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become assimilated to positions already given. Another kind of mathematics
is called for, one that describes the equations by which different sets of signs
appear. The limitation of this perspectivism is that all one can do is change
the signs; if one is not this, one is that.42
The Murik men and women who give different values to adopted and dead
children or the Omie assimilating the boy to his grandfather are not confused
about how many persons there are or to what generation people belong. To
the extent that this kind of mathematics applies, the point is that there is no
ultimate or single origin. Persons, subject positions, are created by the relations
in which they must engage (Leach 2003). When, as they do, people emphasise
speci¬c origins or roots, this is to select particular relationships out of many,
prioritising one over others. To use language appropriate to the Australian
artist™s copyright suit, for example, Barron (1998: 50, after Morphy 1991 ; cf.
Kalinoe 2004) notes the different kinds of rights kin have in one another™s
ancestral designs. Thus someone may have the right to reproduce a painting
from his mother™s clan, or indeed from his mother™s mother™s clan, and will be
consulted by them when they reproduce their own, even though his origins in
that clan do not give him the rights that descendants of the father can claim. It
is not a contingent or a subsidiary authority, but one that manifests a distinct
order of relationships by which the person is owned.
Imagining how copyright ownership could be mapped onto Aboriginal
concepts of clan ownership of images and designs, Barron (1998: 72) observes:

even if it could, the uni¬cation of copyright ownership in a single entity, albeit
a collective one, would not mirror the distribution of rights among individual
members of the clan [in their relations with members of other clans].
160 KINSHIP, LAW AND THE UNEXPECTED


A judge, trying to convey how very ˜other™ Aboriginal concepts were from
those found in the law of property, concluded a famous land claims case43
with the remark he could have found in more than one anthropological text
(and reduplicated in Murik ornaments and Omie emblems), namely, that the
clan belongs to the land rather than the land belongs to the clan (quoted
in Barron 1998: 54). The same could be said of sacred paintings. An artist
belongs to the painting rather than the painting to the artist. For a painting
executed in reference to ancestral images contains within itself its conditions
of reproduction: like the Malanggan, it shows in its very designs who has the
right to paint it. You have to be a person in an appropriate relationship to
others who also have claims (not necessarily the same as yours) and who thus
have claims over you. In this manner, the design authorises the painter.


IV
It is exactly this kind of modulation of authority with which the Director of
the Papua New Guinea National Cultural Commission has been concerned
(Simet 2000; 2001 b) in relation to the Model Law on protection of cultural
property in the Paci¬c.44 This directive makes a case for setting up protection
mechanisms outside intellectual property regimes, but it does so by insisting
on the absolute claims of ˜traditional owners™.45 These are identi¬ed as groups.
In implying they are singular in nature, and by implication homogeneous, it
addresses the problem of collective ownership in terms that remain famil-
iar counterfactuals to Euro-American private property thinking: ˜community
ownership™, ˜communal moral rights™, ˜cultural [as opposed to economic] or
communal rights™.46 The radical issue presented by the data from Papua New
Guinea and Aboriginal Australia is how to accommodate multiple rights when
they derive from incommensurable orders of relationship.
Simet observes of Tolai (PNG) (2000: 78):

One idea which might easily form part of the development of a mechanism for pro-
tection of indigenous knowledge is the assumption that all traditional knowledge
is communally owned. [In fact] . . . people were very particular about acquisition,
ownership, transfer, protection and use of knowledge. Only some kinds of knowl-
edge belonged to the public domain, while the rest belonged to individuals and
social groups.

