Family Law Prof Blog

Fordham: “Disability and Designer Babies: Rethinking the Debate Over Genetic Interventions in Favor of Disability”

Brigham A. Fordham has posted Disability and Designer Babies: Rethinking the Debate Over Genetic Interventions in Favor of Disability, Valparaiso University Law Review, Forthcoming (2010) on SSRN.  Here is the abstract:

 If deaf parents purposely use new genetic technologies to give their child the genes for deafness, have the parents harmed the child? This and similar questions regarding parents who make genetic choices in favor of disability have preoccupied much of the scholarship regarding new artificial reproductive technologies. Some have argued that we should determine whether a child has been harmed by pondering whether the child’s “right to an open future” has been violated by the parents’ genetic intervention. If that right is violated, some say, the parents should be subject to tort liability for inflicting harm upon the child.

This Article considers the consequences of attempting to hold parents liable in tort for making genetic decisions in favor of socially disfavored physical attributes, such as disabilities. A legal scheme that asks judges and juries to separate “good” physical attributes from “bad” ones is problematic, especially when dealing with disabilities. Parents, who have personal experience with the physical traits in question, are better equipped to decide what is best for their offspring than jurors who have less experience and less at stake. Using the “open future” framework to second-guess parental decisions about socially disfavored physical traits only disrupts the parent-child relationship and suggests that discriminatory attitudes are natural and acceptable.

Moreover, the concern over genetic interventions in favor of disability is largely misplaced. Disabled parents who want disabled children are few in number and diverse in purpose. The recent focus on these parents in the debate over genetic intervention improperly assumes that such parents are incapable of making good choices and that the physical traits they prefer are inherently damning.

MR

Truth in Divorce

More on New York's shift to no-fault divorce.  This time the focus is on increased truthfulness in divorce court.

There are certain to be consequences if New York State introduces no-fault divorce, as now seems likely. The divorce rate might climb. Matrimonial battles will focus on bitter issues like support and child custody. The poor will be able to get divorced as easily as the rich. But there is something else. Those who are splitting up can just tell the truth.

For decades, New York State’s divorce system has been built on a foundation of winks and falsehoods. If you wanted to split quickly, you and your spouse had to give one of the limited number of allowable reasons — including adultery, cruelty, imprisonment or abandonment — so there was a tendency to pick one out of a hat.

Pregnant women have insisted they have not had sex in a year, one of the existing grounds; spouses claimed psychological cruelty for getting called fat; and people whose affairs have made Page Six have denied adultery. One legendary ploy involved listing the filing lawyer’s secretary as the partner in adultery (which may even have been true in a few cases).

“What the fault divorce system has done is that it has institutionalized perjury,” said Malcolm S. Taub, a veteran Manhattan matrimonial lawyer. “This play-acting goes on and everybody looks the other way and follows the script.”

Nancy Chemtob, a lawyer who has been edging into the celebrity divorce ranks, said the requirement that someone find fault has long forced lawyers to question clients closely to try to find an acceptable reason to explain the split, even when the real reason is pretty simple: The client does not like his or her spouse.

Because dislike, no matter how intense, does not fit one of the legal slots, Ms. Chemtob keeps asking until her client says the magic words, like “he bought me a gym membership,” Ms. Chemtob said.

“I have to sit there like a shrink or I’m not even sure what, but definitely not a lawyer, pulling all this verbiage on grounds out of them,” she said. Lately, it seems, purchasing a premium workout package is code for, “You are a slob.”

That would not necessarily be cruel and inhuman treatment in the outside world, but in the matrimonial courts it can be more than adequate, said Robert S. Cohen, a leading New York divorce lawyer.

“One spouse gets on the stand and says, ‘He complains about the fact that I don’t make the bed every day,’ or one of them says ‘She complains that I don’t do the dishes,’ ” Mr. Cohen said.

In cases where both sides want the marriage to end, judges often declare such infractions fault enough, Mr. Cohen said. “There’s a clear feeling among the judges that fault should have been long gone from our system,” he said.

