Abstract
This article explores how ‘life’ – the fetus, the person and our relations to one another – is ‘conceived’ in reproductive law and politics through the use of socio-legal fictions. Rather than operating as neutral, technical devices, I argue that legal fictions are socio-legal instruments invoked in moments of reproductive moral controversy and uncertainty that actively produce legal persons and serve to contain and domesticate law’s excesses. Drawing on Fitzpatrick and Esposito, I argue that where socio-legal fictions are used to resolve uncertainty and contradiction in the law, they can only do so by taming relational and excessive forms of life into governable legal categories, leaving rights-based claims precarious and vulnerable to persistent challenge and undermining. I conclude by arguing for a more relational, affirmative approach to reproductive law.
I. Introduction
In 2018, doctors in the State of Mississippi were informed that they would have their medical license suspended or revoked if they were to perform abortions on women after fifteen weeks of pregnancy. 1 Jackson Women’s Health Organization and a physician challenged the law on constitutional grounds. Four years later, the United States Supreme Court used Dobbs v. Jackson Women’s Health Organization (2022) 2 to overturn Roe v. Wade (1973), 3 ending nearly fifty years of federally protected abortion rights. Herein, the Court held that abortion was not constitutionally protected, emphasizing that such a right was neither grounded in constitutional text nor ‘deeply rooted in this Nation’s history and tradition’. 4 In a concurring opinion, Justice Thomas reiterated his broader critique of substantive due process, describing it as a ‘legal fiction’ and not in keeping with the ‘origins of this jurisprudence’, 5 thereby framing rights such as privacy, and by extension abortion, as lacking constitutional foundation. This article argues that Dobbs does not merely mark a legal reversal, but, more than this, serves as a stark reminder of the biopolitical fragility of feminist reliance on state-granted reproductive rights. Examining Dobbs alongside other legal cases, statutes and policies that ‘conceive life’ (i.e. that define what life ‘counts’ and thus what life receives legal protection), I contend that legal fictions, far from being mundane or benign tools, instead actively shape personhood and reproductive governance in ways that expose rights to political volatility and undermine political progress. In this respect, they are better understood as socio-legal fictions.
This article treats law not simply as a system of rules but instead as a meaning-making, discursive practice embedded in social imaginaries. Drawing on various cases, statutes and policies from across the United States and the United Kingdom, I argue that socio-legal fictions construct personhood as a tool of biopolitical governance that upholds the mythic foundation of law and contains and domesticates its excesses – its boundless reach, its aporias and its indeterminacy. Following scholars like Fitzpatrick 6 and Birrell, 7 my starting point is that law’s authority is sustained through mythopoesis – myth-making discourses – that attempt to reconcile contradictions and indeterminacy and to fabricate universals and foundational narratives such that modern law can appear to be universal and self-grounding, despite its authority being socially contextual and historically contingent. 8 Where Fitzpatrick’s account of law’s mythic foundations anchors the article, Birrell’s work expands this, revealing how mythopoetic processes operate through legal narrative and meaning-making. I extend these insights further through a biopolitical framework, drawing on Foucault 9 to explore how legal, medical and policy discourses operate together, alongside Esposito’s notion of immunization, 10 which provides the primary analytic work in explaining how legal fictions operate socio-legally to organize protection, exclusion and legal subjectivity. Within this framework, socio-legal fictions are understood as mechanisms through which law fabricates its origins, boundaries and persons in such a way that it can govern a seemingly stable ‘order of things’, to borrow Foucault’s phraseology. 11 This apparent stability is sustained through what Esposito describes as an immunizing logic of biopolitical governance that structures law’s subjects as bounded and protected, yet simultaneously isolated from one another. 12 This framework has implications for feminist legal strategies that endeavour to secure reproductive rights: when grounded in fictions that typically invoke boundary metaphors of privacy, property, personhood and legitimacy, they risk not only reinforcing masculinist legal frameworks rather than transforming them, but, more significantly, are always vulnerable to reversal.
The article takes the following format. First, it reframes legal fictions not as neutral or technical devices but instead as socio-legal, biopolitical techniques that actively ‘make up’ legal persons, stabilizing law’s authority in moments of moral and political uncertainty, clarifying the mythopoeic function of socio-legal fictions. Second, it adopts a socio-legal methodology that combines conceptual analysis with doctrinal and policy case studies, to examine cases including Dobbs, RE A Conjoined Twins, Warnock/HFEA and LePage from across the United States and United Kingdom. In doing so, it shows how socio-legal fictions operate through immunizing logics that secure protection by enclosing life within bordering logics – categories of personhood, privacy and legitimacy – that render rights politically fragile and relationally destructive. Third, the article contributes to critical legal theory and feminist analysis by outlining an alternative orientation to law-making that is grounded in relational judgement and what Esposito terms an ‘affirmative biopolitics’ that reimagines reproductive governance beyond immunizing logics.
II. Dobbs and legal fictions
As set out in the introduction, Dobbs represents not only a legal reversal of Roe but arguably represents a deeper undermining of the jurisprudential architecture that had supported reproductive rights for nearly half a century. Central to this architecture was the legal fiction of a constitutional right to privacy derived from the Fourteenth Amendment’s Due Process Clause. Articulated in Griswold v. Connecticut (1965), 13 this right was extended in Roe to encompass a woman’s right to terminate a pregnancy. In Dobbs, however, the Court explicitly rejected this interpretative tradition, arguing that the Constitution ‘makes no reference to abortion’, 14 casting the right to privacy as a construct much in line with earlier criticisms of it as ‘amorphous’ and ‘unwritten’, 15 and, as Justice Thomas suggests, grounded in the ‘legal fiction’ of substantive due process. 16 This section reads Dobbs primarily through Fitzpatrick’s account of myth and law, showing how legal fictions function to stabilize and reassert law’s origin narratives in moments of perceived excess.
