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Category: Family Law

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Regulating Assisted Reproduction

06fertilizadoAnxiety arises from technological advances in the life sciences, and there is often uncertainty about what societal response is appropriate. Are we more likely to condone euthanasia as technology for prolonging life improves? Should we support the cloning of human embryos for research purposes even if we reject reproductive cloning? It is a common sentiment that legal regulation is a useful tool for fashioning rules about scientific activities and medical interventions. But in legal circles, we are not shy about questioning the limits of our discipline. The bulk of the literature examining law’s limitations explains that these limitations are most salient in times of crisis or upheaval, e.g., war, terrorism, or epidemic disease. All of these are phenomena with a significant public dimension. Although less theorized, law’s limitations are also evident in the more quotidian realms of human experience that have a significant private dimension—sexuality, substance abuse, prejudice, just to name a few. Fantasies of thought control aside, some scholars have theorized that law is uniquely unsuited to channelling attitudinal and libidinal expression, e.g., prostitution, and invidious discrimination. We know from vast experience that attempts to regulate these activities out of existence only drive them further underground, often with troubling consequences.

In the context of biotechnology, assisted reproduction is perhaps the area that inspires the widest range of voices calling for regulation and thus provides the most suitable subject matter for an exploration of the limits of the law in the regulation of technological advancement in the life sciences. Unlike the clashing interests of doctors and their patients or scientists and their research subjects, the creation of children through technological means triggers a wider range of responses by social groups and the political actors who serve them than do other applications of biotechnology. This may explain the wide range of regulatory responses to assisted reproduction around the world, from the “hands-off” approach of the United States to the prohibitive approach of countries in Europe, Asia and South America. What makes regulating reproductive technology difficult is that it exists somewhere between the extremes of public and private. On the one hand, it is dramatic and transformative in a public way, demanding the expenditure of public health and judicial resources; on the other hand, it transforms within a realm considered deeply private—the creation of families. The resulting tension is one that counsels some form of response but that simultaneously shies from intruding in a realm deemed sacrosanct—the choice whether to have a child. Thus, the question is not whether to regulate reproductive technology, but how.

 

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New Jersey Marriage Equality Part II: When Lewis Met Windsor

United States v. Windsor, – U.S. –, 133 S.Ct. 2675 (2013), invalidated the federal Defense of Marriage Act (DOMA) on somewhat murky constitutional grounds. It also provided the catalyst for this month’s move to marriage equality under state constitutional law in New Jersey. But it did so in a most curious way.

In Lewis v. Harris, 908 A.2d 196 (N.J. 2006), a unanimous New Jersey Supreme Court had held that same-sex couples could not be denied the equal rights and benefits guaranteed by the New Jersey constitution. However, a four-person majority in Lewis demurred as to whether the state had to allow same-sex couples to marry, allowing the legislature instead to choose to create a new status that would provide the same rights and benefits as marriage, but with a different name. In short order the legislature enacted a Civil Union Act, which became effective in 2007.

From the outset, it was clear to marriage equality advocates that that civil union would not and could not convey the equal rights and benefits that Lewis v. Harris mandated. The New Jersey Civil Union Review Commission held hearings and made extensive findings to that effect, unanimously. But how to persuade either the courts or the legislature to make the move all the way to marriage equality? Both legislative and judicial mechanisms were deployed. As to litigation, there was an initial attempt in 2010 to return the matter directly to the New Jersey Supreme Court, by way of a motion in aid of litigant’s rights filed in Lewis v. Harris. It failed because the court determined, on a 3-3 vote, that an evidentiary record was necessary. 202 N.J. 340 (2010). It is this evidentiary trial process that Windsor short-circuited. Read More

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New Jersey Crosses the Finish Line to Marriage Equality – Maybe

Same-sex marriage became legal in New Jersey at 12:01 am on Monday, October 21. Wedding ceremonies are everywhere. The process may not be over, however; there are tactical decisions yet to be made as to how best to solidify and clarify the win.

