Affective Reproductive Legality: Navigating the Borderland of Life and Death

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.