He goes on to explain (Simet 2001b) that Tolai individuals and groups are
enmeshed in diverse relations with one another. A telling example is the way in
which the signs of a clan™s identity are distributed between its masks (tubuan)
161
DIVIDED ORIGINS AND THE ARITHMETIC OF OWNERSHIP


and the magic (palawat) that makes the masks effective vehicles of power. The
tubuan is held by a clan member who acts as manager for the clan; the palawat
is held by a non-member, who acts as a custodian on behalf of the clan and
deploys the magic on its behalf. Clan members cannot use their own magic
themselves.47
These groups and individuals are not the ˜several persons™ of Enlighten-
ment arrangements of society. Persons exercise different kinds of authority
depending on the relations that summon them, and they are made into dif-
ferent persons in the course of it. So contrasting types of multiplicity come
into view. If we talk of multiple origins in relation to Euro-American works,
then multiplicity comes from the way persons are added to one another™s
enterprises. If we talk of multiple origins in relation to their Melanesian coun-
terparts, then multiplicity comes from the way people divide themselves from
one another. Singularity (individuality) is an outcome not an origin.
This attempt at a comparison exposes an asymmetry. Some might ¬nd the
substance of intellectual property issues in certain systems at odds with, as
too contingent to, attention to kinship in others. I am not comparing like
with like. Quite so. Precisely because the focus is on the things people produce
in the one case, and on the persons they produce in the other, I am drawn
to the parallel. Very differently construed as they are, one can nonetheless
compare ideas of ownership imagined in intellectual property regimes with
Melanesian notions of owning persons through kin ties. That is not where
the asymmetry is. Asymmetry emerges if one takes what appears super¬cially
similar. For if one looks closely, it is the kinship in the Euro-American case that
appears fundamentally at odds with the Melanesian kinship material. What
seems so similar, the concerns with ancestry, blood relations and the rest of
it, not to speak of concerns with how children grow unblemished, is never
quite in balance with comparable Melanesian notions. And that is because of
the speci¬c nature of the ambiguities at the heart of Euro-American kinship.
(Other systems turn on other ambiguities.)
Davies and Naf¬ne™s observation about the way embodiment is treated in
Western law sum up the ambiguities in question. The arena of family and kin
relations is a prime place where the Euro-American arithmetic that creates
distinct objects and singular originators is at once formed and confounded.
Beside the creation of the individual person and of families as units, kin are
also bound up with one another in dependencies that make counting dif¬cult,
where belonging is a kind of ownership but not quite, where persons both are
and are not embodied in other persons, and where notions of property can
only introduce complicating rather than simplifying factors.
162 KINSHIP, LAW AND THE UNEXPECTED


acknowledgements
I am grateful for the invitation from the Critical Theory Institute, University of
California at Irvine, to lecture in the 2002 series, Futures of Property and Person-
hood, and for stimulating discussions. Conversations with Eduardo Viveiros
de Castro started this topic off; without the interest of colleagues from Papua
New Guinea, notably Lawrence Kalinoe, Andrew Moutu and Jacob Simet,
there would have been less incentive to continue. Anne Barron, James Leach,
Alain Pottage and Eduardo Viveiros de Castro all kindly read a draft, and I
thank Marta Rohatynskyj for her generous comments.
Notes




part i: introduction: divided origins
1. An explanation of the gloss of the more usual Western as Euro-American can be
found in Edwards et al. 1999: 15“17. ˜American™ here derives from North America,
˜European™ from Northern Europe, but Euro-American in¬‚uence is neither con¬ned
to these parts nor uniform within them (it has global spread, is locally patchy). I
refer to a discourse not a people, although I personify the discourse in referring to its
˜speakers™ as Euro-Americans. The awkward term is meant to summon those whose
cosmologies were formed by the religious and rationalist upheavals of the seventeenth
and eighteenth centuries across Northern Europe, creating present-day America in
their wake.
2. Miller says that he has often joked that much psychoanalytic theory about the forma-
tion of the early child sounds like the formation of the early parent, that the steps that
the child follows mark the steps of the parent™s delight, perplexities and sense of dan-
ger. ˜The stages of development described by Klein [for instance] are not really about
infants at all. Instead they describe the various stages which a parent goes through in
order to develop as a mature parent™ (1997: 67). It is the parent who sees the child as
the good breast and bad breast, at once utterly wonderful and utterly appalling™.
3. I have made previous, rather similar, use of the notion of a tool in work arising from
the PTC project mentioned in the Preface. The tool there (Strathern, 2004c) is the
concept of ˜transaction™, a condensed de¬nition of exchange relations of a kind useful
largely for cutting, as in cutting through data; it belongs to and serves a rather narrow
range of anthropological interests. In its generic form, here the tool I have in mind is
as much like a function of the brain or like a body part as the artefact it also is. It is
an implement for separating/holding parts of itself/things from one another/together
(the sentence can be read in two ways, as indicated by the italics threading through
one of them), a capacity for analysing (at once creating and handling) social
complexity.
4. In lieu of the Old English tool, Rabinow™s (2003) more sonorous and certainly more
erudite sense of equipment, which I have since come across, searches for a continental
toolkit of concepts for modern times.
5. Dovetailing science and kinship in this manner deploys anthropology™s relation at
various moments.

