Reproductive Rights Prof Blog

Lorana Bartels on Infant Abandonment, Neonaticide and Infanticide

Lorana Bartels (University of Canberra – School of Law and Justice) has posted Safe Haven Laws, Baby Hatches and Anonymous Hospital Birth: Examining Infant Abandonment, Neonaticide and Infanticide in Australia on SSRN. Here is the abstract:

This article considers international responses to infant abandonment, neonaticide and infanticide in the context of the recent conviction of Keli Lane for the murder of her newborn daughter and the Children’s Protection (Lawful Surrender of Newborn Child) Amendment Bill 2011 (SA). The article considers three responses currently in operation internationally: safe haven laws, baby hatches, and anonymous birth. Arguments about these models, including effectiveness, whether they target the “wrong” women, and the rights of children to know their genetic origins, are examined.

Dorothy Roberts on Punishment of Black Mothers through Prison and Foster Care Systems

Dorothy E. Roberts (University of Pennsylvania Law School) has posted Prison, Foster Care, and the Systemic Punishment of Black Mothers on SSRN. Here is the abstract:

This article is part of a UCLA Law Review symposium, “Overpoliced and Underprotected: Women, Race, and Criminalization.” It analyzes how the U.S. prison and foster care systems work together to punish black mothers in a way that helps to preserve race, gender, and class inequalities in a neoliberal age. The intersection of these systems is only one example of many forms of overpolicing that overlap and converge in the lives of poor women of color. I examine the statistical overlap between the prison and foster care populations, the simultaneous explosion of both systems in recent decades, the injuries that each system inflicts on black communities, and the way in which their intersection in the lives of black mothers helps to make social inequities seem natural. I hope to elucidate how state mechanisms of surveillance and punishment function jointly to penalize the most marginalized women in our society while blaming them for their own disadvantaged positions.

Kristine Knaplund on Determining Parentage for ART Children Born Abroad

Kristine S. Knaplund (Pepperdine University School of Law) has posted What's Blood Got To Do With It? Determining Parentage for ART Children Born Overseas on SSRN. Here is the absract:

The United States has long followed the English common law view that citizenship can be attained at birth in two ways: by being born in the U.S. (jus soli), or by being born abroad as the child of a U.S. citizen (jus sanguinis). The first, jus soli, is now part of the 14th amendment to the U.S. Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.” Jus soli theoretically does not inquire into the citizenship of the child’s parents; the relevant fact is that the birth takes place in the United States. Jus sanguinis, in contrast, arises from the parent-child relationship. The State Department translates jus sanguinis as “from the bloodline,” citing it as the “traditional Roman law principle.” By “natural parent,” the State Department means a blood relationship with a U.S. citizen: “It is not enough that the child is presumed to be the issue of the parents’ marriage by the laws of the jurisdiction where the child was born.”

A purely genetic connection to the child is sufficient to establish parentage in relatively few instances in American law. One is child support: even if the genetic father has had no contact with the child, and has done nothing to establish a relationship (or even been prevented from knowing about the child), the genetic connection may be enough if no other presumed father is on the scene. This article explores a second instance in which the genetic connection is paramount: when an American citizen gives birth abroad. A genetic test works well for children conceived coitally, but may wreak havoc for those conceived using assisted reproduction techniques (ART). Citizenship has recently been denied to the children of two American women who used anonymously donated gametes to conceive and give birth to a child: one in Israel, and one in Switzerland; in a third case, the U.S. Embassy refused to recognize the birth mother as the child’s mother because she had used donated eggs and given birth to the child in India.

Part I of this Article discusses the origins of jus sanguinis in Roman and English common law, including ancient and medieval views of conception and maternity in determining the child's bloodline. Not surprisingly, these views differ significantly from those held today. Taking into account this scientific background, Part II examines citizenship laws in early U.S. history, and assumptions of who were the parents of a child, both in wedlock and out of wedlock. While the definition of paternity has always taken note of biology as well as a man’s relationship to the birth mother, science began to play a more prominent role in the legal definition of parenthood once blood grouping and blood tests were available in the early 1900s. Part III then introduces the law of U.S. citizenship today, which in its main outlines is the same as first codified in 1952. The ability of DNA testing to positively identify the father in most cases, plus advances in ART that separate the two functions of the birth mother – genetics and gestation – have greatly complicated the definition of parentage for children, but the State Department has, in large part, continued to use the same parentage standard first detailed in 1952. Part IV examines and critiques three methods of identifying parentage: the State Department’s preferred method (genetics), the common law parturient test, and the recently developed intent test, to examine which method of determining parentage should be used for children born abroad. Part V concludes the article.

