REGULATING AUTONOMY

Vol. 19 No. 8 (August, 2009) pp.647-650

REGULATING AUTONOMY: SEX, REPRODUCTION AND FAMILY, by Shelley Day Sclater, Fatemeh Ebtehaj, Emily Jackson, and Martin Richards (eds). Portland, OR: Hart Publishing, 2009. 298pp. Paper $70.00/£35.00. ISBN: 9781841139463.

Reviewed by Claire E. Rasmussen, Department of Political Science. University of Delaware. E-mail: cerasmus [at] udel.edu.

REGULATING AUTONOMY: SEX, REPRODUCTION AND FAMILY brings together fourteen essays addressing some “hard cases” that arise at the intersection of personal autonomy and state regulation. By examining the legal and regulatory issues surrounding the family, sexual activity, and reproduction, the chapters wade into territory that many feminist legal scholars have identified as problematic for traditional liberal conceptions of autonomy, and that argue the state should at least avoid interfering with private autonomy and at best should enhance individual capacity for autonomous action. Since issues of family or sexuality almost inevitably involve the entanglement of more than one autonomous or potentially autonomous individual, the role of state regulation is complicated. The collection gives an overview of the autonomy and law literature, engaging in particular with the relational autonomy literature emerging from feminist critiques of autonomy (MacKenzie and Stoljar 2000). Relational autonomy suggests autonomy is best understood, not as a capacity of isolated individuals, but as emergent from relationships of interdependency in which socially-embedded selves make choices limited and enabled by others. The volume does not seek to further the theoretical analysis of autonomy but instead to consider autonomy within specific contexts in which the state seeks to regulate individual choices, whether as a means of protecting individuals from others and, potentially, from themselves.

The overall volume makes the somewhat banal point that autonomy is not always best served by an absence of regulation, especially in intimate choices surrounding sex, family and reproduction where social norms and deeply embedded power structures may be a greater hindrance than the state. While addressing many fascinating and thought-provoking case studies, they do not make a clear argument as a whole, limiting the contribution of the text to more theoretical debates about autonomy or to the significant body of literature on the legal regulation of intimacy. The text thus reads as an interesting set of chapters that address questions of sex, intimate relations, and reproduction, but not necessarily a volume that casts new light on questions of autonomy. The text would have benefitted from a more explicit conversation about autonomy across chapters as well as a more explicit examination of the idea of regulation. Some authors focus chiefly on state or legal intervention as regulation, while others use a broader definition that includes professional rules, social discourse, markets, activist framing, and moral norms. Such a definition is certainly necessary in the context, but the theoretical contribution of the text is [*648] limited somewhat by divergent views of what constitutes regulation and an incomplete analysis of the intersection of how different forms of regulation interact, highlighting the overall point that state regulation is not the only source of limitation on autonomy and, in fact, can enhance the capacity for autonomous action in other contexts.

After a terse but effective overview of the idea of autonomy and the literature on relationship autonomy, the volume is divided into two main sections, one titled “Intimacies and Domestic Lives” and the second titled “Reproduction.” Suzanne Jenkins’ chapter, “Exploitation: the Role of Law in Regulating Prostitution,” explores the regulation of prostitution. She makes an argument that the regulation of prostitution must recognize both the contextual factors that may rob women of choice in these contexts as well as the possibility that for some women prostitution may be an affirmative choice. Jonathan Herring’s chapter, “Relational Autonomy and Rape,” argues that the emphasis on consent often ignores the context in which consent is sought and obtained, and thus legal inquiries suggesting that consent is either present or absent are reductive, though Herring does not offer a legal remedy for this problem. Helen Reece’s chapter on “Feminist Anti-violence Discourse as Regulation” makes a provocative argument that the feminist expansion of the definition of violence has erased the context of violence by assuming the male perpetrator/female victim relationship, thereby eradicating a contextual analysis of the circumstances in which violence occurs and in which either party may be an agent of different kinds of violence. Although an interesting thesis, the chapter illustrates some of the overall problems of the volume in a failure to explicitly tie together the book in a coherent narrative. While most of the other chapters explicitly address state regulation, Reece suggests anti-violence rhetoric is a form of regulation, a controversial position that requires some elaboration. How does this rhetoric generate regulation; is it influential in the public narrative around domestic violence, does it lead directly to legal regulation, is it an idea internalized by individuals? These considerations are already addressed in socio-legal literature such as Jean Cohen’s REGULATING INTIMACY or even governmentality-influenced literature.