For judges, New York’s requirement of fault when the rest of the country has abandoned that requirement creates a series of problems. One of them is the need to listen to private information some of them feel is none of their business.

Acting State Supreme Court Justice Jeffrey S. Sunshine, the supervising matrimonial judge in Brooklyn, said it seemed somewhat 19th century to have people testifying about “constructive abandonment,” the legal term for rebuffing intimacy for a year or more.

“Should we really,” Justice Sunshine asked, “in the 21st century be having people get on the stand and testify that ‘my spouse refused to have sex with me’?”

Read the full story here.

AC

Too Good To Be True? It Might Be.

Many people might marry through online dating, but this Washington Post story might support more traditional dating:

It took awhile, but the 24-year-old now knows exactly what kind of message to send to pique a woman's interest. The Montreal research assistant will come home from work, sit down with his laptop and bang out dozens of e-mails to attractive, eligible women.

He's never needy -- always charming and a little flirtatious. He keeps his missives short and usually includes a question or a subtle challenge. He's witty, a touch aloof and not overly complimentary.

And when he gets the woman, it's not his heart that flutters. It's his bank account.

Hartshorn is a hired gun, ghostwriting correspondence on behalf of single men unwilling, too busy or too inept to do it themselves. His online dating is done on commission for Virtual Dating Assistants, one of the first full-scale Internet-dating outsourcing companies. For $600, Virtual Dating Assistants guarantees clients two dates a month; the "executive service" package promises five dates a month for $1,200.

Read more here.

MR

No-Fault Divorce in New York

Last week the New York Times posted a great series of professional perspectives on the state's shift to no-fault divorce law.  From the introduction to the series:

In 1969, Gov. Ronald Reagan of California signed the nation’s first no-fault divorce law. He later called it the worst mistake of his life. But other states eventually followed California’s lead, and no-fault — under which one spouse can end a marriage, with no proof required of wrongdoing by either party — more or less became law of the land. New York State was the longtime holdout, since South Dakota passed its law in 1985.

That may be about to change. On Tuesday evening, the State Senate approved legislation that would permit no-fault divorce after a marriage has “irretrievably” broken down for six months or more, without the need to identify a fault, like adultery or abandonment. The package must still pass the State Assembly, which is considering two bills that would adopt some version of no-fault divorce.

New York’s failure to permit more accessible divorce has long been denounced as archaic, but longtime opponents of “liberalization” have included the Catholic Church and the New York chapter of the National Organization for Women.

What should the New York Legislature consider as it works out the details of its no-fault measures? What do we know about the effects of no-fault laws in the rest of the country?

Betsey Stevenson, economist, University of Pennsylvania

Robin Fretwell Wilson, law professor, Washington and Lee University

Andrew J. Cherlin, professor of sociology, Johns Hopkins

Barbara Dafoe Whitehead, Institute for American Values

Marcia Pappas, New York president, National Organization for Women

Read each commentator's view here.

AC

Nurture vs. Nature

The nurture vs. nature debate may soon be getting new contributions:

From The New York Times:

The problem is that where genes are tidy bits of DNA, the environment is huge, amorphous and hard to quantify. It includes what your mother ate for breakfast when she was pregnant with you, the colds you’ve had, and how much you were hugged when you were a baby. Vaccinations, exposure to dirt, whether you sleep in a dark room — these are all part of your environment too. Complicating matters further, in different environments, different sets of genes get switched on and off. Recent experiments looking at fat, sedentary laboratory rats showed that they use a completely different portion of their genome from their thinner, more active counterparts.

Measuring all this sounds impossible. Yet at least two phenomics initiatives are already underway. One is the U.K.’s Biobank project, the other is the Personal Genome Project, led by the latter-day polymath George Church. The aim of both projects is to collect large quantities of information — genetic, phenotypic and environmental — from large numbers of people, in an attempt to understand how genes and environment interact to produce each of us.

Read the rest here.