Sarthak Garg and Keshav Gaur on Reproductive Rights of Surrogate Mothers in India

Sarthak Garg & Keshav Gaur (both of Rajiv Gandhi National University of Law) have posted Reproduction Rights of Women: Ethical or Viable Role of Surrogate Mother on SSRN. Here is the abstract:

Reproductive behavior is governed by complex biological, cultural and psychological relations, hence reproductive health and rights must be understood within the context of relationships between men and women, communities and societies. This research encompasses with these problems which concerned about the reproductive health and rights of the women. It furthermore explains the vulnerability of women and gender biased violence against them. This paper also laid stress on the impact of men’s action over the reproductive health and rights of the women and the key initiatives to deliver reproductive rights and services to the women. Though, this paper also focuses on the rights of the surrogates’ mother and the initiatives taken by the government for the enhancement of the surrogacy and their rights in India. In this research we conceptualize the incidents related to the surrogacy and the legal issues in the global scenario. However, we also gestate the landscape of surrogacy in India, as it is new concept for India and not acceptable as well on various portfolios so we also laid focus on the social and economic background for the profound this concept in the grass root level. While construing this research we also analysis the Artificial Reproductive Technology (ART) bill, in that we critically analysis it’s positive and negative aspects for the concept of surrogacy in India. Eventually, this research also laid impact over the commissioning parents and their rights regarding surrogacy. In the conclusion our research concludes procreating a child in surrogate woman’ womb is grateful gift to those mothers who cannot conceive child.

Pamela Cox on Marginalized Mothers and Reproductive Autonomy

Pamela Cox (University of Essex) has posted Marginalized Mothers, Reproductive Autonomy, and 'Repeat Losses to Care' on SSRN. Here is the abstract:

Over 70,000 children are ‘looked after’ by local authorities in England and Wales. Emerging research suggests that a significant proportion of their birth parents have either already lost a child to permanent adoption or will go on to lose others. These ‘repeat loss’ cases raise difficult questions about marginalized mothers and their reproductive autonomy. This article considers past and present tactics used by the state in its attempts to limit that autonomy, including institutionalization, sterilization, long‐acting contraception, and permanent adoption. It argues that the gradual democratization of intimate citizenship over the past century, defined as a person's ability to choose and direct their intimate relationships, has obliged the contemporary state to develop new tactics which aim to build personal capacity and to balance enhanced child protection with enhanced reproductive autonomy.

China Reconsiders One-Child Policy

Reuters: China considers easing family planning rules, by Michael Martina: 

China is considering changes to its one-child policy, a former family planning official said, with government advisory bodies drafting proposals in the face of a rapidly ageing society in the world's most populous nation. . . .

 

Courtney Joslin on Marriage, Biology, and Federal Benefits

Courtney G. Joslin (University of California, Davis – School of Law) has posted Marriage, Biology, and Federal Benefits on SSRN. Here is the abstract:

This Article approaches the topic of same-sex marriage from a novel perspective by scrutinizing the historical accuracy of primary defense proffered by same-sex marriage opponents – “responsible procreation.” In the context of challenges to Section 3 of DOMA, responsible procreation posits that the federal government’s historic purpose in extending marital benefits is to single out and specially support families with biologically-related children. Because same-sex couples cannot fulfill this long-standing purpose, it is permissible to deny them all federal marital rights and obligations. While advocates disagree about whether and to what extent DOMA furthers this alleged federal interest, to date, all sides have accepted this historical account.

This Article is the first to interrogate the accuracy of this account. To do so, the Article examines two of the largest and most important federal benefits programs – Social Security benefits and benefits for active and retired members of the U.S. military. This analysis demonstrates that Congress has not and does not condition the receipt of federal family-based benefits on biological parent-child relationships. To the contrary, Congress long has implicitly and explicitly extended such benefits to families with children known to be biologically unrelated to one or both of their parents. This Article thus reveals that responsible procreation is based on myth, not history and tradition.