The next four chapters in the section examine less familiar territory. Ellie Lee and Jennie Bristow’s “Rules for Feeding Babies” is an interesting inclusion, addressing (as does Reece) primarily extra-legal sources of regulation looking at the discourse encouraging women to breastfeed, often through social pressure. They suggest that these forms of pressure to breastfeed may compromise women’s decisional autonomy, though they do not address, for example, counter influences such as workplace rules, the regulation of breastfeeding in public and other complicating factors. For example, what are the implications for women’s choices, when the predominant social discourse encourages breastfeeding but public/private regulations forbid breastfeeding in public? Jan Pryor’s “Regulating Step-parenthood” raises an obvious but rarely addressed issue of autonomy in families that are by necessity the product of state regulation, raising the issue of multiple parenting decisions as well as children’s rights. The authors clearly illustrate the [*649] ways that family relationships can be enhanced by greater legal intervention that establishes flexible relationships of responsibility. The chapter on the family bar addresses a useful question that arises as well in the next section on the role of professionals or experts in enhancing autonomy. Mavis MacLean and John Eekelaar’s “Legal Representation and Parental Autonomy” demonstrates the ways that legal representation can enhance autonomy for individuals navigating the legal system, though always tempered by dependence upon the expertise of others. Julia Davidson and Elenea Martellozo’s “Internet Sex Offenders: Individual Autonomy, ‘Folk Devils’ and State Control” considers the question of autonomy primarily through the lens of punishment for sexual offenders, considering when intervention is necessary (i.e., punishment for “grooming” children for abuse before physical abuse has happened, punishments for possession of pornographic materials) and whether some punishments such as chemical castration violate autonomy. The chapter addresses the question from a primarily criminal justice perspective without addressing some of the more complex questions of the regulation of sexual desire or the sexual desire of legal children, including recent moral panics over “sexting” and other uses of technology by “children” for sexual purposes.

The second, shorter section on “Reproduction” looks primarily at the regulation of technological interventions into reproduction, including assisted reproduction therapy, genetic selection, gamete and embryo donation, and abortion. This section considers a number of ethical dilemmas in which individual choices have broader social consequences, such as the sex selection of embryos (or selecting for or against specific traits), or the unequal distribution of assisted reproductive technologies. Theresa Glennon’s “Regulation of Reproductive Decision-making” and Martin H. Johnson and Kerry Peterson’s “Instruments for ART Regulation” suggest that regulation of assisted reproduction technology (ART) raises conflicts of interests between individuals, the state, and professionals. Martin Richards directly addresses the moral dilemmas involved in individual choices in “Which Children can we Choose?” in which he examines the arguments for and against allowing individuals/couples to manipulate the genetic composition of their children. Susan Golombok explores the complexity of reproduction with donors in “Anonymity – or not – in the Donation of Gametes and Embryos” and explicitly discusses the balancing of the rights of children, the right to privacy of donors, and practical questions of how a lack of anonymity may impact donation. Laura Riley and Ann Furedi’s “Autonomy and the UK’s Law on Abortion” makes the most definitive claim about regulation, arguing that the UK’s restrictions on abortion violate women’s autonomy by making them overly reliant on the professional opinions of service providers.

Several authors address the issue that uncertainty about the state’s role in these questions has left the regulation to the market which has definite class-based implications that are not as clearly addressed in these pieces. The exploration of these questions within the context of contemporary regulation does [*650] allow the authors to note specific issues that arise in practice, such as the denial of services to unmarried or same-sex couples. In addition, the authors do raise important questions of the autonomy of children who are implicated in these decisions. At times, these chapters illustrate the advantage of exploring some of these abstract questions of autonomy within concrete contexts, such as Richards’ discussion of deafness and whether deaf parents have the right to deliberately produce a deaf child. The chapters might have benefited from a more systematic exploration of the ways that all of these reproductive issues raise questions of class inequality, as well as gender and racial inequality.

Looking at autonomy in the context of specific cases clearly illustrates the opening argument that autonomy is rarely the autonomy of isolated individuals, but is instead a complex negotiation between multiple individuals, social norms, and state regulations. Many of the individual cases are thought-provoking and useful for scholars of family law, feminist legal theory, and autonomy. They raise many provocative questions about the relationship between autonomy and regulation by challenging the assumption that these two things are necessarily opposed to one another. However, scholars of autonomy or those already well-versed in the debates around relational autonomy will find the theoretical contribution somewhat lacking. The chapters are accessible and could be useful in an undergraduate or graduate course on gender and law or family law. Most of the empirical examples are drawn from the UK (and to a lesser extent New Zealand, Australia, Canada and the US) which may limit the text’s usefulness in the North American classroom.

REFERENCES:

Cohen, Jean. 2004. REGULATING INTIMACY: A NEW LEGAL PARADIGM. Princeton University Press.

Mackenzie, Catriona and Natalie Stoljar. 2000. RELATIONAL AUTONOMY: FEMINIST PERSPECTIVES ON AUTONOMY, AGENCY,AND THE SOCIAL SELF. New York: Oxford University Press.

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