Category: Family Law

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Prohibitions on Egg and Sperm Donor Anonymity and the Impact on Surrogacy

Egg and sperm donations are an integral part of the infertility industry. The donors are usually young men and women who donate relying on the promise of anonymity. This is the norm in the United States. But, internationally things are changing. A growing number of countries have prohibited egg and sperm donor anonymity. This usually means that when the child who was conceived by egg or sperm donation reaches the age of eighteen he can receive the identifying information of the donor and meet his genetic parent.

An expanding movement of commentators is advocating a shift in the United States to an open identity model, which will prohibit anonymity. In fact, last year, Washington state adopted the first modified open identity statute in the United States. Faced by calls for the removal of anonymity, an obvious cause for concern is how would prohibitions on anonymity affect people’s willingness to donate egg and sperm. Supporters of prohibitions on anonymity argue that they only cause short-term shortages in egg and sperm supplies. However, in a study I published in 2010, I showed that unfortunately that does not seem to be the case. My study examined three jurisdictions, which prohibited donor gamete anonymity: Sweden, Victoria (an Australian state) and the United Kingdom. It showed that all these jurisdictions share dire shortages in donor gametes accompanied by long wait-lists. The study concluded that although prohibitions on anonymity were not the sole cause of the shortages, these prohibitions definitely played a role in their creation.

In a new article, titled “Unintended Consequences: Prohibitions on Gamete Donor Anonymity and the Fragile Practice of Surrogacy,” I examine the potential effect of the adoption of prohibitions on anonymity in the United States on the practice of surrogacy. Surrogacy has not been part of the international debate on donor gamete anonymity. But the situation in the United States is different. Unlike most foreign jurisdictions that adopted prohibitions on anonymity, the practice of surrogacy in the United States is particularly reliant on donor eggs because of the unique legal regime governing surrogacy here.  Generally, there are two types of surrogacy arrangements: traditional surrogacy and gestational surrogacy. In a traditional surrogacy arrangement the surrogate’s eggs are used and she is the genetic mother of the child, while in gestational surrogacy the intended mother’s eggs or a donor’s eggs are used and the surrogate is not the genetic mother of the conceived child. Most U.S. states that expressly allow surrogacy provide legal certainty only to gestational surrogacy, which relies heavily on donor eggs, while leaving traditional surrogacy in a legal limbo. Without legal certainty, the intended parents may not be the legal parents of the conceived child, and instead the surrogate and even her husband may become the legal parents. Infertility practitioners endorse the legal preference for gestational surrogacy also for psychological reasons, believing that a surrogate who is not genetically related to the baby is less likely to change her mind and refuse to hand over the baby.

The adoption of prohibitions on anonymity in the United States could destabilize the practice of surrogacy in a way that did not occur in other countries that adopted these prohibitions. If, as has happened elsewhere, prohibitions on anonymity will play a role in creating shortages in donor egg supplies in the United States, this could affect the practice of surrogacy in two ways. Individuals seeking surrogacy may need to resort to traditional surrogacy, which does not rely on donor eggs, with the accompanying legal uncertainty. Alternatively, those deterred by the uncertainty enveloping traditional surrogacy may refrain from seeking surrogacy altogether, resulting in a significant contraction of  the practice of surrogacy in the United States. These potential complications suggest that those supporting the adoption of prohibitions on anonymity in the United States, should consider these changes with great caution and think beyond the traditional debate about the privacy of the donors, the privacy and procreational interests of the intended parents, the best interests of the children and the direct effect on gamete supplies.

 

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Intensive Parenting as a Legal Standard: Arresting Mother for Sending Children to Bus Stop

An unfortunate event took place this week.  A six year old boy’s foot was run over by a school bus. As a result, the boy’s mother who sent the boy and his somewhat older brother unsupervised to the bus station was arrested and charged with child abuse and neglect.  It turns out that in 2012, sending a six year old and his older brother to await the school bus by themselves is an unacceptable parenting standard warranting parental arrest.