It was a roundabout victory, achieved via a Superior Court decision last month, in which Judge Mary Jacobson held that civil union did not satisfy a state constitutional mandate of equal protection established in Lewis v. Harris (N.J. 2006). There followed, on Friday, October 18, a unanimous state Supreme Court ruling denying a motion for stay of Judge Jacobson’s order. So it’s legal for same-sex couples to marry here, but there is no a ruling on the merits by the state Supreme Court. That’s the problem. Read More

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Who’s Your Daddy?

Perhaps you, like me, sometimes find yourself wondering, “What ever happened to that delightful actor Jason Patric, star of the beloved 1987 film The Lost Boys?” I have a partial answer to that question. He is a biological father who is fighting to become a legal father to a child he shares with an ex-girlfriend. The story is more interesting than it might initially seem because of the way that Patric’s child was conceived.

The child in the middle of this custody dispute is named Gus and his mother, Danielle Schreiber, is Patric’s ex-girlfriend. According to published reports, Patric and Schreiber were not in a relationship when Gus was conceived or born. Patric donated his sperm to Schreiber, in the same way that thousands of men donate or sell sperm each year for infertility treatments for women to whom they have no connection. Schreiber conceived in a doctor’s office. If the two were a married couple and the pregnancy resulted from fertility treatment using the husband’s sperm, there would be no problem with Patric’s claim that he is both a genetic and legal father. But that was not the case here, and their accounts of their post-birth expectations are, unsurprisingly, very different.

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Over-Parenting Goes International

The thought of hiring a private detective in this age of relatively accessible electronic surveillance seems a bit retro, like a black-and-white scene from a smoky film noire. But it has been enjoying a surprising comeback in recent years, with parents who hire private investigators to spy on their children.

In an article titled Over-Parenting, my co-author Gaia Bernstein and I identified a trend of legal adoption of intensive parenting norms. We cautioned against society legally sanctioning a single parenting style – namely, intensive parenting – while deeming potentially neglectful other parenting styles which could be perfectly legitimate. We also pointed out that involved parenting is class-biased, since it is costly, and not all parents can afford the technology that would enable them to be intensive parents, such as purchasing GPS enabled smartphones for their kids. We argued that when intensive parenting is used for children who do not need it, it becomes over-parenting. Not all children need the same level of involvement in their lives; one of the most important roles of parents is to prepare their children for independent life, and over-parenting might thwart that role. Finally, we speculated that the cultural model for intensive parenting originates in media depictions of upper-middle class families, and that how these families are portrayed in movies and TV shows influences real-life parents.

Well, I’m sad to report that over-parenting is not a unique American phenomenon. Last year, for example, a Chinese newspaper reported that parents in china are increasingly becoming more involved in their children’s lives by hiring private investigators to check whether the children use drugs, drink alcohol or have sex. In Israel some parents are doing the same, especially during the long summer break, during which bored teenagers, many parent fear, are prone to engage in such activities (if you read Hebrew, you can read the story here). I am sure that some American parents do the same.

Leaving aside the class question (are parents who cannot afford a private eye neglectful?), what does this say about parents’ role as educators? Or about the level of trust (or distrust) between those parents and their children? It used to be that a spouse would hire a private investigator because they thought that their partner was having an affair. Nowadays, a growing chunk of a private investigator’s work involved parents spying on their children. Can’t we say that the fact that parents feel that they need to spy on their children already testifies to their limited parental skills?

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The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part II)

In my article Discriminating Speech: On the Heterophilia of Freedom of Speech Doctrine Heterophilia I introduced the concept of law’s inherent heterophilia. One can see it as a new generation of homophobia, more politically correct perhaps, in which the goal of eradication has been substituted by the goal of assimilation.  The need to cover, which almost every LGBT individual has experienced and which has been so shrewdly identified by Kenji Yoshino in his book “Covering: The Hidden Assault on Our Civil Rights,” is a typical product of social and legal heterophilia that seeks to encourage such assimilation.  Because of its benign nature, legal heterophilia, as opposed to legal homophobia, is much harder to detect, and therefore it is much harder to fight.

