Law Commons^™

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 …

Can Dna Be Speech?, Jorge R. Roig

Jorge R Roig

Scarce Medical Resources – Parenthood At Every Age, In Every Case And Subsidized By The State?, Yehezkel Margalit

Hezi Margalit

The dilemma of scarce medical resources is deeply rooted in the ancient mankind history, but it has been accelerated in the modern era with the appearance of the bio-medical innovations. This acute dilemma is relevant to all the western developed states, include Israel. Nevertheless, in one field there is the notion that Israel has unlimited medical resources – the fulfillment of its citizen's procreation and parenthood rights. Thus, for sociological, demographical, religious and security reasons the State of Israel invests a vast amount of money to develop and use the various fertility treatments. Israel, today, has the highest per capita …

Does The Right To Elective Abortion Include The Right To Ensure The Death Of The Fetus?, Stephen G. Gilles

Stephen G Gilles

Is the right to an elective abortion limited to terminating the woman’s pregnancy, or does it also include the right to ensure the death of the fetus? Important as this question is in principle, in today’s world the conduct that would squarely raise it cannot occur in practice. The right to elective abortion applies only to fetuses that are not viable, which by definition means that they have been determined to have no realistic chance of surviving outside the uterus. Even if abortion providers used fetus-sparing methods rather than the fetus-killing methods they currently prefer, pre-viable fetuses would die within …

Is Medicaid Constitutional?, Timothy Stoltzfus Jost

Timothy S. Jost

Not available.

Public Assistance, Drug Testing And The Law: The Limits Of Population-Based Legal Analysis, Candice Player

Candice T Player

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still population-based analysis is not without its problems. At times Parmet claims too much territory for the population-perspective. Moreover Parmet urges courts to recognize …

Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo

Stacy A Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …

For Health's Sake Be Not Colorblind, Ruth Hackford-Peer

Ruth Hackford-Peer

The United States’ past ideology of overt state-sanctioned racism has been replaced by a covert, seemingly race-neutral ideology. This Article looks at the history of racism in the United States and traces the recent shift in ideology and discourse about race, positing that the discourse of “colorblindness” powerfully maintains the racial status quo while purporting to advance race neutrality. Then, using affirmative action as the lens from which to view these shifts in ideology and discourse, this Article analyzes racial disparities in health and healthcare. It highlights some of the health consequences people of color face because they live a …

Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …

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 …

Somebody's Watching Me: Protecting Patient Privacy In De-Identified Prescription Health Information, Christopher R. Smith

Christopher R Smith

Increasingly, legal scholars, state legislatures and the federal courts are examining patient privacy concerns that arise in the context of the dissemination, distribution and use of patient prescription information. However, less attention has been paid to the sharing of de-identified or encrypted patient prescription information versus identifiable patient prescription information. Though many patients may not realize it, identifiable, de-identified and encrypted patient prescription information is being used for a host of purposes other than insurance reimbursement and treatment, most notably for pharmaceutical marketing purposes. Existing state and federal laws and ethical guidelines provide some protection for the privacy of patient …