Category: Family Law

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ICWA and Military Families

I want to thank Solangel for having me here at the blog for the month of May. I’ve enjoyed writing posts about our work at the Indigenous Law and Policy Center.

Yesterday I was part of a roundtable discussion at Law and Society with a number of Indian law scholars who all talked for about 10 minutes on their current projects. The eight projects covered everything from the oil spill clean up process to ongoing treaty rights cases to the effect of extractive industry development on human trafficking. All of them were grounded in specific needs for tribes and tribal attorneys. It was an impressive panel.

I spoke about my latest writing project, the intersection of the Indian Child Welfare Act and military families. In Adoptive Couple v. Baby Girl, the Supreme Court based much of its discussion on the biological father’s “abandonment” of his child. Nowhere in the opinion did the Court mention the father’s military service and his year-long deployment to Iraq.

The law that prevented the adoption from moving forward during the father’s deployment, the Servicemembers Civil Relief Act, was amended in 2008 to include any child custody proceeding in the cases that could be stayed when a servicemember cannot be present at the court hearings. However, during the time the father was deployed, the baby stayed with the potential adoptive couple. In a family law situation, the length of a child’s placement receives increasing weight the longer the placement. While the South Carolina courts found that the child should be placed back with her father under the Indian Child Welfare Act, there was reluctance to do it based on the length of time the potential adoptive couple had had the baby. Cases involving service members need to be stayed, but the stay does not contemplate the ramifications on a family law case like Adoptive Couple.

Native people serve at a proportionally higher rate than other groups. In the case of active duty service members, they have the possibility of having to ask a state court to enforce not one relatively unknown federal statute, but two. Investigating how these play out in the case law, and also how the active efforts to preserve the Indian family (as required by ICWA) can be defined include specific services for Native veteran parents are two of the areas I’m working on this summer.

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UCLA Law Review Vol. 61, Issue 5

Volume 61, Issue 5 (June 2014)
Articles

Opinions First—Argument Afterwards Daniel J. Bussel 1194
How the California Supreme Court Actually Works: A Reply to Professor Bussel Goodwin Liu 1246
The Best of All Possible Worlds? A Rejoinder to Justice Liu Daniel J. Bussel 1270
Deprivative Recognition Erez Aloni 1276
Immigration Detention as Punishment César Cuauhtémoc García Hernández 1346
Toward a Theory of Equitable Federated Regionalism in Public Education Erika K. Wilson 1416
The Dark Side of the First Amendment Steven H. Shiffrin 1480

 

Comments

Misdiagnosing the Impact of Neuroimages in the Courtroom So Yeon Choe 1502
Under the (Territorial) Sea: Reforming U.S. Mining Law for Earth’s Final Frontier James D. Friedland 1548

 

 

 

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BOOK REVIEW: Carbone and Cahn’s Marriage Markets: How Inequality Is Remaking the American Family

Marriage Markets 01Marriage Markets: How Inequality Is Remaking the American Family. By June Carbone and Naomi Cahn (published by Oxford University Press May 2014).

Marriage Markets: How Inequality Is Remaking the American Family, just out from Oxford University Press, is a sweeping chronicle of the intersection of family demographics and family law—and the ways in which class divides matter.

June Carbone, the Robina Chair in Law, Science, and Technology at the University of Minnesota Law School, and Naomi Cahn, the Harold H. Greene Professor of Law at George Washington University Law School, argue that “marriage [is] a defining element in the class divide remaking America.” The central premise of Marriage Markets is an explanation of how the top and bottom economic classes are spinning in different directions in terms of family formation. Carbone and Cahn argue that increasing income inequality influences the markets for marriage. In the top economic quintile, four out of five couples are married; in the bottom quintile, less than one in five couples are married.

Greater education and income is correlated with a later time of first marriage, and, Carbone and Cahn note that “one of the biggest changes in mating preferences since 1960 is that men care three times as much as they once did about the income of a potential mate.” Yet, the employment arena is changing for men—more highly educated men have gained economic ground, while those with just a high school education or in blue collar jobs have lost ground. In all but one group in American society, marriage rates have fallen. “The only group in American society whose marriage rates at ages 30-50 have grown are the top five percent of American women by income.” The nature of marriage is changing too. More married women have careers than in previous era; more men spend increased amounts of time on childcare and housework.