Whilst often dismissed as mere technicalities, 17 legal fictions are more than this: they enable the law to fill normative gaps and to reconcile competing interests. 18 In this respect, drawing on Birrell, fictions can be understood as part of law’s narrative practice, whereby meaning is constructed to stabilize contradiction. 19 This contradiction is itself, as Fitzpatrick 20 has argued, a central feature of modern law: law’s claims to coherence and universality are dependent upon the continuous containment of that which exceeds it – its indeterminacy, relationality and its aporias. Fictions can therefore be understood as myth-making devices that render excess governable, producing and sustaining the appearance of legal coherence and stability. This reliance on myth is not only foundational but ongoing – according to Birrell, 21 the law is a poietic practice that continuously produces and re-narrates its own authority, subjects and coherence.
In the United States, the fiction of privacy in Roe enabled the courts to recognize rights that were not explicitly given in the Constitution, thereby permitting the law to respond to evolving understandings of autonomy, family and bodily integrity. Yet, as Dobbs illustrates, fictions are precarious and their opposition to ‘truth’ renders them vulnerable to ideological shifts. Their fictional status enables the law to refute them as outside law’s normative order and thus as excessive, and to tame them by reasserting and appealing to law’s modern mythic authority. Read through the lens of Fitzpatrick, one can argue that Dobbs acts as a purification myth, whereby the law disavows its own contingency by dismissing prior jurisprudence that sustained abortion rights as fictional and excessive, instead restoring the origin narrative at the heart of the US Constitution.
It should be clear from the decision in Dobbs that legal fictions are dangerous devices if one wants to feel secure in one’s legal rights. Indeed, Thomas’s critique of legal fictions is akin to some classical critiques, such as that of Jeremy Bentham, who famously condemned legal fictions as ‘fraudulent’ instruments of judicial overreach, undermining the transparency and democratic legitimacy of the law. 22 Similarly, Henry Maine had warned that fictions obscure the reality that legal rules have changed. 23 Although fictions enable the law to evolve while maintaining its mythic origins and its illusion of universalism and continuity, they are also presented as untruths, thus exposing the law’s gaps and its indeterminacy.
Despite these critiques, defences of legal fictions are also long-standing. From the Roman ‘fictiones’ 24 to Blackstone’s claim that fictions serve to uphold equity within the law, ‘in fictione juris semper susistit aequitas’ – in legal fiction, equity always resides, 25 fictions have frequently been defended as false statements with utility. 26 The ‘corporate person’, the ‘fertile octogenarian’ and the ‘unborn widow’ are overtly implausible, yet they function effectively within legal reasoning precisely because their falsity is transparent and their utility is intelligible. Fictions enable the law to operate flexibly, in a way that rigid textualism does not.
Indeed, legal fictions have played a particularly salient role in reproductive law. The fiction of ‘crystallised personhood’, for instance, has appeared in various cases such as Montreal Tramways v. Leveillé (1933) 27 and Watt v. Rama (1972), 28 temporarily treating the fetus as a full legal subject in order to award damages for prenatal injuries. This fiction has thus enabled the courts to circumvent the question of fetal personhood, allowing the judiciary to resolve uncertainty, contradiction and excess, and to harmonize competing societal interests, permitting the protection of the fetus without extending personhood to the unborn, which would undermine a woman’s right to abortion. 29 If fictions are pragmatic ways to fill legal gaps and avoid or tame challenging moral debates, Dobbs arguably signalled a judicial turn away from such pragmatism. Justice Thomas’s characterization of substantive due process as ‘particularly dangerous’ because it invites courts to engage in policymaking rather than legal adjudication 30 was a clear turn away from legal fictions, seen not as equitable tools but instead as threats to legal coherence and democratic legitimacy – exposing the indeterminacy and thus the vulnerability of the law and its mythic claims to formalism and originalism.
The wider literature appears to be at a crossroads concerning fictions. While some thinkers, as noted, have identified the complexities of their use but also their pragmatic function, others, such as Hart, have urged that while the law should ‘demystify’ fictions, it should not worry about concepts like personhood seeming fictional in some instances. 31 In some cases, fictions are obviously benign linguistic or intellectual constructs, 32 and, as such, legal language is distinctive, as is the case with the ‘corporate person’ or the ‘crystallised person’. 33 If we accept that the law uses language that does not necessarily correspond to reality, should we really care that fetuses are treated fictionally in some cases to grant them access to rights?
Although Hart may be correct that fictions are not necessarily seeking to conceal falsities, this is not always the case. Moreover, fictions are deployed to secure rights, and therefore their precarity must be addressed. Thomas’s rejection of legal fictions had significant implications for the governance of reproductive life. Furthermore, as Lord Mustill has noted, legal reasoning in the governance of reproductive life is riddled with ‘anomalies, fictions, misnomers and obsolete reasoning’ that obscure rather than clarify the law’s operation. 34 Although fictions can facilitate legal adaptation and might appear to be benign in some instances, they also reveal the law’s inherent contradictions and thus leave it precariously on the balance of reversal. The Dobbs decision illustrates how quickly rights grounded in legal fictions can be dismantled when the judiciary adopts a more rigid textual stance.
