Transnational Health Law Beyond the Private/Public Divide: The Case of Reproductive Rights

This article revisits the debates concerning the nature and patterns of development of transnational law and global constitutionalism, looking at the rapidly growing field of transnational health law. It first highlights a friction between two opposing theories of transnational law, which view it as either a predominantly private or a predominantly public construction. It goes on to argue that these two views need not necessarily be seen as exclusive and diametrically opposed, but as two distinct, yet interrelated, aspects of the same process in which legal subjectivity is established in transnational law. The article studies the emergence of legal subjectivity in the area of transnational law regulating assisted reproduction technologies, and maps the two different conceptions of transnational law onto different stages in the process by which new subjects become legally visible. It contributes to wider discussions concerning the nature of transnational law, transnational health law, and legal subjectivity.