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  • Print publication year: 2018
  • Online publication date: November 2018

40 - Modern Law and Regulation

from Part V - Reproduction Centre Stage


Far more than the law has regulated reproduction. Statutes often failed to grasp or change practice, and few cases came to court; popular attitudes, and community pressure, shaped behaviours. Yet disciplinary norms have operated in part through common- law restrictions and a swelling flood of legislation. Formal regulation, however effectively eluded or unevenly enforced, has incited subversion, provoked challenge and offered a yardstick for international comparison.

The major modernizations of legal systems in much of the world in the nineteenth century defined the bourgeois family and brought reproduction within an official framework. Patchworks of laws yielded to single codes for nation-states, which also took over residual legal functions from the Christian churches. For example, the Code Napoléon of 1804, which was emulated especially in Europe and the Middle East, made civil marriage primary and subordinated even aristocratic women to their husbands. In England and Wales, with their system of common or judge-made case law that was influential through the British Empire, the Matrimonial Causes Act 1857 moved divorce from the ecclesiastical to the civil courts and opened it to the middle class, but still favoured men. Laws also defined national populations through obligations to report births, marriages and deaths and complete census forms. Some states obstructed the distribution of contraceptives and criminalized practices that threatened the norm of procreative marital sex, notably abortion and homosexuality.

Early twentieth-century governments legislated more directly to raise population quantity and quality with measures from child tax allowances to compulsory sterilization. They typically proceeded cautiously on such contentious matters, and increasingly deferred to medical practitioners who were themselves often more concerned for their own status. But especially by the 1960s, states and medicine controlled reproduction to such an extent that their paternalism was the chief target of feminist and other reform campaigns. As rights to privacy were recognized and new reproductive technologies introduced, regulators with lay representation came to monitor large medical markets in conception and contraception. This chapter reviews some roles of law in reproduction since around 1800, mainly for the United Kingdom and the United States with their shared emphasis on common law rather than civil codes. Leaving family and population on one side, the focus is on the prevention of births by contraception, sterilization and abortion, the most contested issue, and on their promotion by the techniques of assisted conception for which current regulatory regimes were introduced.