Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, February 6, 2010

"8: The Mormon Proposition"

A controversial new documentary about the Mormon church's role in the passage of California's Proposition 8 recently premiered last weekend at the Sundance Film Festival.

Using internal church documents and recordings of Mormon officials, and interviews with gay activists, political figures and former members of the church, Greenstreet and his fellow director, Miami journalist Reed Cowan, make the case that the church overstepped its bounds as a nonprofit, religious organization to ensure that Prop 8 passed. But the movie doesn't just focus on that single piece of legislation.

"8" also explores the broader impact of what the filmmakers describe as the church's historically intolerant attitude toward gays, using tales of suicide attempts by young Mormons struggling with their sexual orientations and men still grappling with memories of the shock treatments they endured in order to "cure" them of their homosexuality.

View the trailer here or read more news commentary from the Washington Post on in it here.


February 6, 2010 in Film | Permalink | Comments (0) | TrackBack (0)

Friday, February 5, 2010

Reproductive Coercion as the New Domestic Violence

Newsweek reports on the increasing phenomenon of "reproductive coercion."

This month, Miller published a study in the journal Contraception detailing "reproductive coercion," when the male partner pressures the other, through verbal threats, physical aggression, or birth-control sabotage, to become pregnant. According to Miller's research, about a third of women reporting partner violence experienced reproductive coercion, as did 15 percent of women who had never reported violence.

Overall, rates of reproductive coercion among family-planning-clinic patients are suprisingly high: about one in five women report their partner having attempted to coerce them into pregnancy. "What we're seeing is that, in the larger scheme of violence against women and girls, it is another way to maintain control," says Miller, who studied 1,300 female patients culled from five family-planning clinics in Northern California. "You have guys telling their partners, 'I can do this because I'm in control' or 'I want to know that I can have you forever.' " This may help explain previous findings of higher rates of unintended pregnancies in relationships with partner violence.

Read more here.


February 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 4, 2010

Dillard: "Future Children as Property" & "Valuing Having Children"

Carter Dillard (Loyola University New Orleans) has posted the following articles on SSRN:

Future Children as Property, Duke Journal of Gender Law & Policy (forthcoming).  Here is the abstract:

Between Skinner v. Oklahoma and the advent of modern substantive due process, procreation, at least in the eyes of many courts and commentators, became entrenched as a fundamental, if not absolute, right. And yet ironically, the establishment of this right, often taken as symbolic of personal liberty, has diminished autonomy for those persons inevitably caught on the other end of it – our future children. Expanding procreative autonomy has diminished public norms that might otherwise ensure that future children are born into circumstances that also expand their autonomy. Instead, the broad, modern, privacy-based version of the right to procreate leaves the matter exclusively and privately to the whims of prospective parents, allowing them to create any number of children in any manner of circumstances. This tends to institutionalize the classification of a group of persons, albeit future persons, who exist morally and legally though not yet physically, as property. It does so because it gives prospective parents exclusive and absolute power over members of the class; power to freely access them, use them, and determine their future relations, and to do so in exclusion of others’ power, including the constructive power of the members themselves. This power over future children, which the privacy-based right to procreate vests in prospective parents, is the unmistakable hallmark of one class of persons treating another as property. 

This article maintains that the most common notion of the right to procreate, the one seemingly derived from constitutional precedent and today taken as largely beyond question, tends to treat future children largely as a class of property, assigned as such to prospective parents. This article also traces the historical development of the right as part of the larger tradition of treating existing children as the property of those who create them. Throughout, this article suggests that the right to procreate so conceived is in tension with an embedded constitutional principle that prohibits one class of persons from treating another as property. This tension, which may be called the “property objection,” demands that we change the way we think about the right to procreate.

Valuing Having Children, 14 Journal of Law & Family Studies__ (forthcoming).  Here is the abstract:

Are there objective values on which to base the claim of a right to procreate? Can we articulate reasons for having children so powerful that they justify our doing so, as a matter of right, even where it would conflict with the interests and values of others? This Article systematically and critically examines many of the values that, before now, courts and commentators have simply presumed and relied upon when making the claim that there is and ought to be a fundamental right to have children. This Article first develops a methodology for examining the values and interests on which fundamental moral, and eventually legal, rights might be based. It then applies this methodology to three categories of values specific to procreation: autonomy and relational values, as well as self-regarding values, such as the value of creating genetic lineage. This Article critiques each category as a basis for a right to procreate, rejecting autonomy and relational values, and ending with what might be a surprising conclusion about the final category: that self-regarding values, and the right that would flow from them, are sated when one has a child.