Symposium, "In Search of Equality in Family Law": Call for Papers

Michigan State Law Review and Symposium (April 11-12, 2013) – Call for Papers: “In Search of Equality in Family Law”: 

The Michigan State Law Review along with Professors Melanie B. Jacobs and Cynthia Lee Starnes, invite participants for our upcoming symposium, "In Search of Equality in Family Law" to be held April 11-12, 2013. The list of confirmed presenters include keynote speaker, Dean David Meyer, and Professors Susan Appleton, Naomi Cahn, June Carbone, James Dwyer, Theresa Glennon, Leslie Harris, Courtney Joslin, Alicia Kelly, Linda McClain, Raymond O'Brien, Ruthann Robson, Barbara Stark, Richard Storrow, and Lynn Wardle.

The theme of the symposium is the continuing struggle to reform family law to ensure equality. The focus is on relationships within families, on access to the family structure, and on family members’ status in society at large. The topic of equality in family law is also particularly timely: family is at the heart of social debate and the focus on family is magnified as we approach an election year. Daily, news stories highlight issues of equality that arise in many areas of the family -- adult partnerships, including same-sex marriage; parenting responsibilities; divorce and its economics; paternity; the definition of family; same-sex adoptions; and full faith and credit recognition for out-of-state same-sex marriages. A central theme will be the sameness/difference debate in feminism over how equality is best attained: by treating men and women exactly the same, or by recognizing differences in power and circumstance so that different treatment is required to ensure equality. This topic will appeal to family law scholars working on a variety of projects.

In addition to the rich discussion at the Symposium, this dialogue will result in the publication of participant articles in an issue of the Michigan State Law Review. The Law Review is an acclaimed scholarly journal that publishes five issues yearly. Each participant is invited to offer an academic article for publication in the Law Review. Tentatively, final draft papers are due Friday, June 7, 2013.

The goal is to be inclusive and to engage scholars focusing on various reform issues in a conversation about the equality implications of their work. Interested individuals should send a one-page proposal to Professor Melanie Jacobs at [email protected] by October 31st.

New Study Reports on Abortion Rates by Age in Countries with Liberal Abortion Laws

Guttmacher Institute – press release: Survey of Countries with Liberal Abortion Laws Finds Abortions Concentrated Among Women in their 20s, by Jessica Malter: 

Decline in American Teen Abortion Rate Puts United States on Par With Some Industrialized Counterparts, but More Progress Is Needed

A new study of countries with liberal abortion laws finds that abortion is more common among women in their 20s than among women of other ages, according to "Legal Abortion Levels and Trends by Woman’s Age at Termination," by Gilda Sedgh et al. of the Guttmacher Institute. A large body of research has shown that this group often wants to postpone childbearing, which would interrupt their ability to work or complete their schooling; in addition, many young adult women have yet to establish stable partner relationships. The current study found that recent declines in the teen abortion rate in the United States (now at 20 abortions per 1,000 women aged 15–19) have put the United States on par for the first time with several other industrialized countries, including England and Wales, Scotland, Sweden and New Zealand. This marks a considerable change from the mid-1990s, when the U.S. teen abortion rate was substantially higher than that of any other industrialized nation. . . .

Arlie Loughnan on Doctrine of Infanticide

Arlie Loughnan (University of Sydney-Faculty of Law) has posted The 'Strange' Case of the Infanticide Doctrine on SSRN. Here is the abstract:  

This article examines the doctrine of infanticide in relation to the norms and practices of criminal responsibility. It adopts an historicized approach to the law, which reveals that the legal proscription of child killing by mothers began as an instance of the principles of criminal liability that have been labelled ‘manifest criminality’. With changes in the social meanings accorded to women who kill their children in the 18th and 19th centuries, however, the law of infanticide developed into an instance of what I call ‘manifest madness’, which is an analysis of the way that ‘madness’ is constructed in and through criminal law practices. According to this analysis, a particular social type, the infanticidal woman, has come to determine the legal issue of the defendant’s criminal responsibility, and the act of infanticide has become an instantiation of abnormality for criminal law purposes. In the absence of an expert medical consensus, the ‘strange’ doctrine of infanticide is sustained in the current era by a lay or non-expert knowledge about the interrelation of gender, childbirth and madness, which underpins legal evaluation of infanticidal women and their acts.