Carbone and Cahn describe these developments in terms of the concept of “marriage markets.” Many scholars from all political and philosophical persuasions object to the very idea of treating intimate relationships as something that should ever be the product of calculation or exchange. Yet, most also agree that supply and demand affect “price.” Carbone and Cahn add that sex ratio imbalances produce virtuous and vicious cycles that influence expectations, alter behavior, and ultimately transform cultural practices.   Sociologists Marcia Guttentag and Paul Secord demonstrated in the eighties, in an influential book on sex ratios, Too Many Women? The Sex Ratio Question, that relationships are in fact the product of a market. If the men outnumbered the women in a given group, Guttentag and Secord argued, men competed among each other to land the “best” women. Women in turn tend to select for some mix of worldly success and good behavior, so an excess of men tends to produce “virtuous cycles” in which men compete to satisfy women by working hard, remaining faithful, and investing in their children. The fact that men outnumber women among high earners eager to pair with each other, Carbone and Cahn argue, provides an explanation for why the marriage rates at the top have remained relatively stable and why divorce rates remain relatively low.

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Now you can insist on control of your material. You can insist on veto power over everything; down to casting and choice of directors and script approval, you can insist on all those things. J.K. Rowling insisted on all those things. And J.K. Rowling got all those things because there were enough people interested in that. Now if you’re not J.K. Rowling, and you insist on all those things, the studios are not going to be very interested or less studios will be interested in it so you’ll get less money or none at all. Or alternatively, you can not insist on everything and you can just sell them the book and what they do with it is what they do with it and you have to live with it. You no longer have approval over anything, you no longer have…you know what I mean? And those are the two extremes. In between of course there’s a vast area of shades of gray.

— George R. R Martin

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George R. R. Martin on Copyright, Inheritance, and Creative Control

He cares much more about French dynastic history than you do.

He cares much more about French dynastic history than you do.

This is Part 3 of the interview I did with George R. R. Martin in  2007.  For background and part 1, click here.  For Part 2, click here. For the audio file, click here.

HOFFMAN: Yeah, but you just generally right. The trope something that really speaks to folks. I guess maybe that raises a question about your fans generally. You’ve obviously got a huge fan base and I’ve been reading a little bit about them. One question that comes up a bunch of different times is fan fiction and what do you think about fan fiction?

MARTIN: I’m opposed to fan fiction.

HOFFMAN: Why?

MARTIN: Well number one, its copyright infringement and it can potentially endanger my copyrights and my trademarks if I were to allow it. Also, yes maybe it’s a gesture of love that they love your characters and they love your world and all that but it’s not the kind of gesture of love that I really want. And for aspiring writers and some of these people, sure it’s a wide range of fan fiction writers, some who are terrible. Some of them are actually talented writers. I think for the talented writers it’s particularly tragic because they should be doing their own material.

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To Define the Beginning of Human Life or Not, That Is the Question

Twice a month I meet with some of my students for a critical reading.  In our last January meeting, we decided to commemorate Roe by re-exploring Judith Jarvis Thomson’s  seminal article A Defense of Abortion. Thomson’s defense of induced abortion by exploring our moral duties in the unrealistic case one found oneself kidnapped and plugged in to a virtuous violinist who is sick and needs one’s kidneys for nine months in order to heal has been highly criticized. Nonetheless, every time I read it or discuss it, I find how enlightening her thought experiment still is, as it confronts us with our set of moral beliefs and its incongrueties with our policy stances. Moreover, it makes me always ponder about our lack of a well-thought and coherent abortion regulating scheme.  But that is a topic for a different post. Today, I would like to concentrate on a related matter that stemmed from my discussion of Thomson’s article with my students.

By the end of our conversation my students and I were inquiring whether it was possible to assert a defense of stem cell research/therapy even taking for granted the right of life of the embryos, as Thomson did in her paper. It seemed obvious for almost all of us that using embryos for those purposes would be considered a blatant deprivation of the embryo’s right to life and an impermissible use of another person’s body; and thus, could not be sustained under Thomson’s argument. So we decided to try to come up with a scenario similar to Thomson’s violinist that could aid us in exploring the moral adequacy of stem cell research/therapy.