February 4, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Suk: The Trajectory of Trauma: Bodies and Minds of Abortion Discourse

Jeannie Suk (Harvard Law School) has posted "The Trajectory of Trauma:  Bodies and Minds of Abortion Discourse" (forthcoming Columbia L. Rev.) on SSRN.  Here is the abstract:

What is the legal import of emotional pain following a traumatic event? The idea of women traumatized by abortion has recently acquired a constitutional foothold. The present Article is about this new frontier of trauma. I argue that the legal discourse of abortion trauma grows out of ideas about psychological trauma that have become pervasively familiar in the law through the rise of feminism. The Supreme Court’s statement in Gonzales v. Carhart, that some women who have abortions feel “regret” resulting in “severe depression and loss of esteem,” has provoked searing criticism because talk of protecting women from psychological harm caused by their own decisions seems to recapitulate paternalistic stereotypes inconsistent with modern egalitarian ideals. I argue that a significant context for the newly prominent discourse of abortion regret is the legal reception of psychological trauma that has continually gained momentum through feminist legal thought and reform since the 1970s. Rather than representing a stark and unmotivated departure, the notion of abortion trauma continues a legal discourse that grew up in precisely that period: a feminist discourse of trauma around women’s bodies and sexuality. This intellectual context gives meaning to the present discourse of women’s psychological pain in our legal system. The ideas informing abortion regret are utterly familiar once contextualized in modern legal understandings of women that have developed in the period since Roe.


February 4, 2010 | Permalink | Comments (0) | TrackBack (0)

Embryo Screening in UK

From UK’s TimesOnline:

FERTILITY regulators have triggered a new row over designer babies by allowing doctors to destroy embryos affected by more than 100 genetic conditions, including many illnesses that are not life-threatening.

The Human Fertilisation and Embryology Authority (HFEA), has published a list of 116 inherited conditions that fertility clinics can screen out without requiring special permission.

Although many of the conditions can cause gross deformity, protracted pain and premature death, the list also includes illnesses, including cancer and blindness, which can strike late in life after a victim has enjoyed decades of good health.

A number of the conditions are not life-threatening or can be readily treated because of advances in medicine.

Read the rest of the article here.


February 4, 2010 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 3, 2010

HIV-Positive Russian Woman Wins Custody

An HIV-positive Russian woman won custody of her younger brother, housed in an orphanage since their mother's death.

The Supreme Court of the republic of Tatarstan ruled in Izambayeva's favor after she appealed the decision of a Kazan city court denying her custody on the grounds that she was HIV positive.

The decision, which has yet to enter into force, could set an important precedent in a country notorious for discriminating against people with HIV and AIDS.

Read more here.


February 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Can't Understand Your Baby? There's An App. for That

With the progress of technology, becoming and being a parent might soon all be done on autopilot:


The Cry Translator app, which costs £17,99, is said by its designers to be 96 per cent accurate in interpreting cries of distress from babies.  

The programme uses the iPhone’s microphone to receive the sound, analyses it, and displays information about what it means on the screen.

Researchers led by Dr Antonio Portugal Ramírez, a Spanish paediatrician, developed the project after finding that babies' wails could be broken down into five separate categories.

They learned that all babies, regardless of the language they are exposed to at home, have the same distinctive cries to indicate whether they are hungry, annoyed, tired, stressed or bored.

Parenting experts said they feared the technology on the Apple phone could discourage mothers from relying on their instinct and experience.

Read the rest here.


February 3, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 2, 2010

Teen Pregnancies Up for First Time in a Decade

New data shows that, for the first time in a decade, both teen pregnancy and abortion rates have risen.  

"One of the nation's shining success stories of the past two decades is in danger of unraveling," said Sarah Brown of the National Campaign to Prevent Teen and Unplanned Pregnancy. "Clearly, the nation's collective efforts to convince teens to postpone childbearing must be more creative and more intense, and they must begin today."

The cause of the increase is the subject of debate. Several experts blamed the increase in teen pregnancies on sex-education programs that focus on encouraging abstinence. Others said the reversal could be due to a variety of factors, including an increase in poverty, an influx of Hispanics and complacency about AIDS, prompting lax use of birth control such as condoms.

"It could be a lot of things coming together," said Rebecca Maynard, a professor of economics and social policy at the University of Pennsylvania. "It could be we just bottomed out, and whenever you are at the bottom, it tends to wiggle around. This may or may not be a sustained rise."

Read more here.


