Law Commons^™

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of today’s …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

Women Made Whole: How Tort Law Can Change The Lives Of Domestic Violence And Sexual Assault Victims, Sara L. Crewson

Sara L Crewson

Tort law and insurance companies are failing to provide female domestic violence victims with adequate access to civil courts, proper legal mechanisms with which to gain that access, and are far behind the times when compared to other gender-linked crimes like those of rape and sexual assault. The Restatement of Torts (Third) has classified domestic violence as an intentional tort, and most insurance policies will not provide coverage for harms that were committed intentionally. Certain homeowners' insurance policies won't provide coverage if a spouse tries to sue another spouse for harms committed, leaving vulnerable wives unable to seek compensation for …

Equitable Tolling Denied: Uniform Standard Breaks Abuser’S Control Within Domestic Violence, Laura E. Petkovich

Laura E Petkovich

No abstract provided.

Artificial Insemination From Donor (Aid) – From Status To Contract And Back Again?, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the institutions of family and parenthood and an abandonment of the historical emphasis on their bionormative structures. These changes are the result of societal shifts with respect to public openness and technological innovations that segregate marital relations from sexuality and fertility. The resultant parenthood structures, which depart from traditional spousal and parental models, intensify the ability and need to determine legal parenthood in numerous unprecedented contexts. Sir Henry Maine famously stated that mankind is pacing from status toward contract. This theme has had particular resonance during the past half century in …

Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer

Nancy J. Knauer

When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of marriage laws …

Marriage Equailty: Why Laws Restricting Same-Sex Couples' Rights Should Be Subject To Heightened Scrutiny Under Equal Protection Challenges., Cory A. Delellis

Cory A DeLellis

This thesis discusses why laws that restrict marital rights and recognition, on the basis of the couple’s sexual orientation, should be subject to a heightened or intermediate level of judicial scrutiny under Equal Protection challenges. This thesis addresses, analyzes, and suggests why sexual orientation – within the context of same-sex couples – should be considered a quasi-suspect class, rather than a non-suspect class, so that laws negatively impacting couples based on their sexual orientation are subjected to a fairer and more reasonable level of judicial scrutiny.

Multiplicity Of Marriage Forms In Contemporary South Africa, Roberto A. Garetto Ph.D.

Roberto A. Garetto Ph.D.

From the perspective of family law, South Africa seems particularly interesting as it recognizes a multiplicity of marriage forms, according to its laws: not only common law marriage, deeply linked with the traditions of Western culture, but also customary marriage and same-sex marriage. Customary marriage, a plural marriage practiced in the form of polygyny, is deeply related to the cultural identity of some South Africans; same-sex marriage is an innovation related to fundamental rights affirmed in the post-apartheid Constitution of 1996.

The South African Constitution has a highly advanced sensibility related to issues of human dignity, equality, and freedom. Both …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

The Three Waves Of Married Women’S Property Acts In The Nineteenth Century With A Focus On Mississippi, New York And Oregon, Joe Custer

Joe Custer

Paper starts with a brief section on early America and social reform that provides a background on why married women's property acts (MWPA's) passed when they did in nineteenth century America. After laying the foundation, the paper delves into the three waves in which the MWPA's were passed in the nineteenth century focusing for the first time in the literature on one specific state for each wave. The three states; Mississippi, New York and Oregon, are examined leading up to passage. Next, the paper will look into the judicial reaction of each State’s highest court. Were the courts supportive of …

Addressing Early Marriage: Culturally Competent Practices And Romanian Roma (“Gypsy”) Communities, Judith Hale Reed

Judith A Hale Reed

Early marriage affects many communities around the world. Examples of commonly practiced early marriage can be found today in the U.S., India, Syria, and many other places. Although most countries have instituted minimum age laws for marriage, so that legal marriage can only occur after an age set by law, early marriage is still practiced for tradition, control, security, and other reasons. This article explores the harms of early marriage and the international instruments meant to defend against these harms in Part II. Part III reviews theoretical perspectives from legal anthropology and presents a case study of early marriage in …

Regulating The Family: The Impact Of Pro-Family Policy Making Assessments On Women And Non-Traditional Families, Robin S. Maril

Robin S. Maril

Beginning in the 1980s, pro-family advocates lobbied the Reagan administration to take a stronger, more direct role in enforcing traditional family norms through agency rulemaking. In 1986 the White House Working Group on the Family published a report entitled, The Family: Preserving America’s Future, detailing what its authors perceived to be the biggest threats to the “American household of persons related by blood, marriage or adoption – the traditional . . . family.” These threats included a lax sexual culture carried over from the 1960s, resulting in rising divorce rates, children born “out of wedlock,” and increased acceptance of “alternative …

