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Stateless Babies & Adoption Scams: A Bioethical Analysis of International Commercial Surrogacy
Get PDFTruth is often stranger than fiction, and nowhere is this more evident than when examining the real stories related to international commercial surrogacy that have occurred in the last few years. This Article utilizes these recent cases to analyze this industry using a bioethical lens. Bioethicists use stories effectively to demonstrate how theory and normative ideals apply to real world situations. By detailing examples of some of the unique scenarios that have arisen in far-flung cities of India, the United States, and the Ukraine, this Article highlights some of the bioethical dilemmas such stories raise. This Article examines these stories using the classic theoretical bioethics framework to demonstrate the need for clarification of state or national regulation and international guidelines related to international surrogacy. Global surrogacy is more popular than ever due to advances in technology allowing for gestational surrogacy, rather than traditional surrogacy. In a traditional surrogacy arrangement, a surrogate becomes pregnant via artificial insemination by sperm from the intended father or donor sperm. Because her own egg contributes to the embryo, a traditional surrogate carries her own genetically related child and agrees to give it up upon the baby’s birth. Due to well publicized cases where traditional surrogates decide they wish to raise the infant that they have carried, and due to public sympathy of these surrogates due to their genetic tie to the infant, gestational surrogacy, where there is no such genetic tie, has become vastly more popular than traditional surrogacy. Gestational surrogacy refers to the process whereby an embryo is created with an egg and sperm from the intended parents (or from donor eggs and sperm) through an in vitro fertilization procedure and is then transferred into the uterus of a genetically unrelated surrogate. Gestational surrogacy has largely replaced traditional surrogacy in the world of international surrogacy - and it is indeed a “world” of international surrogacy. The popularity of medical tourism, whereby consumers of health care travel around the world to receive cheaper medical care, has spread to reproductive tourism. International or global surrogacy is a booming business. Although some have written with concern about the potential exploitative nature of international surrogacy, the Western press has mostly positive press reports about success stories in international surrogacy. Although many countries still prohibit or restrict surrogacy arrangements, the market for international surrogacy is estimated to be six billion dollars annually worldwide. Some countries, such as India and Ukraine, wish to be seen as international surrogacy meccas by providing quality medical care for a low cost and attempting to provide the most legal protections for intended parents. In the United States and some European countries, the initial stigma associated with using a surrogate to build one’s family than existed a few decades ago seems to have dissipated as these arrangements become more commonplace. Additionally, with the ability of intended parents to research distant parts of the world as potential surrogacy destinations and with lower costs associated with a competitive global marketplace, intended parents who were previously unable to consider a surrogacy arrangement due to financial constraints, are viable fertility tourists. This Article uses cases of surrogacy in Ukraine, India, and the United States as examples. These countries have been at the forefront of the booming international surrogacy industry. The field of international surrogacy is relatively new, with participant countries competing to become known as leaders in this field. California has a long history with surrogacy. Due to its developed system of surrogacy, it is perceived as an attractive international surrogacy option for those who can afford the high cost of surrogacy in the United States. India has also emerged as a global leader in surrogacy in the developing world. Ukraine is quickly gaining traction as a destination of choice. This Article using these stories involving surrogacy in the United States, India, and Ukraine to highlight similarities and differences in the surrogacy experience in countries active in the international surrogacy market. This Article first tells the story of a recently uncovered baby-selling ring that exploited aspects of both surrogacy and adoption law and involved two countries active in international surrogacy: the United States (California specifically) and Ukraine. Then, this Article explores stories in India and Ukraine involving babies lost in legal limbo due to the inconsistencies of surrogacy law in different countries. Next, this article discusses the gestational surrogacy landscape in the United States, India, and Ukraine and examines the laws and regulations related to surrogacy that exist in each country. Finally, this Article discusses bioethical concerns raised by the stories as they relate to each of the parties involved in commercial surrogacy-the intended parents, the surrogates, and the infants. I use this bioethical framework to deconstruct the stories of commercial surrogacy to identify areas where the current global surrogacy market could stand to change
Kiss the Book...You\u27re President...: So Help Me God and Kissing the Book in the Presidential Oath of Office
Get PDFConstructing the Other: U.S. Muslims, Anti-Sharia Law, and the Constitutional Consequences of Volatile Intercultural Rhetoric
Get PDFRecently, legislators have proposed, discussed, and passed various laws that aimed to limit the use of foreign law, international law, and Sharia (a branch of Islamic law) in state court systems. Because it became law, one proposed state constitutional amendment that rhetorically linked Sharia to foreign and international law is of particular note. In the 2010 midterm elections, Oklahoma passed State Question 755 (SQ 755), a constitutional amendment that aimed to place restrictions on the use of foreign law, international law, and Sharia in Oklahoma courts. Laws like Oklahoma’s State Question 755 are problematic for a variety of reasons. One key reason is that such laws discriminate against U.S. Muslims, out of whose religious tradition Sharia comes, and fail to offer an explanation for such discrimination, instead appealing to public ignorance of Islam and fear of terrorism. The result of such laws is to sacrifice the rights of rank-and-file U.S. Muslims in the middle of political theater. To focus on a law that has been approved by the legislature and then the public, rather than on those laws that simply have been proposed, this article addresses the case of Oklahoma’s SQ 755. Greater understanding of the legal and