III. The Socio-Legal Fiction as a Biopolitical Dispositif
Where classical accounts treated fictions as overt, technical legal devices, contemporary scholarship complicates this. Smith’s account of ‘new legal fictions’ arguably responds to Hart’s criticism in suggesting that fictions are no longer simply untruths that are so obviously false one wouldn’t question their candour, but instead are better viewed as increasingly obscuring judicial reasoning rather than illuminating it. 35 Pound’s early critique of legal fictions likewise warned that they operate as mechanisms for ‘spurious interpretation’ 36 enabling judges to make, unmake or remake law under the guise of interpretation, thereby concealing the social and political dimensions of legal decision-making. In practical terms, we see these very points identified by Pound and Smith borne out in Dobbs.
Importantly, this article does not seek to offer a taxonomy of legal fictions. Although jurisprudential scholarship has often distinguished between overt doctrinal fictions, pragmatic devices and linguistic or metaphorical constructions, this classification risks reproducing the very logic that this article seeks to challenge. Treating legal fictions as technical devices obscures their political function, which is to stabilize law’s authority by containing law’s relational and moral excess. Legal fictions are thus best understood as mythopoetic: they operate as tools to contain and domesticate law’s contradictions and render indeterminacy governable, sustaining what Fitzpatrick describes as the mythology of modern law. For this reason, I refer to them as ‘socio-legal fictions’ to capture how they operate as diffuse and often unarticulated mechanisms embedded within legal, medical and policy practices that shape the conditions under which legal subjects are recognized and governed. In this respect, instead of asking what type of fiction is at work in different legal contexts, I ask how they operate socio-legally – that is, how they authorize governance, immunize subjects from one another, and displace responsibility within reproductive governance. In this section, I draw on the work of Foucault and Esposito to develop this socio-legal account of fictions and to explain how they do the work of maintaining modern law’s mythological foundations.
In Foucauldian terms, fictions can be conceived as operating within a dispositif – a complex and heterogeneous ensemble of discourses, institutions, laws, administrative measures and scientific statements that together structure the conditions of possibility. 37 Socio-legal fictions maintain the appearance of legal continuity and stability – law’s mythopoesis – and thus bridge gaps between legal discourse and shifting relations of power. Crucially, socio-legal fictions also produce legal subjects; they are mechanisms through which the law produces persons or, as I have noted in this article, ‘conceives life’. 38
Esposito 39 has also noted how the law has historically created categories such as persons, semi-persons, non-persons and potential persons, each representing a different mode of inclusion or exclusion within the legal order. These categories are not fixed but are unstable and contingent, constantly reconfigured through legal and social change. Socio-legal fictions, then, as I would put it, are myth-sustaining devices. Yet, as Dobbs illustrates, the maintenance of law’s mythic origin is always provisional because law – and life – are inherently excessive and relational, filled with aporias and moral tensions that cannot easily be resolved. When fictions are exposed to be just that – fictional – the legal structures they support can collapse at startling speed. Esposito departs from Foucault in his framing of the dispositif by introducing his concept of immunitas, which I turn to next. Here, Esposito’s concept of immunitas does the primary analytic work, enabling us to see how legal fictions operate socio-legally, not simply as regulatory tools but as mechanisms that actively structure inclusion, exclusion and protection. Set within Esposito’s theoretical framework, the socio-legal fiction is not only a normalizing mechanism within a dispositif but is, moreover, an ontological tool that governs the boundaries of inclusion and exclusion in the law and of legal protection through immunizing logics. This is particularly important when looking at how fictions operate in reproductive contexts that, as I argue, rely on immunizing mechanisms to contain life’s excesses to make legal decisions appear neutral and rational. 40
Relational feminist jurisprudence has long acknowledged that rights-based discourses construct individuals as social and moral atoms, framed as having rights, and in adversarial relations with one another. 41 Nedelsky, 42 for example, has noted that boundary metaphors may promise short-term protection, but also stabilize and isolate legal subjects from one another in ways that are not only restrictive but also relationally destructive. Yet, this construction of the subject as bordered and boundaried is not simply doctrinal but instead is biopolitical. Socio-legal fictions do not simply fill gaps in legal reasoning; they actively participate in the construction of legal subjectivity, determining who is recognized as a person under the law and who remains outside its protective reach. The socio-legal context and thus wider dispositif shapes legal recognition and, thus, Foucault’s account of biopolitics provides a critical framework for understanding the operation of socio-legal fictions.
Foucault identifies a historical shift in the logic of governance from sovereign power, characterized by the right to ‘make die and let live’, to biopower, which operates through the imperative to ‘make live and let die’, 43 with liberalism as ‘the general framework of biopolitics’. 44 As he posits, governance increasingly operates through indirect and calculative techniques rather than through command, whereby the law acts as a discourse that regulates life itself. Socio-legal fictions in this contextual framework are central to the biopolitical management of populations; they are mechanisms through which life is regulated, categorized and given value. Esposito extends Foucault’s analysis by arguing that biopolitics does not represent a break from sovereignty, but rather it is its internal transformation. 45 At the heart of this transformation is sovereignty’s exclusionary logic that manifests in modernity, which occurs the moment one articulates the notion of the individual political subject who is protected through the law – that is, the moment one introduces a logic of what he calls ‘immunitas’. 46 Immunitas is connected to communitas, whereby both share the same root word munus, meaning ‘gift giving’. Where communitas refers to the shared obligation that binds individuals together in mutual responsibility, immunitas denotes exemption from this obligation. 47 The immune subject is protected from the demands of the community, exonerated from the reciprocal duties that define communal life. As Campbell notes, ‘immune is he – and immunity is clearly gendered as masculine – who is exonerated or has received a dispensation from reciprocal gift giving’. 48 Although immunization promises protection, it does so by isolating subjects, enclosing them within liberal categories of personhood, privacy and property, and thus while it stabilizes the law’s universality and thus its mythic status, it simultaneously closes off excess, relationality and indeterminacy. The logic of liberal governance with its emphasis on the unit of the individual and its security, privacy, property and personhood, Esposito argues, ‘destroys what it says it wants to create’, 49 sheltering life in the ‘same powers that interdict its development’. 50 By attempting to protect life and safeguard the subject, biopolitical immunization instead isolates the subject, severing the relational bonds that not only constitute, but are essential to, a thriving and relational political life.
