This book is a decade-later follow-up to a 2013 monograph that argued tentatively for a human right to access genetic identity and ancestries, arising out of – perhaps existing quietly within – the connections of biological relatedness (‘A Law of Blood-ties: The ‘right’ to access genetic ancestry’). Genetic Stigma in Law & Literature(2024) looks less to law and more to the unvoiced policies, customs, prejudices, and norms that are so often found within the various types of literature on stranger-kin rejections and reunions. It argues that, viewed or taken together, such things form a sort of template for lawyers and decision-makers, steeped in lingering myths, folklore, and inchoate terrors of the unknown Other. Overlapping tropes across otherwise disparate genres and eras include those of crafted, permanent exile, the significance of the deemed-surplus human, the ‘fallen’ or flawed mother figure, and the disconcerting presence of ancestral ghosts.
A key theme connecting its chapters is that of illegitimacy and the many injustices that can flow from being so labelled. Law’s inability to prevent or counter the very human tendency to mistrust -and de-humanise – certain Others is explored, alongside our innate predisposition to exclude from sociocultural and legal protections those who might somehow threaten our sometimes-fragile sense of familial security, inherited identity, or long-held belief systems (in, for example, marriage and property succession rules). The text looks firstly at the historic concepts of illegitimacy and Orphanisation – across law, policy, and faery tale – arguing that the deep-seated lore of many folkloric beliefs (folklore is framed here as ‘folk’s law’) often also finds expression in many of the most archaic tales involving foundlings, fosterage, and step-parenting. Certain systemically ‘wicked’ issues have deep roots, grounded in psychological fear of the stranger, changeling, and exiled vulnerable Other, whose presence might easily over-burden societies (in terms of taking up scarce resources, finite house room, or our capacity for compassion and justice). Law’s role, as ever it seems, is to criminalize, ignore, or sanction those that we cannot afford to welcome or fully protect.
That the sanctity of the family hearth merits protecting at all costs, is further emphasised in the second chapter, which examines the monsters, witches, waifs, and heroes of certain Romantic and Victorian-era novels. The works of the Brontes and Dickens feature prominently, particularly in relation to their ability to highlight and censure many forms of societal injustice. And yet, warnings persist in respect of reunions: these are generally framed as something to be feared or avoided (or at least approached with extreme caution). Child law is notable here – in life as in the literary works of the time – for its relative absence, with even basic protections for foundlings or orphans yet to be formalised in law or policy. Reliance upon the ‘kindness of strangers’ (Boswell, 1989) – discussed in the preceding chapter – was still a mainstay of practice and policy. The myths surrounding orphan rescue are explored next, alongside the earliest laws on substitutive parenting (late 19thcentury). Transplantation across borders – familial, geographical, sociocultural – was often key, echoing how orphanages and workhouses began to be less concerned with hiding the stigmatised child than with the industrialization of their ‘export.’ Put bluntly, costly exiles were replaced by a quietly lucrative system of supply, grounded in the lingering norms of secrecy and shame that were long associated with illegitimate birth and unknown ancestry. Reunions – and a right to knowable ancestry – remained just as elusive and worrying as they are within the tales of the earlier chapters (if not more so). This was despite the rising prevalence of human rights discourse and child protection law. Recent case law involving adoption (challenging orders, seeking contact) is analysed here, to argue that the need for permanence can even yet spark ‘peculiar finalities.’
The final chapter offers a full circle look at certain dystopian works which contain echoes of all the foregoing eras’ fears: folkloric demons, Victorian monsters, Dickensian injustices, and 20th century abandonments. Orphans and foundlings abound – they may be laudably heroic or in abject need of rescue – with similar prejudices still rampant (political, religious). Draconian laws and worrying beliefs and norms of behaviour remain firmly entrenched. The futuristic rules are often highly gendered, as ever, and generally aimed at ensuring the exile and/or subjugation of deemed-surplus – or oppositional – humans. Human rights are largely fictive: they may be absent or redundant in the face of sharp laws or unwritten policies which enable and perpetuate many atrocities. Recent Inquiries on forced adoptions (Ireland, the UK) are discussed here, together with the concept of redress and how it might be achieved. Reunions do occur within some of the selected works, but these tend to be disappointingly glib and fleeting, appearing as simple end point attempts to signify that some form of justice has been easily achieved. This is perhaps the most worrying aspect of adoption-themed art imitating life, and of law echoing literature: the wrongs and harms of the past can persist within the injustices of the present and future. They can likewise be justified along similar lines of belief in a harshly greater good.
As an adoptee in partial reunion (with the maternal side, since 2017), the writing of this book arguably represented an attempt on my part to make sense of why rejections happen and how various ‘brick walls’ – on information, truths, or kin contact – might arise. Law’s role can be ambiguous, still largely protective of ‘legitimate[d]’ family sanctity, and keen to exclude all who might threaten it through unwanted contact or queries over uncomfortable, Othering truths. Its key message is arguably that adoption – in all its guises, whether formal, de facto, or allegorical – can be found almost everywhere, evidencing our primal need for tales of (and rules on) kinship connections, legal, genetic, and psychological.
Dr Alice Diver is a Senior Lecturer at Queen’s University Belfast. Her research falls mainly within the field of Critical Adoption Studies, in particular those aspects of law, policy, and literary fiction which highlight the systemic and widespread unconscious biases – and intergenerational harms – that tend to surround and shape adoptees’ human rights within issues of familial and identity losses.
Discover more from Doing Feminist Legal Work
Subscribe to get the latest posts sent to your email.