Saturday, April 2, 2011
Friday, April 1, 2011
Lisa McElroy (Dresel Univ. School of Law) has posted "Sex on the Brain: Adolescent Psychosocial Science and Sanctions for Risky Sex" (forthcoming NYU Rev. of Law & Social Change) on SSRN. Here is the abstract:
The increased rates of sexually transmitted disease among adolescents have been the subject of much public concern over the past several decades. Lawmakers and legal scholars have responded to this public health crisis by suggesting or, in some cases, actually implementing laws that impose harsh sanctions on the risky sexual behavior associated with sexually transmitted diseases. This Article argues that these efforts to limit the spread of sexually transmitted diseases among teens are doomed to fail because they are neither predicated on nor informed by adolescent psychosocial science. Because adolescents enter puberty before their brains and corresponding reasoning and emotional systems are fully mature, they are unlikely to take these laws into account when making decisions about sexual behavior. Furthermore, because punishment does not deter risky behaviors in teens unless it is highly certain to occur, the sanctions built into these proposals are unlikely to be effective. Finally, it is doubtful that adolescents will be aware of these laws, making it even less probable that they will consider potential legal penalties in making decisions about sexual behaviors.
Although such laws are unlikely to be successful in slowing the spread of disease, however, they may have a negative impact on another audience. The expressive effect of these laws may alter adult attitudes about adolescent sexuality, leading to decreased intergenerational communication about sex. Because most teens rely on parents to help them access health care services and because teens who have positive communication experiences with their parents are less likely to engage in risky sex, the net effect of these laws may in fact be negative rather than positive. In the end, the legal system’s most productive role in addressing this public health crisis may be a legislative and executive one: to create and fund programs designed to increase teen self-efficacy, sexual responsibility, and connectedness with parents and schools.
From the Vancouver Sun:
Tens of thousands of human embryos hang in cold storage in Canada’s fertility clinics, an unknown number of which are “orphans.”
Increasingly, however, clinics are preparing to match these embryos — which could survive for decades in suspended animation — with infertile couples who long for a child of their own. It’s a form of third-party procreation that experts predict will only become more common as the number of surplus embryos grows.
Embryo donation has been called the most humane answer to an sticky ethical situation: How to dispose of leftover embryos that are created by infertility treatments and then literally frozen in time?
Read more here.
Thursday, March 31, 2011
Fiona Kelly (University of British Columbia Faculty of Law) has posted "Transforming Law's Family: The Legal Recognition of Planned Lesbian Families" on SSRN. Here is the abstract:
Lesbian families with children are greater in number and more visible today than ever before. In fact, social scientists have suggested that we may be in the midst of a lesbian "baby boom". Canada's Census figures support this assertion. Between 2001 and 2006 there was a forty-seven per cent increase in households made up of two lesbian mothers and their children. This dissertation addresses the legal issues raised by lesbian motherhood, focusing primarily on legal parentage. It considers the terms upon which parental recognition has been achieved thus far, and evaluates the efficacy of a reform agenda focused exclusively on gaining access to the existing legal framework. To explore the legal and social dynamics of planned lesbian families, interviews were conducted with forty-nine lesbian mothers living in British Columbia and Alberta who conceived using assisted reproduction. Mothers were asked about the structure of their families, how they defined terms such as "parent" and "family", the extent to which they had engaged with law, and their recommendations for law reform. The interviews revealed that lesbian mothers define family and parenthood broadly, emphasizing intention and caregiving over a purely biological model of kinship. All of the mothers defined a "parent" as someone who intends to parent and, once a child is born, performs that intention through caregiving. Parental status was thus not limited to those who shared a biological relationship with a child, or even to two individuals. The research suggests that lesbian mothers have little interest in being subsumed into the existing legal framework which tends to prioritize dyadic and biological parenting. In fact, only a tiny portion of the mothers felt that identical treatment would adequately respond to their needs. The vast majority supported law reform that would extend to them the benefits of the current system, while simultaneously expanding the existing framework to include a wider variety of parental and family configurations within it. The reform model chosen to achieve this aim combined parental presumptions in favour of the lesbian couple or a single lesbian mother, with opt-in mechanisms that allowed the family to extend beyond the two parent unit.
