Law Commons^™

Suspension Of Citizenship: Ethical Concerns In International Commercial Surrogacy And The Legal Possibility Of Stateless Children, Rachael Curtin

Vanderbilt Journal of Transnational Law

Legal issues often exist in ethical gray areas. Advancements in reproductive technologies have increased family-building options for those that were previously unable to procreate. Similarly, globalization has increased family-placement options for children in the adoption context. However, when assisted reproductive technologies advance in a globalized world without regulation or international cooperation, international com- mercial surrogacy arrangements are governed by contractual systems that often protect the commissioning parties, rather than those who are most vulnerable and in need of protections. This Note examines how the current lack of international regulation and cooperation in the international commercial surrogacy context can leave children …

Regulating Corruption In Intercountry Adoption, Jordan Bunn

Vanderbilt Journal of Transnational Law

The current regulatory system for intercountry adoption has failed parents, children, and governments. Impoverished parents and children have been exploited by crooked adoption agencies, orphanage directors, and bureaucrats looking to profit from well-meaning prospective parents who will pay significant fees in order to adopt. While the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption lays a good foundation for catching and eliminating this corruption, it has not been fully implemented in many developing countries that lack the necessary resources and infrastructure. Some critics want to give up on or significantly modify the Hague …

When Genealogy Matters: Intercountry Adoption, International Human Rights, And Global Neoliberalism, Barbara Stark

Vanderbilt Journal of Transnational Law

Genealogy isn't what it used to be. Once genealogy was the route to "legitimacy," whether literally--a "fillius nullius," a child of no one, was illegitimate, a bastard--or more fancifully--a tastefully mounted family crest could be obtained for virtually any surname, for a price. Or genealogy referred to the painstaking search for roots, the recovery of a personal history, the excavation of a trajectory that would give meaning to the present. But we are all legitimate now. And DNA testing provides more information than anyone can process, including, for some, the refutation of cherished ancestral myths, a good chance of developing …

Cedaw And Treaty Compliance: Promoting Access To Modern Contraception, Katherine Sochacki

Vanderbilt Journal of Transnational Law

Modern contraception is widely recognized as a crucial component of family planning services and is recognized as a reproductive right under international human rights law. However, unmet need for contraception remains high, as many women in the developing world lack access to family planning services. This Note examines the role of the Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) and its powers as a treaty monitoring body in increasing access to modern contraception. Drawing on empirical research, the example of CEDAW's influence on abortion rights, and the domestic politics theory of treaty compliance, this Note …

Tax, Don't Ban: A Comparative Look At Harmful But Legitimate Islamic Family Practices Actionable Under Tort Law, Benjamin Shmueli

Vanderbilt Journal of Transnational Law

Massive migration of Muslims to the West in recent years has raised the question whether Shari'a--Islamic law--should apply to Muslim couples living in these countries. The issue is particularly acute when it comes to family life and the possibility of using tort law in cases of harmful religious practices that are permitted by Muslim law but are contrary to Western liberal values. Using tort law as a soft solution, that is, taxing that practice rather than banning it by criminal sanctions, may be a balanced and efficient solution, at least in some cases. The Article demonstrates this view--tax, don't ban--through …

What Do You Do When They Don't Say "I Do"? Cross-Border Regulation For Alternative Spousal Relationships, Sharon Shakargy

Vanderbilt Journal of Transnational Law

Marriage is a local arrangement with international effects. Throughout the Western world, a marriage recognized as valid by the parties' home country is usually considered valid and binding in any other country. This recognition carries substantial benefits. In sharp contrast, unwed couples and some married couples, namely same-sex couples, are denied these benefits due to lack of (sufficient) inter-state and international recognition of their relationships, making their relationships unstable at best. This Article discusses the cross-border recognition of such relationships--or lack thereof--and its effects, and it suggests a way to better the situation using private law tools, thus avoiding much …

Expanding The Vienna Convention On Consular Relations, Sarah G. Mccroskey

Vanderbilt Journal of Transnational Law

Article 37 of the Vienna Convention on Consular Relations (VCCR) aims to protect the interests of foreign national children by requiring consular notification whenever these children come into the custody of the state. Consular assistance can be invaluable for foreign national parents and children who may not understand the language or the culture and who may be subject to discrimination based on their nationality. However, the VCCR is currently inadequate in two major ways. First, the protections of Article 37 are only triggered when the child in custody is a foreign national, leaving vulnerable to unfair treatment families in which …