An appropriate thought experiment eluded our not so brilliant minds. We did not want to come up with a fallacious and common place thought experiment such as the one of the burning building test  in which one is forced to decide who to rescue first: twenty 8-cell embryos kept in a freezer or a baby in peril. We were not looking to formulate an experiment tilted to one side like the burning building test, in which the “incomplete human character” of the embryo is made self-evident by the “inescapable instinct” to rescue the “actual” human being. However, the truth is that it is quite difficult to come up, in a couple of minutes, with a reasonable possible scenario in which all the circumstances of stem cell research/therapy are replicated in a way that could sensibly help us assess our moral agency.

First, we would need to come up with a scenario in which we have a “human being” in a permanent frozen state (e.g. a cryogenized virtuous violinist) in which the conditions necessary for a successful life require a willing human host that is either related to the cryogenized violinist or has the authorization of his guardian to serve as a host for nine months.  Second, we must come up with a particular circumstance (e.g. a military operation) that would force the guardian of the cryogenized violinist to choose between using the frozen body to help in the recovery of a sick non-cryogenized human being (e.g. a  young Science Nobel laureate) whose only real, feasible and cost efficient chance to a healthy life is using that frozen body at the expense of eliminating all possible chances of an uncertain future life for the cryogenized violinist or leaving the cryogenized violinist frozen for an indefinite period of time and allowing for the sick non-cryogenized Nobel laureate to die. Finally, we would need to come up with the circumstances that led the cryogenized violinist to be treated as a surplus human being and at the same time be treated as the raw materials for the creation of future equally virtuous violinists (e.g. the practice of cloning virtuous musicians).  Furthermore, the example would need to consider the possibility of making the cryogenized violinist for the sole purpose of healing the sick non-cryogenized laureate (e.g. the possibility of the world coming to an end if the Nobel laureate does not find a solution to the problem before he dies from her sickness).

The end result is a very absurd, unrealistic and perhaps too intricate thought experiment.  Yet, exploring the limits of such an experiment may be a possible way to coming up with a defense of stem cell research/therapy even when one grants the right of life of the embryos.  Nonetheless, I would like to pose that the absurdity and illusory nature of these thought experiments suggest that we should face the inevitable: we must delimit when human life begins if we truly would like to come up with a moral/ethical regulation of stem cell research/therapy. This inescapable moral question is more evident when we contrast our legal stances and nation’s practices on issues like torture, war, death penalty, abortion, euthanasia and justification and necessity defenses.  The system is manifestly incoherent.

I do believe that a sensible answer will only come when we legally embrace the fact that life – and by extension human life – exists in a continuum. Law should echo that reality. A coherent and ethical sound system can only arise after we legally recognize that there is a point in that continuum in which life becomes human and that there are different stages before that point in which life is a subject of certain rights but not the same rights a human life is a subject thereof. Laws should define that moment and those stages. There is no moral reason to avoid doing so. As there is no ethical rationale either to treat totipotent, pluripotent, multipotent, oligopotent, unipotent cells, fully developed human beings not capable of living on their own, and born human beings in the same way.  Furthermore, our history and legal system have always made distinctions on how we treat the right to life of human beings based on particular deontological assumptions.

Our inquiry into how to regulate stem cell research/therapy should not be made under the assumption that embryos are in fact human beings and subjects of the same rights. A valid answer to this recent human reality must be based on a rigorous analysis of moral questions such as: 1. When does a life become a human life?; 2. Which type of rights is a non-human life entitled to?; 3. Are there different stages of a non-human life?; 4. Are those stages deserving of a differentiated right treatment?; 5. What are our moral duties to a human life?; 6.  What are our moral duties to a non-human life and it corresponding stages?; and 7. Under which circumstances are we relieved from those duties to human and non-human lives? These questions should be guiding our legislative process regarding scientific inquiries and not biased assumptions as to what constitutes human life.

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Scorned Law: Rethinking Evidentiary Rules in Cases of Gender-Based Violence

Today, I would like to touch upon what I believe to be a disturbing void within Critical Legal Theory. Although Crit-scholars have unmasked many examples of apparently neutral laws with discriminatory effects, they have overlooked to some extent the weight of apparently neutral evidentiary rules upon certain minority and identitarian groups.  The article I’m currently working on intends to explore this void by examining how evidence rules are not neutral in practice, but rather inexorably respond to our patriarchal practices.

