GHOSTS IN THE POSTMODERN FAMILY

annette appell, Washington University in St Louis

Abstract

As legal theory and doctrine respond to the range and complexity of biological and social connections that increasingly compose families, they evoke a bionormative nuclear family framework for lesbian and gay families, stepfamilies and families created with outsourced reproductive materials or labor. This Article questions this approach because it disregards the complex foundational roles of biological relationships in American jurisprudence and fails to appreciate the unique aspects of kinship in these postmodern families. Instead, this Article anchors the postmodern family law movement in the physical, social and economic conditions that affect the most disaffected among us: those who are socially, economically and politically disadvantaged and those who have experienced the legal loss of a biological parent or child. American stories of adoption, assisted reproduction, race, and lineage challenge the notion that biological connections are no longer significant to individual or group identity and status.

The regulation and study of adoption and other phenomena that disassociate children from their biological roots offer pertinent lessons for understanding and regulating the new postmodern families. These lessons are three-fold and apply to the children and the adults in these families. The first is historical and follows adoption’s failed attempt at legal and social banishment of biological family connections, banishment that has been structurally connected to and dismissive of gender and race. The second is sociological and relates to the existential roles of biology in social (including racial) identity formation and ordering. The third lesson is doctrinal and regards adoption law’s recognition and regulation of these relationships through adoption with contact, which presents a model for shared parenting in other postmodern families.