MR

Women Scientists in Academia

From The New York Times:

The House of Representatives has passed what I like to think of as Larry’s Law. The official title of this legislation is “Fulfilling the potential of women in academic science and engineering,” but nothing did more to empower its advocates than the controversy over a speech by Lawrence H. Summers when he was president of Harvard.

This proposed law, if passed by the Senate, would require the White House science adviser to oversee regular “workshops to enhance gender equity.” At the workshops, to be attended by researchers who receive federal money and by the heads of science and engineering departments at universities, participants would be given before-and-after “attitudinal surveys” and would take part in “interactive discussions or other activities that increase the awareness of the existence of gender bias.”

Read more here.

As a side note, I think a major time commitment on many female and male scientists are domestic chores.  Read more about that here.

MR

Paternity and Minor’s Standing under IL Law

The Illinois appellate court recently affirmed the circuit court’s finding of nonpaternity based on DNA testing even though respondent had signed a voluntary acknowledgment of paternity (VAP) and the birth certificate.  The court held that the minor, by and through the guardian ad litem, had standing to challenge the paternity of the respondent because the child was not in privity with either party when they executed VAP.  The case is In re M.M , No. 1-09-3468 (May 21, 2010, 1^st Div.).  Read the opinion here.

MR

The Cost of Raising Children

The Los Angeles Times reports on the release of new data on the cost of child-rearing:

The grand total for middle-income parents raising one child from birth to age 17 is $222,360, which doesn't include college tuition, according to a recent report from the U.S. Department of Agriculture.

That's 22% higher than the 1960 cost — adjusted for inflation — of $182,857.

"Annual child-rearing expense estimates ranged between $11,650 and $13,530 for a child in a two-child, married-couple family in the middle-income group," the report says.

The study, called "Expenditures on Children by Families," examined child-rearing expenses of 11,800 husband-wife households and 3,350 single-parent households.

The report called child-care and education costs "the most striking change in child-rearing expenses over time." Those expenses grew from 2% of total child-rearing expenses to 17%.

Healthcare expenses doubled as a percentage of total costs and also climbed in real terms.

Although food was among the largest expenses in both time periods, proportionally the overall costs have fallen. Changes in agriculture over the last 50 years have resulted in food taking up a lower percentage of household income, the report said.

The cost of housing has increased in real terms but was the most expensive expenditure in both time periods.

Read the full story here.

AC

Van Rossum: "The Clash of Legal Cultures Over the "Best Interests of the Child' Principle in Cases of International Parental Child Abduction"

Wibo Van Rossum has posted "The Clash of Legal Cultures Over the ‘Best Interests of the Child’ Principle in Cases of International Parental Child Abduction" (Utrecht Law Review) on SSRN.  Here is the abstract.

Because of the increase in international love traffic, transnational problems in divorce, maintenance issues, visitation rights, custody over children, and cases of child abduction are here to stay. A clash of cultures is obvious in international child abduction cases in which Islamic legal cultures are involved, because ‘the best interests of the child’ principle as mentioned in several treaties functions as a site of struggle. This paper shows, firstly, in what ways the clash manifests itself by describing abduction cases in which Dutch legal professionals become involved, and how they act in such cases. The second part of the paper takes a look underneath the surface of legal practice in order to better understand it and to trace possible future developments. I describe the developments in the Dutch legal profession, such as how legal professionals keep their ‘cultural knowledge’ up to date, and whether they develop alternative ways to deal with culture clashes in child abduction cases. Developments seem to be haphazard and piecemeal in the form of knowledge and network development, court-annexed mediation, and specialized liaison judges. These developments do lead to a broadening of horizons, but not necessarily to a consensus handshake between legal cultures. A solid ‘stalemate’ in actual abduction cases can usually be prevented because Dutch legal professionals search for pragmatic solutions in individual cases.