Wednesday, March 30, 2011
Jennifer Hendricks (Univ. of Tenn. College of Law), Beth Burkstrand-Reid (Univ. of Nebraska College of Law) & June Carbone (UMKC School of Law) have posted "Teaching Controversial Topics" (49 Fam. Ct. Rev. (2011)) on SSRN. Here is the abstract:
This essay, based on a presentation at the 2009 Future of Family Law Education conference at the William Mitchell School of Law, discusses strategies for teaching controversial topics, focused on reproductive rights and related gender issues.
From BBC News Scotland:
Divorces in Scotland have fallen to their lowest rate for 30 years, according to new data published by the registrar general.
The figures showed there were 9,893 divorces in 2009. The last time the figure was that low was in 1980 when 9,068 divorces were recorded.
The latest figures also showed that more people got married last year.
Weddings rose by 956 in 2010, although at 28,480, the figures remain low compared with previous decades.
Registrar General Duncan Macniven said the drop in divorces was partly due to a recent change in the law.
"This [decrease] is not unexpected - the Family Law (Scotland) Act 2006, which came into effect on 4 May 2006, reduced separation periods for divorce, so there was an increase of over 2,000 divorces in 2006, followed by decreases in 2007, 2008, 2009 and 2010.
The report also showed that just over half of all children in Scotland were born to unmarried parents, although the figure dropped from 50.3% in 2009 to 50.2% last year.
Read more here.
Tuesday, March 29, 2011
Bettinger-Lopez: "Gender Justice and Human Rights: Revisiting the Links between Domestic Violence and Reproductive Rights Advocacy"
Caroline Bettinger-Lopez (Univ. of Miami School of Law) has posted "Gender Justice and Human Rights: Revisiting the Links between Domestic Violence and Reproductive Rights Advocacy" on SSRN. Here is the abstract:
Domestic violence and reproductive rights are often viewed as separate spheres of women's rights advocacy in the United States. Indeed, our non-profit/non-governmental organizations focusing on these issues are rarely in dialogue with one another about the commonalities that the issues and the advocacy share. (A most extreme version of this dichotomy is the ACLU, whose Women's Rights Project (which focuses, in large part, on violence against women and domestic violence) and Reproductive Freedom Project (which focuses on reproductive rights) operate completely separately). Yet the links between domestic violence and reproductive justice – links that are underscored when one brings a human rights lens to the inquiry – run deep. Women facing domestic violence and a denial of their reproductive freedom often share a common ground: the expropriation of their sexuality by a patriarchal system that dominates the family and the law. These links implicate a variety of other areas of human rights, including economic and social rights as well as civil and political rights. Moreover, the legal and political frameworks with which we analyze these social problems often fall far short of capturing their nuance and multi-dimensionality. For instance, the discourse in progressive circles focuses on government regulation of women's bodies (negative rights, e.g. right to privacy, liberty) when we discuss reproductive rights; whereas the parallel discourse focuses on lack of government protection (affirmative obligations, e.g. duty to protect) when we discuss violence against women. This dichotomy does not always hold up in practice, however. Domestic violence rates are highest against pregnant women and that pregnancy often marks the onset of domestic violence. Moreover, an abused pregnant woman may have problems accessing reproductive health services as a result of her isolation from society – a problem rooted in the State's failure to provide meaningful protection to her from abuse. Likewise, a woman experiencing domestic violence or sexual abuse may shape her reproductive choices around her wish not to have a child with an abusive partner. Other areas in which the traditional spheres of reproductive rights and domestic/sexual violence advocacy (and their kin) break down include: shackling of women while giving birth in prisons; judicial rulings ordering abused women to make certain reproductive/childcare decisions (as in a recent New York Supreme Court case ordering a mother to be sterilized in order to regain custody of her children); law enforcement's role in responding to domestic violence versus abortion clinics.
In this article, I seek to use a human rights and feminist framework to explore the interstices of this debate and unpack the often-false dichotomy that has been set up to distinguish the areas of domestic violence and reproductive rights in advocacy and academic circles in recent years. I also hope to further analyze what a human rights framework brings to the inquiry and how it might be useful in re-establishing the commonalities between these all-too-frequently separate spheres.