In my account, socio-legal fictions operationalize this immunizing biopolitics by ‘making up’ persons, providing some subjects with legal protection while rendering others vulnerable, outside the law’s protection. Yet those lives that are so-called ‘protected’ by legal rights are also vulnerable in other ways. Not only are they always subject to legal reversal because of the ‘fictional’ nature of the jurisprudence that sustains them, but they are also vulnerable because, through law’s protection, they are closed off to relational interdependence that characterizes human life. This account does not suggest that immunization offers a total or exhaustive explanation of legal reasoning; rather, I argue that it provides an illuminating lens through which to explore how law manages relational complexity and how it authorizes forms of life. By grounding Roe in privacy, a bordering and immunizing value, Dobbs revealed its vulnerability to reversal, a problem noted by Justice Ruth Bader Ginsburg, who instead argued that a more robust foundation might have been found in gender equity. 51 Yet, even equality-based arguments often rely on fixed legal subjects and categories of personhood, which themselves are products of immunizing socio-legal fictions. Relational feminists have long argued that relationality and contingency should be foregrounded over rights-based approaches to legal change, centralizing the key point that legal personhood is contested and shifting, a product of society rather than a detached law, and certainly not fixed. Next, the article turns to explore how socio-legal fictions are utilized within this biopolitical dispositif in cases of reproductive justice to reveal how immunizing logics are used to regulate reproductive life and to reify law’s mythic foundations.
IV. Reproductive Justice, Socio-Legal Fictions and Border Values
As outlined earlier in this article, Roe grounded abortion rights in the constitutional fiction of the right to privacy, derived from the Fourteenth Amendment’s Due Process Clause. Justice Blackmun acknowledged that there was no explicit constitutional reference to privacy but that it existed through precedent: ‘The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the court has recognized that a right of privacy . . . does exist under the Constitution’. 52 Furthermore, he clarified that ‘The right of personal privacy includes the abortion decision, but . . . this right is not unqualified and must be considered against important state interests in regulation’. 53 This formulation illustrates how the socio-legal fiction of privacy was constructed and legitimized through judicial interpretation, embedding abortion rights within a liberal framework of individual autonomy and state interest that operates within an exclusionary liberal framework.
Following on from Roe, this section focuses on various cases that demonstrate how socio-legal fictions operate across constitutional, clinical and policy contexts, revealing how they function as a generalized technique of reproductive governance. Although many see Dobbs as a significant turning point in reproductive justice, it departs from Roe in outcome but not in structure. 54 It remains embedded within the same immunizing logic that underpinned Roe, albeit reoriented towards the fetus. The Dobbs opinion refers to the fetus as an ‘unborn human being’, 55 drawing on discursive strategies that repersonalize the fetus and rationalize its legal protection. In doing so, Dobbs reconfigures the legal subjectivity of fetus and woman, simultaneously personalizing and depersonalizing each in ways that reinforce hierarchical legal subjecthood. Citing Planned Parenthood v. Casey, 56 the Dobbs majority further entrenches women’s isolation by framing her participation in the social and economic life of the nation as something of an extraneous concern. 57 Rather than recognizing the woman as an interdependent subject whose reproductive decisions are embedded within a web of social relations, Dobbs frames her as an atomized, sovereign individual whose bodily autonomy is subordinated to the state’s interest in protecting fetal life. Dobbs effectively re-contains life’s excesses – its relations and interdependence – through yet another fiction, this time of the fetus as a person.
Not only were the fictional underpinnings of Roe problematic because it reified atomistic bordering logics between the woman and fetus, framing them as separate, inimical relations vulnerable to reversal, 58 but Roe was also problematic because it relied upon medical authority to stabilize and legitimize its fictions. Medical expertise was called upon to define the key stages of pregnancy and determine when state intervention into pregnancy was permissible. Such medicalization reflects the broader biopolitical dispositif whereby medicine functions as a mechanism of governing reproductive life. 59 The medical profession, in this context, becomes a conduit for the law’s immunizing logic, reinforcing the fiction of privacy as a protective mechanism.