Helen Alvare on I. Glenn Cohen’s "Regulating Reproduction: The Problem with Best Interests"

Helen M. Alvare (George Mason University School of Law) has posted A Response to Professor I. Glenn Cohen's 'Regulating Reproduction: The Problem with Best Interests' on SSRN. Here is the abstract:

This response to Professor I. Glenn Cohen’s article, Regulating Reproduction: The Problem with Best Interests, argues that rules restricting whether, when, or with whom a person reproduces serve an important societal purpose and need not be abandoned simply because they cannot technically be supported by a “best interests of the resulting child” (“BIRC”) rationale due to the “non-identity” problem. The non-identity problem refers to the fact that such rules could result in a particular child not being conceived at all, or in the creation of a different child at another time. While Professor Cohen correctly notes that such rules might be misunderstood to suggest that some human lives are “not worth living,” this response proposes that it is possible – and necessary – to avoid that unacceptable message, without at the same time accepting the extreme conclusion that adults need never constrain their behaviors respecting conception. This result can be achieved by re-conceiving the BIRC rationale as an effort to remind parents – prior to the moment when parenting begins (conception) – of what the law both needs and assumes them to be: fit parents who act in their children’s best interests. The state should retain the ability to exhort adults that a child’s future flourishing is influenced by the parents’ situation at the moment of conception – e.g. the parents’ age, marital status, and any kin relationship, among other factors – and reproductive regulation often serves this important objective.

Kristine Knaplund on Children of Assisted Reproduction Technology

Kristine S. Knaplund (Pepperdine University School of Law) has posted Children of Assisted Reproduction on SSRN. Here is the abstract:  

More than three decades after the birth of the first child conceived through in vitro fertilization, few states have comprehensive statutes to establish the parentage of children born using assisted reproduction techniques (ART). While thousands of such children are born each year, courts struggle to apply outdated laws. For example, does a statute terminating paternity for a man who donates sperm to a married woman apply if the woman is unmarried? In 2008, the Uniform Probate Code (UPC) added two much-needed sections on the complicated parentage and inheritance issues that arise in the field of assisted reproduction. Yet it is unclear whether states will enact these new UPC sections; few states have enacted comparable provisions of the Uniform Parentage Act (UPA). The issues can be controversial, particularly regarding children born years after an intended parent’s death, or when the discussion turns to enforcement of a contract for a gestational carrier, the preferred term for a surrogate mother.

This article explores the legal landscape for children conceived through assisted insemination (AI), in vitro fertilization, intracytoplasmic sperm injection, and other techniques. The article discusses the differences between the UPA and UPC sections that concern assisted reproduction. It examines the critical normative and ethical questions answered by these statutes and analyzes the likelihood that states will adopt either uniform act. The article looks briefly at gestational carrier agreements to consider whether and how they should be enforced. The article concludes by noting the need for legislation, the virtues of the UPC over the UPA, and the hope that states will address all those who use ART, including gay and lesbian couples, and single parents.

“Latch On NYC” – Criticism for Mayor Bloomberg's Breastfeeding Campaign

TIME op-ed column: Breastfeeding Wars: Why Locking Up Baby Formula Is A Bad Idea, by Amy Tuteur:

Mayor Bloomberg's campaign against formula feeding in hospitals is profoundly out of touch with the realities of motherhood

New York City Mayor Michael Bloomberg is right to want to promote breastfeeding, but his administration’s “Latch On NYC” campaign is an exercise in excess. First announced in May, the campaign is asking maternity hospitals to 1. ban formula feeding of newborn infants unless medically indicated; 2. restrict access to formula for hospital staff by locking it up and reporting its distribution to the New York City Health Department. . . .