163
164 NOTES TO PAGES 11“18


6. If this were a history one would no doubt be looking to numerous theological and
ecclesiastical antecedents. If they are there, then perhaps this is a re-invention.


chapter 1: relatives are always a surprise: biotechnology
in an age of individualism
1. ˜Public opinion™ is an elusive concept. For a European attempt to access public opinion,
´
as initiated by anthropologists, see Lundin and Ideland 1997. P´ lsson and Har‚ardottir
a
(2002) analysed newspaper reactions to the Icelandic biogenetic project, following
the ¬rst bill on the Health Sector Database.
2. The reader may take ˜we™ and ˜us™ to refer to any one whose interests will have made
them turn to the topic of this book. Yet if we are de¬ned by shared concerns, that
does not mean our perspectives are identical.
3. The case is from the United States. Non-parental visiting rights, including those of
grandparents, have been the subject of legislation in most U.S. states so this is a bit of
rhetoric on my part (Dolgin 2002: 371). It is always a hazard selecting particular cases
from what is likely to be a whole gamut of potential circumstances and outcomes; one
should also be aware of the special place that litigation carries in U.S. domestic life,
and the special nature of arguments put forward in a court context. However, the two
principal sources for this and other U.S. cases, Dolgin and Finkler, may be consulted
for their own oversight of a wider scene. Their work enables the grandparents™ suit
to be put into the context of a range of similar and dissimilar cases being considered
by the courts at about the same time.
4. Much of the case was to do with the constitutional argument about the extent to
which the state could interfere in family life. Dolgin reports a confused and con¬‚ictual
situation across the courts and among judges.
5. The individualism of members being separately autonomous to pursue their own
choices; see Chapter Three for a brief reference to Dolgin™s arguments about family
types.
6. That is, the individualism of parental choice. Although choice is over the kind of
relations one wishes with others (parents in respect of children), the source of choice
is held to inhere in the parent™s wishes and desires as an autonomous subject. One
judge in the Washington grandparents™ case invoked the ˜fundamental right™ of parents
˜to make decisions concerning the care, custody, and control of their children™ (quoted
at Dolgin 2002: 390).
7. Not just in the general sense that everything one does contributes to what one is but
because of the charged nature of techniques in relation to reproduction and the care
of early life (see Alderson 2002).
8. Procedures in the United Kingdom for obtaining a woman™s consent for use of fetal
tissue (in research, after an abortion) explicitly prevent the woman from making any
statement of preference about how she would like to see the tissue used (see Nuf¬eld
2000: 9).
9. A central theme in the general discussions of assisted conception techniques that ac-
companied Australian arguments over stem cell research in 2001 “2002. Monitoring
disease and disability, for example, through pre-implantation (genetic) diagnosis, is
another matter. The ethicist Savulescu interviewed by The Age, 19 June 2002, com-
mented that many genes have nothing to do with the diseases by which advancement
in gene research is often justi¬ed.
165
NOTES TO PAGES 19“21