This made me think back to the 1970s, when I grew up in Israel, and from the age of six walked by myself to the bus station and took the public bus – not even a school bus — to school. Luckily, my foot was not run over by a bus. But even if it had I doubt my parents would have been arrested or even blamed for inappropriate parenting. All my classmates either walked by themselves up to twenty minutes to school or if they lived further away, as I did, took the public bus.

There is no doubt parenting norms have changed since I was a child. Many now recognize that parenting has become more intensive, involved and monitoring. In an article titled Over-Parenting, my co-author Zvi Triger and I worried about the impact of these changes on legal standards. We recognized that while intensive parenting carries some advantages and may be a suitable parenting practice for some, embedding it in legal standards would impose it on those culturally unwilling or financially unable to endorse it. We recognized that intensive parenting is mainly an upper-middle class practice that for others could become over-parenting.

Is it a good parenting norm to accompany young children to the bus stop? probably yes. But aren’t the real questions: Is the specific child mature enough to be safely standing at a bus stop ? Is the neighborhood a relatively safe neighborhood traffic and crime-wise? And also, can parents afford to wait with their child in the morning or do they have no choice but to rush off to work for an early morning shift in order to support their families? These are questions to be answered by parents not by the law.

 

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Why Did Egg Freezing Wait So Long?

Thank you to the permanent bloggers of Concurring Opinions for having me back. It is great to be here.

Egg freezing has become the new hot trend in the infertility industry. Although infertility practitioners first used  egg freezing in the mid 1980s,  it was only recently that success rates have significantly risen making this an attractive option for women.  A woman can now freeze her eggs at any age and use it a few years later or much later with the sperm of her then chosen partner or a donor to have a baby through IVF. Using egg freezing technology, a woman can today have a baby at a time that best suits her career and family situation.

There is no doubt that egg freezing as a viable option is a huge revolution for women’s autonomy. But the big question is why only now? Why has egg freezing become a really viable option only during the first decade of the Twenty-First Century. We have known how to freeze sperm since the 1950s. And, embryo freezing was first tried out around the same time as egg freezing, during the mid-1980s. Yet, unlike egg freezing, embryo freezing became common practice soon thereafter. So why did we have to wait so long for effective egg freezing technology?

The answer usually given to this question is that it was just too complicated technologically and took a long time to develop. But were technological complications the only cause for delay?  Is it really much harder to freeze and thaw eggs for later IVF use than to freeze and thaw embryos for later use? We tend to be taken by the illusion that science is value neutral — that scientific progress is not affected by choices directed by social values. But even if technological diffiuclties played a role in the delay, could egg freezing technology have been held back because resources were invested elsewhere? Unlike other forms of reproductive technology that promote the reproductive interests of both men and women, egg freezing promotes mainly the autonomy interests of women.  Egg freezing’s impact on women autonomy can be compared only to the revolutionary effect of the birth control pill. At the same time, the infertility industry is comprised overwhelmingly by male practitioners. And while some have no doubt worked relentlessly to promote egg freezing technology, it may be time to stop assuming that technological complications held back this important women emancipating technology. It may be time to begin asking whether  the advancement of egg freezing was placed on the back burner for years because of the type of interests it promotes?

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Normative Jurisprudence and Family Law

Thank you for the opportunity to participate in this symposium on Robin’s fascinating new book, Normative Jurisprudence. The implications of Robin’s arguments reach across the law school curriculum and beyond. For purposes of this post, I would like to draw some connections between Robin’s work and family law.  Normative Jurisprudence can help us better understand how the law regulates the parent-child relationship.

First, Robin argues that the state frequently provides rights in ways that entrench existing power hierarchies, even as rights discourse purports to be liberating for all. Consider parental rights from this perspective. Many courts celebrate the rights they give to parents in sweeping terms, but Robin’s work can help us see how the specific rights that parents receive are often designed with privileged rather than poor families in mind. For instance, the Supreme Court famously declared in Pierce v. Society of Sisters (1925) that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” This declaration appeared in a decision holding that parents have a constitutional right to send their children to private schools. In theory, that right extends to poor parents as much as wealthy ones. In reality, poor parents have little means of affording private education.

