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also given weight to the possibility of prenatal determinations focused on
the birth yet abstracted from the birth process. Claims are based neither on
biology nor on behaviour. Rather they are based on a mental condition: the
parents™ intention. Dolgin describes in detail a case brought in 1998 to the
California Court of Appeal.4 A child had been born from an embryo created
from anonymous donors and gestated for a fee by a surrogate; the original
couple, Luanne and John Buzzanca, were now divorced and Luanne sought
parental status, arguing that she and her former husband were the legal parents.
Despite, as Dolgin points out, there being six potential parents (the divorced
couple, the surrogate and her husband, and the sperm and egg donors), the
trial court had come to the conclusion that in law the child had no parentage.5
The appellate court overturned this; intention is suf¬cient cause:

a husband and wife [may] be deemed the lawful parents of a child after a surrogate
bears a biologically unrelated child on their behalf. . . . [A] child is procreated
because a medical procedure was initiated and consented to by intended parents.6
California Court of Appeal 1998 (72 Cal. Rptr. 2d at 282)

It is the law that validates the relation, deeming what shall be so, but it is the
parents™ intention that gives it reason.
Recognition of intent is consonant with the emphasis that can be put on
choice and the individual subject as decision maker, where ˜the law re¬‚ects
and fosters an ideology of family that prizes autonomous individuality, [view-
ing] . . . the domestic arena in terms once reserved for life in the marketplace™
(Dolgin 2000: 542). At the same time, it is made clear that establishing legal
parentage would set up obligations. Once so declared, the relationship to the
child has consequences, especially economic ones in this case, given that the
53
EMERGENT PROPERTIES


divorced husband was trying to avoid child support. The state has its own
interest in establishing paternity precisely because the relationship carries re-
sponsibility; regardless of the ways in which parenthood may be created, the
child must still be looked after, and someone must be accountable.
Numerous arguments are going on at the same time, including the place of
the market in the making of families and the fact that relationships entail re-
sponsibilities. Taken for granted is the role of medical technology, which (after
Latour) has lengthened the chains of events, circumstances and personnel it
takes to produce parents and children.7 It feeds people™s interests in attaching
persons to or detaching them from one another. Indeed, technology would
not multiply the number of claimants or the bases on which claims can be
made were it not for the way people seize on new openings.8 The legal decision
reported on here has added another possibility. Creativity lies in mental acts,
and ˜intending™ parents emerge with the power to create children.
At this point I jump to another arena altogether, from debate in the law
courts to debates among practitioners of science and speci¬cally biomedicine.
I am thinking here of Biagioli™s (1998; 2003) study of scienti¬c names, how
authors become attached to their works. The International Committee of
Medical Journal Editors™ (ICMJE) guidelines, speaking for hundreds of
English-language journals, now require that each name listed in an article™s
byline ˜must refer to a person who is fully responsible for the entire article (not
just for the task that he/she may have performed)™ (Biagioli in prep.: 23, origi-
nal italics). This is in response to many issues, among them authors not always
being aware their names have been appropriated. A series of fraud cases that
questioned how responsibility was distributed through multiple authorship
fuelled debate (1998: 7“8). Also in the background, recent sociotechnolog-
ical magni¬cation “ the ˜increasingly large-scale, collaborative and capital-
intensive contexts of [biomedical] research™ (1998: 6) “ has led to an explosion
in authorial naming. Large numbers of names are strung together.
In scienti¬c authorship, as Biagioli describes it, multiple naming has be-
come the norm. Being named carries at once credit and liability; those whose
reputation may pro¬t from publicity are also declaring their accountability
as far as intellectual content is concerned. At least this is how the ICMJE
guidelines attempt to strengthen the concept of authorship, as a declaration
of responsibility requiring individuals to choose how they publicly attach
themselves to particular projects. But people have protested at the idea that
authors should vouch for one another. A 1997 letter to Science invokes what
could almost be Dolgin™s modern family of autonomous subjects9 : ˜If mar-
riage partners are not held liable for the actions of spouses, why should we
assume that scienti¬c collaborators are liable?™ (quoted by Biagioli 1998: 10).
54 KINSHIP, LAW AND THE UNEXPECTED