This immunizing logic in reproductive politics is not unique to the US legal context. It also operates through medico-legal narratives that stabilize reproductive governance by reconstituting subjects through clinical authority rather than through legal rights. In the English case of R v .Bourne (1938), 60 socio-legal fictions of personhood were also used to regulate reproductive life. In this case, Dr Aleck Bourne performed an abortion on a fourteen-year-old girl who had been raped. Although abortion was criminalized under Section 58 of the Offences Against the Person Act 1861, Bourne argued that the girl was a ‘physical or mental wreck’ 61 and that he performed the abortion in good faith to preserve what he described as ‘the yet more precious life of the mother’. 62 Although Bourne’s argument was accepted, effectively expanding the legal grounds for abortion to include mental health considerations, it arguably remained firmly rooted in a fiction of personhood that was mediated by medical authority. 63 The decision over whether an abortion was permissible not only depended on the context but also on the doctor’s interpretation of the event, and thus legal personhood became conditional and contingent on medical expertise and validation within the confines of narrow legal parameters. In short, the woman became a clinical object whose protection depended on a diagnostic narrative rather than on considering her relational context or legal status. Bourne therefore illustrates how legal fictions immunize reproductive law from moral controversy and from responsibility: fictions turn relational complexity into clinical necessity, which enables the law to govern reproductive life by deferring to professional expertise, avoiding confrontation with personhood or rights. 64 Authority thus functions as a form of expertise that stabilizes the mythic thresholds of health, life and death, making indeterminacy administrable. It also reinforces the same bordering and personalizing logics that appear in rights-based reproductive governance. As Sherwin has further argued, in obscuring the relational dimensions of pregnancy, such frameworks also replicate an adversarial model of law, treating the fetus as a discrete (and threatening) entity that must be destroyed, rather than as part of the woman’s embodied experience. 65
Relying on medical authority to define legal subjectivity continued in the Abortion Act 1967. Herein, medical necessity was institutionalized as the central criterion for lawful abortion. The Act firmly embedded abortion within a medico-legal dispositif which rendered women’s rights contingent on the judgement of doctors. 66 The allocation of authority to doctors did more than simply regulate access to abortion – it structured how legal personhood was made and unmade in pregnancy. As noted earlier, the law made and unmade personhood by dividing pregnancy into key clinical (and legally salient) stages, each conferring a different degree of protection to the fetus and demarcating lawful intervention. These legal stages operated as socio-legal fictions that enabled biological continuity to be rendered legally intelligible, allowing the law to manage the indeterminacy of prenatal life without having to resolve the ontological question of fetal personhood itself. These legal distinctions were made possible through medical technology, most notably imaging techniques. Ultrasound and visual representations have made the stages of pregnancy appear natural and self-evident, despite their socio-legal construction. At the same time, these same technologies have, incidentally, become central to anti-abortion advocacy, with visual representations of the fetus used to assert its personhood and challenge the socio-legal fiction of fetal non-personhood. 67 Revealing here is the immunizing logic that characterizes reproductive governance: socio-legal fictions, medical judgement and technological mediation operate together to manage and contain the ontological uncertainty of prenatal life whilst preserving the coherence of the legal order.
V. Vampiric Twins
The operation of socio-legal fictions through immunizing boundary metaphors is also evident in Re A (Conjoined Twins), 68 a case involving the surgical separation of conjoined twins, which would inevitably result in one twin’s death if they were separated. While the court formally grounded its decision in the doctrine of necessity, this necessity was rendered intelligible through the creation of a particular socio-legal fiction; namely, the construction of one twin, Mary, as a source of lethal threat to the other twin, Jodie’s survival, rather than as an equal subject of care. 69 The judgement described the doctors as ‘. . . coming to Jodie’s defence and removing her from the threat of fatal harm to her presented by Mary’s draining her life blood’. 70 This vampiric portrayal of the innocent infant Mary reveals how socio-legal fictions rely on constructing boundary metaphors, in this instance, through the articulation of an adversarial relationship, even within the most intimate and innocent human relationships, in this case, a twin baby sister. 71 Thus, the law, as both a product and producer of its biopolitical social context, constructs ‘proper’ legal subjects by assigning fixed ontological statuses to individuals. These constructions are not neutral, but rather they are socio-legal fictions that present certain types of personhood as natural, stable and self-contained. Subjects are imagined as atomized, autonomous and dissociated from one another – an image that relational feminist scholars have long critiqued as mythical. This myth of the inviolable, independent self, underpinned by Hobbesian 72 and Schmittian 73 political imaginaries of individuals as inherently in conflict with one another – as ‘man (sic) is wolf to man’ – sustains the normative order and sustains law’s mythic origins as a necessary, universal and rational order that governs above humanity rather than through and between it.
Returning to the earlier discussion of legal fictions, and some of the criticisms and defences of them, in reproductive law fictions that permit acts of personalization and depersonalization, which are central to the law’s operation, are rarely named as legal fictions, yet they function as such. In this regard, they are not like the fictions Hart was unfazed by but are more akin to the new legal fictions that trouble Smith; those fictions that I have described in this article as ‘socio-legal’ because they serve as regulatory mechanisms that stabilize legal categories and maintain the coherence of the legal dispositif, concealed beneath the surface of legal reasoning. The case of Re A (Conjoined Twins) reveals not only how socio-legal fictions construct adversarial subjectivities but, moreover, how fictions foreclose relational accounts of legal recognition. Such cases illustrate how the law answers the question of ‘who’ or ‘what’ counts as a juridical subject through contingent, strategic and often immunizing fictions. Drawing on Fitzpatrick, one might argue that socio-legal fictions are immunizing because the law absorbs alterity to reify the legal order. 74
VI. ‘Legitimate’ or ‘Proper’ Legal Persons
The Warnock Report (1984) 75 also demonstrates how socio-legal fictions operate as immunizing devices within biopolitical governance. This British landmark inquiry into human fertilization and embryology considered what regulatory guidelines should be placed around embryo research, donor insemination and surrogacy. It had several prominent outcomes codified in the Human Fertilisation and Embryology Act 1990, 76 chiefly: that there should be a fourteen-day limit on embryo research; that children born through donor insemination should be considered legally legitimate; that commercial surrogacy should not be permitted; that only heterosexual couples could access donor insemination; and that any information related to genetic information about the donor insemination be limited (see below).
