Research Leader: Frederik Swennen
The broader framework for this line is the FWO Scientific Research Network (WOG 2015-2020) RETHINKIN – Rethinking Legal Kinship & Family Studies in the Low Countries, of which we are the core group.
The recognition and regulation of new kinship structures is at the centre stage of recent developments in family law all over Europe. The label “kinship” in this context encompasses a variety of phenomena related to basic forms of mutual dependency, which include birth, child-rearing, reciprocal care, relations of emotional support, illness, and death (cf. J. BUTLER). Against the background of this broad conception, attention will be devoted to how demographic, economic, and cultural changes have impacted kin relationships and family ties. Increasing rates of divorce, the recognition of non-heterosexual partnerships/marriage, the spread of assisted reproductive technologies, and massive migratory phenomena have favoured the emergence of alternative configurations of kinship that pose a challenge to conventional family models and call for far-reaching revisions of conventional legal definitions/formulations.
Our research will also revolve around the conceptualization of the normativity of social practices with a view to tackling the key issue of how the state could/should deal with emerging kinship practices. The interplay among fundamental theory, doctrinal analysis and empirical studies will be a strategic asset when it comes to interpreting how the law operates its selective choices whereby the state devises a specific set of policy measures to support some kinship practices to the (potential) detriment of other, minority practices. Such a theoretically-grounded analysis will aim to interrogate both the grounds on which the state operates its choices and the condition of practices that are confined to a state of juridico-political invisibility. In this respect, the underlying theme will be the interaction between multiple sources of social normativity and the regulatory activity of legal normativity.
The first objective of this line of research is to map the various strategies for legal recognition of non-conventional kinship formations, from a unifying perspective. It will be important to account for changes in state policies and family law that are meant to accommodate new family formations vis-à-vis three core elements of legal recognition: (1) formation of the relationship which result in legal recognition; (2) legal consequences and benefits of the recognised family formation; (3) the breakdown of the relationship.
The second objective relates to the impact and effects of the use of assisted reproductive technologies on the family at both a social and a legal level. Whereas the multiplication of non-reproductive family formations are dislodging the assumption that kinship has a biological basis, developments in reproductive technologies and genetics research are trapped in an ambiguous relationship to biological or ‘natural’ understandings of kinship. It is important to pin down this relationship to understand: first, what the consequences are of technologies on legal definitions of key parental roles (and therefore rights/responsibilities/liabilities attached to them); second, the way kinship practices react to the ambivalent interplay between law and technologies. Our perspective here is that of “elective kinship”, that is: private ordering.
The third objective lies at the intersection of the different research lines of this Group. The developments of kinship practices raise questions as to the nature of kinship relations (contract vs. status), the private vs. public character of kinship formations, the relative autonomy of kinship units. It will be important, also (but not only) in view of immigration flows, to understand how the regulation and accommodation of new kinship phenomena are changing the nature of kinship in general and its role with regard to fundamental questions of state policies. A central point of interest here will be legal pluralism.
A last ambition is to focus on future (private) housing challenges, jointly with the research lines Personality Rights and Contractualisation. Individual life transitions (e.g. divorce, recomposed families) and the ageing of the population require new forms of housing (flexibility, interactions elder and young people, aspects of care…).
Specific Research Topics
1. Drawing a reliable picture of the dynamic interrelation between the evolution in social practices and the transformations in legal provisions and state policies.
2. How to deal with the creation and legal recognition of homo- or poly-parental ties through reproductive technologies that exceed the binaries wife/husband, mother/father?
3. How can we accommodate the diffusion of non-conventional kinship practices that are related to migratory phenomena and pose a challenge to legal regulation in Western states.
4. How should we understand the shortcomings and deficiencies of the legal and policy frameworks that govern kinship structures and family life and their consequences, whether direct or not, on the psycho-physical and social conditions of individuals involved?
5. How do we deal with the differences in national laws on the level of acceptance of new forms of families/kinship?
6. With regard to new housing forms, the needs will be detected and mapped on an empirical and socio-legal basis, whereupon appropriate legal techniques (real rights and property rights/real estate) will be defined and advised, both in public law and in private law (and PPP initiatives).