Others point to pre-existing relationships. Indeed, at the further extreme, one
organisation has adopted a no-choice model: all publications emanating from
the laboratory have an author default list that contains the names of everyone
contributing to the enterprise as a whole.10
What Biagioli brings to light, then, are divergent values, not unlike Dolgin™s
two present day American families. Side by side with a model of individual au-
thorship is one that (like the traditional family) stresses solidarity between all
those involved in creating knowledge. For not all scientists agree that author-
ship should be restricted to intellectual contribution “ advocates of a corporate
model would include a diversity of scienti¬c workers.11 So a quite different
solution is the proposal to replace ˜authorship™ altogether, for example by di-
viding contributor from guarantor. Contributorship would include everyone,
differentiated by descriptions of their functions that the reader could assess,12
whereas others would guarantee that audit controls were in place.
One of the British journals, British Medical Journal, that has been interested
in just this proposal has also committed itself to offering copyright owner-
ship to its authors (Times Higher Education Supplement 28 January 2000).
Today™s electronic methods of production and distribution mean that authors
can search out audiences before they publish, and in any case may have an
independent interest in dissemination. In the U.K. proposals, journals would
instead secure a ˜license to publish™.13 This move could be seen either as en-
dorsing or as turning on its head earlier provisions that separated copyright
from moral right.14 Moral rights protect certain relationships between a work
and its creator, as in the right to be identi¬ed as author15 ; a creator, with a
claim on the work™s integrity, is thus technically distinguished from an owner
claiming economic bene¬t. Although copyright protects the originality of the
authorial composition, ownership of the copyright has often been vested in
the publisher. These most recent proposals would universalise the ˜author™,
literary or scienti¬c, as copyright holder. Hence the division between creator
of the work and owner of the economic rights remains the same, but the
term copyright has shifted across the divide; it now rests in the author, and
the journal publisher (or whoever) becomes a license holder. Truly, as Biagioli
notes (in prep.), ˜[T]he kinship between authors and works is a tricky two-way
street™.
However, Biagioli is not saying this in relation to intellectual property.16
On the contrary, the claims to scienti¬c authorship that he discusses are at a
tangent to rights (for example, via patents) created by intellectual property
law. In science writing there is no dichotomy between property rights which
fence off the commons through the ¬ction of the single author, and the public
domain. Scienti¬c authors search for ways to claim accreditation of their work,
55
EMERGENT PROPERTIES


and these can only come from the public domain; attributions of originality,
or monetary gain, could detract from such claims and impede veri¬cation.
Literary credit is another matter: if individual creativity is central there, that
very notion of creativity is the result of historical struggles over intellectual
property where (he opines) ˜the focus on the individual author as the holder
of . . . property rights misrepresented the long chain of human agency that
produced a literary work™ (Biagioli 1998: 11).17 But perhaps there are chains
of distribution as well as production. Perhaps, for literary producers at least,
the emergent ¬gure of the new copyright holder will keep two dimensions in
tandem: a new location for individual originality becomes at the same time a
location for a new sense of community. Think of the knowledge and electronic
skill with which the author“entrepreneur can now open up original networks
of access to his or her products.18
I should comment on this leap from one arena to another: from parental
suits to scienti¬c authorship. In each, debates turn on the implications of
multiplicity. Yet such echoes between the two appear adventitious, trivial,
a ¬‚eeting effect of phrasing. Surely we could not sustain an analogy long
enough to think usefully about the former (parenthood) in terms of the latter
(authorship)? The potential parallels in this juxtaposition can, therefore, be
interesting for one reason only, because they bring to mind a possibility already
realised, an occasion when someone has in fact proferred connections of just
this kind. What I have presented is not a worked-out analogy, then, but rather
the kinds of raw materials from which analogies are made and the cultural
possibilities these contain. My pretend analogy sets the stage for one that was
no pretence at all.


An Analogy
Behind the Buzzanca appeal was a much cited case brought to the California
Supreme Court in 1993.19 One of the judges, in her dissent, analysed the court™s
clinching argument: it rested on a hidden comparison between reproductive
and intellectual creativity. She exposed the analogy in order to dispose of it; in
her view it was misleading (and it did not re-emerge as such in the Buzzanca
hearing).
Anna Johnson had undertaken to act as a gestational surrogate on behalf of
Crispina Calvert and her husband; the embryo came from their own gametes.
In the dispute that followed, each woman laid claim to motherhood (the one
through birth, the other through genes). The Supreme Court found that the
Calverts were the ˜genetic, biological and natural™ parents. That ˜and natu-
ral™ was determined by one crucial factor, procreative intent.20 The majority
56 KINSHIP, LAW AND THE UNEXPECTED


argued: ˜But for [the Calverts™] acted-on intention, the child would not exist™.
They quoted a commentator, who proceeded to make a most dreadful pun:
The mental concept of the child is a controlling factor of its creation, and the
originators of that concept merit full credit as conceivers.
California Supreme Court 1993 (851 P.2d at 795) (my emphasis)