10. Public discussions about surrogacy in the 1990s are a case in point. The United
Kingdom distinguished itself from the United States on the grounds of forbidding
commercialisation, although the range of public opinion on that very issue (commer-
cialism) was almost identical on both sides of the Atlantic. (As for commercialisation
being ˜un-British™, the Sunday Age [9 June 2002] quoted an ethicist to the effect that
paying IVF donors for their eggs would be un-Australian.)
11. This antinomy is part of an enduring Euro-American con¬guration (on diverse
Euro-American in¬‚ections of altruism, Strathern 1992b: Chapter 6). I do not use the
word altruism in its evolutionary psychology sense, for the way others are enrolled
into the individual™s projects for survival, but in terms of the capacity to put oneself
into another™s shoes and thus in the more general sense of social responsiveness.
12. But the case should not be overstated. Reponses to a U.K. consultation (HGAC 1998)
on cloning issues had an emphatic 80% saying ˜no™ to the idea that the creation of a
clone of a human being would be ethically acceptable. The same respondents were
divided over the question, ˜To what extent can a person be said to have a right to
an individual genetic identity?™ Forty-one percent thought they had this right while
50% queried the question on the grounds of the case of identical twins, objecting
that identity is always more than genetic (context is obviously important). Savill
(2002: 44) notes legal observations to the effect that the distinctive genotype of a
fetus bestows individuality on it even while it is in the mother™s womb.
13. As against the view, born of beliefs about genetic determinism, that there will be a
decline in personal responsibility for behaviour and even ˜the loss of individualism™
voiced by the social philosopher Fukuyama (The Australian 27 May 2002). Biotech-
nology has us think more about these things, though one should not dismiss those
who dismiss others (such as the researcher who, apropos debate over patenting hu-
man genetic material, referred slightingly to ˜ethics and other irrelevant concerns™
(quoted in Nelkin and Andrews 1998: 55)).
14. Not to play down the need here: Finkler tells of the distress caused by people not
¬nding out early enough about what their close relatives ailed from (2000: 122“26).
15. However, the privacy of the individual with regard to his or her medical history or
genetic information (central to Dolgin™s interest in ˜genetic families™) is breached by
the need that others in the family may have for it, as Chapter Three illustrates.
16. Something of a history of public reactions is given by Radick (2002); the U.K. Nuf¬eld
Council on Bioethics (2002: 22) includes a brief discussion under the rubric ˜Genes as
public property™. Justice Michael Kirby, of the High Court of Australia and member
of the International Bioethics Committee, reported on an international symposium
speci¬cally called by UNESCO in 2001 to consider intellectual property and the
human genome; this was in the context of concern that the results of genomic
sequencing should be open to free access by the general scienti¬c community.
17. And membership itself starts looking like an asset. Thus genetic heritage may be
referred to with the ambiguous double entendre of the English term ˜property™ as
˜the common property of humankind™. For an argument in favour of more explicit
propertisation, for example, of genetic resources, see Laurie (2002: ch 6). Helmreich
(2002) makes an interesting comment on the notion of the gene pool as an exploitable
resource.
18. UNESCO™s 2001 Universal Declaration on Cultural Diversity refers to ˜the unity
of humankind™ and cultural diversity as ˜common heritage of humanity™. When
that place, as the heritage of humanity, is occupied by the human genome (1997
166 NOTES TO PAGES 21“24