Second, Robin argues that legal discourse prioritizing rights can actually obscure questions related to welfare. Examining the parent-child relationship through this frame is also illuminating. Poor parents may have a formal right to send their children to private school, but focusing on this right can obscure a more pressing issue that poor parents confront—the inadequacy of many public schools. Similarly, poor parents have constitutionalized procedural protections before the state takes custody of their children, but the provision of these rights can obscure how poor parents have no right to access the safe housing, adequate food, and other resources that children need to thrive. Indeed, the welfare system that exists for poor parents and children increasingly disavows the idea that the poor might have an entitlement to the basic means of subsistence. Instead, welfare programs provide meager benefits at the discretion of legislatures and routinely subject poor parents who receive these benefits to investigatory, instrumental, and interventionist state regulation.

Robin also notes how the law often treats the fact that people have consented to a legal regime as a reason to shield that regime from further critical scrutiny. The legal regulation of poor families starkly illustrates the limits of relying on consent. In theory, poor parents “agree” to the harsh and rights-denying terms of welfare programs as a condition of receiving aid, but in practice impoverished parents have few alternatives but to consent. Consider family cap laws in the Temporary Assistance for Needy Families (TANF) program, a leading federal-state welfare program.

Family caps, which at least nineteen states currently impose in some form, deny or limit TANF benefits to children conceived while their parents are already receiving TANF. For example, New Jersey’s TANF program provides that a family of two will ordinarily receive up to $322 a month, a family of three will ordinarily receive up to $424 a month, and a family of four will ordinarily receive up to $488 a month. These scant benefits are unlikely to cover a family’s basic needs, and New Jersey’s family cap limits them even further. New Jersey’s family cap means that a family that enters TANF with two people is still limited to just $322 a month if another child is born, $102 less than New Jersey itself otherwise thinks necessary for three people’s subsistence. A family that enters TANF with three people is still limited to just $424 a month if another child is born, $64 less than New Jersey otherwise thinks necessary for four people’s subsidence.

Family cap laws help illustrate how rights to freedom from state intervention do not help parents secure the necessary resources to raise their children. The benefits the TANF program offers are extraordinarily low and even lower if poor parents act in ways the state disfavors by having additional children. Poor parents have rights, but not to welfare. And when impoverished parents seek welfare, states feel free to impose extraordinary pressure on parents’ most personal decisions. In practice, rights talk often provides little protection for the most vulnerable.

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F-Words: Fairness and Freedom in Contract Law

As I read “Facing Limits,” Larry’s chapter on unenforceable bargains, I had to pause and smile at the following line:

People often think that fairness is a court’s chief concern, but that is not always true in contract cases (p. 57).

I still remember the first time someone used the word “fair” in Douglas Baird’s Contracts class. “Wait, wait,” he cried, with an impish grin. “This is Contracts! We can’t use ‘the f-word’ in here!”Of course, Larry also correctly recognizes the flip side of the coin. If courts are not adjudicating contracts disputes based on what is “fair,” we might think that “all contracts are enforced as made,” but as Larry points out, “that is not quite right, either” (p. 57).

Pedagogically, Contracts in the Real World is effective due to its pairings of contrasting casebook classics, juxtaposed against relevant modern disputes. In nearly every instance, Larry does an excellent job of matching pairs of cases that present both sides of the argument. I don’t mean to damn with faint praise, because I love the project overall, but I feel like Larry may have missed the boat with one pairing of cases. Read More

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Encouraging Adoption

I thought I’d post on a different topic from what I normally write about.  Here is the question–Should we encourage pregnant women who do not want their child to bring the baby to term and give him or her up for adoption?  If so, how?

Let’s say that you want to implement President Clinton’s abortion standard (“Safe, legal, and rare.”)  How do you make the “rare” part happen without imposing an undue burden on a woman’s right to choose?  One option, of course, involves improvements in birth control (whether you want to call that abstinence, contraception, or whatnot) to minimize unwanted pregnancies.  Another is to convince those who have an unwanted pregnancy to have the child and raise it (though persuasion rather than coercion).  A third option, exemplified by Steve Jobs among others, would be to encourage women to carry the child to term and then give the baby up for adoption.

