posted by Gaia Bernstein
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.
December 21, 2012 at 10:42 am Tags: egg donor anonymity, Family Law, Health Law, infertility, reproductive technologies, sperm donor anonymity, surrogacy Posted in: Family Law, Health Law, Privacy, Privacy (Medical), Technology, Uncategorized Print This Post No Comments
posted by Gaia Bernstein
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.
posted by Jill Hasday
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.
posted by Gaia Bernstein
I have written here about the trend of intensive parenting. Parents today are more involved in their children’s lives than ever before, constantly cultivating and monitoring their children’s progress. In our article, Over-Parenting, Zvi Triger and I caution against legal enforcement of intensive parenting norms. One area in which states have been most active recently in enforcing intensive parenting norms is parental involvement in schools.
Earlier this month California’s Senate adopted a bill that authorizes prosecutors to charge a parent with a misdemeanor, punishable by up to one year in jail and a $2,000 fine, if her child skips school on a regular basis. This law enforces intensive parenting. Parents engaging in intensive parenting are extremely involved in their children’s school activities. Volunteering in school activities, whether as a class trip chaperon or in school events has become the norm among both working and non-working parents. Schools provide parents with access to the school website to monitor children’s grades, class attendance and even lunch menus. Parents regularly attend family mornings at their children’s schools and are required to participate in children’s homework preparation through questions targeted specifically at them. Given this background, the California Bill, as extreme as it may sound to some, is not surprising. This Bill merely seeks to enforce what has already become a dominant social norm of intensive parental involvement in children’s school lives.
Some may think that the California Bill is not such a bad idea. After all don’t we want to ensure that children attend school regularly and eventually graduate from high-school. However, what may be a desirable social norm is not necessarily a good legal standard. A stay-at-home mom dealing with a difficult teenager and successfully assuring that her daughter attends school on a regular basis is no doubt helping her daughter. But do we want to hold the mother who fails to do so criminally liable? Parents are differently situated in their ability to control their children. Intensive parenting is a middle class parenting norm. Lower income class parents juggling several jobs may not have the flexibility to personally supervise their children to ensure they don’t skip school. In addition, this Bill, like intensive parenting norms, is in practice, gender biased. Intensive parenting heavily burdens mothers. Should states adopt and enforce laws holding parents criminally liable for their children’s school attendance, it will most likely be the mother, who is usually seen responsible for children’s daily activities, who will end up being held criminally liable.
posted by Gaia Bernstein
Benches in playground are deserted these days. Instead, parents are swinging their children while chanting the ABC. Raising my small children, I have observed that parenting has changed dramatically since I was a child – today’s parents are much more involved in their children’s lives than ever before. In our paper titled: “Over-Parenting,” my co-author Zvi Triger and I describe this new trend of parenting, which we call “Intensive Parenting.” We show that the law already enforces Intensive Praneting and argue that despite the advantages of Intensive Parenting, its norms should not be hastily incorporated into the law.
The intensive parent is on a constant quest to obtain updated knowledge of best child rearing practices and use this information actively to cultivate her child and monitor all aspects of the child’s life. Intensive parenting begins as the pregnant mother accesses an ever increasing amount of information instructing her on how to achieve an optimal pregnancy and does not end when the child enters college. Colleges and more recently even law schools have adjusted to accommodate a new generation of parents who insist on being in direct contact with administrators and professors in order to continue to monitor their children’s life.
But, Intensive Parenting is not just about social norms. We show that it is actually a socio-technological trend. Parents use new information technologies to enhance their ability to monitor and be informed. For example, parents use the cellular phone to stay in constant touch with their children. Commentators observing Intensive parents using the cell phone to communicate with college aged children about the smallest anecdotes of life, have called it ”the world’s longest umbilical cord.”
And what does the law have to do with it? We find that the law is already enforcing Intensive Parenting norms, and is particularly powerful in molding parental rearing norms during custody disputes. For example, courts determining custody allocations consider as a factor the parents’ pre-divorce care taking roles and division of labor. The parent who was more involved in the child’s life before divorce has an advantage in custody resolutions. In practice, attorneys are advising their clients on the eve of divorce to engage in Intensive Parenting. The time period before custody determinations becomes a race for involvement, particularly for the parent who was not originally the primary caretaker. Unfortunately, parents eager to gain custody and operating in a world governed by Intensive Parenting norms often become overly dominating in their interaction with children. For instance, by taking over sport practices leaving their child with no independent outlet or by overwhelming their child with constant messages and phone calls.