Universal Declaration on the Human Genome and Human Rights) it adds reference
to the family (˜the fundamental unity of all members of the human family™).
19. The ruling from the Washington Superior Court, which had ¬rst tried the case,
is worth giving in full (an oral not a written deliberation). ˜The children would
be bene¬tted from spending quality time with the Petitioners [the grandparents],
provided that the time is balanced with time with the childrens™ [sic] nuclear family.
The court ¬nds that the childrens™ [sic] best interests are served by spending time
with their mother and the stepfather™s other six children™ (as cited in Dolgin 2002:
375, including brackets). The U.S. Supreme Court, with its own reasons for putting
a value on the nuclear family (to do with the mother™s authority over her children),
complained that the state trial court had favoured a family of extended kin.
20. Simpson™s ¬gures here come from U.K. Marriage and Divorce Statistics 1990, 1994,
1997, 1998 and Social Trends 1994. Over the decade 1990“2000: one divorce for every
two marriages; many people divorcing within three years of the wedding. The 2001
¬gures for Australia point to more than one third of all those remarrying as having
children by a previous marriage, although as to the popularity of marriage it should
be said that over the long term there has been a gradual decline in the crude rate of
marriage (numbers per head of population) (Australian Bureau of Statistics, 2002).
It is also reported that the number of de facto unions has been rising.
21. As given in the Sydney Sun Herald (23 January 2000), the statistics coming from
Australia now, a statistical pro¬le (Australian Bureau of Statistics), Household and
family projections (ABS), Births, Australia, 1998 (ABS), the Andrews Report, House of
Representatives Standing Committee on Legal and Constitutional Affairs, 1998.
22. Something of a corresponding ¬gure is quoted by Dolgin (2002: 344); the proportion
of children living with both ˜biological parents™ in the United States is 50%. This is
not a proper statistical or demographic comparison, and I do not want to make too
much of the ¬gures. Quite wide variation in people™s practices, both in range and
rates, sits alongside some very similar evaluations and questionings about the nature
of family life and future trends.
23. Her material documents the new prominence of the grandparent in France. Grand-
parenting has become part of networking, crucially backing up often ¬‚uid arrange-
ments at the same time as grandparents are losing their place as obvious extensions
of one or other parent. She asks, where do their obligations lie when grandchildren
come visiting with their step siblings or half siblings? One in three French marriages
end in divorce. When single fathers and mothers make new households, invariably
it is the man who enters the household of a divorced or separated woman.
24. (And pose problem for other laws, such as property inheritance.) This kind of com-
mentary has been made several times and notoriously in relation to motherhood;
note from Segalen™s account the emphasis put not on fragmentation but on
recomposition.
25. See for example Dolgin (2000: 537). This was a divorce action over the parentage
of twin girls conceived by egg donation; the ˜biological father™ asked for exclusive
custody as the sole genetic parent (an argument rejected by the court, who regarded
the recipient of the egg and intending mother as the ˜natural mother™ entitled to
custody, with the husband eligible for visiting rights).
26. From this point of view one may look to the case involving a divorce between the
intending parents of a child conceived in vitro outlined in Chapter Three. There
167
NOTES TO PAGES 24“27


