Breaking the Law? Assisted Reproduction and Tacit Normativity

Daniela Schuh | 17 June 2015 | Respond
Nation-specific imaginaries of what it means to be a citizen are attached to practices of technologically assisted reproduction.

The US and France invoked different normative standards to admit biologically novel newborns to American and French citizenship, respectively.

The problem is that the law hasn’t kept up with the advances in reproductive technology,” explained Mrs. Brisman, a New Jersey lawyer, when commenting on Ellie Lavi’s protracted attempts to register her daughters as U.S. citizens (1). When the American-Israeli mother gave birth in Tel Aviv, the U.S. State Department refused to recognize the parent-child relationship because the twins were conceived with egg and sperm from anonymous donors and thus were not biologically related to Mrs. Lavi. Born in Israel and lacking a genetic tie to a U.S. national, the twins were initially rejected for U.S. citizenship. This situation changed only with the reinterpretation of a provision in the Immigration and Nationality Act (INA), which now recognizes both genetic and gestational motherhood as a basis for claiming citizenship for a child.

Meanwhile, France’s Supreme Court dealt with the question whether twin boys borne by a surrogate mother in India for a French couple should be granted citizenship. Although there was a genetic tie between the intended father and the children, French judges decided to reject the couple as legal parents and denied citizenship. Uncertainties regarding the boys’ civil status were ironed out only when the European Court of Human Rights decided that France must recognize the parent-child relationship when citizens conduct gestational surrogacy abroad.

The U.S. lawyer’s statement above captures the prevailing sentiment about the law’s sluggishness in the American context but it also holds true for French public debates on surrogacy. At its heart is a picture of the law as a viscous body of rules that eternally trails behind the inexorable agenda-setting forces of science and technology. This perception of the relationship between law, science and technology is commonplace in public controversies about novel technologies and has been examined critically by STS scholars (2). Yet, the mere coexistence of the American and French stories on foreign surrogate mothering underlines the limitations of this narrative.

While giving birth was not at first sufficient to establish legal parenthood and citizenship under U.S. law, the situation in France was exactly the reverse. French authorities refused to recognize the lineage between the twins and the genetic father, and to accept the boys as citizens, precisely because the legal definition of parentage was keyed to the act of giving birth. These contrasting rules represent an unexpected nexus of two larger complexes of law that came into play in these situations.

On the one hand, there are nation-specific ways of controlling the degree to which the process of human reproduction can be mechanized and externalized with the help of novel technologies (e.g. in-vitro fertilization, gamete donation, surrogacy). On the other, there are regulations that tie bodies to political spaces, including nation-specific ways of obtaining citizenship and the rights and obligations that attach to citizens. The influence these bodies of law can have on people’s decisions to conduct fertility treatments abroad became evident in the case of the French couple that engaged a surrogate mother abroad to bypass France’s domestic legal restrictions. Here, we see that regulations already in place preconditioned new social practices that gave rise in turn to novel legal questions.

Comparison between the U.S. and France further illuminates the different choices of law made by the two countries’ legal authorities.  By extending the legal parenthood and citizenship from proof of a genetic relation to include the acts of gestation and giving birth, U.S. authorities reconfirmed that citizenship should be defined in biological terms. They admitted, however, that the regulations previously in place had defined the biology of motherhood too narrowly and therefore law needed to be brought in line with what technology had enabled. In effect, the U.S. decision affirmed the law lag narrative by conforming the law to a new understanding of reproductive biology.

This tacit delegation of normative authority to biological facts, however, is not universal, as the story of the French couple and their twin boys shows. In fact, French officials did not let their understanding of biology define the children’s civil status but rather evoked a set of norms that applied to their citizens whether they were conceiving children at home or abroad. According to French standards, surrogacy impermissibly exploits women and commodifies children. Merely banning the practice at home was not thought sufficient to meet French ethical demands, since citizens could always escape by engaging a surrogate mother in a country with liberal or no regulations on this matter. Hence, refusing to grant citizenship to children born through surrogacy abroad should be understood as France’s attempt to hold its citizens to French norms regardless where they happened to be in the world. Put differently, the country’s moral stance was thought to travel with its citizens, who were not allowed to break out of French normativity on so basic a matter as reproductive rights just because they were territorially no longer in France. Law in this sense took precedence over technology.

To sum up, each country invoked a different normative standard to admit biologically novel newborns to American and French citizenship, respectively (3). These contrasting solutions point to nation-specific imaginaries attached to different practices of technologically assisted reproduction, contrasting ideas about citizenship, and conflicting visions of how the future can and should be rendered governable in the face of late modernity’s rapid and destabilizing sociotechnical changes. STS critical tools that analyze not only technological outcomes but also the discourses that normalize (or fail to normalize) these outcomes help us to investigate further and to achieve a more profound and differentiated critique of biology and law. In this case it takes us beyond the simplistic assertion that the law always lags behind science and technology.

Keywords: law lag; assisted reproduction; parenthood; citizenship


  1. Chabin, Michele, “In vitro babies denied US citizenship,” USA Today, March 19, 2012.
  2. For example, see Jasanoff, Sheila (2007) ‘Making Order: Law and Science in Action,’ in E. Hackett et al., eds., Handbook of Science and Technology Studies (Cambridge, MA: MIT Press), pp. 761-786. Hurlbut, J. Benjamin (2015) ‘Remembering the Future: Science, Law and the Legacy of Asilomar,’ to appear in Jasanoff, Sheila, and Sang-Hyung Kim (eds), Dreamscapes of Modernity: Sociotechnical Imaginaries and the Fabrication of Power (Chicago: University of Chicago Press).
  3. Jasanoff, Sheila (2005) Designs on Nature. Science and Democracy in Europe and the United States. (N.J.: Princeton University Press).

Further Reading:

  • Jasanoff, Sheila (2011) ‘Introduction: Rewriting Life, Reframing Rights,’ in Jasanoff, Sheila (ed), Reframing Rights: Bioconstitutionalism in the Genetic Age (Cambridge MA: MIT Press), pp. 1-27.
  • Jasanoff, Sheila (2005) Designs on Nature. Science and Democracy in Europe and the United States. (N.J.: Princeton University Press).
  • Jasanoff, Sheila (1995) Science at the Bar: Law, Science, and Technology in America. (Cambridge, MA: Harvard University Press).
  • Hurlbut, J. Benjamin (2015) ‘Remembering the Future: Science, Law and the Legacy of Asilomar,’ to appear in Jasanoff, Sheila, and Sang-Hyung Kim (eds), Dreamscapes of Modernity: Sociotechnical Imaginaries and the Fabrication of Power (Chicago: University of Chicago Press).

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