The ultimate end of our evidentiary system is to fairly ascertain the truth and secure a just determination in every proceeding. However, for centuries, women have been doubly victimized and subjugated to patriarchal powers because of evidentiary rules. Their value as human beings have been lessened in rape and sexual harassment cases by a long history of corroboration requirements and public disclosure of their sexual pastMost jurisdictions have been able to recognize that it was necessary to reform these rules in order to amend those wrongs. Nonetheless, our system, through its evidentiary rules, continues to re-victimize women. Attorneys unscrupulously make use of certain rules of evidence to access a patriarchal narrative that blames women for the violence they are victims of or that portrays them as a dishonest party seeking revenge.  The resulting proceedings preclude effective judicial redress. It is time we start looking into these instances and think of amending our rules of evidence to correct the wrongs we continue to inflict upon women, especially in the context of gender-based violence.

Violence against women is an alarming problem in our society.  Although reliable figures are difficult to compile, it is estimated that 1.3 million women are victims of physical assault and that 85% of domestic violence victims are women. Most of these crimes, however, are not prosecuted, mainly because they go unreported. Organizations working in this field estimate that only 25% of all physical assaults, 20% of all rapes and 50% of all stalking crimes are reported. Moreover, meta-analysis of police and judicial statistics reveals that only one out of six domestic violence cases reported to the police in the United States results in a conviction.  Furthermore, only a third of the people arrested for domestic violence ends up convicted. These numbers illustrate a twofold problem.  First, a large percentage of the afflicted population of women is not seeking judicial redress. On the other hand, those who do go through the legal process are not receiving the justice they deserve and seek.

There are multiple reasons that would account for the low reporting rates in these types of crimes. It has been widely studied how victims do not feel comfortable going to the authorities because police officers do not validate their accusations and instead receive victims with the same violence the victims have been trying to escape. In addition, in many instances, women are trying to avoid the negative repercussions that prosecuting these crimes introduce to their lives, such as adverse child custody determinations or becoming the object of criminal investigations themselves. Likewise, there are several reasons that explain the low percentage of convictions. The more salient one is the implicit biases of triers of facts. It has been documented how judges and jurors take women to be less credible than their male partners, a bias that grows even deeper when factors such as race, socio-economic and immigration status are thrown into the mix.

This credibility bias is extremely powerful, especially when rules of evidence allow defense attorneys to use it in their favor. Fully aware of this fact, defense attorneys have reclaimed the myth of the scorned woman to argue that female victims are misusing the judicial system “to get back at” their partners or ex-lovers and that defendants should not be convicted because it is all a lie. The strategy takes advantage of the rules of evidence that allow attorneys to impeach the credibility of a witness with any specific act of untruthfulness by bringing into evidence inconsequential acts of mendacity. By doing so, defense attorneys access the sexist narrative of the scorned woman that resonates with the implicit credibility bias of adjudicators and secure a verdict of not guilty. This strategy hinders convictions and deters victims from coming forward. Domestic violence victims are well aware of this practice and choose not to report the crimes out of the fear of being demonized as liars and re-victimized during the trial.

Consider the following example. A woman decides to press charges against her husband who has been physically abusing her for three years. During the trial, the defense attorney impeaches the 25–year-old “housewife” with a loan application she filed when she was 20. The victim admits during cross that she in fact lied on the application.  Since all of the acts of violence occurred in the privacy of their home, there are no other witnesses to corroborate her version except for the victim’s mother. During the trial, the defense attorney highlights how successful his client is and how the marriage was experiencing difficulties. In the closing, the defense attorney states that we know how the victim is capable of lying to get whatever she wants. He further argues that she did not want her husband to leave the relationship and was capable of lying in order to force her husband to stay with her and secure her financial stability. The basic premise of the defense’s theory is that it was all an attempt from the victim to get back at the abuser for wanting to end their relationship. Finally, the attorney discredits the victim’s mother by affirming that a mother would do anything for a daughter. The verdict comes out and the defendant is found not guilty.

