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Property in Potential Life? A Relational Approach to Choosing Legal Categories

Published online by Cambridge University Press:  09 June 2015

Jennifer Nedelsky
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Extract

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 legalregime 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.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 6 , Issue 2 , July 1993 , pp. 343 - 365
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1993

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References

The core of this essay was originally written as a review of a research paper which the Royal Commissionon New Reproductive Technologies had commissioned; the reviewed research paper was entitled “Reproductive Technology: A Property Law Analysis” submitted January 1992.

1. Nedelsky, Jennifer “Reconceiving Rights as Relationship” (1993) 1 Rev. of Constitutional Studies/Revue d’etudes constitutionnel 1.Google Scholar

2. I shall consistently refer to “stages of potential life” rather than “reproductive material,” which seems to be the common usage in the literature. I think the phrase “reproductive material” seriously biases the inquiry in favour of a property and commodification framework and, more generally, distances the reader from the complex and disturbing nature of the problems generated by the new reproductive technology. I should note that “stages of potential life” is actually a short-hand form of the more appropriate phrase, “stages of potential human life.” These various stages are in fact alive, they are just not yet human.

3. I do not mean to imply that just because a given technology is feasible, we should treat its attendant problems as a given to which legal solutions must be found. On the contrary, the first question should be the desirability of the technology. And sometimes, recognizing that there are no genuinely desirable legal solutions, may help us to see that we should prohibit or minimize support for those particular technologies or practices. In writing this essay 1 do not mean to imply any support for the technologies that have created the stages of potential life for which we must find an appropriate legal category. I agree with the position of the National Action Committee on the Status of Women, that “taken as a whole,…these technologies represent the wrong direction in solving the problems of infertility and infant disability.” See Royal Commission on New Reproductive Technologies, The New Reproductive Technologies: A Technological Handmaid’s Tale, National Action Committee on the Status of Women (Ottawa: Research Branch of the Library of Parliament, October, 1990) at 4.Google ScholarPubMed But these technologies are already being implemented. And they have already generated large numbers of forms of potential life. The National Action Committee’s brief notes that there are no reliable statistics, but that it is estimated that there are over 10,000 frozen embryos in computer-controlled freezers all over the world, ibid, at 35.

4. In my view one of the implications of this approach is that it stands outside of the “consequentialism vs. deontology” debate, rather than being an instance of consequentialism. I append here a note to this effect from “Reconceiving Rights as Relationship,” supra, note 1. “A series of questions at the Legal Theory workshop at Columbia helped me to see why this debate is peripheral to my concerns here. The division between consequentialism and deontological theories is premised on the possibility of a useful conception of human beings whose nature can be understood in abstraction from any of the relations of which they are a part. Once one rejects this premise the sharp distinction between rights defined on the basis of human nature versus rights defined in terms of the desirability of the relationships they foster simply dissolves. Since there is no free standing human nature, comprehensible in abstraction from all relationships, from which one could derive a theory of rights, the focus on relationship does not constitute a failure to respect the essential claims of humanness. The focus on relationship is a focus on the nature of humanness, not a willingness to sacrifice it to the collective”, supra, note 20 at 12.

5. I elaborate this argument in Nedelsky, Jennifer “Reconceiving Autonomy” (1989) I Yale J. of L. & Feminism 7.Google Scholar

6. Of course, competing claims of property as the engine of exploitation and property as the vehicle for autonomy are found throughout debates over property. Which claim is more persuasive, and the ways the claims may be linked, must be examined in the context of the particular form of property at issue. My arguments here do not dispose of this dispute for property in general. Rather they show the kinds of questions, the kinds of inquiry into patterns of relationship, that will help resolve it.

7. See the excellent report, Royal Commission on New Reproductive Technologies, Medicalization and the New Reproductive Technologies (Ottawa: Research Branch of the Library of Parliament, January 28, 1992).Google Scholar

8. For a good discussion of these issues see Royal Commission on New Reproductive Technologies, The Limits of Freedom of Contract: The Commercialization of Reproductive Materials and Services (Report) (Ottawa: Research Branch of the Library of Parliament, March 12, 1992).Google Scholar

9. Note that the report has an interesting discussion on whether such demand is really driven by medical researchers eager to experiment with new procedures—for which they make grand promises that are rarely realized. The point is both that we should be wary of taking “the need” for fetal tissue for therapeutic purposes at face value, and that medical researchers are in a position to generate a strong felt need in those with currently incurable diseases. Ibid.

10. Supra, note 8.

11. Not here in the literal legal sense, but in the sense that an ambitious man should “have” a beautiful and accomplished wife to demonstrate and ensure his status.

12. Examples which already exist range from incarceration of pregnant women using drugs, to forced operations on pregnant women to correct defects in the fetus or to remove the baby, to requirements for genetic testing and controls on behaviour for “surrogate” mothers.

13. See Morgan, Pauly Kathryn “Of Woman Born? How Old Fashioned!—New Reproductive Technologies and Women’s Oppression” in Overall, Christine ed., In The Future of Human Reproduction (Toronto: Women’s Press, 1989); and Finley, Lucinda “Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning” (1989) 64 Notre Dame L. Rev. 701 Google Scholar at 716. See also infra note 60.

14. Radin, Margaret Jane “Market Inalienability” (1987) 100 Harv. L. Rev. 1849.CrossRefGoogle Scholar

15. In “Market Inalienability” Radin offers compelling images of the different prices accorded to women on the basis of whose genetic traits are considered most desirable. The differential “value” of children with these traits seems certain to follow in a way far more sharply accentuated than the already existing hierarchies of classification by race, abilities, and appearance. Ibid.

