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Yale Journal of Law and Feminism

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This Article examines the response of the law to litigants' invocations of biological facts in cases occasioned by reproductive technology. Part I describes the ideological transformation of the family from an enduring social unit defined by reference to inexorable, natural facts to a collection of individuals governed by the rules of the marketplace. Part II analyzes the treatment of the biological facts of human reproduction in family law disputes, and suggests that through such disputes society is re-defining the scope and parameters of the family. Finally, Parts III and IV present and analyze three illustrative cases. In each case, courts and litigants invoked, disputed, disregarded and reformulated the biological facts of human reproduction. Like many cases occasioned by reproductive technology, each of the three cases reflects a basic tension underlying many current family law decisions. This tension arises between a view of family that preserves traditional assumptions about kinship connections and a view of family that recognizes families as collections of autonomous individuals who, like actors in the marketplace, choose to join together at various times and for various purposes. Despite widespread changes in family law in recent decades, courts adjudicating family disputes continue to justify their decisions in reference to traditional family values and traditional models of reproduction. This pattern is especially stark in the context of cases occasioned by reproductive technology. The result irony and confusion about the law's response to the changing structure and definition of family.



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