Women's Rights Advocate, Joan Dunlop, Dies at 78

Jezebel: Joan Dunlop, Women's Health Advocate, Passes Away at 78, by Anna Breslaw:

Joan Dunlop, who had an integral part in convincing the United Nations that a woman's right to say no to sex was an essential human right, has died at 78 of lung cancer. Her interest in reproductive rights began as a young woman in London when she had an illegal abortion, something she would later confide in a job interview as an advisor to John D. Rockefeller III (she got the job). Dunlop also served as president of the International Women's Health Coalition from 1984 to 1996 and vice president of public affairs for Planned Parenthood in New York later in life.

Another interest was population control; if women across the globe had more autonomy and a better standard of living, asserted Dunlop, they themselves would be able to decide how many children they wanted to bear. For her part, she was "never faintly interested" in having children. . . .

Journal of Law and Health: Call for Papers

Journal of Law and Health’s Annual Symposium: The Legal and Ethical Implications of Posthumous Reproduction:

The symposium is tentatively scheduled for March 2013.

In Astrue v. Capato, the Supreme Court held that children conceived through in vitro fertilization after the death of a parent were not automatically entitled to survivor benefits under the Social Security law. The Court stated that the children’s eligibility to receive the benefits depended upon their ability to inheritance under the state’s intestacy system.

Areas of interest for this special journal issue include, but are not limited to, the following topics:

• What steps are necessary to protect the financial interests of posthumously conceived children?
• What regulations are needed to protect the reproductive rights of the dead gamete provider?
• What steps are necessary to address the legal, moral and ethical consequences of posthumous reproduction?
• What impact, if any, will the United States Supreme Court decision in Astrue v. Capato have on posthumous reproduction? 
• Do the dead have a fundamental right to procreate?
• Should posthumously conceived children be treated like heirs under the intestacy system?
• Whether health insurance should cover the expense of posthumous reproduction?

Those interested in submitting an article must submit a 600-word abstract describing selected topic and submit curriculum vitae by October 1, 2012. Email abstract and CV to Journal of Law and Health at [email protected]. Include “Submission: Annual Symposium” in the subject line.

Melissa Murray on the "New Illegitimacy"

Melissa E. Murray (University of California Berkeley School of Law) has posted What's so New About the New Illegitimacy? on SSRN. Here is the abstract:

At common law, children born out of wedlock were legally disfavored — filius nullius, the child of no one. But according to an inherited legal progress narrative, all of this changed in 1968 when the U.S. Supreme Court decided Levy v. Louisiana and Glona v. American Guarantee & Liability Insurance Co., ushering in a new era in which the common law tradition that imposed serious disadvantages on non-marital children gave way to a more liberal era where the sins of the parents would not be visited upon the children. More recently however, illegitimacy seems to be making a comeback. In June 2011, the Family Leader, a Christian conservative group, exhorted presidential hopefuls to sign “The Marriage Vow — a Declaration of Dependence upon Marriage and Family.” “The Marriage Vow” emphasized the importance of the traditional nuclear family and marital fidelity, disavowed the expansion of civil marriage to same-sex couples, and identified the harms of illegitimacy. But social conservatives are not the only ones to emphasize illegitimacy and its perceived harms. Illegitimacy has become pervasive in the debate over same-sex marriage. Marriage traditionalists argue that marriage was intended to deal with the problem of illegitimacy and irresponsible procreation, while those favoring marriage equality argue that illegitimacy is an injury foisted upon same-sex couples and their families simply because they are ineligible for civil marriage.

In this Essay, written for The New Illegitimacy symposium, I consider these developments, and ask two questions: First, what are we to make of them? Do these developments signal the rise of a “new illegitimacy” in which non-marital birth status has been resurrected as a salient legal concept? And second, (regardless of how we answer the first question) what are the consequences of the marriage equality movement’s interest in illegitimacy? In taking up the first question, I debunk the inherited legal progress narrative that claims that law abandoned the common law’s treatment of illegitimacy and its many legal disadvantages in favor of a more liberal legal regime. I revisit Levy, Glona, and the line of unmarried fathers cases, to argue that constitutional protection for illegitimate families has been contingent on adhering to norms forged in the marital family. Even as law professes to liberalize its treatment of non-marital births, its clear preference for channeling sex and reproduction into the marital family (and those family forms that mimic marital family norms) remains indelible and intact. Bearing in mind that the narrative that charts the “progress” from the common law tradition to Levy and Glona, is less progressive than the conventional wisdom would allow, I turn to the emergence of illegitimacy as a salient concept in the struggle for marriage equality. To do so, I trace the emergence of the illegitimacy as injury argument in marriage equality cases and I explain the underappreciated costs of using illegitimacy to bolster claims for marriage equality.