How can we distinguish law’s homophobia from law’s heterophilia?  To be sure, it is not easy to draw the line between homophobia and heterophilia, and many heterophile actions can be interpreted as unconsciously homophobic.  However, generally speaking, laws that privilege predominantly heterosexual institutions, such as marriage, are heterophile in nature, while laws that restrict LGBT individuals, discriminate against them, or punish them as such, would be labeled as homophobic.  Thus, laws privileging married couples and awarding them forms of protection that unmarried couples cannot receive are heterophilic as long as LGBT individuals cannot get married, and probably as long as they do not extend those privileges to all couples, married and unmarried, gay or straight. The Mayo Clinic’s policy demanding same-sex couples to marry or else the employees’ spouses will lose their health benefits, instead of extending the benefits to all partner regardless their marital status and their sexual orientation is a product of socio-legal heterophilia.

Indeed, the very demand to marry, which is a consequence of the Windsor case, is heterophilic even when it does not involve the carrot of benefits or the stick of their denial. As a recent New York Times article demonstrates, such social requirement is becoming more and more conspicuous in the wake of the Windsor ruling. And what is fascinating, is that heterosexuals are the ones who nudge same-sex partners to marry most.

While not using the term “heterophilia” or its derivatives, Janet Halley has exposed some of the most heterophilic strands of the institution of marriage in her 2010 article Behind the Law of Marriage (I): From Status/Contract to the Marriage System.  Marriage law, however, is not only heterophilic; it also has homophobic qualities, as many scholars have rightly observed. It remains to be seen if society and the courts will be able to release themselves of all forms of prejudice and discrimination concerning marriage and marital status. Getting rid of the homophobic Section 3 of DOMA was only the first step in this direction.

Part I of this post.

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Special Kids, Special Parents

First, many thanks to my exceptional and delightful colleague, Danny Citron, for inviting me to blog on Concurring Opinions. My blogging goal is to get you to focus on how law and policy could attend to the needs of family caregivers of special needs children. “Four in ten adults in the U.S. are caring for an adult or child with significant health issues,” according to a new Pew Research Center study. One would think that this large and growing population of family caregivers would command some attention. If they refused to do the job, after all, millions of frail elderly people, permanently-disabled veterans, and chronically-ill and disabled children could be left with nobody to meet their physical, emotional or medical needs. Social welfare organizations and institutions would be overrun, and social provision expenditures would skyrocket.

Refusing to do the job is not an option for many family caregivers, of course, for thousands of reasons, including love, duty and generosity of spirit. But many pay a price in terms of physical health, social isolation, and economic security. In my work about families raising children with special needs, I argue that we need to find ways to spread the costs so that they do not continue to fall almost exclusively on family members who step up.

Here are three examples of law and policy being blind (or at least astigmatic) to the impact of care-giving on these parents. First, when a child’s parents divorce or separate, family law entitles the parent who lives with the child to child support and, in some unusual situations, alimony. Child support is calculated on the basis of the child’s needs, and alimony is determined based on what the payee needs. Both assume that, ordinarily, both of the child’s parents will be economically productive. Where the parent’s special care-giving responsibilities interfere with that parent earning a living, however, child support and alimony are not usually adjusted–there’s no “chalimony.” Second, the public benefits system picks up very little of slack for parents when special care-giving responsibilities interfere with the parent’s earning capacity. Worse yet, since the mid-1990s, states became subject to increasingly stringent requirements in federal law about tying public benefits to the efforts of recipients to get and hold employment. A different route is not unimaginable: in 2009, a stipend was enacted for family caregivers of veterans left permanently disabled during their service in recent wars. Nothing similar, however, exists for parents. Third, if a child’s special needs affect his or her ability to benefit from school, federal law has guaranteed since the mid-1970s that the child will nonetheless be provided with a “free and appropriate public education.” The statute is not blind to the child’s caregivers; in fact, it gives parents specific rights in terms of participating in planning the child’s educational program. What it does not do, however, is make sure that parents can exercise their rights in ways that make sense if their lives are over-stressed because they are caring for special needs children.

As my work continues, I’m looking for additional examples of law and policy that attend to the needs of family caregivers for special needs children, and to those that don’t. If you can suggest a new avenue of research, please let me know.