Regarding the first example, the Committee had recommended that research on embryos be permitted up to fourteen days after fertilization, grounding this limit in the appearance of the ‘primitive streak’, which was said to be a marker of individuation and thus the point at which the embryo’s moral and legal status changed. 77 This threshold was presented as scientific and fabricated a clear boundary where none naturally existed, with stark effects: before fourteen days, the embryo could be subject to experimentation; after fourteen days, it was to be protected. 78 This contingency was acknowledged in the Report, which noted that ‘the choice of 14 days is arbitrary, but necessary to provide certainty’. 79 While the threshold was presented as scientifically grounded, it arguably provided a bright line when there was none, effectively managing the boundaries of personhood and zones of indeterminacy. In Esposito’s terms, this boundary-making is an immunizing move: it safeguards life through a socio-legal fiction that encloses it within a normative framework. The embryo is legitimized as a subject of protection after individuation, providing it with a semi-personhood status despite the fact that it has no such protective status in the law. The fourteen-day limit established by the committee thus operates as a means to make relational indeterminacy governable by using scientific markers as authorizing myths, to borrow Fitzpatrick’s term, clarifying and thus grounding and stabilizing the law.
The embryonic threshold is not the only instance in the report where fictions are used to rationalize the governance of life in ways that reify law’s order. The Report also addressed the status of children born through donor insemination, concerned that surrogacy and donor insemination might open up questions about the ‘legitimacy’ of children and their relations to their parents in these arrangements. At the time of the Warnock Report, there was no clear statutory framework governing these practices, and so donor arrangements could potentially fall under existing laws on adoption, child trafficking or fraud. For instance, if money changed hands, surrogacy could be construed as ‘baby selling’, prohibited under adoption law. Furthermore, before the Human Fertilisation and Embryology Act (1990), a child conceived by donor insemination may have been regarded as ‘illegitimate’ because the husband was not the biological father, which raised issues for parental responsibility, social stigma and inheritance. The Warnock Committee, quite admirably, aimed to ensure that these issues were clear so that parents and intermediaries were not prosecuted for unlawful adoption or procurement of a child, and that children were protected from being born into situations where parents might be breaching the criminal law, and to avoid wider social stigmas associated with illegitimacy. However, in the name of ‘protection’, the Committee relied on the fiction of legitimacy to rationalize its decisions, regarding legitimacy as important to avoid the ‘taint of criminality’ for children who were born under new reproductive arrangements, ensuring that their legitimacy was ‘beyond any possible doubt’. 80 Although the socio-legal fiction of legitimacy served to immunize the child from social stigma, arguably, it simultaneously preserved the normative structure of kinship and parenthood. That is, despite the fiction of legitimacy conferring protection to donor children, this fiction was not universally conferred, explicitly excluding single women and lesbian couples from access to donor insemination, arguing that ‘it is better for children to be born into a two-parent heterosexual family’. 81 In this regard, the fiction of legitimacy operated as a containment strategy to affirm life but only within a heteronormative grid of intelligibility.
The Report’s treatment of surrogacy similarly reveals the immunizing logic at work in its condemnation of commercial surrogacy, depersonalizing the surrogate as a mere vessel. Here, the Committee was clear that the surrogate should be excluded from full legal recognition, instead granting protective rights to the commissioning parents and the child. 82 The surrogate’s exclusion was necessary to preserve the coherence of the nuclear family. Yet, the socio-legal fiction of legitimacy simultaneously immunized the legal system from having to rethink parenthood more radically. In this regard, one can argue that the socio-legal fiction is concerned with strategic inclusion that personalizes or depersonalizes within a biopolitical dispositif, maintaining the boundaries of legal personhood and avoiding the excesses of communal obligation, for instance, which would be required if recognizing multiple parents or biological kinship.
Finally, the report also revealed the significance of the socio-legal fiction of privacy in constructing and shaping the family unit, whereby only donors (whose identity the Report recommended to be anonymized), recipients (usually a heterosexual couple) and the child (whose status is legally secured as legitimate) – the ‘triad’ – were said to have an interest in disclosure of information relating to the donation. 83 This reduction of relational complexity, which excluded extended kin, future partners and others from recognized claims to information about genetic origins, as with other features of the report presented previously, reveals the operation of policy in replicating an immunizing logic, said to protect the family unit from relational instability. Arguably, the exclusion of others outside the triad from this information was not simply to ensure privacy, but instead it was a deliberate judicial move to contain complexity: it simplified human relations into an unambiguous legal framework, containing the excesses of the ambiguity that assisted reproduction otherwise poses to the law.
The Warnock Report, and its enshrinement in the Human Fertility and Embryology Act 1990, in short, is an example of legal immunization, producing zones of protection that simultaneously enable some forms of kinship and embodiment while precluding others. Because assisted reproduction destabilizes traditional kinship narratives and therefore threatens the broader stability of the biopolitical dispositif and law’s mythic origin, the report and its subsequent codified law simplified human relations to immunize the social body against that disruption. Each of these examples in the Report reveals how the law maintains continuity while responding to shifting medical technologies that redefine the boundaries of life. Yet, this policy and legal responsiveness is not neutral: it replicates logics of closure, operating through mechanisms of inclusion and exclusion, personalization and depersonalization. These logics are not merely descriptive but normative, shaping who counts as a legal subject and under what conditions.
