Tuesday, August 31, 2010
As a result of reproductive technology, procreation is no longer left to the living. The discovery of effective methods to extract and freeze sperm has led to posthumous reproduction. Consequently, a man’s child may be conceived long after the man is dead. Traditionally, a family consisted of a husband, a wife and their adopted or biological children. High divorce rates led to single parent families and blended families consisting of step children. As a result of the sexual revolution, some families were made up of a man, his “old lady”, and their non-marital children. Currently, assisted reproduction enables infertile couples, single persons, and same-sex couples to create families with children. Some men and women want to create families with the loves of their lives. These persons refuse to let a little thing like death prevent them from conceiving their love children Since children can now be conceived using the genetic material of dead people, those love children can be conceived. In addition, posthumous reproduction permits families to create living memorials to their dead love ones.
A dead man’s sperm can be used to impregnate a woman years after his death. A surrogate can use the eggs of a dead woman to conceive a child. These are just a few of the miracles that are possible because of the advancements in reproductive technology. Physicians and other health care providers hail the beneficial uses of reproductive technology. Scientists marvel over the miracles performed. However, lawyers and others in the legal community are forced to deal with the mistakes that have been made. Even when everything goes according to plan, families are forced to deal with the legal consequences that arise from the use of reproductive technology.
As a consequence of the availability and use of reproductive technology that make posthumous reproduction possible, courts are forced to designate legal parents for the children conceived. Several persons may be vying for the roles of mom and dad. Further, courts have to decide whether or not dead people have reproductive rights and determine the steps that are necessary to protect those rights. Doctors need guidance when deciding if they should extract sperm from dead men and turn it over to the requesting party. Once posthumously conceived children are born, legislatures and courts must ensure that they are financially supported. That financial support may take the form of life-time support, inheritance or government survival benefits. The amount of financial support the posthumously conceived child receives depends upon the manner in which the law classifies the child. Due to the lack of legal regulations with regards to posthumous reproduction, the law will continue to play catch up when it comes to issues of parentage, procreation, and probate.
Susan B. Boyd (University of British Columbia Faculty of Law) has posted Autonomy for Mothers? Relational Theory and Parenting Apart, 18 Feminist Legal Studies 137 (2010) on SSRN. Here is the abstract:
This article explores the tensions between autonomy and expectations of mother-caregivers, in the context of normative trends in post-separation parenting law. Going back to first principles of feminism, the article asks what scope for autonomy there is for modern mothers in the face of socio-legal norms that prioritize shared parenting. The very relationship between mother-caregivers and children illustrates the important connection between relationships and autonomy: the caregiving that mothers provide enables children to become autonomous persons yet, at the same time, this caregiving relationship constrains maternal autonomy. In the current context that encourages shared parenting, the potential for maternal autonomy may be even more compromised – a deep irony in a supposedly post-feminist era. A responsible mother is now expected to nurture a child’s relationship with the father, unless he is proven to be harmful. The ability of women to be at all autonomous from the fathers of their children in the face of this normative expectation is dubious, even when the adults live separately. Moreover, the dominance of the heterosexual and patriarchal family – always a challenge for women’s autonomy – is reproduced in this imposition of equal parenting in the name of children’s rights. This article uses a contextual approach to relational autonomy to point to an approach that might challenge the normative climate of shared parenting.
Monday, August 30, 2010
The Washington Times is reporting new international adoption figures and they are startling. Last year, the number of Americans completing international adoptions declined by nearly 40% from the previous four-year period.
Read about the reasons for the decline here.
Amos N. Guiora has posted Protecting the Unprotected: Religious Extremism and Child Endangerment, 12 Journal of Law & Family Studies 391 (2010) on SSRN. Here is the abstract:
This Article’s primary thesis is that male and female children alike are victims of child abuse and neglect in the name of FLDS religious doctrine. While others have addressed "terror in the name of God" (attacking internal and external targets alike) child endangerment in the religion paradigm is, I suggest, fundamentally different. Simply put, it is the deliberate injury to one's own child predicated on religious faith, in particular religious extremism. To that end, this Article will focus on the danger to members of an internal community (members of a particular faith) rather than to an external community (members of other faiths).