The pun I return to. The commentator meant the conceivers of the mental
concept, valuable for ¬xing in ˜the initiating parents of a child™, a sense of
their obligations (cf. Morgan 1994: 392).21 Because the child would not be
born but for the efforts of the intended parents, wrote another commentator,
this meant they were ˜the ¬rst cause, or the prime movers, of the procreative
relationship™. Justice Kennard, dissenting, seized on this formula: she pointed
out that the originator-of-the-concept rationale is frequently advanced when
justifying protection of intellectual property.
With this one “ among six “ reasons for not concurring with the major-
ity view that intention should be the decisive factor, Justice Kennard thereby
exposed these phrases as half an analogy; the other half came from the philos-
ophy of intellectual property which holds (as she put it) that an idea belongs
to its creator because it is a manifestation of the creator™s personality or self.
The majority were implying that ˜just as a song or invention is protected as
the property of the “originator of the concept™, ” so too a child should be re-
garded as belonging to the originator of the concept of the child™ (California
Supreme Court 1993: 851 P.2d at 796). But, she argued, there is a problem in
making a comparison with rights to property: the marketplace. Unlike songs
or inventions, rights in children cannot be sold for a consideration or made
freely available; no one can have a property right of any kind (intellectual or
otherwise) in a child because children are not property in the ¬rst place.22
Now the comparison is not just with property; it is also with the kinds of
connections that exist between parent and child and between the originator of
a concept and its realisation. Just as well perhaps that the majority judges did
not pursue further the analogy with intellectual property. They might have
run into some of the current controversy (found in information technology
[IT] applications for instance) over idea and expression.23 If the parallel is
to patenting an ˜invention™, it cannot be the idea of a child to which claim is
made “ that is already in the public domain “ but to its embodiment in a new
outcome24 ; whereas if it is a particular expression of the idea, as in a song
subject to copyright, then claim can only be laid to the unique features of the
child itself, and one might have to argue about how much was intended by
the parents™ intention and what in any case was copiable about it. Intellectual
property rights would, in fact, bring us back from vague claims about creativity
57
EMERGENT PROPERTIES


to the particular child who had been born. Yet vague as the claims were, they
obviously made cultural sense.
First, in abstracting parents from the birth, the doctrine of intent allows
medical technology to appear as enabling of natural inclinations as it does of
biological functions. (The role of the surrogate is not under dispute; it is the
˜real™ parent about which there is categorical doubt [Strathern 1998].) Second
is the value given to abstraction as such, as though ideas hold the immaterial
essence of things. (This was contested vigorously by Justice Kennard, who
pointed out that but for the gestational surrogacy the child would not exist.)
Third and above all is the fact that the analogy between reproductive and
intellectual creativity is “ as we shall see “ not pulled out of thin air.
Of interest to the anthropologist is the possibility of the analogy being
articulated at all. That it was put down with serious argument was no slur
on the judges™ own creativity in implying such a parallel. It had potential,
was culturally plausible. People are culturally at home when they can jump
across different domains of experience without feeling they have left sense
behind. What links the two domains in this case “ reproductive and intellec-
tual creativity “ is an entirely commonsensical (although not uncontested)
view about the originators of things claiming bene¬t or having responsibility
attributed to them; the language of intellectual property rights emphasises the
˜naturalness™ of an identi¬cation between conceiver and conceived. Another
link is the warning against confusing identi¬cation with economic possession
when persons are at stake. The idea of owning children as property appears
to go against commonsense, but it does not, I think, go against cultural sense;
the warning goes on being given.
Not out of thin air: something is being sustained here that might hold our
attention. Old patterns emerge from new convergences, more, it seems, not
less, stimulated by the pace of change. Just such a pattern lies in the way, in the
same breath, English-speakers ¬nd it possible to talk about practices to do with
making kinship and practices to do with making knowledge.
As in the comparison of spouses and scienti¬c collaborators, one might have
supposed that kinship relations would invariably be the source of ¬gurative
language for the production of knowledge, not the other way around. Note,
for instance, how the term ˜paternity™ has slipped into regular usage to desig-
nate one of the new moral rights that English intellectual property law recog-
nises (protecting an identi¬cation between author and work). However, I gave
Justice Kennard™s opinions space precisely because of the direction of her anal-
ogy. She asserted that the arguments being putting forward about parental
claims were derived from arguments familiar from the law™s protection of
authorship. This too is not out of thin air; this direction, counterintuitive as it
58 KINSHIP, LAW AND THE UNEXPECTED


might be, has a history of its own. I shall take up some already much discussed
materials in order to thicken the air further. Another stage must be set, and
this will be the stage for my historical question.