Forty years on from Warnock and thirty-five years on from the HFEA, most of the original socio-legal fictions underpinning the statute remain intact. 84 However, the most notable departure from Warnock’s original recommendations came in April 2005 with the shift to identity-release donation. This reform followed a surge of concerns about the inability of persons who were donor-conceived to access information about their genetic origins, framed as an issue of ‘identity, health and well-being’. 85 A judicial review in Rose v. Secretary of State for Health (2002) 86 confirmed that a right to obtain donor information existed, prompting new regulations that made anonymous gamete donation unlawful in UK licensed clinics. 87 Under the amended 1990 Act, persons conceived after 1st April 2005 can apply for identifying details at age eighteen, with non-identifying information available to them at age sixteen. Limited data about donor siblings (e.g. their sex and year of birth) can also be accessed, and adults can opt in to the voluntary Donor Sibling Link. Donors themselves also have minimal reciprocal rights. Although this shift in the law signals a growing recognition of an interest in genetic truth, it remains partial, and there is still no legal obligation to disclose donor conception to children, an issue that some scholars argue should be resolved. 88 Circling back to the framework of this article, these reforms appear to recognize claims to identity, yet they do so within an immunizing logic of liberal individualism and autonomy which seeks to stabilize, through the law, inherently unstable, complex and excessive realities: disclosure rights thus remain bounded by age thresholds and voluntary registers, managing and containing ambiguity. From a feminist perspective, the fragility of rights-based strategies grounded in privacy and personhood is exposed; these are strategies that replicate the very bordered selves that Nedelsky and Naffine critique. Like Dobbs, Warnock shows that autonomy remains vulnerable to reversal when secured through fixed legal categories because it depends on the same masculinist architecture that it seeks to contest. By managing and containing life only within heteronormative grids, the Report entrenches patriarchal norms rather than dismantling them. Socio-legal fictions such as personhood, privacy and legitimacy do not dismantle the broader biopolitical dispositif but instead serve to stablize it by fabricating certainty through orders – between embryo and person, legitimate and illegitimate child, private and public sphere.
These boundaries reproduce the adversarial logic that continually positions a woman’s autonomy against fetal life, rather than in relation to it. Looking at other aspects of Warnock beyond the fourteen-day embryo rule also enables us to see the relevance of the problem of socio-legal fictions and how they operate within the wider grid of intelligibility to reproduce not only borders between the woman and fetus, but between the embryo and technological intervention, and between families and ‘outsiders’. The examples furthermore reveal that reliance on liberal individualizing concepts such as privacy, property or legitimacy risks enclosing rights within juridical schemas that can be reconfigured or, as we see in Dobbs, entirely retracted. Rights grounded in these schemas are always precarious; while they are adaptive, they are not relationally transformative. Like Roe, Warnock’s reliance on privacy and legitimacy does not transform the law’s architecture but instead seemingly stabilizes it in the short term whilst stifling feminist progress. From Esposito’s vantage, often when the law appears to move towards more open and responsive frameworks, it achieves this through immunitary mechanisms that contain complexity, rather than embrace it.
The 2024 Alabama Supreme Court LePage ruling 89 further elucidates the operation and restrictive political nature of immunizing socio-legal fictions. In this case, cryogenically preserved embryos were accidentally destroyed at a fertility clinic in Alabama. The parties involved sued the fertility clinic under Alabama’s Wrongful Death of a Minor Act. 90 Viewing the term ‘unborn child’ in the Wrongful Death of a Minor Act as beginning from the moment of fertilization, and also drawing on the 2018 Sanctity of Unborn Life amendment in the state Constitution, the Supreme Court overruled a lower court’s dismissal of the claim, instead granting personhood and thus legal protection to extrauterine embryos created in vitro and stored cryogenically. The decision in this case differed from the British Warnock Report’s fourteen-day rule, instead abolishing the threshold and immunizing the embryo, giving it full legal status equivalent to a living child. Not only did the ruling strip women of relational recognition by granting rights and protection to the embryo, thus privileging fixed legal categories over relational complexity, but it also illustrated Esposito’s warning that immunization, when turned inward, can negate the very life it seeks to protect. In response to the ruling, several IVF clinics in Alabama paused services, fearing legal liability. In attempting to protect embryonic life, the law undermined reproductive possibility, demonstrating how immunizing logics can ultimately stifle law’s development. As our biopolitical dispositif shifts to encompass new technological advancements in medicine and biotechnology, and as technologies like artificial wombs open up new possibilities for fetal viability or even gestation outside of a woman’s body, it will be important to consider how fictions operate to protect subjects from one another through adversarial models of law that close us off to other ways of conceiving life. Indeed, as technology develops in these areas, it becomes increasingly urgent to interrogate how socio-legal fictions are deployed, not only to protect but also to exclude, regulate and immunize forms of life. Like Dobbs, the case reveals that when autonomy and protection are grounded in fixed legal categories, they remain vulnerable to reversal and reconfiguration, reinforcing rather than dismantling patriarchal norms.
VII. Conclusion: Beyond Bordering Logics and Immunizing Socio-Legal Fictions? An Affirmative Biopolitics of Reproductive Justice
While Esposito is critical of immunizing logics that underpin modern legal and political systems, his concept of affirmative biopolitics offers an alternative, one that reimagines the relationship between individual and community outside the exclusionary frameworks of liberal legality. 91 Rather than protecting life by isolating it or constructing personhood through mechanisms of exclusion and depersonalization (of those subjects who are deemed risky or excessive), an affirmative biopolitics calls for politics grounded in relationality, vulnerability and openness. It resists fixed legal identities and rigid borders between person and non-person, and instead embraces fluid, contextual subjectivities, shaped by interdependence and shared responsibility.
