The Law's Duty to Promote the Kinship System: Implications for Assisted Reproductive Techniques and for Proposed Redefinitions of Familial Relations

Abstract

Kinship relations, in our society and in most, are organized systematically. That is to say, each kinship connection is constructed, conducted, and considered, not in isolation but by reference to the others. Your uncle is your father’s brother, in just about the same way as your own sibling is your brother and your children are one another’s brothers and sisters. Your spouse is the mother or father of your children, in just about the same way as your mother and father are your parents and the parents of your siblings. One’s beliefs and expectations about what each kinship relationship entails are roughly the same as the beliefs and expectations of the other participants. Something similar can be said about brothers and parents not of one’s own family: the same sorts of relationship exist among them and, though they are not one’s relatives, one understands -- without having to investigate -- the commitment each of them has to the others, and especially to their own young and to their elderly. The rearing of the next generation of the family, and the care for its elderly, are to some extent the concern of all.

This Article develops the concept of the kinship system, proposing a definition. It contrasts a nonsystematic arrangement – one which may indeed be emerging at present – which is based on contract. It maintains that the systematic arrangement better serves fundamental goods.

All of this has important traction upon the circumstances of our own era. Kinship is at the center of the epic crisis which has, with increasing turbulence, swept over the Western world for the past several generations. Assisted reproductive techniques and proposed new definitions of marriage and parenthood have recently raised the most basic of questions. Wise answers have been scarce. The result has been the delegitimization, discrediting or decomposition of many of the elements which bind families together and of the relationships which direct and further the procreation and rearing of the next generations. The long-term result may be what might be called the “desystematization” of kinship relations. At stake is not only the strength of specific kinship connections, but also their conjunction and coordination. At risk is the possibility of mutual recognition and support. Each new initiative batters the hold of a flimsy ship.

This Article proposes that the law should promote and protect the kinship system.

It applies this thesis to propose a legal response to certain assisted reproductive techniques, and to certain proposals for the redefinition and reconstruction of the family.