II

Offspring into Property
If one were not alert to the way in which idioms appear and disappear, a
hasty glance backward might suggest that paternity was an old established
trope. The truth is that only recently has it been incorporated into English
copyright law. It is therefore fascinating to consider its fate at the very time
when authorial rights in literary works were becoming an arena for debate,
that is, in eighteenth century England (see Coombe 1998: 219“20).25
When Daniel Defoe protested in 1710, ˜[A] book is the Author™s Property,
™tis the Child of his Inventions, the Brat of his Brain™ (quoted in Rose 1993: 39),
Rose suggests that he was casting back to familiar sixteenth and seventeenth
century metaphors: ˜the most common ¬gure [of speech] in the early modern
period is paternity: the author as begetter and the book as child™.26 To ascribe
signi¬cance in the hindsight of modern property rights, however, would be
to pluck a metaphor out of context. Defoe is not talking about an enduring
proprietorship27 but complaining of piracy through unacknowledged print-
ing, which he likens to child-stealing. He is arguing for the protection of the
writer™s interest in selling his work (e.g., to a printer) for proper remuneration.
The author rewarded, property in it passes to the purchaser; the author re-
tains an expectation of acknowledgement. Of those sixteenth and seventeenth
century usages, Rose comments:

Inscribed with the notion of likeness more than of property, the paternity
metaphor is consonant with the emergence of the individual author in the patriar-
chal patronage society concerned with blood, lineage, and the dynastic principle
that like engenders like.
Rose 1993: 39

Notions of parenthood and parentage had far ¬‚ung referents, summoning
both economic values (the productivity of children) and political ones (the pa-
ternalism of the state). Indeed Rose (1993: 40) characterises Defoe™s paternity
trope as at once harking back to courtly Renaissance ideas of patronage and
evoking contemporary middle class domesticity. Authorial property rights, by
contrast, emerged in a liberal society and with other arguments. The eigh-
teenth century battle bears some re-telling. Pressed into the authors™ cause
59
EMERGENT PROPERTIES


was an old equation between literary property and landed estates from which
a living might be made28 ; a new notion was growing at the same time, that
such property could refer not only to the material (such as an estate) but also
to the immaterial, not only to the book as a physical body but also to a more
abstract entity, the composition as a text.29 Here, far from assisting the new
ideas that were developing about authorship, the idiom of paternity seems to
have got in the way. It was of course being propelled out of political discourse
in general “ for liberal theorists of the eighteenth century, to whom property
was the basis of political rights, ˜the claim that begetting conferred rights was
problematical™ (Jordanova 1995: 375)30 “ but perhaps there were some local
reasons as well.
At the very moment when a creational concept of author was taking shape,
that particular kinship idiom, with its emphasis on inheritance and descent,
seems to disappear from view. Works might continue to be referred to as
offspring, but the vivid vision of paternity fades. Was the image of the book
as a father™s child altogether too concrete? Children and money again! Rose
observes that the metaphor would quickly run into trouble if the idea of
begetter and offspring were extended to the marketplace. Who would sell their
children for pro¬t?31 He does not go so far as to claim this ostensible absurdity
was the reason for the ¬gure™s demise, he simply observes that it would present
rhetorical dif¬culties.32 But he gives a clue as to what else might have been
going on.
Creeping up on new ways of thinking about property were, we have seen,
new ways of linking writers to their writing: the emergent owner was not
the bookseller but the author, and the emergent book not the volume but
the text. As Rose (1993: 89) quotes Blackstone, here defending the argument
that duplicates of an author™s work make it no less the author™s original work
in conception: ˜Now the identity of a literary composition consists intirely
in the sentiment and the language: the same conceptions, cloathed in the
same words, must necessarily be the same composition™ (from Blackstone™s
Commentaries, 1765“69, emphasis removed). Then there was the claim that the
author™s right was based on the fact that he created rather than just discovered
or planted his land (Rose 1993: 56“7, 116). So could it also be that creeping
up on paternal begetting as a ¬gure of speech were fresh possibilities in ideas
of conception and creation? But other possibilities perhaps offered somewhat
different grounds for identifying the author with his work.
˜Conception™ (and ˜creation™ by that time) had long established double
connotations, at once procreative and intellectual, and they are still in place:
witness the dreadful pun brought into the surrogacy case. We know that by
the end of the eighteenth century the view had taken hold that it was the
60 KINSHIP, LAW AND THE UNEXPECTED