Civil Actions For Acts That Are Valid According To Religious Family Law But Harm Women's Rights: Legal Pluralism In Cases Of Collision Between Two Sets Of Laws, Benjamin Shmueli

Vanderbilt Journal of Transnational Law

This Article analyzes the implications of legal pluralism when religious family law conflicts with state civil tort law. Refusal to grant a get (a Jewish divorce bill) in Jewish law, divorcing a wife against her will in Muslim Shari'a law, and bigamy and polygamy in Muslim Shari'a law are practices permitted by personal-religious family law that harm human rights. This Article seeks to answer the question whether tort law should overrule family law, with the proviso that it be applied sensibly when deciding family matters; or whether the two disciplines of law are complementary, in the sense that liberal tort …

Whose Child Is This?: Genetic Analysis And Family Reunification Immigration In France, Tera R. Murdock

Vanderbilt Journal of Transnational Law

In an attempt to limit fraudulent family reunification immigration and control how many migrants enter its borders, France statutorily implemented the use of DNA testing in family reunification immigration in late 2007. Where an immigrating child possesses suspicious documentation, and the child is seeking to reunite with his or her mother in France, the statute provides for voluntary DNA testing to establish that the child has a biological connection with the mother. The requirement of proof of a biological link between family members is diametrically opposed to family recognition policies that apply to French citizens, which emphasize the establishment of …

Multi-Tiered Marriage: Ideas And Influences From New York And Louisiana To The International Community, Joel A. Nichols

Vanderbilt Journal of Transnational Law

This Article contends that society in the United States needs to hold a genuine discussion about alternatives to current conceptions of marriage and family law jurisdiction. Specifically, the Article suggests that the civil government should consider ceding some of its jurisdictional authority over marriage and divorce law to religious communities that are competent and capable of adjudicating the marital rites and rights of their respective adherents. There is historical precedent and preliminary movement toward this end--both within and without the United States--which might serve as the framework for further discussions. Within the United States, the relatively new covenant marriage statutes …

The Intercountry Adoption Act Of 2000: The United States' Ratification Of The Hague Convention On The Protection Of Children, And Its Meager Effect On International Adoption, Kate O'Keeffe

Vanderbilt Journal of Transnational Law

This Note explores the effect of the United States' ratification of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (Hague Convention) via passage of the Intercountry Adoption Act of 2000 (IAA). Through intercountry adoption, countless children have been given homes and opportunities in the U.S. that would not have been available to them in their countries of origin. With the increased popularity of intercountry adoption, however, have come tragic consequences for many children in foreign countries, who are exploited by those involved in the adoption process. This Note contends that the IAA, as …

Criminalizing Marital Rape: A Comparison Of Judicial And Legislative Approaches, Theresa Fus

Vanderbilt Journal of Transnational Law

Even though many countries still permit husbands to rape their wives with little or no consequence, there is a growing trend that marital exemption is unjust and has no place in a civilized society. Recognition of the inappropriateness of marital exemption is, however, only the first step towards its elimination. To effectively equalize treatment of marital and non-marital rape, legislatures and judiciaries must take action. Several countries have already been host to the abolition of marital immunity, but their approaches may not be the most effective. This Note examines the experiences of England and Canada as examples of judicial and …

When Globalization Hits Home: International Family Law Comes Of Age, Barbara Stark

Vanderbilt Journal of Transnational Law

Not that long ago, international family law (IFL) referred to a series of multilateral conventions basically concerned with conflicts of law questions. It could be studied as part of a course on family law or as part of a course on conflicts of law. But IFL, or family law in which more than one State has an interest, has grown up and become a subject of its own. This is not merely a curricular development. Rather, it reflects and reinforces two of the most powerful trends of the last fifteen years: globalization and the spread of human rights. Globalization is …

Implementing The U.N. Convention On The Rights Of The Child, Lauren M. Spitz

Vanderbilt Journal of Transnational Law

The United Nations Convention on the Rights of the Child, adopted by the General Assembly on November 20, 1989, articulates a comprehensive scheme of rights specifically tailored to children. International recognition of children's rights is only the first step, however. The effectiveness of the Convention on the Rights of the Child depends on the signatories' efforts to comply with its provisions and to incorporate children's rights into existing schemes of established rights. The 1996 Constitution of the Republic of South Africa includes specific rights for children resembling those articulated in the Convention on the Rights of the Child. Although South …

Modernizing Muslim Family Law: The Case Of Egypt, Lama Abu-Odeh

Vanderbilt Journal of Transnational Law

he Author discusses the dynamics of family law reforms in modern Egypt as an instance of similar dynamics of reforms in other Muslim countries. The forces that push for reforms as well as those that try to limit them are also introduced.

