Controlling for Kin: Ghosts in the Postmodern Family

Abstract

This Article illustrates a paradox in the regulation of families. On the one hand, jurisprudence sanctions biological connection to promote liberty and the private production of value and culture, including the protection of the freedom of non-normative parents to parent. At the same time, however, this regulation serves as a restrictive paradigm for family composition, rigidly adhering to a biologically-evocative two parent maximum that fails to reflect the intricacies of private ordering or political constructions of biological connection. The legal and social disruption of these connections exposes their structural and subjective materiality to individual and group identity and challenges conventional notions of the two-parent family that continue to dominate postmodern family doctrine and theory.

The Article deploys the gendered and racial history and development of adoption law and the lived experience of adoption’s constituents to illustrate the perils and promise of the new postmodern families. Although this critique commends the new regulatory schemes for legitimating lesbian and gay family formation, assisted reproduction, and stepparent-child relationships, it problematizes the exclusive bionormativity of this regulation and suggests that the law should recognize and even legitimate the porousness of these new families. The article proposes a unique and perhaps controversial approach to kinship that pushes against current regulatory trends that privilege social relations at the expense of biological connections.