Sunday, August 29, 2010
The advances in reproductive technology have given women more reproductive choices. Women are able to rewind their biological clocks and become mothers later in life. If a woman is unable to carry a child, she may be able to utilize the services of a surrogate to become a mother. The amount of assistance the woman receives from the surrogate depends upon the state of her reproductive health. A woman who is no longer capable of producing eggs can arrange for a traditional surrogate to supply the eggs and to carry the child to term. Gestational surrogacy is an option for the woman who cannot carry the embryo made from her genetic material. Surrogacy is a great way to create a family.
If medicine is the hare, the law is the tortoise. As long as the surrogate honors the contract and surrenders custody of the child to the contracting woman, every thing goes smoothly. However, when face with custody disputes involving surrogates and contracting women, courts are not sure how to react. For courts, the resolution of traditional custody disputes is not difficult because the law is well settled. In surrogacy dispute cases, since two women are seeking to be declared the legal mother of the child, instead of deciding custody, courts have to adjudicate maternity. As a consequence of the lack of clear legislative guidance and bright line rules, courts have relied upon several different theories to decide whether the surrogate or the contracting woman should be declared the legal mother of the child. The underlying premise of three of those theories is the lie that the standard for determining maternity should be based on the actions of the women. The final theory is based upon the truth that the test for adjudicating maternity should focus upon the needs of the child.
In situations involving children born as the result of sexual intercourse, the common law rule is that the woman who gives birth to the child is the child’s legal mother. Since the woman who gives birth is also the woman who supplies the genetic material to conceive the child, the rule is relatively easy to implement. Things become more complicated when one woman gives birth to a child conceived using the genetic material of another woman. In those cases, some states follow the common law fallacy and conclude that, since she gives birth to the child, the surrogate should be recognized as the child’s legal mother. This approach is referred to as the gestational theory of maternity. Other courts believe the lie that the sole indicator of maternity should be genetics. Thus, the woman who supplies the genetic material used to creative the child should be designated as the child’s legal mother. California and other jurisdictions have embraced the untruth that maternity should be determined by relying on the intent of the parties. Therefore, the woman who signed the contract intending to parent the child should be deemed to be the child’s legal mother.
The Court that decided the Baby M case used the “best interests of the child” standard to award custody of the child. At least one judge has realized the truth. He argued that this same standard should be use to determine whether the surrogate or the contracting woman should be recognized as the child’s legal mother. For decades, courts have relied upon the “best interests of the child standard” to make decisions that impact children. Nonetheless, the standard has not been use to make initial parentage determinations. Although the standard has been around for a long time, it is still not well-developed. Neither the legislatures nor the courts have put forth a clear definition of what the “best interests of the child” means. Courts evaluate various factors to decide which outcome will promote the child’s best interests
The correct standard for adjudicating maternity is a modified version of the “best interests of the child” standard. Courts should not apply the standard to maternity adjudications cases in the same manner that they apply it in custody cases. In order to choose the maternal arrangement that will promote the child’s best interests, courts should consider the parental potential of each woman, the stability of each woman, and the investment that each woman made to ensure the child’s conception and birth. In the interest of fairness, courts should seek guidance from an independent board of experts.
Saturday, August 28, 2010
Friday, August 27, 2010
Cohen & Chen: "Trading-Off Reproductive Technology and Adoption: Does Subsidizing in Vitro Fertilization Decrease Adoption Rates and Should it Matter?"
Glenn Cohen (Harvard Law School) and Daniel Chen (Duke University School of Law) have posted "Trading-Off Reproductive Technology and Adoption: Does Subsidizing in Vitro Fertilization Decrease Adoption Rates and Should it Matter?" (forthcoming Minnesota Law Review) on SSRN. Here is the abstract:
For those facing infertility, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, to produce a live birth through in vitro fertilization (IVF) will cost an individual (on average) between $66,667 and $114,286 in the U.S. If forced to pay these prices out of pocket, many would be unable to afford this technology. Given this reality, a number of states have attempted to improve access to reproductive technology through state-level insurance mandates that cover IVF. Several scholars, however, have worried that increasing access in this way will cause a diminution in adoptions and have argued against enactment of state mandates for that reason.
In this paper, which was selected for presentation at the 2010 Stanford-Yale Junior Faculty Forum, we push against that conclusion on two fronts.
First, we interrogate the normative premises of the argument and expose its contestable implicit assumptions about how the state should balance the interests of existing children waiting for adoption and those seeking access to reproductive technology in order to have genetically related children.