communication problems associated with SQ 755, particularly as those problems impact U.S. Muslims, a religious minority that makes up less than one percent of the adult U.S. population, will provide both legislators and members of the public an opportunity to become more informed regarding passing future legislation and voting on future state constitutional amendments of this sort. This article initially contextualizes the matter of SQ 755 by noting how U.S. society in general, and Oklahoma in particular, have constructed U.S. Muslims as Others, or Strangers. Then the article offers some background on SQ 755, which itself is a specific manifestation of the rhetorical construction of Muslims as Others. Next the article analyzes how SQ 755 violates various provisions of the U.S. Constitution, including the Establishment Clause, the Free Exercise Clause, the Supremacy Clause, the Full Faith and Credit Clause, the Due Process Clause, and the Contracts Clause. Finally, the article suggests a dialogic approach, channeled through the Johari Window, which is a vehicle for information exchange, for deconstructing the notion of U.S. Muslims as Others and reconstructing them as Selves, or non-Strangers, within U.S. cultur
The United States\u27 Enhanced Impunity for Its International Obligations: The Continued Unlawful Treatment of Captives and Detainees Following the Attack of September 11, 2001
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Looking Backward from the Year 2099: Ecozoic Reflections on the Future
Get PDFLooking Backward from the Year 2099: Ecozoic Reflections on the Future
Abstract by Samuel Alexander
Story, myth, and narrative played a central role in Thomas Berry’s writings. He told new stories about the Universe and our place in it, stories not only about where we have been and where we seem to be going, but also stories about where we could go, if only we exercised our freedom in different ways. Inspired by Berry, in this paper I have dared to experiment with story, by attempting to look back on the 21st century from the vantage point of the year 2099. Motivated and informed by various themes in Earth Jurisprudence, the futuristic reflections detailed in this paper review how attitudes toward consumption and economic growth underwent a radical shift over the course of the 21st century and how this affected, through legal reform, the social, economic, and political order of late capitalism. Particular attention is given to the legal evolution of property rights and the cultural movements that made this evolution possible.
This is an ambitious and hopeful project. It aims to go “beyond critique” by describing an alternative legal and political order to late capitalism and by outlining the process of transition. Despite being conceived between the poles of pessimism and optimism, this story is nevertheless based upon a faith in the human spirit to meet the challenges of creating an Ecozoic era. Though I cannot be sure Berry would have agreed with all the conclusions drawn or speculations made, I believe he would have been sympathetic to this general undertaking
Limiting Legislative Courts: Protecting Article III from Article I Evisceration
Get PDFThis article will analyze possible limitations on Congress’ Article I power, concluding that separation of powers jurisprudence offers a practical and appropriate manner in which to check Congressional overreach. Part I traces the development of Congress’ power to create Article I courts. Part II critically evaluates the Northern Pipeline opinions, ultimately finding neither Justice Brennan’s nor Justice White’s conflicting opinions satisfactory. Part III briefly discusses several possible limiting principles on Article I courts before concluding that separation of powers jurisprudence offers a meaningful and pragmatic solution to the problem. Part IV tests the practicality of this new separation of powers test, applying it to both trial level bankruptcy courts and Bankruptcy Appellate Panels to illustrate both its accommodative and limiting capacity. This paper concludes by emphasizing the importance of protecting the integrity of judges individually and the judiciary writ-large from Congressional evisceration
Defamation in Good Faith: An Argument for Restating the Defense of Qualified Privilege
Get PDFSince the 1964 case of New York Times v. Sullivan, the standard for proving defamation has often proven insurmountable to public figure plaintiffs who claim their reputations have been hurt through libel or slander. But, the standard can prove equally insurmountable to “private figure” plaintiffs when a qualified, or “conditional,” privilege applies. Such privileges, intended to further the social policy of candor on certain proscribed occasions, can be claimed regarding otherwise questionable conversations as long as the dialogue is made: 1) in good faith; 2) about a subject in which the speaker has an interest or duty; 3) within a scope limited to that interest; 4) in a proper manner; and 5) between the proper parties. This iteration is common to nearly every state in the union. The trouble is that the concept of good faith is often either undefined by case law or left unclear. At times, it is described in terms of its inverse—lack of “bad faith.” At other times, the term good faith is coupled with lack of “malice,” a concept that is equally amorphous. The significance of this shifting definition is consequential, for the casual use of the term suggests incoherence within the doctrine of qualified privilege. If a privilege arises only upon a showing of “good faith,” then the establishment of that element does not square with one of the customary ways of overcoming that privilege—a showing of “actual malice.” The other elements—pursuit of a delineated interest; a statement limited in scope; made to the proper parties; and in the proper manner—would prove superfluous and irrelevant. Actual malice would have been disproven by the one factor that matters—“good faith.” And if good faith were defined to be “reasonable behavior” or the equivalent of “reasonableness” in some way, the standard becomes redundant, as all of the other elements would simply be inquiries into reasonable publication. To complicate matters, as the defense is an affirmative one, its standard articulation presents a peculiar state of affairs in which defendants are required to prove the existence of their own good faith, rather than requiring plaintiffs to prove its absence. Courts and critics have noticed this incoherence and many have called for the doctrine’s abrogation. In the attached comment, a historical investigation reveals the original meaning of the concept, and argues for a return to this first understanding, which will make the doctrine coherent once again. In addition, philosophical, social, and prudential arguments are put forward to show the value of the doctrine and to clarify its proper articulation