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The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part I)

Hello everyone, and thanks Solangel and the other regulars for hosting me here. I thought I would begin with some thoughts on the aftermath of United States v. Windsor, in which the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA). June 26, 2013, the day in which the case was decided, will no doubt be one of those days that many will reminiscent about, ask and will be asked “where were you when the decision was published?” As someone who studied is Constitutional Law class when the 1986 Bowers v. Hardwick was still the law, the day Windsor was decided was a truly wonderful day for me. Indeed, this day marked a significant decline in legal homophobia, and we should all celebrate that. But is it the end of marriage-based discrimination?
I’m afraid that the answer to this question is “not yet.” It seems that the campaign for same-sex marriage has been almost too successful, and that the right to marry is rapidly becoming a requirement to do so. Postbulletin.com reports that the Minnesota Mayo Clinic is requiring its LGBT employees to marry their same-sex partners in order to continue their eligibility for health benefits. The previous policy was introduced in order to remedy the discrimination against LGBT employees who could not marry their partners. Now when they can do so, they must, if they wish to continue to be eligible for the benefits. There will even be a deadline for these couples to get married. What a charged idea, a deadline to get married, and one that is created by one of the partners’ employee!
On the face of it, there is nothing wrong with this change: Under this policy, unmarried heterosexual partners of employees are ineligible for health benefits. The update is necessary in order not to create a new form of discrimination, this time against unmarried heterosexual couples. But this is only one way of looking at this policy.
The updated policy which requires same-sex couples to marry in order to keep their health benefits exposes what I call law’s heterophilia, a concept which I have introduced in a recent article. Much has been written about law’s homophobia, past and present. Various forms of discrimination against LGBT individuals have been labeled “homophobic” and in most cases, justly so. But law sports an additional, more insidious prejudice—namely, heterophilia.
Homophobia works “against” LGBTs. Criminalization of sex between men or between women is homophobic. But what are we to make of legal norms that do not work directly “against” gays, but “for” heterosexuals? Such norms do not consciously discriminate against LGBT individuals, but privilege heterosexuals (not all of them, as I explain below). The underlying result is discrimination. These norms are not homophobic in the sense that unlike sodomy laws, they were not designed with the specific aim of persecuting sexual minorities.
I borrow the term “heterophilia” from psychoanalyst David Schwartz, who argued in the early 1990s that in addition to homophobia—a well-explored prejudice which is rooted in devaluation—there can be another form of prejudice against LGBT individuals which is rooted in “philia,” namely in the idealization of heterosexuality. Heterophilia, argued Schwartz, is an “unarticulated belief in a particular sexual ideology,” rather than an objection to an alternative sexual ideology. By the absence of phobia, and in many cases by actual acceptance of LGBT individuals in several respects, heterophiles “immunize their ideological commitments against articulation and scrutiny.”
Now, let’s return to the Mayo Clinic’s revised spousal health benefit policy. Heterophilia idealizes not merely heterosexuality, but heterosexual monogamous relationships in which the spouses are married to each other. Marriage is the quintessential heterophile institution. This is why heterophilia can discriminate not just against LGBTs, but also against heterosexuals who refuse to get married. They too are ineligible for health benefits for their partners, if they are employed by a company who has a similar policy in place.
While the Windsor Court’s ruling is just and humane, it exists within a context, and is subject to interpretation (or misinterpretation and even abuse) within that context. One such misinterpretation is the quick evolution of an equal right to marry for LGBTs into a requirement. Critics of the campaign for same-sex marriage have warned against this consequence. But I believe that the critique was misdirected. The problem is not with the proponents of same-sex marriage, but rather with the general socio-legal culture, which still discriminates on the basis of marital status and, now, happily, does so regardless of one’s sexual orientation.

Part II of this post.

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More Thoughts on the Dangerous Fragility of Men

First, I want to thank my hosts here at Concurring Opinions for asking me to stay on for another month. One of the things this extended invitation allows me to do is to respond at some length to issues raised in the comments on my last post, “The Dangerous Fragility of Men.” In that post, I highlighted a troubling phenomenon: men with privilege and power characterizing their insecurities and lack of self-control as vulnerability, and using that alleged vulnerability as an excuse or justification for murder, rape, and discrimination (and I would add, though I didn’t discuss it in the post, harassment and intimidation). To demonstrate this phenomenon, I offered a sample of quotations from recent, high-profile cases including Oscar Pistorius‘ shooting of his girlfriend and the gang rape of an 11-year-old girl in Texas. The post suggested that our society should make a greater effort both to marginalize this cowardice and become more attentive to actual vulnerability. In this post, I’d like to elaborate on these ideas and address some of the objections raised in the responses to my post.