It strikes me that this last option gets far less attention than it should.  If you are pro-life, you would presumably prefer the possibility of adoption over abortion.  If you are pro-choice, you would presumably prefer the choose for adoption over a mandate.  Thus, one might expect to see policies that would offer incentives to women who elect to give up a child for adoption.  For example, the state could bear the costs of the pregnancy (medical expenses, lost wages, etc.). Or the state could pay women a lump-sum “reward” for bearing the burden of pregnancy when they will not raise the child.  We don’t, though, see such policies.  Why not?

One possibility is that we’d be concerned that not enough adoptions would happen.  In effect, would policies such as I’ve described lead to giant “Oliver Twist” style orphanages?  Another thought is that these policies would simply cost too much money.  Or perhaps people feel like this would be a kind of welfare that rewards irresponsible behavior?  I’m genuinely unsure.

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Illinois Law Review, Issue 2012:2 (March 2012)

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University of Illinois Law Review, Issue 2012:2

Please see our website for past issues

Articles

Homogeneous Rules for Heterogeneous Families: The Standardization of Family Law When There is no Standard Family – Katharine K. Baker (PDF)

Legal Sources of Residential Lock-Ins: Why French Households Move Half as Often as U.S. Household – Robert C. Ellickson (PDF)

Sealand, HavenCo, and the Rule of Law – James Grimmelmann (PDF)

David C. Baum Memorial Lecture on Civil Rights and Civil Liberties

Citizens United and Conservative Judicial Activism – Geoffrey R. Stone (PDF)

Notes

Bargaining for Salvation: How Alternative Auditor Liability Regimes Can Save the Capital Markets – Hassen T. Al-Shawaf (PDF)

Analysis Paralysis: Rethinking the Courts’ Role in Evaluating EIS Reasonable Alternatives – J. Matthew Haws (PDF)

The Real Social Network: How Jurors’ Use of Social Media and Smart Phones Affects a Defendant’s Sixth Amendment Rights – Marcy Zora (PDF)

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Personhood Amendments: Be Careful What You Wish For

In the last election, the voters of the State of Mississippi failed to pass a referendum that would have declared a fetus a “person” under the Mississippi Constitution. Specifically, Article III of the constitution of the state of Mississippi would have been amended by adding a new Section 33. Person defined. As used in this Article III of the state constitution, “The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning or the functional equivalent thereof.” Since the defeat of the Mississippi referendum, movements for a similar amendment have arisen in close to a dozen other states and Members of Congress have introduced three bills that would likewise declare a zygote to be a person from conception. Much of the debate about the defeated Mississippi amendment and the subsequent proposals involved the question of the impact of the laws on abortion and other reproductive issues such as birth control. However, one potential aspect of these proposals appears to have been ignored in the discussions; what other legal rights would attach to the zygote/fetus once “personhood” is conferred.

The American legal system has wrestled with the legal status of minors for more than a Century. At one time, parents and guardians had total control over the lives of the children under their charge. Parents, primarily fathers were entitled to the services of their children and could under certain circumstances kill their children with the approval of the government. Moreover, parents could “lease” their children out to others for the payment of debts, the generation of income, or merely because they could not afford to support and maintain their children. In essence, the law viewed children as property.

Beginning in the latter part of the 19th Century, reformation movements began to challenge the status and treatment of children and undermined the legal concept of children as property. Child labor laws, compulsory education laws, and eventually laws prohibiting child abuse and neglect created a new perception of children as entity worthy of protection from their parent, guardians and even employers. Children were no longer property, but were people. However, once the law determined that children were not the property of their parents or guardians, the question of what status children hold under the law has been a challenging proposition. Several cases developed a jurisprudence involving parents’ responsibilities related to the actions involving their children. In Meyers v. Nebraska (teaching a foreign language before 8th grade), Pierce v. Society of Sisters (children attending private school), Prince v. Massachusetts (child distributing religious literature at night), and West Virginia v. Barnette (children forced to say the pledge of allegiance), the U.S. Supreme Court examined the liberty interest of parents with barely a mention of the children’s legal status.