particular form in which (literary) authors gave expression to ideas that
belonged to them, and this form was the mark of their unique work.33
Woodmansee (1994: 36“7) describes how this eighteenth century notion of
the author being inspired from within took over from earlier sixteenth and
seventeenth century views of the writer as a vehicle inspired by external agen-
cies, human or divine. Recapitulating that earlier relationship in a father“
child idiom “ the writer fathering his book, just as God fathered the world
(Rose 1993: 38, quoting Gilbert and Gubar 1979) “ would reinforce the writer™s
perception of dependency. Did those too-vivid images of dependency need
to disappear? Was authorial creativity best separated from enmeshment in
relationships?
I can only extrapolate.34 Perhaps the concreteness of the father“child image
had lain partly in the kind or quality of relation it presupposed. Those who
used the imagery apparently wanted to claim the kind of possessiveness that
parents felt toward their children35 ; did a new rhetoric of conception and
creation instead allow one to take the child™s view? The author™s text was
now to embody the author™s genius and it was this, as Woodmansee (1994)
describes, which made a work unique. Genius lay in style and expression. It
was the child™s view, we could say, insofar as the father becomes super¬‚uous:
the omnipotent heir can create his own world.36 If there is pride in saying
that one will create works that never existed before, then the author does
not want the pre-existence of fathers either, for he must be as original as his
work.37 The relationship between author and text could instead be imagined
as one of correspondence, a kind of non-generational generation or, as the
North London mothers (see Introduction: Part I) might prompt us to re¬‚ect,
as extensions not only of himself but also of the conceptual world in which
his works lodge. Either way, evidence of authorial identity would lie not in
lineage or genealogy but in an informational matrix (as might be said these
days) where a work encodes information about the producer of it.
If anthropological interest in cultural resources is indeed an interest in the
possibilities that people™s saying or doing hold for what others say or do,
then there is only a certain universe of things anyone can and cannot do. In
such a universe, not making connections may be as enabling as making them.
Relocation, displacement, making the once present absent, withholding what
others are expecting “ these can all capacitate the contexts in which people
act (Battaglia 1995; 1999). We might see dropping an inappropriate kinship
metaphor as part of a nexus of ideas and concepts that link kinship and
knowledge, not apart from it. Can one suggest that the metaphor of paternity
was actually edged out by new notions of creativity that were powerful precisely
61
EMERGENT PROPERTIES


to the extent that the resonances with kinship could be held at a remove? For if
˜conception™ and ˜creation™ retain kinship echoes, they seemingly displace the
idea of an interpersonal relationship with more immediate but at the same
time more abstract evidence of connection: the work itself informs one about
the author. Does creation become a kind of procreation without parenthood?
If so, this would be consonant not only with the emerging originality of the
author but also with the emerging uniqueness of the literary text.


Information into Knowledge
As we already know, what was happening with the text did not take quite the
same route in science. Sixteenth and seventeenth century booksellers originally
had authors™ names printed in order to point to the person responsible for the
contents should they prove seditious or libelous (cf. Biagioli 1998: 3). Indeed
Defoe had appealed to the complementarity of punishment and reward (Rose
1993: 38); if he were liable to attack for what was ill judged he should also reap
the bene¬ts for what was well performed.
Accountability was then and continues to be important in scienti¬c writing.
It is not the form of the presentation over which claims are made but the quality
of information about the world that is being communicated, and this has to
be veri¬ed. Scienti¬c authorship is implicated in a type of text production
de¬ned by the responsibility being claimed for its content. Here its value lay “
and lies “ in how it can stand up to other kinds of information about the
world; the author is actually abstracted from it in that sense.38
However, the author abstracted from the text is made concretely present
elsewhere; he or she has become one of an assembly of authors. For scienti¬c
authorship has long been a plural entity, a situation that Foucault originally
attributed to the development of the scienti¬c method. If today there are many
kinds of names associated with a scienti¬c paper, alongside the citations of
other authors of other papers, this is all part of an informational process; the
presence of several names does not dilute authorship but strengthens it, as

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