I first want to spend a bit more time on the question of perceived v. actual vulnerability. I noted in my original post that one of the perplexing aspects of this form of male vulnerability is that it seems to increase, rather than decrease, with power or privilege. Frequently, the men using weakness as an excuse or justification (or others offering such explanations on their behalf) for harm are people who are objectively less vulnerable than most. They include famous athletes, soldiers, and wealthy businessmen. I think it is worth spelling this out more explicitly: there is a tendency on the part of privileged individuals to overstate their vulnerability. This tendency towards exaggerated sensitivity is important because it stunts what might otherwise be a meaningful process of self-examination. Feeling vulnerable is not the same thing as being vulnerable, and even actual vulnerability might need to yield before (or at least take into consideration) the greater vulnerability of other people.

We are all vulnerable in certain ways. Figuring out the what and why of our vulnerabilities is an important part of psychological awareness and well-being. What is of most interest to me here, however, is determining the conditions under which it is permissible for us to impose our vulnerabilities on other people, especially when that imposition takes the form of violence or discrimination. In determining those conditions, I would suggest we should ask ourselves at least three questions. One, we should question whether our vulnerability is objectively reasonable. Vulnerability that results from personal insecurity or prejudice is not vulnerability that we may rightfully impose on others. It is our own responsibility to correct vulnerabilities of our own creation. Second, we should question the magnitude of our vulnerability, especially when put in perspective with the vulnerabilities of others. Third, even if our vulnerability is both reasonable and of serious magnitude, we should question whether we are imposing it on appropriate parties in a just and proportional way. Read More

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Why We Should Raise the Marriage Age

My last series of posts argued that states should lower the voting age, since by mid-adolescence, teens have the cognitive-processing and reasoning capacities required for voting competence. But that is not to say that teens have attained adult-like capacities across all domains. To the contrary, context matters. And one context in which teens lack competence is marriage.

Through a single statutory adjustment — raising to 21 the age at which individuals may marry — legislators could reduce the percentage of marriages ending in divorce, improve women’s mental and physical health, and elevate women’s and children’s socioeconomic status.

More than 1 in 10 U.S. women surveyed between 2001 and 2002 had married before age 18, with 9.4 million having married at age 16 or younger. In 2010, some 520,000 U.S. teens were married, divorced, or widowed. In an article published last month, The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage, I describe more fully the social costs of early marriage and argue for an end to the practice.

The High Costs of Early Marriage

For decades, age at marriage has been the most consistent and unequivocal predictor of marital failure. Of marriages entered at age 25 or later, fewer than 30% end in divorce. Of marriages entered before age 18, on the other hand, nearly 70% end in divorce. The earliest marriers, those adolescents who enter marriage in their mid-teens, experience marital failure rates closer to a sobering 80%. Not until age 22 does marital stability improve significantly and do marriage dissolution rates begin to level off.

The costs of child marriages (entered before age 18) and early marriages more generally (entered at age 21 or younger) extend beyond their dissolution. Early marriers are more likely than those who delay or avoid marriage to discontinue their formal educations prematurely, earn low wages, and live in poverty. Women who marry early develop more mental and physical health problems than those who marry later. And following divorce, mothers (and their children) tend to suffer greater economic deprivation and instability than do their never-married counterparts. (See here, pp. 1799-1806)

Neither attaining age 18 (the near-universal age of presumptive marital capacity) nor obtaining the consent of parents and/or  judges (generally required for those individuals seeking to marry before age 18) has an observable effect on marital stability. Only delay and factors integrally associated with it — such as more years of education — reliably increase marital stability.

Causes of Early Marriage Instability

Why are marriages entered at earlier ages so unstable? And what can be done about it? The answer to the first question is complicated; the answer to the second question is not.

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