16. The “Medicalization” report also discusses this issue of alienation, supra, note 7.

17. See Radin, supra, note 14.

18. See Hyde, Lewis The Gift: Imagination and the Erotic Life of Property (New York: Vintage Books, 1979).Google Scholar

19. Commercialization, supra, note 8.

20. I will discuss this more fully later. My claim is not that designating potential life as property would have to have this outcome, but rather that those opposed to it would be on the defensive. The presuppositions of property are against regulation and control, despite the fact that many forms of property in our society are heavily regulated. Designating something as property implies that collective control has to be justified.

21. Supra, note 18.

22. This is not to say that there can be no vision of market economy with a high degree of equality. See, for example, Carens, Joseph H. Equality, Moral Incentives, and the Market: An Essay in Utopian Politico-Economic Theory (Chicago: University of Chicago Press, 1981)Google Scholar. But the choice of property as a legal framework in our current society must presuppose great inequality and its consequences for unequal property as a vehicle for autonomy. See also Commercialization, report, supra, note 8.

23. I will pursue this further later.

24. I do not accept these arguments and the report on Commercialization seems also to reject them, supra,note 8.

25. It may well be possible for women to enhance their economic power and still suffer from the denigration and distortion of selfhood that flow from commodification and alienation from their bodies.

26. See, for example, Starhawk, , Truth or Dare: encounters with power, authority, and mystery (New York: Harper & Row, 1987);Google Scholar and Lorde, Audre Sister Outsider (Trumansburg, N.Y.: Crossing Press, 1984).Google Scholar

27. See Nedelsky “Reconceiving Autonomy”, supra, note 5. Keller, Catherine From a Broken Web: Separation, Sexism and Self (Boston: Beacon Press, 1986),Google Scholar as well as work in draft by Lorraine Code and Christine DeStefano.

28. Lessard, Hester “Relationship, Particularity, and Change: Reflections on R. v. Morgentaler and Feminist Approaches to Liberty” (1991) 36 McGill L. J. 263.Google Scholar

29. Petchesky, Pollack Rosalind “The Body as Property: A Feminist Re-Vision”, in Ginsburg, Faye & Rapp, Rayna eds, Conceiving the New World Order, (Berkeley: University of California Press, forthcoming).Google Scholar

30. Ibid. at 4.

31. Ibid. at 24.

32. Ibid. at 42.

33. Ibid. at 46.

34. Indeed, I think she offers an excellent agenda for trying to change the meaning of “property” in all spheres.

35. Of course sometimes men might have joint property rights in gametes and pre-embryos.

36. Supra, note 29 at 48.

37. This is a position I have argued for in broader terms in Nedelsky, Jennifer Private Property and the Limits of American Constitutionalism (Chicago: University of Chicago Press, 1990).Google Scholar An extraordinary range of theorists have recognized the power of property in our political and legal discourse and have proposed redefining it as a vehicle of change. I think such proposals consistently underestimate the power of the traditional conceptions of property and the inequality that goes with them.

38. See Mary, Joe Frug “A Postmodern Feminist Legal Manifesto” (1991) 105 Harv. L. Rev. 1045.Google Scholar

39. For a fuller discussion of the relationships that foster autonomy see “Reconceiving Autonomy,” supra, note 5.

40. I am relying here on the descriptions provided in, Royal Commission on New Reproductive Technologies, Reproductive Technology: A Property Law Analysis (Report) (Ottawa: Research Branch of the Library of Parliament, 1992) at 42–53.Google Scholar [Hereinafter referred to as the "Property Law" report]

41. Del Zio v. Presbyterian Hospital, unreported, 74 Civ. 3588 (U.S. Dist. Ct., S.D.N.Y., April 12, 1978).

42. Supra, note 40 at 42.

43. I do not purport to have thought through all the possible issues that should be considered for such legislation. I am here only setting out a framework for how the question should be analyzed. One could imagine a complication if for some reason such a culture had been produced in a way prohibited by other laws.

44. Of course, historically this has not always been the case.

45. With whatever exceptions and further specification are deemed necessary.

46. 717 F.Supp. 421 (E.D. Va. 1989).

47. “Property Law” report, supra, note 40 at 44-45.

48. [1990] U.S.L.W. 2205 (Tenn. App.), reversing (1989) WL 14095 (Tenn.Cir.).

49. Supra. note 40 at 47.

50. Ibid. at 50–51.

51. Ibid. at 51.

52. Ibid. at 61.

53. Of course to oppose the concept of property is not to endorse the idea that embryos are human beings.

54. Supra. note 52 at 61.

55. Ibid. at 61–62.

56. Ibid. at 65.

57. Kennedy, I. Treat Me Right: Essays in Medical Law and Ethics (Oxford: Clarendon Press, 1988) at 119–39.Google Scholar

58. Supra, note 40 at 65.

59. Although there seems to be little support for an unrestricted market in potential life, designating potential life as property would both encourage a market and, as I have argued, provide a powerful pressure against constraints.

60. “A pregnant woman is actively involved in the complex process of nurturing an embryo or fetus. She is not a receptacle, a ‘uterine’ or ‘endocrinological’ environment, to quote recent IVF [in vitro fertilization] doctors,“ A Technological Handmaid’s Tale, supra, note 3 at 5.