Revisiting The Meaning Of Marriage: Immigration For Same-Sex Spouses In A Post-Windsor World, Scott Titshaw

Scott Titshaw

When the Supreme Court struck down Section 3 of DOMA in United States v. Windsor, it eliminated a categorical barrier to immigration for thousands of LGBT families. Yet Windsor was not an immigration case, and the Court’s opinion did not address at least three resulting immigration questions: What if a same-sex couple legally marries in one jurisdiction but resides in a state that does not recognize the marriage? What if the couple is in a legally-recognized “civil union” or “registered partnership”? Will children born to spouses or registered partners in same-sex couples be recognized as “born in wedlock” for immigration …

The New Frontier Of Advanced Reproductive Technology: Reevaluating Modern Legal Parenthood, Yehezkel H. Margalit Dr., John D. Loike Dr., Orrie Levy Adv.

Hezi Margalit

Assisted reproductive technologies (ARTs) have challenged our deepest conceptions of what it means to be a parent by fragmenting traditional aspects of parenthood. The law has been slow to respond to this challenge, and numerous academic articles have proposed models for adapting parentage laws to ARTs. In the coming years, however, scientific advancements in reproductive technologies, such as somatic cell nuclear transfer and stem cell technologies, will challenge both parentage laws and proposed legal models for traditional ARTs in new and fascinating ways. For instance, these advanced technologies could allow two women to create a child without any male genetic …

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

Towards Determining Legal Parentage By Agreement In Israel, Yehezkel Margalit

Hezi Margalit

In Israel as in other parts of the world, families, parenthood, and relations between parents and children have changed dramatically over the past few decades. So, too, developments in modern medicine have enhanced the ability to separate sexuality from fertility and parenthood. Many researchers feel that the legal system has not kept pace with these changes, and that traditional models of familial relationships no longer provide adequate tools for dealing with them. In order to bridge the gap between a desired social status and current law, a growing number of parents seek to regulate the status, rights, and obligations of …

Determining Legal Parenthood By Agreement As A Possible Solution To The Challenges Of The New Era, Yehezkel Margalit

Hezi Margalit

Over the past decades, we witnessed changes in the matrimonial and parenting institutions. Medical innovations have further created ethical-legal dilemmas. It is, therefore, essential to create a theory and framework that will determine ways to deal with the resulting dilemma in a fully developed manner. This paper surveys the current, conflicting shifts in family structure and the definition of legal parenthood. In it, I deal with the importance and various aspects of defining legal parenthood. I will also focus on the singularity of this dilemma as it is increasingly apparent in the various fertility treatments. I present the sociological-legal roots …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Emerging Models For Alternatives To Marriage, Sanford N. Katz

Sanford N. Katz

Perhaps one of the most important changes in family law in the past thirty years has been the inclusion of certain kinds of friendships in the range of relationships from which rights and responsibilities can flow. Domestic partnership laws, a phenomenon of the 1990s, may be seen as a natural development from the judicial recognition of contract cohabitation and the legislative and judicial response to same-sex couples who, unable to meet statutory requirements for marriage, have sought official recognition of their relationships. This essay discusses an aspect of certain kinds of domestic partnership laws-their formal requirements and the extent to …

New Directions For Family Law In The United States, Sanford N. Katz

Sanford N. Katz

This article provides a survey of one major development in family law in the United States that has occurred during the most recent past. This development is the change that has occurred in marriage-like relationships. The article begins with a discussion of contract cohabitation and the extent to which it reflected a change from traditional views of formal or informal marriage as the only legally acceptable model for adults who desired to live together. It shows how contract cohabitation laid the groundwork for the establishment of domestic partnership laws. These laws were first adopted by municipalities and then by states …

A Modest Proposal: To Deport The Children Of Gay Citizens, & Etc: Immigration Law, The Defense Of Marriage Act And The Children Of Same-Sex Couples, Scott Titshaw

Scott Titshaw

The Defense of Marriage Act (DOMA), which defines the terms “marriage” and “spouse” for federal purposes, clearly prevents the recognition of same-sex spouses under U.S. immigration law. Unless judges and immigration officials are careful to limit it as Congress intended, DOMA might also have a tragic unintended effect on some parent-child relationships. The Immigration and Nationality Act (INA) employs terms like “born in wedlock” and “stepparent” to define parent-child relationships for various immigration and citizenship purposes. One could argue, therefore, that DOMA prevents INA recognition of parent-child relationships stemming from a same-sex marriage. These relationships determine whether a person can …

