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Affective Reproductive Legality: Navigating the Borderland of Life and Death
Naaman, Noy
Naaman, Noy
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Abstract
Birth and death are traditionally viewed as antithetical moments. They
divide our relations in the world: from their instantaneous creation at
the point of birth to their dissolution at the point of death. From partner
to widow, from expectant to grieving parent, in confronting the life
death threshold, we become someone other. This conventional view
presupposes a clear demarcation between life and death, suggesting
that beyond this threshold, our relationships experience a definitive
change. Yet, while our relationship with the deceased is physically
taken from us, could our affective bond with them not only hold firm
but also be helped to flourish? If so, what might be the tradeoff of
blurring the borderland between life and death?
This Article considers these questions as a matter of law, particularly
in the context of reproductive rights. It assesses and juxtaposes the
jurisprudence surrounding two reproductive experiences where birth
and death meet: stillbirth and posthumous assisted reproduction. Both
delivering a stillborn child and conceiving a child posthumously using
artificial reproductive technologies challenge accidentally or
intentionally the life death borderland, posing a dilemma for
policymakers regarding how to regulate such scenarios. Examining the
question centered in this Article, I argue, could inform policymakers
contemplating the regulation of these experiences.