Law as Anti-Kinship: The Colonial Present in Global Surrogacy

Abstract

Law and regulation are often seen as the panacea for the ills of science and markets: regulation minimizes risks by setting out clear rules, calls out abuses when those rules are not obeyed, and disciplines actors, institutions, and states to behave according to collectively agreed upon principles. In this article I challenge this liberal narrative of regulation by looking at how cross-border surrogacy arrangements are currently debated in private international law. I first demonstrate that technosciences are intimately linked to regulatory and legal frameworks. Here, recombinant knowledge has led to new formations of legal parenthood while obscuring other forms of kinship in quite paradoxical ways. Second, the liberal story of law and regulation erodes the history and political economy in which law has come to represent itself as universal and moveable. I examine how a gendered, racialized, and (post)colonial context of global fertility chains is lost in the legal instruments designed to protect the people involved in international surrogacy arrangements, preferring instead neoliberal forms of kinship. Finally, the liberal story of law also embraces the story of individualism. I show the conflicts that arise when such individualist forms of law are transplanted to non-individualist contexts, both in non-Western and Western contexts. I argue that by subjecting non-liberal others (across the Global North-South divide) to bioethical frameworks that intervene in kinship ontologies, private international law runs the risk of prolonging the logic of colonial and imperial thinking.