This case is more common than we might think. Women not only face the disbelief of those closest to them who cannot understand why they would leave their “alleged” abusive partner, but also bear the cross of being depicted as liars in court. Conviction rates seem to suggest that such a strategy is quite effective and that fact triers’ biases are indeed precluding the fair administration of justice in gender-based violence cases.

A good strategy to prevent this from continuing to happen is to reform our evidentiary rules. We must shield gender-based violence victims from vicious attacks based in patriarchal notions about women’s character that only skew the truth and prevent justice from being served. Such a proposal should also make evident that this powerful narrative of women not being credible is so pervasive that none of us is exempt from acting upon its premises. Specifically, I advocate for the adoption of rules that would prevent attorneys from impeaching victims of gender-based violence (such as a battered women, rape and sexual harassment victims) with previous acts of untruthfulness not related to the charges.

My proposal envisions a hearing presided by a second judge in which defense attorneys will proffer to the court the evidence they possess and intend to use in the trial regarding the untruthful character of the victim. In addition, the defense will be required to present evidence about the victim’s history of misusing the judicial system or any proof it might possess with regard to the victim maliciously filing the suit or pressing charges against the defendant. During this special hearing, the prosecution or the plaintiff would have the opportunity to rebut the allegations from the defense and present evidence that supports the veracity of the charges and the lack of evidence about the victim abusing the judicial system.

This hearing would give the court the opportunity to weigh the relevance of the evidence against its prejudicial effects and the probability of misguiding the triers of facts in their determination of whether the offense actually occurred.  If the court determines that the probative value of the evidence outweighs its prejudicial effects, the court will issue an order stating that such evidence should be admissible and will state the scope of the defense’s line of questioning and how it could be used by the defense when arguing its case. This procedure would ensure – especially in criminal cases – that the defendant’s rights are not being violated, while providing the victim a less biased court.

Although a blog post does not provide sufficient space to explore all the details of a possible shield rule, I hope this entry serves to stir up a conversation about the need for such a rule. Hopefully, in the future, our rules of evidence will be amended to protect women from being doubly victimized in gender-based violence cases. Even more importantly, such a reform would help increase the conviction rates in gender-based violence cases and would encourage victims to report incidents of violence.

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Pro-Marriage Deregulation of Conjugal Unions and Marriage Equality: Two Sides of the Same Coin

I am delighted to be guest-blogging for Concurring Opinions this month. It is an honor to be part of this community!  Throughout February, I will be sharing my thoughts on how certain narratives are used in the Law to subjugate various groups based mainly on their gender and sexual identities, and how, in turn, such groups use or can use the law in their pursuit toward equality. My primary focus will be on Family Law, although in some instances I will explore its intersection with evidentiary and criminal law issues as well as with legal theory.

Without further introductions, I would like to begin discussing marriage equality, an issue that seems to intensify every day as courts and legislatures take action on the matter.  Throughout the history of the United States, marriage has been a divisive subject. States have used its regulation to sustain patriarchal, racial, religious and heteronormative compliance. At every proposed change to its structure (from the role/rights of a particular spouse to who is actually eligible to reap the legal privileges of marriage), different constituencies have reacted strongly. For example, let’s think back on the reactions to challenges to anti-miscegenation statutes, reforms to treat women as chattel, and marital rape. Undoubtedly, the controversy has always stemmed from the fixation of our legal system on using marriage as a proxy to grant rights and privileges, and, most importantly, as a mechanism to segregate and stratify citizens.

The preferred strategy to challenge this caste system has been to fight for inclusion under the rubric of a conjugal union. However, we should question whether extending the protections and benefits of marriage to more groups is the appropriate solution for attaining a more egalitarian society or just a quick fix that serves some and leaves others behind; or even worse, a strategy that would create such a backlash that would leave a large group of people vulnerable.

The recent gay-marriage controversy in Oklahoma epitomizes this disjunction. On January 14, a federal judge ruled that Oklahoma’s ban on gay marriage is unconstitutional.  A couple of days later, Republican lawmaker Mike Turner announced that his party would look into the possibility of abolishing marriage as a way to circumvent the Court’s decision and safeguard the “traditional” notion of marriage.