the trial court, faced with at least six potential parents only one of whom sought
parentage or custody, concluded that the child was without parentage. Here, the
combination of relationships that had produced the baby fell completely apart.
However, the verdict was reversed on appeal, and some of the elements put back
together again.
27. One would not have to go back very far in European history to ¬nd antecedents
(including families made up of other families through death and widowhood), but
the phenomenon described here is novel in originating in particular patterns of
divorce and separation. Of course families could not recombine if they were not
composed of elements with the potential for self-organisation. One of the readers of
this book pointed out that genetic recombination depends on organic or molecular
self-symmetry. In fact Pottage™s (2004: 267“9) comments on what we now know
of the self-producing properties of organisms, that is, organisms that cause them-
selves, indicate a revolution in the language of scienti¬c description that extends the
analogy.
28. And other close relatives, the basis of genetic screening programmes. The use of
DNA-relationship testing is now carried out in the United Kingdom at a rate of
nearly 10 000 cases annually (HGC 2002: 160).
29. Or an enlargement of ˜the individual™ as a reference point. The degree to which
genetic determinism seized the public imagination in the 1980 and 1990s does not
cease to amaze geneticists or ethicists. (Suvulescu, doctor and philosopher, is quoted
as saying people have an ˜irrational™ approach to genes [The Age, 19 June 2002].) A
description of the deterministic values of this period can be found, for example, in
Nelkin (1996).
30. Indeed, the anthropologist™s term kinship starts being useful. Kinship refers to rela-
tives connected to one another without any supposition of what kind of social group
or family they make up. So it can cover the connections and disconnections en-
tailed in divorce, remarriage, adoption and visiting agreements, as well as in assisted
conception arrangements.
31. As in Euro-American kinship practices that take ˜after nature™, this is a kind of kin
reckoning that can be extended through any of the biotechnologies concerned with
reproduction, including genetic transmission. Some general implications for the law
for understanding ˜the interconnectedness of bodies™ is offered by Herring (2002: 44).
He writes of organ donation ˜as a re¬‚ection of the natural interdependence between
our bodies™. Contrast MacIntyre™s (1999) depiction of interdependence developed
through relationships with speci¬c others.
32. There is an integrity that rests not in defending boundaries, in keeping oneself
inviolate or in asserting rights, but in entering into relationships with others “
the relationship creates a differentiation that separates the parties. Indeed, every
relationship is built on connection and disconnection; there would be no link if
there were no differentiation (cf MacIntyre 1999). This is to argue on the grounds
of social logic; the same ontology could be approached from other perspectives,
notably psychology and psychoanalysis.
33. Whether or not they think of themselves as all members of ˜a family™ will depend
on circumstances, or rather, we need to know how people apply the term. Peo-
ple draw the boundaries in different ways, as Simpson™s data makes evident. In
their brief as petitioners to the U.S. Supreme Court, the Washington grandparents
168 NOTES TO PAGES 27“30


complained through their lawyer that the trial court had focused exclusively on the
parent“child relationship, whereas in common parlance, the ˜petitioners and their
granddaughters would also be described as being part of the same “family”, albeit
in a somewhat broader sense. Grandparent visitation statutes are grounded on a
recognition that grandparents are part of a child™s family™ (arguments as cited in
Dolgin 2002: 389). The family, the grandparents argued further, should be seen as
˜a collection of kin™.
34. He also compares different reactions between partners; in some cases there is a sense
of a ˜controlled expansion of relationships, possibilities and permutations™, whereas
in others there is instead unease with the messiness of overlapping relationships.
People either emphasise the networks or else new, exclusive, nuclear families may
emerge.
35. And more fundamentally, no relationship. However, I would give ontological status
to the separation integral to relationships [see n. 32], whereas the versions described
here are particular arrangements that draw on that universal condition of sociality
but are not the only instantiations of it. In a merographic sense, there is endless fractal
potential for the replication of combinatory phenomena across different scales, for
persons are combined in relationships insofar as they are also separate from one
another by being parts of other relationships.
36. Again, this is a merographic model for a Western culture, consistent with the model of
reproduction I derive from English kinship (Strathern 1992a). The prior distinction
of entities bound in relations (˜with the environment™, ˜with the world™) belongs to
the model. (In the Melanesian case, on which I have also worked [1988], partibility
takes different forms, and the composition of persons out of persons becomes the
overt subject of public activity.)
37. The labour that goes into conceiving (confounding nature and nurture) is made
visible: ˜I hope she appreciates what we went through to have her™, said the mother
of an IVF baby now 21 years old (The Age, 24 July 2002) when, as the clinician noted,
the procedure was more invasive than it is today.
38. As reported in the case of the ¬rst girl in Australia to be born to a surrogate mother
from an IVF procedure. She is quoted as saying she has three mothers and three
fathers, including the spouses of the surrogate mother and sperm donor, although
˜I know I have only one mum and one dad™ (the couple who bring her up) (Sydney
Morning Herald, 11 May 1999). A commentator at this newspaper remarked that, in
her experience, the business of keeping a family/household going as a functioning
set of persons living together on an intimate, daily basis far outweighed thinking
about origins.
39. Savill (2002: 65), quoting Karpin (1994: 41). See also her reference to an American

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