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The Gendered Construct of Kinship in Germany and France: A Legal Construct of Reproduction Law

Laurie Marguet

Research Framework: In both France and Germany, reproduction law is often presented as structured around freedom, autonomy and choice based paradigms. While it is undeniable that the law now allows individuals, especially women, to make reproductive choices, the fact remains that it further encourages some reproductive choices at the expense of others. The way in which the law frames the reproductive choices of individuals tells us something about the model of the “ideal” family that is put forward by the state. While this model differs somewhat between legal orders depending on the social, historical, cultural or political context in France and Germany, it includes, however, a number of similarities, notably in that it perpetuates a gender order structured around the normalized distinction between “reproductive work” (traditionally attributed to women) and “productive work” (traditionally reserved for men).

Objectives: This research analyzes the way reproductive law constructs an ideal model of kinship by promoting some reproductive choices and encouraging the founding of some types of families. This article aims to deconstruct the narrative surrounding the legal framework of reproduction that is understood as an autonomous choice, which allows women to refuse motherhood in a logic of maternal “over power” that creates inequalities for men.

Methodology: We analyzed the legal framework (legal texts and case law), mainly regulating birth control, childbirth under X, abortion, medically assisted procreation, but also the establishment of filiation (parentage).

Results: Our research has shown that the law encourages the constitution of the “genetic” family, which is assumed to be heteronormative, and can be apprehended in a differentiated way between motherhood and fatherhood.

Conclusions: As the law standardizes behaviours, it “normalizes” individual choices that are not always considered as legitimized. The rules governing authorized procreation techniques in France and Germany are no exception to this principle. Although reproduction law authorizes birth control, anonymous delivery, abortion or medically assisted reproduction in both countries, it remains reluctant to accept the refusal of motherhood (more than the refusal of fatherhood) and instead encourages the founding of a heterosexual family in contrast to a non-heterosexual family.

Contribution: Our research highlights the fundamental role of the law in legitimizing some parental projects or families.