Proposals to disengage the state from the business of regulating marriage are not new. In fact, I have been one of its most fervent proponents. Yet, there are many reasons for believing in marriage deregulation. I do, because I firmly maintain that true deregulation would be the appropriate solution for attaining a more egalitarian society, as it would result in what Professors Alice Ristroph and Melissa Murray have denominated familial disestablishment (the state recognizing the existence of diverse family arrangements and abstaining from favoring one type of family over others).

Other proponents, like Rep. Turner, advocate deregulating marriage on a “pro-marriage” basis. The ultimate goal of these proposals is to preserve the institution for the heterosexual couple. Turner does not wish to deny or take away from heterosexual couples the privileges that they have been enjoying for so many centuries.  Rather, he seeks to preserve the label of “spouse” as one exclusive to heterosexual couples.

What I suspect Turner has in mind is a scheme that does not truly disengage the State from regulating marriage, but that would regulate marriage indirectly through the regulation of the family. Abolishing marriage requires amending a considerable amount of statutes and regulations. For instance, in the federal system alone there are more than a 1,000 laws that use marriage as a proxy in one way or another to grant privileges/rights or impose obligations upon the spouses. If you are not willing to give up those legal benefits but do not wish to have the State granting marriage licenses, there are basically two ways in which it can be done: 1. replacing the marriage proxy with new proxies that resemble the heterosexual couple; or 2. granting benefits to marriages officiated by a particular religious or civil body other than the State.

In any case, that system would not guarantee that gay couples would be denied access to the same benefits that heterosexual couples currently do. If the second option is chosen, gay couples would only have to find a religious or civil body that would celebrate their marriage. On the other hand, if the first option is the preferred one, gay couples would still have access to “marital benefits”.

Even though courts, for the most part, have been avoiding the question of whether gays should be a protected class, they have found that under the rational basis test, treating gays and heterosexuals differently is unconstitutional as it does not further any legitimate governmental  interest. Therefore, those new proxies cannot be based on sexuality. They could, however, be based on having kids and being in a committed long-term relationship.

A lot of gay couples fit this bill.  Thus, the State would not be able to deny them benefits under that scheme. Yet, that would mean that gay and straight couples without children would not be able to enjoy those privileges.  At the same time, it could disincentive some gay couples from marrying since they might not be able to enjoy the traditional benefits of marriage because they do not want children or simply cannot afford them, or because the added social value of being recognized by the State as a “couple” would be completely lost.

A proposal like this would constitutionally leave vulnerable more people than our current scheme. Moreover, this type of reaction unmasks what is really behind the regulation of marriage: the fact that we still adhere to an unequivocal definition of the family as a bureaucratized, monogamous, sexuated married couple with children. The law is a mere tool to channel people into this euroheteropatriarchal behavior.

A perfect example of this channeling function of the law is how the queer movement changed its narrative from embracing diversity and celebrating queerness to the commonplace slogan of we are just like you. This strategy has been highly criticized within the queer community for prioritizing marriage equality over other pressing issues, for advancing an agenda that only benefits a small group of the community (the one that complies with societal norms except for their sexuality), and for channeling people into a heterosexual model of living and experiencing romantic-sexual relationships. Furthermore, it has been condemned inside and outside the queer community for not advocating for legal recognition and access to government support programs for a wide range of relationships, households and families regardless of kinship, conjugal status or citizenship, and for failing to advocate true separation of church and state in matters including regulation and recognition of relationships, households, families, sexual lives and gender choices. Then again, even under the “marriage equality” agenda a lot of people are left vulnerable. Even worse, they are invisibilized.

The only way to truly achieve a more egalitarian society is a complete obliteration of the marital institution. Doing so will force us to re-examine all the laws that make reference to marriage and scrutinize the real purposes for which the laws were supposedly enacted. Furthermore, it would require us to make sure that such purposes are finally followed by granting protections to all types of families/households/relationships. Only then would we be able to recognize the plurality within our society and allow people to live their romantic-sexual lives without the fear of being subjected to a regulatory scheme that ostracizes them or channels them into something that they are not based on inane beliefs about human nature.

