerbate their alienation from their own bodies? When we focus on relations of respect and appreciation of children, we will be alert to dangers of their commodification as well as conditions (including the commodification of women) that would undermine their parents’ capacity to relate to them with respect, appreciation, and attentive care. When we attend to relations of equality, we will not be blinded to the dangers of exploitation by misleading images of choice and formal equality. When we try to understand which structures of relationship could foster respect and honour for women’s reproductive capacities, we will be on guard against practices that further alienate women from their bodies, as well as those that incline doctors and researchers to treat women as “uterine” or “endocrinological” “environments.” And when we focus on relationships, we inevitably attend to context; we cannot think through the potential impact on structures of relationships without looking at the context in which that impact would occur. However we might constructively re-imagine the meaning of property where it currently holds sway and move toward a feminist future by gradually shifting its meaning, the link to context helps us see that all the powerful presuppositions of property—in the current context-work against the relationships we want to foster. The contextual dimension of the relational approach thus helps us see that in choosing a legal framework we must ask not what is possible theoretically, but ask rather what package of assumptions and presuppositions come with a concept; then one must ask what power they will have in shaping peoples’ perception of a problem in our current context.
In closing, I want to venture into two problems concerning abortion, each of which merit a separate essay. I fear a potential misunderstanding, in the first instance, which is so deeply at odds with my views that I must anticipate it. I think full respect for women requires that they determine for themselves whether to carry a pregnancy to term. But because I have insisted on the language of “potential life,” have argued against the language of “property in our bodies,” and opposed the notion of autonomy which prizes the “freedom” of market exchange, my position might be taken to endorse criminal penalties for abortion. I shall therefore briefly
state how I would treat the problem of abortion in relational terms.
Carrying a baby is perhaps the most intimate physical-emotional relationship there is. Unless the relationship is desired, it does violence not only to a woman's bodily integrity and autonomy, but to her capacity for intimacy. Sexual intercourse is a good analogy. When this relationship is desired, it offers unrivalled pleasure, fulfilment, and connection. When sexual intercourse is coerced, it is one of the most horrible forms of violation. No woman should be forced to undergo the nine month relationship of pregnancy. And, given the increasing evidence about the effects on the fetus of the mother's state of being, I can only think in horror of what it must do to a baby to have been carried for nine months by a mother who did not want it. The conclusion is clear: no law should compel this relationship. (Of course the relationship changes over the nine months. In the final months, respect and appreciation for children may require that a mother who wishes to end the relationship wait until the baby is bom to do so.) This position is fully consistent with my analysis about the need to focus on the relationships that foster respect and equality for women and respect and appreciation for children.
As I noted above, one of the virtues of the relational approach to questions of rights is that it often exposes arguments that turn out to rest on superficial parallels of language. Let me return now to the argument that since a woman should have the “choice” about whether to carry a baby to term, it follows that she should have the “choice” to sell her reproductive capacities. (Unfortunately, when the “pro-choice” position on abortion is justified in the language of property in one’s body, this confusion is fostered.) Upon examination it will quickly turn out that these two forms of “choice” will have completely different implications for the relationships between mothers and their children, and between people and children more generally. The effects on these relationships are likely to be undesirable in the case of selling and desirable in the case of ensuring that pregnancy is always a consensual relation for the mother. Similarly, if we look closely at how each form of “choice” would affect relations of equality and conditions of autonomy, or would contribute to the relations that foster exploitation, commodification, and alienation, the difference in the impact on patterns of relationships renders the overlap of the term “choice” entirely trivial. Of course, I have not actually engaged here in this close look, but I have shown how a focus on relationship can shift the terms of debate onto a more constructive path.
This article comes from Anti Discrimination Law Review Vol.11, thanks to Anti Discrimination Law Review’s official wechat account for its authorization to post this article!
Assitant editor: Shuhui Yang
Executive editor: Jun Tan
Reviewer: Weidong Ji