Ghosts In The Postmodern Family, Annette Appell

annette appell

As legal theory and doctrine respond to the range and complexity of biological and social connections that increasingly compose families, they evoke a bionormative nuclear family framework for lesbian and gay families, stepfamilies and families created with outsourced reproductive materials or labor. This Article questions this approach because it disregards the complex foundational roles of biological relationships in American jurisprudence and fails to appreciate the unique aspects of kinship in these postmodern families. Instead, this Article anchors the postmodern family law movement in the physical, social and economic conditions that affect the most disaffected among us: those who are socially, …

Sorry Ma'am, Your Baby Is An Alien: Outdated Immigration Rules And Assisted Reproductive Technology, Scott Titshaw

Scott Titshaw

The growing use of assisted reproductive technology (ART) and legal recognition of same-sex relationships are raising questions regarding the recognition of parent-child relationships. State and foreign family law have been wrestling with these issues for decades, but U.S. immigration law is lagging far behind. So far, guidance exists on only one ART related issue under the Immigration and Nationality Act (INA): whether a U.S. citizen transmits her citizenship to a child born abroad. Unfortunately, that guidance is contradictory. The U.S. Department of State (DOS) requires genetic kinship for citizenship transmission. The Ninth Circuit Court of Appeals focuses on the parents’ …

Gay And Lesbian Elders: Estate Planning And End-Of-Life Decisionmaking, Nancy J. Knauer

Nancy J. Knauer

This Article addresses the three areas of core concern for gay and lesbian elders -- chosen family, financial insecurity, and anti-gay bias in the context of estate planning. The first section provides an overview of the current generation of gay and lesbian elders, including a summary of pre-Stonewall history and existing demographic information. The second section outlines the challenges associated with drafting an estate plan that favors chosen family over next of kin. The third section engages the topic of financial insecurity, discussing various benefits and government programs, such as social security and Medicaid planning. The fourth and final section …

The Rise, Fall And Rise Again Of The Genetic Foundation For Legal Parentage Determination, Yehezkel Margalit

Hezi Margalit

Recently, we have witnessed dramatic changes in the formation of the family and parenthood. One of the results of those shifts is a growing number of children growing up outside of the traditional marriage framework. Therefore, the dilemma of determining a child's parentage, which was usually resolved by a legal fiction as to the child's legal parents, is becoming increasingly problematic. It is appropriate that any discussion of the establishment of legal parentage should start with a study of the rise of the most popular modern model, the genetic model.

It is relevant to point out that from the beginning …

'Freedom Of Contract' In Halachic Family Law? – A Comparison Of The Babylonian Talmud And The Palestinian Talmud, Yehezkel Margalit

Hezi Margalit

Recently we are witness to a growing interest in nuptial agreements, both in Jewish and civil law. In civil law it is customary to trace the “meta-story” of the development of civil family law from sacrament to status and from status to contract. Indeed, during the last fifty years we have seen how nuptial agreements developed to regulate different aspects of marriage in civil law, both in Israel and in the rest of the world. During the last twenty-five years an interest has also emerged in halakhic perspectives on “freedom of contract,” which is available for couples who wish to …

Gay And Lesbian Elders: History, Law, And Identity Politics In The United States, Nancy J. Knauer

Nancy J. Knauer

The approximately two million gay and lesbian elders in the United States are an underserved and understudied population. At a time when gay men and lesbians enjoy an unprecedented degree of social acceptance and legal protection, many elders face the daily challenges of aging isolated from family, detached from the larger gay and lesbian community, and ignored by mainstream aging initiatives. Drawing on materials from law, history, and social theory, this book integrates practical proposals for reform with larger issues of sexuality and identity. Beginning with a summary of existing demographic data and offering a historical overview of pre-Stonewall views …

Clitoridectomy And The Economics Of Islamic Marriage And Divorce Law - Ryan M Riegg - 2009, Ryan M. Riegg

Ryan M. Riegg

No abstract provided.

Lgbt Elder Law: Toward Equity In Aging, Nancy J. Knauer

Nancy J. Knauer

At a time when LGBT individuals enjoy an unprecedented degree of social acceptance and legal protection, many LGBT elders face the daily challenges of aging isolated from family, detached from the larger LGBT community, and ignored by mainstream aging initiatives. The corrosive legacy of the pre-Stonewall views of homosexuality makes many LGBT elders reluctant to declare themselves and demand equal treatment from policy makers and health care providers. As a result, they are denied the basic dignity of being able to share their memories of a life well lived without fear of rejection and reprisal. The concerns of LGBT elders …