The Author begins by describing the historical legal background shared by the vast majority of Muslim countries, including Egypt. An account of the general evolution of Islamic law-from a dominant system existing within an Islamic state to a subordinate system existing within an overall secularized legal system characterized by legal borrowing from European codes-is given. Islamic law has …

The Islamic Family Endowment (Waqf), David S. Powers

Vanderbilt Journal of Transnational Law

As part of the larger Islamic inheritance system, endowment law accorded Muslim proprietors a legal means to circumvent the effects of the Islamic inheritance rules by allocating usufruct rights to specified people in specified amounts and to regulate the transmission of those rights from one generation of beneficiaries to the next. Over time, the institution appears to have contributed to the physical integrity of both urban and rural property. Whether or not it also contributed to the economic viability of the local economy is a subject that deserves further investigation." At the same time, the transformation of significant segments of …

Ireland's Divorce Bill: Traditional Irish And International Norms Of Equality And Bodily Integrity At Issue In A Domestic Abuse Context, Anthony T. Barnes

Vanderbilt Journal of Transnational Law

On November 24, 1995, the Irish population voted to ease Ireland's constitutional ban on divorce by means of a constitutional amendment. The new amendment and the bill that effectuates it give Irish citizens a limited legal right to end their marriages for the first time in Ireland's history. The limits surrounding Irish divorce consist of a significant waiting period, a living-apart requirement, and a slant toward mediation.

This Note explores the predicaments of abused spouses and the unique risks that Ireland's divorce limitations pose to spousal abuse victims seeking to end their marriages. This Note argues that the limitations of …

Lessons From The New English And Australian Child Support Systems, J. Thomas Oldham

Vanderbilt Journal of Transnational Law

In the last decade, both England and Australia have reformed their child support systems. While both nations desired to shift the financial burden of child support in single-parent families from society to absent parents, England and Australia enacted different administrative schemes to achieve this goal. In this Article, the author first explores the features of the English and Australian child support systems. The author then proceeds to analyze the merits of the two systems and the implications for other nations in light of the two nations' relative ability to achieve underlying policy goals.

Models For Parenthood In Adoption Law: The French Conception, Laura J. Schwartz

Vanderbilt Journal of Transnational Law

According to Ms. Schwartz, adoption in the United States is currently in a state of disarray and confusion because it has not achieved a satisfactory balance between biological and psychological parent-child relationships. U.S. adoption law has never adequately evaluated the relative importance of both types of relationships to the process of family formation. In contrast, although French adoption faces many of the same challenges as U.S. adoption, the French adoption process is not riddled with the same inconsistency and indeterminacy. Instead, French adoption law and government family policy reflect a societal consensus on the central and intrinsic importance of biological …

The United Nations International Conference On Population And Development: Religion, Tradition, And Law In Latin America, Gregory M. Saylin

Vanderbilt Journal of Transnational Law

At the 1994 United Nations International Conference on Population and Development, the Vatican, along with several Latin American and Muslim nations, fought against First World nations that sought to include provisions relating to abortion, contraception, sexual education, and women's issues in the Conference's Program of Action. Universal agreement was not reached and several nations, including the Vatican, refused to completely join the Program of Action.

This Note examines the history and theory behind the United Nations population conferences. Against this background, the author examines the 1994 Conference and considers its effect on Latin America by discussing the religion, tradition, and …

Why Teach International Family Law In Conflicts?, William L. Reynolds

Vanderbilt Journal of Transnational Law

Professor Reynolds sets forth a challenge to conflicts professors: to teach international family law in their conflict of laws classes. At present, many conflicts professors avoid teaching international family law, in part because the study of this subject is complicated by several statutes addressing particularly difficult issues. Ignoring international family law is unwise, because many United States citizens and lawyers are likely to confront such problems.