Advocating for Humane Treatment for Birthing, Incarcerated Women

AlterNet: Birthing Behind Bars: Fighting for Reproductive Justice for Women in Prison, by Tina Reynolds & Victoria Law:

"I never thought of advocating outside of prison. I just wanted to have some semblance of a normal life once I was released," stated Tina Reynolds, a mother and formerly incarcerated woman. Then she gave birth to her son while in prison for a parole violation:

"When I went into labor, my water broke. The van came to pick me up, I was shackled. Once I was in the van, I was handcuffed. I was taken to the hospital. The handcuffs were taken off, but the shackles weren’t. I walked to the wheelchair that they brought over to me and I sat in the wheelchair with shackles on me. They re-handcuffed me once I was in the wheelchair and took me up to the floor where women had their children. 

"When I got there, I was handcuffed with one hand. At the last minute, before I gave birth, I was unshackled so that my feet were free. Then after I gave birth to him, the shackles went back on and the handcuffs stayed on while I held my son on my chest."

 

That treatment, she recalled later, was "the most egregious, dehumanizing, oppressive practice that I ever experienced while in prison." Her experience is standard procedure for the hundreds of women who enter jail or prison while pregnant each year. . . .

New York Times Examines The Policing of Pregnancy

The New York Times Magazine: The Criminalization of Bad Mothers, by Ada Calhoun:

On a rainy day just after Thanksgiving, Amanda Kimbrough played with her 2-year-old daughter in her raw-wood-paneled living room, petting her terriers and half-watching TV. Kimbrough, who is 32, lives a few miles outside Russellville, a town of fewer than 10,000 in rural northwestern Alabama, near the border of Franklin and Colbert Counties. Textiles were the economic engine of the area until the 1990s, when the industry went into decline and mills shut down. Now one of the region’s leading employers is Pilgrim’s, a chicken supplier. The median household income is $31,213, and more than a third of children live below the poverty line.        

As family members came in and out of the room and one daytime show slid into another — “The People’s Court,” “Intervention,” “Jerry Springer,” “The Ellen DeGeneres Show” — Kimbrough talked about her arrest following the death of her third child, Timmy Jr. . . .

NPR Interviews Author of New Margaret Sanger Biography

NPR: Writing the Messy Life of a Sexual Health Pioneer, hosted by Michel Martin:

Transcript:

I'm Michel Martin and this is TELL ME MORE from NPR News. As women around the world are rethinking and rewriting their roles in society, we decided to take a look at how the biographies of notable women reflect those changes. So, throughout women's history month, we've been digging into biographies of all kinds of women, divas, dancers, leaders of nations and queens of fashion.

And, today, we're talking about a woman who, although she died four decades ago, is back in the news. We're talking about nurse and activist, Margaret Sanger, the founder of the organization that eventually became Planned Parenthood.

Sanger began her efforts in behalf of sex education and contraception at a time when even talking about contraception was considered obscene and, in some places, even criminal. Women risked arrest when they sought out makeshift birth control devices that were often unsafe.

To this day, Margaret Sanger is lauded by many for her work in changing that and, as well, vilified by others for ushering in a culture that her critics say devalues life and women in the process.

Her life and work are chronicled in the new book, "Margaret Sanger: A Life of Passion." The author is Jean Baker. She is an historian and history professor at Goucher College and she's with us now in Washington, D.C. . . . 

 

Audio of the interview is available through the link above.

Mississippi Bill Could Force State's Only Abortion Clinic To Close

The Los Angeles Times: Mississippi could close state's sole abortion clinic, by Richard Fausset:

The sole abortion clinic in the state of Mississippi could be forced to close under a bill headed to the desk of Gov. Phil Bryant, who has said he intends to sign it.

The Jackson Clarion-Ledger reported that the state Senate gave final legislative approval to the measure on Thursday. It now heads to Bryant, a Republican who was elected to lead the state in November -- at the same time an antiabortion "personhood" amendment failed when put to a statewide vote. . . .