Second, we investigate the unexamined empirical question behind the conclusion: does state subsidization of reproductive technologies through insurance mandates actually reduce adoption; that is, is there a trade-off between helping individuals conceive and helping children waiting to be adopted? We call the claim that there is such an effect the “substitution theory.” Using the differential timing of introduction of state-level insurance mandates relating to IVF in some states and differences in the forms these mandates take, we employ several different econometric techniques (differences-in-differences, ordinary least squares, two-stage least squares) to examine the effect of these mandates on IVF utilization and adoption. Contrary to the assumption of the substitution theory, we find no strong evidence that state support of IVF through these mandates crowds out either domestic or international adoption.
The Wisconsin Journal of
Law, Gender & Society
Announces our 2011 Symposium:
Gender, Justice, & Victim Rights:
A Gendered Perspective of Victims in the Criminal Justice System
February 25, 2011
University of Wisconsin Law School
We are seeking original scholarship, from both scholars and practitioners, that addresses the intersections of law and gender in the role and treatment of victims in the criminal justice system. Interested parties should send an abstract toWJLGS.Symposium@gmail.com by October 31, 2010. Those selected for the Symposium will be notified by December 2010. The Journal’s Symposium issue will be published in Winter 2011.
Questions may be addressed to Symposium Editor Erin Welsh at email@example.com.
Thursday, August 26, 2010
Call for Presentation and Papers
Maintaining a Family:
Post Adoption Challenges for Families
7th Annual Wells Conference
on Adoption Law
March 17, 2011
Capital University Law School
The conference is seeking proposals for presentations and papers emphasizing the following themes:
Participants are asked to lead a forty-minute discussion on one of the above topics. Each topic will have three panel members who will give a presentation, followed by a discussion at the end. In addition, participants are requested to prepare an article associated with their presentation for publication in the Capital University Law Review next year. The article would be due on September 1, 2011.
Please send your proposals by September 24, 2010 to the Capital University Law Review Symposium Editor, Ashley Blackburn (firstname.lastname@example.org)
Denise St. Clair
An interesting family law case coming down from the Abu Dhabi Supreme Court:
From The National:
The ruling is the latest in a number of decisions by the country’s highest court that experts say will influence the continuing reform of the family law system, under way since 2005.
Under current law, a divorced mother’s custody ends when a boy turns 11 and a girl turns 13. Judges can also follow the Islamic school of thought adopted by the UAE, Al Maliki, under which custody may be extended until a boy reaches puberty or a girl is married.
However, the Federal Supreme Court has now ruled that a court should look into the interests of the child before deciding on custody, regardless of the child’s age.
Read more here.
Wednesday, August 25, 2010
Nancy Dowd (University of Florida School of Law) has just published a new book: The Man Question: Male Subordination and Privilege (NYU Press 2010). Here is a description:
Among the many important tools feminist legal theorists have given scholars is that of anti-essentialism: all women are not created equal, and privilege varies greatly by circumstances, particularly that of race and class. Yet at the same time, feminist legal theory tends to view men through an essentialist lens, in which men are created equal. The study of masculinities, inspired by feminist theory to explore the construction of manhood and masculinity, questions the real circumstances of men, not in order to deny men’s privilege but to explore in particular how privilege is constructed, and what price is paid for it.
In this groundbreaking work, feminist legal theorist Nancy E. Dowd exhorts readers to apply the anti-essentialist model—so dominant in feminist jurisprudence—to the study of masculinities. She demonstrates how men’s treatment by the law and society in general varies by race, economic position, sexuality, and other factors. She applies these insights to both boys and men, looking at men’s experience of fatherhood and sexual abuse and boys’ experience in the contexts of education and juvenile justice, to examine how masculinities analysis exposes both privilege and subordination. Ultimately, Dowd calls for a more inclusive feminist theory, which, by acknowledging the study of masculinities, can broaden our understanding of privilege and subordination.
The Census Bureau has released statistics on singles in the
(CNN) -- There are 96 million
people in the
"Single" is defined as
adults who have never been married, are divorced or are widowed in the bureau's
Of the singletons, 61 percent of them have never said "I do." Twenty-four percent are divorced and 15 percent are widowed.
An increasing number of these single Americans -- more than 31 million -- are living alone, according to the census. They make up 27 percent of all households, up from 17 percent in 1970.
About 46 percent of all households nationwide are maintained by a single person. That adds up to 52 million singles.
And 11.6 million single parents -- mostly mothers -- were living with their children in 2009.
Read more here.