AC

The Modern Dad

Nice story in the Washington Post yesterday about a single adoptive father's journey, and how is story is representative of a shift in modern thinking over the role of fathers:

Whereas our dad archetype has been a nervous man pacing in the delivery room, fumbling the newborn, clueless about the PTA and stepping forth only when it's time to harass a prom date or coach Little League, today's generation of fathers is more involved than any other.

Like Braman, they don't have fatherhood thrust upon them, they dive into their kids' lives.

It's beyond fishing, the summer cabin and sports. The New Dad is increasingly ducking out of work early, no matter how many dude points he may lose for it, to go to parent-teacher conferences, doctor's appointments, play dates and pickup duty.

Time-use surveys tell us that the gap in the amount of time men and women spend caring for children is closing. The Bureau of Labor Statistics American Time Use Survey for 2008 said that in cases in which a mom and a dad work full time, the mom spends 1.2 hours a day caring for a child and a dad spends 49 minutes.

But statistics don't tell the story of a societal sea change in the ways dads are involved, the massive shift that this generation of fathers has undergone.

In the past 10 days, my husband attended a kindergarten play, endured a three-day camping trip, went to two T-ball practices, two school picnics, a class birthday party, did the school pickup for both kids twice and washed their hair every bath night (his punishment for the latest egregious parking ticket). Last night, he collapsed in his recliner/king's throne, flipped up the foot rest and proclaimed: "This week, I did more with the kids than my father did throughout my entire childhood."

He is absolutely right.

Read the full story here.

AC

Tritt: “Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession”

Lee-ford Tritt has posted Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession, 62 Southern Methodist University Law Review 367 (2009) on SSRN.  Here is the abstract:

The Article argues that the sanguinary nexus test, the dominant standard for determining whether an individual has a right to inherit property when another dies, has become an increasingly frustrating, and arguably arcane, legal tool in light of the diversity of family  relationships extant in modern American life. The sanguinary nexus test determines child status based upon ties of “blood.” Considering the evolving notions of family structures and advances in reproductive technologies involving cloning, surrogacy and egg/sperm donation, serious questions arise about whether the existing sanguinary nexus test can produce results consistent with the fundamental principle of testamentary freedom underlying all of estates law. Surveying a variety of parental support cases involving novel family  situations, this Article deploys a normative and pragmatic critique of estates law’s current reliance upon family law  principles to determine relevant family relationships. From a normative standpoint, a close examination of parental support cases reveals how reliance upon family law  principles and its child-centered jurisprudence undermines the integrity of testamentary freedom. Perhaps paradoxically, that potential attack on testamentary freedom has rather serious deleterious implications for effective family planning in modern society. From a pragmatic standpoint, the work demonstrates the growing impracticability of attending adequately to inheritance rights that arise from continued reliance on family law  principles. To bring estates law back into step with modern family realities, this Article articulates and defends a new “unadulterated functional-based approach” to determine child status that would completely break genetic links for inheritance purposes. In the end, this Article concludes that paying greater fidelity to a functional parent-child relationship, rather than reliance upon blood relationships or family  law jurisprudence, would help rehabilitate the core value of testamentary freedom in estates law.

MR

Enjoy a Lazy Sunday Instead of Multi-Tasking

Many working parents often have to multi-task.  However, new evidence suggests that not only is multi-tasking addictive, but it is counterproductive. 

From The New York Times:

Scientists say juggling e-mail, phone calls and other incoming information can change how people think and behave. They say our ability to focus is being undermined by bursts of information.

These play to a primitive impulse to respond to immediate opportunities and threats. The stimulation provokes excitement — a dopamine squirt — that researchers say can be addictive. In its absence, people feel bored.

The resulting distractions can have deadly consequences, as when cellphone-wielding drivers and train engineers cause wrecks. And for millions of people like Mr. Campbell, these urges can inflict nicks and cuts on creativity and deep thought, interrupting work and family life.

While many people say multitasking makes them more productive, research shows otherwise. Heavy multitaskers actually have more trouble focusing and shutting out irrelevant information, scientists say, and they experience more stress.

Read more here.

MR