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Assisted Reproduction Inequality and Marriage Equality
Get PDFIn Obergefell v. Hodges, Justice Kennedy declared that “marriage is fundamental under the Constitution and [should] apply with equal force to same-sex couples.” This Article examines how the advent of marriage equality may impact the rights of same-sex couples to have biological children via assisted reproduction and surrogacy. Specifically, this Article points out the ways that the Obergefell decision affects the law of infertility. By the law of infertility, I mean the laws that require insurance coverage of infertility treatments and other assisted reproductive technologies (“ART”). Because same-sex couples are not able to have biological children with each other without ART, they are functionally infertile. However, insurance companies and state statutes use a medical definition of infertility.
I suggest that this conception must change in order for same-sex couples to enjoy the same ART benefits that heterosexual couples enjoy. I examine the Obergefell decision as a backdrop for the impetus for legal change in the realm of increased access to ART. I note how infertility treatment is provided in the United States, and the potential roadblocks for same-sex couples. Then, I discuss the opportunities and challenges for biological parenthood via surrogacy for same-sex couples and advocate for reform efforts to accommodate for same-sex access to these services. I finally suggest community engagement and activism in this realm to open up ART beyond its typically white, upper-middle-class patrons to all of those who wish to have a biological child, regardless of their wealth or race
Brexit and IP: The Great Unraveling?
No full textIn theory, exit from Brexit will free the United Kingdom from the constraints and burdens of EU membership. It will transfer sovereignty back to the people from the technocratic rule of Brussels; replace the jurisprudence of the Court of Justice with the adjudicative power of national courts; and allow the UK to tailor its market regulation in the particular exigencies of the UK economy. Whether, as a general matter, the restoration of a classic Westphalian state enhances value either nationally or globally is an issue we leave to others to debate.We ask a different question: we explore how well the rhetoric of Brexit comports with the reality and the institutional economics of nation-state lawmaking in an era of global trade and digital communication technologies. We use intellectual property law as a concrete example. We think it a good place to consider, with potentially broad significance. Copyrights are deeply intertwined with culture and education; patents have significant implications for health and safety; and trademark law sets the rules of the road for the marketplace in products and services. Since the critique of one-size-fits-all intellectual property regimes is well-known and widely accepted, some might think that this were an area where the United Kingdom would quickly move to restore self-rule.And yet global intellectual property rights are intimately associated with the incentive system of the Knowledge Economy writ large. Moreover, intellectual property mediates the infrastructure of the modern-global-business environment. We conclude that, not only are some of the supposed sovereignty gains of Brexit unlikely to be realized by the United Kingdom (because of the web of international, regional and bilateral obligations that exist in the field) but that many of the efficiency gains of harmonization that flowed from EU membership have been vitally important to the climate for innovation in the United Kingdom. If wholly jettisoned, they would adversely affect that climate in the EU. Thus, we explore how such gains might be reconstructed in a post-Brexit environment.We foresee some room for national experimentation. But we also predict an increased importance of transnational private ordering as means of efficiency gains, the rise of “technocratic” harmonisation, and the development of different forms of political convergence. While our study is limited to Intellectual Property, we believe that many of the features that we discuss are true of other areas of law as well
Italian Perspective on the Importance of Geographical Indications and Protected Designation of Origin Status for Parmigiano-Reggiano Cheese
Get PDFModifying Amateurism: A Performance-Based Solution to Compensating Student–Athletes for Licensing Their Names, Images, and Likenesses
Get PDFAmateurism is evolving and the NCAA is paying for it. With the NCAA’s focus set on preserving amateurism, it prohibited student–athlete compensation for any activity related to sports. However, college athletics are a lucrative business that generates its primary revenue from licensing Division I men’s basketball and FBS football players’ names, images, and likenesses. After years of criticism for its rules and regulations, the NCAA faced antitrust scrutiny from both former and current student–athletes. In 2015, the U.S. Court of Appeals for the Ninth Circuit held that the NCAA’s restrictions on student–athlete compensation violated the Sherman Antitrust Act. While the Court affirmed the decision to allow the NCAA to increase scholarships up to the full cost of attendance, it denied forcing the NCAA to allow student–athletes to receive cash payments.
The Ninth Circuit’s decision created a dilemma for the NCAA. Since the NCAA may no longer restrict student–athletes from receiving compensation for the use of their names, images, and likenesses, it must determine how to compensate student–athletes while maintaining amateurism. Along with compensation, the NCAA faces issues with Title IX because the Court’s decision only allowed compensation for Division I men’s basketball and FBS football players. Further, when determining how to compensate student–athletes, the NCAA could face tax implications. Considering the O’Bannon decision along with the possible Title IX and tax consequences, the NCAA should incorporate performance-based scholarships to compensate student–athletes and preserve amateurism
Vol. 34, No. 1
Get PDFContents:
The AFSCME - State of Illinois Negotiations: Traveling in Uncharted Waters, by Martin H. Malin
Recent Developmentshttps://scholarship.kentlaw.iit.edu/iperr/1081/thumbnail.jp
Quacking Like a Duck? Functional Parenthood Doctrine and Same-Sex Parents
Get PDFThis Article unpacks the relationship between the functional parenthood doctrine, constitutionally protected parental autonomy rights and intent-to-parent tests as they are applied in same-sex parenting relationships. It argues that, with the advent of same-sex marriage and second parent adoption, the functional parent doctrine is unnecessary and ultimately counterproductive to anyone interested in expanding legal recognition of non-traditional family forms. The functional parent doctrine asks courts to employ traditional understandings of parenthood (“Who acted like a parent?”) in assigning parental status.
These traditional understandings are usually, if not inevitably, dyadic, heteronormative, genetic, and gendered. In practice, the functional parent doctrine undermines the legitimacy of single-parent families and any family that does not conform to conventional parenting patterns; it indirectly reinforces the notion that the only parents entitled to robust constitutionally protected parental autonomy are married, genetic, heterosexual parents. Advocates and all those concerned with protecting the integrity of same-sex parenting families would be better served by an intent-based system that asks the parties themselves, not judges, to legally declare their family relationship. At virtually no additional administrative cost, states can offer a parental registration system for same-sex parents that puts the responsibility for defining legal families in the hands of the families, thereby allowing those families considerably more freedom than does the functional parent doctrine, to structure their relationships as they choose