Tuesday, August 24, 2010
Shamir: "The State of Care: Rethinking the Distributive Effects of Familial Care Policies in Liberal Welfare States"
Hila Shamir (Tel Aviv Univerisity, Buchmann Faculty of Law) has posted "The State of Care: Rethinking the
Distributive Effects of Familial Care Policies in Liberal Welfare States" on SSRN. Here is the abstract:
The paper offers a new analytical framework for the study of the regulation of family relations. The framework builds on distributive models of the welfare state, and goes beyond the family-state dyad to include the market as a sphere in which the family is meaningfully regulated. The offered framework challenges the traditional boundaries of family law and suggests an understanding of the institution of the family as defined through its interaction with the institutions of the labor market and the welfare state. The framework is applied to welfare state regimes of familial care in the United States and Israel - child care in the United States (federal), and long-term care for the elderly in Israel. The comparative distributive analysis shows that viewing the family from outside traditional Family Law leads to a relaxation of some of the exceptional characteristics of the legal concept of the family, as well as to a realization that family regulation is intimately connected to broad social policy debates about citizenship, social status, labor market, and wealth distribution.
That is the question posed by MSNBC.com:
The flight attendant's actions, however, set off an intense debate: When and how should bystanders intervene?
Read more here.
Monday, August 23, 2010
Titshaw: "A Modest Proposal: To Deport the Children of Gay Citizens, & Etc: Immigration Law, the Defense of Marriage Act, and the Children of Same-Sex Couples"
Scott Titshaw (Mercer University School of Law) has posted "A Modest Proposal: To Deport the Children of Gay Citizens, & Etc.: Immigration Law, the Defense of Marriage Act, and the Children of Same-Sex Couples" on SSRN. Here is the abstract:
The Defense of Marriage Act (DOMA), which defines the terms “marriage” and “spouse” for federal purposes, clearly prevents the recognition of same-sex spouses under U.S. immigration law. It might also have a tragic unintended effect on some parent-child relationships.
The Immigration and Nationality Act (INA) employs terms like “born in wedlock” and “step-parent” to define parent-child relationships for various immigration and citizenship purposes. One could argue, therefore, that DOMA prevents INA recognition of parent-child relationships stemming from a same-sex marriage. Parent-child relationships determine whether a person can legally join her family in the U.S., be deported, or even qualify as a citizen upon birth abroad. Therefore, if DOMA affected parent-child recognition under the INA, it would have profound implications for the growing number of same-sex couples living with children in U.S. and foreign jurisdictions that recognize their marriages.
This article explores the language, context, legislative history, and purposes of both DOMA and relevant sections of the INA. In the absence of reported cases on point, it reviews opinions in related areas, such as the recognition of children born to concubines or second-wives in polygamous marriages. Finally, it analyzes each relevant section of the INA in turn, concluding that DOMA does not proscribe recognition of parent-child relationships resulting from same-sex marriages under most, or all, of the sections.
Last week, the DOJ and parties represented by Gay & Lesbian Advocates & Defenders agreed to a stay of the district court’s decision in Gill v. Office of Personnel Management, which successfully challenged the denial of spousal protections in Social Security, federal income tax, federal employees’ and retirees’ benefits, and the issuance of passports to same-sex couples in MA under DOMA Section 3. Read news coverage here and the district court opinion here.
Sunday, August 22, 2010
The Washington Post recently ran on op-ed piece arguing for increased tax breaks for having and raising children. The article reproduces some interesting new government data on the cost of raising children.
Among the government's most interesting reports is one -- published by the Agriculture Department -- that estimates what parents spend on their children. The latest version finds, not surprisingly, that the costs are steep. For a middle-class husband-wife family (average pretax income in 2009: $76,250), spending per child is about $12,000 a year. Assuming modest annual inflation (2.8 percent), the report estimates that the family's spending on a child born in 2009 would total $286,050 by age 17. A two-child family would cost about $600,000. All these estimates may be understated because they do not include college costs.
These dry statistics ought to inform the deficit debate, because a budget is not just a catalogue of programs and taxes. It reflects a society's priorities and values. Our society does not -- despite rhetoric to the contrary -- put much value on raising children. Present budget policies punish parents, who are taxed heavily to support the elderly. Meanwhile, tax breaks for children are modest. If deficit reduction aggravates these biases, more Americans may choose not to have children or to have fewer children. Down that path lies economic decline.
Read more here.
Saturday, August 21, 2010
Friday, August 20, 2010