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BOOK REVIEW: Kramer & Cahn’s Finding Our Families: A First-of-Its-Kind Book for Donor-Conceived People and Their Families

Kramer-Cahn-FamiliesFinding Our Families: A First-of-Its-Kind Book for Donor-Conceived People and Their FamiliesBy Wendy Kramer & Naomi Cahn (published by Penguin Random House 2013)

Wendy Kramer, the founder of the Donor Sibling Registry, and Naomi Cahn, the Harold H. Greene Professor of Law at George Washington University, have written a tremendous book, Finding Our Families. While the book is intended for donor-conceived people and their families, the research methods and advice suggested make it an important book for adoptive families as well.

Finding Our Families is a comprehensive guide.  It begins with a discussion of whether to tell a donor-conceived child about his or her origins and very sensitively approaches some of the concerns parents have, as well as the impact of withholding information from the child. In a chapter on “How, When, and What to Tell Your Child,” the authors weave in stories of disclosure from a number of parents and help address questions their offspring want to have answered.  The next several chapters unpack the feelings both children and their parents might have, as well as the family dynamics that may be affected by the telling.

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Gay Polygamy in Utah!

mUX_twETB9XdG_75sgCSB3ABy now you’ve heard the news. A federal judge in Utah just ruled that the state’s ban on same-sex marriage was unconstitutional. This follow on last week’s ruling, from a different judge, that portions of Utah’s polygamy statute were also unconstitutional.

What does it mean? Obviously, it means the advent of gay polygamy!! It won’t stop until everyone is married to everyone else, in one giant gay-polygamous-mega-wedding. Let the festivities begin!

Okay, maybe not. Let’s go through the rulings, piece by piece, to see what they say, and what their effects may be. Read More

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Why is Reproductive Technology a Battleground in the Abortion Debate?

Caitlin Borgmann has made the convincing argument that incrementalism in the anti-abortion movement developed from the failure of the movement’s initial post-Roe strategy to win the hearts and minds of the undecided. The strategy of equating abortion with murder and vilifying women who have abortions was far too strident to be persuasive and too off-putting to have emotional appeal. The strategy was eventually abandoned in favor of chipping away at Roe by degrees. Incrementalism takes the long view toward outlawing abortion in any form, but its progress, ironically, is asymptotic, 120px-Icsitending toward prohibition without ever achieving it. This is because incrementalism’s objective is to render access to abortion illusory. Even if Roe remains in place, rendering abortion inaccessible will mean that it is legal in theory but not in practice. Although alternatives to incrementalism have appeared in recent years as certain factions within the movement have grown restive, incrementalism remains the primary strategy of the anti-abortion movement today.

The incrementalist strategy now includes arguments for limiting assisted reproduction by raising concerns about its use at all four stages of the cycle of human reproduction: pre-conception, pre-implantation, post-implantation, and even post-birth. Although seemingly an odd direction for the anti-abortion movement to take, it should not come as a complete surprise; after all, the moral status of the embryo has played a major role in the development of the legal regimes that regulate assisted reproduction in other countries, particularly those with strong commitments to Roman Catholicism. Costa Rica, for example, banned IVF entirely for this reason in a law later struck down by the Inter-American Court of Human Rights. Although their connection may not be immediately obvious, then, abortion and assisted reproduction have a history of intertwinement in the policymaking arena.

An important question remains, though, about what is achievable in bringing anti-abortion sentiments to bear on issues in assisted reproduction. On the surface, there appears to be no clear connection between terminating a pregnancy and pursuing one. Of course, abortion and assisted reproduction are both techniques for managing reproductive life, and it is true that, in some applications, assisted reproduction may result in embryo loss. Hence, calls to regulate embryo disposition (called “adoption” in this context) and embryonic stem cell research make a certain amount of sense. But the claim that embryos have a moral status is not a good explanation for why other areas of assisted reproduction have become attractive battlegrounds for pursuing an anti-abortion agenda: egg donation, sex selection, and intentional parenthood.

It is obvious why the movement decries sex-selective embryo discarding or sex-selective abortion. Less clear is the reason for the movement’s opposition to pre-conception sex-selective techniques. Furthermore, anti-abortion advocates have claimed, respectively, that egg donation harms women and that intentional parenthood in the absence of a genetic connection harms children. Neither of these positions has much to do with abortion. If it is safe to assume that the stances assumed by the anti-abortion movement against assisted reproduction have more to do with banning abortion than with regulating reproduction, it is important for us to inquire into why the movement believes its resources are well spent in this area and what the implications of its activities might be for law and policy.