Such a framework would reconfigure legal personhood not as a static, exclusive status – viable fetus, autonomous woman, legitimate child – but as a dynamic and relational construct. Legal recognition would be responsive to the lived realities of those involved, rather than imposed through abstract thresholds or categorical distinctions. For instance, rather than relying on the fourteen-day embryo rule to determine the moral and legal status of an embryo, or dismantling this altogether and instead affirming the embryo or the woman’s rights above the other, an affirmative biopolitics would advocate for contextual judgement rooted in care, reciprocity and ethical engagement with vulnerability. Likewise, an affirmative biopolitics would not simply attempt to protect children conceived by donors from stigma, closing them off to their relations with others by shaping their legitimacy in heteronormatively and juridically limited forms, but it would instead attempt to open up the law to other ways of imagining kinship. Ambiguity in the law would not merely be tolerated only insofar as it can be curtailed within existing legal frameworks that curb life’s excesses. Instead, law would be reimagined as a space of communal obligation, generating new forms of life, new legal imaginaries and new ethical relations that are plural and fluid rather than unidirectional and fixed.
In this model, vulnerability is not something to be managed or immunized against, but is a constitutive feature of legal subjectivity. Legal frameworks would acknowledge that subjects are always already exposed to one another, and that this exposure is the basis for ethical and legal obligation. In the context of abortion, this would mean recognizing – as Sherwin argues – the relational nature of pregnancy, rather than framing the woman and fetus as adversarial rights-bearing agents. 92 Similarly, in cases of donor insemination or surrogacy, the law would move beyond contractual models that immunize subjects from future obligations or emotional entanglements. Instead, it would support legal structures that facilitate ongoing negotiation, care and recognition of the complex relationalities that constitute kinship and parenthood.
Some jurisdictions have begun to reflect aspects of this affirmative orientation. Argentina’s 2020 legalization of abortion, 93 for instance, was framed not solely in terms of individual rights but as a matter of public health and social justice, emphasizing collective care and structural equity. 94 This shift signals the potential for legal systems to move beyond the adversarial and immunizing logic of liberal individuals towards more inclusive and relational models of reproductive justice. It gestures towards a model that does not simply tolerate ambiguity and attempt to conceal and contain it through fictions, but instead actively incorporates life’s excesses, viewing it as a core feature of social and reproductive life.
Far from being neutral or merely technical devices, this article has argued that socio-legal fictions function as biopolitical instruments within a broader legal dispositif that constructs, regulates and often erases personhood to manage its own mythic foundation of authority. The law’s origin story of universalism and rationalism, detached from its sociality, is constructed through fictions that pretend to be just that – fictions that are simply operating as benign tools to fill legal gaps but that do not threaten to undo an otherwise pure and rational legal system. Yet, as this article has argued, while some legal fictions may be overt, it is those fictions that operate as ‘socio-legal’ fictions we ought to pay closer attention to; those fictions that make up persons and literally ‘conceive life’; those fictions that operate through what Esposito terms immunizing logics. These logics, inherent in socio-legal fictions that reinforce unreflexive political liberalism in the name of ‘rights’ may appear progressive, but too often instead isolate legal subjects from one another, reinforcing atomistic models of selfhood and obscuring the relational and interdependent nature of human life. Relational feminist ethics, particularly in the work of scholars like Sherwin 95 and Nedelsky, 96 offer a critical lens through which to interrogate these fictions. By challenging the atomistic assumptions of rights-based frameworks, they open space for a more relational jurisprudence – one that recognizes vulnerability, interdependence and the ethical significance of care. Revealing the mythopoetic function of fictions within an immunizing legal architecture demonstrates that feminist and rights-based strategies that appeal to liberal immunizing constructs remain inherently fragile. Esposito’s affirmative biopolitics extends this critique by offering a vision of law that is not grounded in immunization and exclusion but in openness, plurality and the co-constitution of legal subjects.
This article, therefore, calls for a reimagining of reproductive justice in ways that move beyond the bordering and immunizing logics of privacy, property, personhood and rights. The overturning of Roe in Dobbs and the subsequent Alabama IVF ruling represent not only a feminist crisis but also an opportunity – a moment to reconsider the language of rights and the role of fictions in shaping our understanding of life, law and community. An affirmative biopolitics invites us to consider new legal imaginaries that are not bound by the need to immunize, but instead embrace the complexities of relational life and the transformative potential of law, not as an institution that requires mythic containment to be intelligible, but as a space of shared obligation and care. Could we imagine, for example, reframing abortion regulation around relational care mandates that treat reproductive decisions as relational, constrained and unequal, through social support entitlements and healthcare provision? Perhaps we might imagine replacing rigid assisted reproductive technology (ART) thresholds with more responsive, relational forms of governance, such as ethics panels or a graduated, case-by-case approach to ART regulation. Perhaps we could reimagine donor conception regimes away from triadic privacy-based models towards more graduated forms of disclosure, with consideration of the relational impact on the parties involved. 97 Are there ways forward where predictability might be preserved but where relationality and reciprocity might be embedded, embracing complexity and life’s excesses, rather than concealing and closing it off? These questions are not posed to incite an abandonment of predictability or legal structure, but instead to articulate a different juridical horizon: one that seeks to transform reproductive governance from a site of containment into a juridical space capable of shared obligation and ethical plurality.