Moreover, this Article suggests several additional reasons for including international family law in the general conflicts course. First, litigants entangled in divorce and custody proceedings with international complications face high financial and emotional costs; …

Due Process Rights Of Parents And Children In International Child Abductions, Dorothy C. Daigle

Vanderbilt Journal of Transnational Law

Rising divorce rates in recent years have led to increasingly frequent abductions of children by one parent away from the other parent. Often, abducting parents move the children to different jurisdictions in which the parents believe they can obtain a more favorable decision on custody. To remedy this problem, twenty-nine nations joined in 1980 to adopt the Hague Convention on the Civil Aspects of International Child Abduction. This Convention mandates the immediate return, upon request, of the abducted child to the state of habitual residence of the child. The Convention includes several limited exceptions to this mandate, applicable at the …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

In Common Law in Southern Africa, Kutner surveys the judgments that are published in South African Law Reports and the official law reports of other southern African states from 1947 to the present. English language commentaries on the cases and statutes discussed in the text are cited in the notes. A Table of Statutes, Table of Cases, Conflict of Laws Index and Torts Index also are provided.

Book Reviews, Stephen C. Hicks, David A. Elder, Edward A. Laing

Vanderbilt Journal of Transnational Law

THE FAMILY IN INTERNATIONAL LAW: SOME EMERGING PROBLEMS

Edited by R. Lillich

Charlottesville: Michie, 1981. Pp. xii, 164

Reviewed by Stephen C. Hicks

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TREATIES OF THE PEOPLE'S REPUBLIC OF CHINA, 1949-1978: AN ANNOTATED COMPILATION

By Grant F. Rhode and Reid E. Whitlock

Boulder, Colorado: Westview Press, 1980. Pp. ix, 207. $25.00.

Reviewed by David A. Elder

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STATE AND DIPLOMATIC IMMUNITY

By Charles Lewis London:

Lloyd's Press of London, Ltd., 1980. Pp. xv, 135. 16f.

Reviewed by Edward A. Laing

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

International Regulation of Internal Resources By Mahnoush H. Arsanjani Charlottesville: University Press of Virginia,1981. Pp. 558. $37.50.

ANTITRUST AND AMERICAN BUSINESS ABROAD By James R. Atwood and Kingman Brewster, 2nd ed. Colorado Springs: Shepard's/Mc-Graw-Hill, 1981. Pp. 359 and 355.

FAMILY VIOLENCE: AN INTERNATIONAL AND INTERDISCIPLINARY STUDY By John M. Eekelar and Sanford N. Katz Toronto: Butterworth's, 1978. Pp. 572.

THE ARAB STATES AND THE PALESTINE CONFLICT By Barry Rubin Syracuse: Syracuse University Press, 1981. Pp. 298. $22.00.

THE KURDISH QUESTION IN IRAQ By Edmund Ghareeb Syracuse: Syracuse University Press, 1981. Pp. 223. $22.00.

THE CAMBRIDGE LECTURES Edited by Derek Mendes …

Books Received, C. A. P.

Vanderbilt Journal of Transnational Law

Books Received ================

Documents on Prisoners of War Edited by Howard S. Levie Newport, Rhode Island: Naval War College Press, 1979. Pp. 841.

Chinese Family Law and Social Change in Historical and Comparative Perspective Edited by David C. Buxbaum Seattle, Washington: University of Washington Press, 1978. Pp. 553. Bibliography and Chinese-English Glossary

The Definition of Law By Herman Kantorowicz Edited by A. H. Campbell New York: Octagon Books, 1980. Pp. 89. $13.50

The Legal Regime of Islands in International Law By Derek W. Bowett Dobbs Ferry, New York: Oceana Publications, Inc.,1978. Pp. 337. Diagrams and Maps.

International Norms and National …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

The purpose of the Case Digest is to identify and summarize for the reader those cases that have less significance than those which merit an in-depth analysis. Included in the digest are cases that apply established legal principles without necessarily introducing new ones. This initial digest includes cases reported from January through September,1971. Henceforth, the Winter issue will include cases reported from April through September, and the Spring issue will contain cases reported from October through March. The cases are grouped into topical categories, and references are given for further research. It is hoped that attorneys, judges, teachers and students …