Legal Embodiment: Analysing the Body of Healthcare Law

Abstract

In this essay and the contributions that follow we advocate an expansion of the parameters of mainstream healthcare law to include feminist analyses of embodiment. We suggest that a more thorough engagement with the meaning and value of embodiment can better inform normative assessment and critical appraisal in healthcare law. Law’s conventional approach to regulating bodily interventions has been to consider the body as an object of analysis rather than as a category of analysis. In our view, legal analysis could offer a richer understanding of law’s engagement with bodies and bodily materials if it adopted a thicker conception of embodiment. Such a conception would seek to account for the ways in which we value the living physical body as it enables our being in the world and our interactions with others. We argue that in framing our understandings of embodiment, healthcare law would benefit from employing cultural studies methods as well as the bioethical analysis on which it has traditionally drawn. In particular, we view feminist scholarship on embodiment as a key resource for thinking through such a shift in parameters and methodology. Building on this work, we argue for a shift from more familiar notions of sexual difference to speaking of embodied difference(s), which directs attention to the myriad ways in which law values or denigrates bodies and the choices we make about our bodies. We suggest that healthcare law has implicitly considered the body in three key ways -- as an object of choice, a site of property and a source of vitality. We then argue that a more explicit conception of legal embodiment entails four key dimensions -- subjective, intersubjective, material and symbolic -- which in combination offer a normative and critical framework for deciding which values act as trumps in a given situation and for assessing how and why a particular value or combination of values come to be perceived as important in a given moment.