February 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Child Trafficking in Haiti

Already, there have been reports over the weekend of child trafficking in Haiti following the earthquake.  Ten Americans have been arrested on these suspicions, but they deny any wrongdoing.

From Reuters:

The suspects were detained at Malpasse, Haiti's main border crossing with the Dominican Republic, after Haitian police conducted a routine search of their vehicle. 

Authorities said the Americans had no documents to prove they had cleared the adoption of the 33 children -- aged 2 months to 12 years -- through any embassy and no papers showing they were made orphans by the quake in the impoverished Caribbean country.

Read more here and here.  And, here is the latest background on how the missionaries obtained the children.


February 2, 2010 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, February 1, 2010

Revisiting Baby M

Joanna Grossman (Hofstra University School of Law) has recently posted an excellent two-part commentary on whether the Baby M decision should survive, particularly in the context of a recent New Jersey case.  The case involves two gay men who were legally married.  One of the men provided sperm and a donor egg was used, with the resulting embryo implanted into the (non-egg donor) surrogate.  After twin girls were born, the surrogate sought a judgment that the surrogacy agreement she signed relinquishing her rights was a nullity and that she was entitled to parental rights.  The trial court agreed, resting on Baby M.  Grossman argues that Baby M should be revisited in light of distinctions between its facts and those in the most recent case and reproductive advancements since the Baby M decision.

But should Baby M. still carry the day? More than twenty years later, with tremendous advances in reproductive technology (including the ability to conceive children after the death of their biological parents), dramatic increases in the number of same-sex couples having and raising children, and the ever-widening variety of family forms, the ruling itself seems dated.

Would the New Jersey Supreme Court have ruled the same way if Baby M. had not been genetically related to Mary Beth Whitehead? Maybe not. The court's language in that case is laden with assumptions about the prenatal bond between mother and child and the "devastation" to women who irrevocably consent to give up their babies. The opinion is couched in terms of "mother" and "child". But is a gestational surrogate truly the "mother" of the child she carries – even if she has carried the child with full knowledge that it is not in any way genetically hers? Do women who relinquish a child have a similar experience regardless of whether they are genetically related to the child?

These seem to be open theoretical and empirical questions that are worthy of serious consideration by the New Jersey Supreme Court, or by the state's legislature.

As is often the case with family law, social change and science have clearly outpaced the law in this context. Reasonable minds may differ on how to answer the basic legal questions surrounding surrogacy, but individuals who wish to utilize surrogacy to become parents deserve renewed attention to the issue, so that they may have certainty as to whether the child they are joyfully expecting will be legally their own.

Read the New Jersey trial court opinion here and Grossman's commentary here and here.


February 1, 2010 | Permalink | Comments (0) | TrackBack (0)

Ryznar: "To Work, or Not to Work? The Immortal Tax Disincentives for Married Women"

Margaret Ryznar has recently published To Work, or Not to Work? The Immortal Tax Disincentives for Married Women, 13 Lewis & Clark L. Rev. 921 (2009).  Here is the abstract:

Among the most fundamental barriers to the aggressive participation of many married women in the work force are the disincentives for secondary income earners embedded in the federal tax code. Specifically, the current code contains a marriage penalty, which is aggravated by the progressive nature of taxation and any potential increases in income taxation. Meanwhile, child-care expenses, a prerequisite for entry into the labor market, are treated inadequately. Although these immortal problems persist despite political pushes for relief, new attention to this topic is warranted given the Obama Administration’s pledge for tax law reform. If the principle to be prioritized is that married women should not face tax disincentives to pursue paid work, then the tax code must finally deal with these issues effectively.


February 1, 2010 in Scholarship, Family Law | Permalink | Comments (0) | TrackBack (0)

Sunday, January 31, 2010

10 Weird Divorce Settlements

CNN recently covered 10 bizarre divorce settlements; they are worth a look.  Included is Marvin Gaye’s story:

Marvin Gaye was a tremendous singer, but he wasn't always so great at keeping track of his personal finances. He spent lavishly, which meant that he often couldn't cover his bills.

He was having particularly big trouble footing the bill for his 1977 divorce from Anna Gordy, so Gaye's lawyer worked out a novel settlement: Gaye would record a new album and give all of the royalties to Gordy as alimony.

Gaye headed into the studio and recorded the double album "Here, My Dear" to fulfill this deal with Gordy. Unfortunately for Gordy, critics and audiences didn't love Gaye's divorce-themed concept album; although today's critics praise the album, it was the singer's worst charting record of the 1970s.

Read the rest here.


January 31, 2010 | Permalink | Comments (0) | TrackBack (0)