This scholarly inquiry comes at a particularly opportune time: in February 2011, I will be co-hosting a convening at University of Miami Law School on Gender Justice in the Americas: A Transnational Dialogue on Sexuality, Violence, Reproduction & Human Rights. As the title suggests, the focus of the convening is multifold. We view this convening as an opportunity to promote a transnational dialogue among a key group of advocates and scholars working on gender and sexuality issues throughout North, South, and Central America and the Caribbean. In an intimate setting, we will discuss recent law and policy developments at the local, national, and international levels in the areas of women's rights, gender and sexuality. We hope to develop a robust dialogue exploring the significance of these developments, as well as the legal and advocacy strategies employed by the women's and human rights movements in the region to deepen their effect. By examining these inter-related areas, we seek to take a collective step back and examine the opportunities that a human rights approach may offer to make connections between the fields of reproduction, violence, and sexuality – connections which are all-too-often forgotten in our increasingly specialized world. It is our hope that the convening will serve as a catalyst for a revitalization of the women's rights movement and will foster the development of a new network of advocates and scholars across the Americas engaged in using the international human rights framework as a tool for advancing gender and sexuality advocacy and scholarship in the region.
From the Huffington Post:
Author Rahna Reiko Rizzuto stopped by The View Friday morning to talk about her controversial memoir Hiroshima in the Morning, which details her decision to end her 20-year-marriage and leave her two young sons behind.
"I never really wanted to be a mother," Rizutto admitted. "I had this idea about motherhood that it was just going to take me over and swallow me up."
At the age of 37, Rizzuto was given the opportunity to spend six months in Japan talking to atomic bomb survivors for a book she was writing. What began as a research trip turned into a journey of immense self-discovery that ultimately caused her to end her 20-year marriage, and walk away from her family.
Reactions to her story have been anything but mundane; some critics have even sent her death threats.
See a related video and read more here.
Monday, March 28, 2011
Gupta-Kagan: "Filling the Due Process Donut Hole: Abuse and Neglect Cases between Disposition and Permanency"
Josh Gupta-Kagan has posted "Filling the Due Process Donut Hole: Abuse and Neglect Cases between Disposition and Permanency" (10 Conn. Pub. Int. L. J. 1 (2011)) on SSRN. Here is the abstract:
A state child protection agency removes a child from his mother and convinces a family court judge to rule that the child’s mother neglected him and to place the child in foster care. The judge orders the agency to work with the mother to remedy the conditions that led her to neglect him with the plan of reunifying the child with her. One year later the family returns to court. The social worker files a report asserting that the mother has not cooperated with the agency’s efforts to help her and remains incapable of taking care of the child. The mother says that she now can take care of her child, but the social worker has never liked her and has not given her a fair chance, nor has the worker given her credit for the progress she has made. She says she tried to work with the social worker, but the worker only referred her to other agencies that did not provide useful help.
How does the family court decide what happens next? A series of factual disputes exist that are distinct from the ruling that the court has already issued regarding the mother’s past neglectful conduct. These factual disputes are tied to legal questions - what will the child's "permanency plan" be, that is, will the judge order the agency to continue efforts to reunify the child with his mother or will the judge order the agency to work to have the child adopted by another family. This case is thus ripe for time tested adversarial adjudication through an evidentiary hearing. Yet in most states do not require permanency hearings to be based on evidence, and appeals of permanency hearing decisions are not permitted or do not occur. Federal law - which shapes much state law practice - provides vague and insufficient guidance to courts which must make decisions in thousands of cases like this.
This article argues that this due process donut hole -- the absence of procedural safeguards at child abuse and neglect permanency hearings, the hearings held regularly between an initial abuse or neglect adjudication and disposition and a later termination of parental rights or other permanency trial - must be filled. Constitutionally, the rights at stake - those of parents and children to maintain family integrity - are fundamental, the risk of error from sloppy procedures great, and the state interest in avoiding stricter procedures small. From a policy perspective, ensuring better permanency hearing decision-making will help avoid children drifting through foster care for years. Providing a right to appeal permanency hearing decisions will both improve trial court decision-making and help clarify difficult questions of law that will not be resolved through other appeals. Alternative methods of providing due process checks - especially early termination of parental rights trials - would create significant other problems, including the unnecessary termination of parental rights for tens of thousands of children. State courts and state and federal policy makers should work to ensure permanency hearing decisions are made via evidentiary hearings and that parties may appeal adverse rulings.
An interesting idea was outlined recently in the Atlantic on education:
Imagine a new type of financial institution, an "Education Bank," that is half-charity organization and half-bank. Like a charity, it would accept tax deductible donations. Like a bank, it would leverage those donations into circulation in the form of a new digital currency called Education Dollars. Schools could use these Education Dollars like coupons or credit card points that could be "redeemed" at participating stores.
Read more here.