Vulnerability and the Intergenerational Transmission of Psychosocial Harm

By Karpin, Isabel | Emory Law Journal, January 1, 2018 | Go to article overview

Vulnerability and the Intergenerational Transmission of Psychosocial Harm


Karpin, Isabel, Emory Law Journal


INTRODUCTION

In the field of science known as the developmental origins of health and disease (DOHaD), there is an emergent body of research examining the biological impact of the psychosocial dimension of harm resulting from sexual and physical abuse. A particular focus has been the way these assaults, when enacted against women, cause levels of stress that can have a biological impact on their future children. While the vast bulk of this research has examined the impact of harms to pregnant women on the health of their future children, a small group of researchers is also drawing attention to the impact of harms enacted in the period prior to pregnancy and conception. This scientific literature, incorporating epigenetic research, argues that harms to the potential mother can lead to disorders in her future children, including neurodevelopmental and psychiatric disorders as well as cognitive and intellectual impairments.1

DOHaD is a developing field of inquiry and it is not yet clear how legal responses might unfold. It is, however, plausible that these scientific claims will displace what are perceived to be more speculative sociocultural explanatory discourses when attributing responsibility for transmission of this harm and in so doing prompt a more decisive legal response. Therefore, it is important to ensure that the legal response is nuanced and does not simply and uncritically accept these claims. From a feminist perspective, this is especially concerning because of the way the female body is foregrounded as a conduit for intergenerational harm transmission.2 While the focus of this Essay is possible legal responses to this scientific inquiry, we require the whole panoply of maneuvers that the humanities-and those sciences that have established themselves from the humanities-can offer to develop a complex, rich account of how we can ensure future well-being.

In the following Parts, I take a close look at scientific studies that reveal an intergenerational impact resulting from harms perpetrated on a woman prior to the conception and birth of her children, with a particular focus on the impact of stress. I consider the way law might play a role in mediating or mitigating those harms using a vulnerability and inevitable dependency approach derived from Martha Fineman's body of work.3

I. THE LEGAL SUBJECT OF SCIENTIFIC INQUIRY

Over the last twenty-five years, there has been a tangible shift in both legal and scientific thinking impelled, at least in part, by a feminist critique that demands attention to the subjective and situated self. This shift has focused attention on the material self, constructed between and among its relationship to other things and changing over time.4 It is an "embodied and embedded"5 subject whose existence and well-being is conditioned on the actions of power and privilege that distribute resources unevenly. Feminist legal theorists such as Martha Fineman argue that, in the context of law, individuals who appear impervious, autonomous, and self-determining are, more often than not, the recipients of greater social goods that allow the appearance of unassailable independence but, in fact, evidence deep reliance on others.6 In a similar vein, in the context of scientific understandings, feminist scientist Evelyn Fox Keller has argued for an adjustment to scientific language to "represent the dynamic interactivity of living systems and describe the kinds of inherently relational entities that can emerge from those dynamics."7 I draw on these feminist critiques of law and science to explore research being undertaken in the DOHaD field briefly described above and to which I will return in detail in Part III.

Before I do, however, I want to draw out the way in which feminist legal theory's intervention into legal subjecthood might offer some additional tools for managing scientific accounts of harm.

II. FEMINIST LEGAL THEORY AND THE EMBODIED, EMBEDDED LEGAL SUBJECT

In their introduction to Vulnerability: Reflections on a New Ethical Foundation for Law and Politics, Professors Martha Fineman and Anna Grear note that the liberal legal subject at its most ideal is a "disembodied, relatively invulnerable self. …

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