Starting in the mid-1960s (In Re Gault [juvenile justice case] and Tinker v. Des Moines Independent School District [free speech in public school]) and through 2007 (Morse v. Frederick [free speech outside of the school building]), the Court has declared children to be “persons” under the Constitution and wrestled with the implications of that declaration. One of the major challenges that the Court and legal scholars have faced is the oxymoron of children as legal persons. One of the significant underpinnings of our Constitutional jurisprudence regarding individual rights is the concept of choice. The Bill of Rights fundamentally protects individual freedom to make choices – the choice to speak publically, worship according to individual beliefs, the choice to remain silent when charged with a crime and to refuse to be searched without prior government authorization. At the same time, the law declares children to be incompetent to make choices because of their purported lack of capacity, particularly when they are very young, including the time when they cannot speak for themselves. How does a minor operate as a person whose choices in certain areas are constitutionally protected when the law says that the same minor lacks the capacity to make enforceable choices?

Taking this dilemma to the current movement to enact Personhood Amendments, the dilemma becomes even more challenging. The legal system has difficulty determining how to recognize, manifest and protect the choices of minors who can articulate a choice, or infants who possibly could demonstrate a choice. How could it determine how to recognize, manifest or protect the choice of a zygote or a fetus, as arguably be required if the status of personhood is granted under the Personhood Amendments? It would seem that even the strongest advocate for children’s rights would be at a loss in articulating a method to answer this question. It almost comes down to this. Children as persons under the Constitution – whether federal or state – are a legal oxymoron that present significant legal dilemmas. A zygote or fetus as a legal person is an oxymoron on steroids, defying solutions to a larger than life legal dilemma.

 

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Pregnancy and Disability

Yesterday I posted about a dilemma in parental leave policies: The desire for formal sex equality leads to equal “caretaking” leave for men and women; when this leave is paid by the employer, it is typically quite short. The reality of biological differences is dealt with by providing separately for “disability” leave for pregnant and birthing women, often for a much longer period. In practice, that means that a woman who gives birth has an extended opportunity to bond with and care for a new child, while people who become parents in other ways do not. This creates an early discrepancy in caretaking between birthing and non-birthing parents. When children are adopted, the family as a whole suffers from not having that extra leeway for caretaking.

A woman in New York has filed a suit challenging these inequities in a novel way: Kara Krill received 13 weeks of paid maternity leave when she gave birth to her first child. Krill was unable to bear another child, and she and her husband hired a gestational surrogate, who gave birth to twins. This time, Krill was allowed only 5 days of leave, under the company’s policy for adoptive parents. Her suit alleges disability discrimination, saying that if it weren’t for her disability, which required her to have her children through a surrogate, she would have given birth and been entitled to the full 13 weeks of leave.

Krill faces an uphill battle under current law. I’m drawn, however, to the idea of designing parental leave policy around the idea that the inability to give birth is a disability that should be accommodated—and not just for women. Read More

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Sex Equity in Parental Leave

Many thanks to Solangel, Dan, and the rest of Co-Op for inviting me to blog here this month. I’ll start out with a few posts about parental leave policies, inspired by this story about a woman named Kara Krill. (H/T Family Law Prof Blog) Krill had children through a surrogate mother. When her employer refused to give her the same maternity leave that is available to employees who give birth, she sued for disability discrimination. But first some background on the core dilemma of U.S. equality law when it comes to parental leave:

U.S. law aspires to formal equality for women and men in the workplace. When it comes to parental leave, that has meant maintaining a sharp theoretical separation between pregnancy leave and caretaking leave. Under the Pregnancy Discrimination Act, pregnancy leave is treated as disability leave and is supposed to cover the period of time in which pregnancy and birth disable a woman from doing her job. Caretaking leave—time to bond with and care for a new baby—is supposed to be available on a sex-neutral basis. In Nevada v. Hibbs, when the Supreme Court upheld the Family and Medical Leave Act as applied to the states, it said that Congress could legitimately force employers to give (unpaid) caretaking leave to everyone, in order to address the problem of many employers giving such leave to women only, by calling it “pregnancy leave” even when it was much longer than necessary for physical recovery from birth.

The distinction between pregnancy/disability leave and caretaking leave is neat in theory but breaks down immediately in practice. Read More