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Abstract:
Fertility tourism is a phenomenon that has received a great deal of media attention recently as the cost of in vitro fertilization in the West skyrockets and countries enact laws that drastically curtail women's access to assisted reproduction. Professor Storrow examines the relationship between restrictive reproductive laws that purport to be expressions of local values and norms and globalization, the process of increasing worldwide interconnectedness that encourages fertility tourism. After a discussion of the meaning and causes of fertility tourism, Storrow demonstrates how fertility tourism acts to dampen organized resistance to restrictive reproductive laws and thus how globalization itself sustains the dismantling women's rights on the local level. Storrow then examines the dynamics of fertility tourism at the site of treatment delivery. Noting how Western Europeans' fertility travel to former Communist-bloc countries has spawned a burgeoning infertility industry promising cut-rate in vitro fertilization, high success rates, liberal reproductive policies, and little administrative oversight, Storrow reveals that, in response, egg donation in countries like Romania has surged and infertile citizens of those countries are priced out of the market for infertility treatment in the wake of the higher prices generated by increasing international fertility tourism. According to this analysis, fertility tourism acts to transform public oppression in one country into private oppression in another. Finally, Storrow executes a comparison of fertility tourism with both sex tourism and international adoption to make the point that the global capital generated by new markets for fertility tourism will likely thwart any concerted international response to the inequities and exploitation that arise in this context. Storrow concludes that countries considering bans or restrictions on certain forms of assisted reproduction have an ethical obligation to consider and address the effects that those laws will have on infertile couples and gamete donors in countries that have become the destinations of fertility tourists.

assisted reproduction, egg donation, fertility tourism, globalization, feminist legal theory, regulation of reproduction

Abstract:
This article asks whether a gender stereotyping theory of sex discrimination can support employment discrimination claims brought by transgendered individuals under Title VII of the Civil Rights Act of 1964. To illustrate the significance of this issue, the article first discusses a fictional case that is a composite of the facts of several older Title VII cases, all of which resulted in judgments adverse to transgendered plaintiffs. The article then examines the history of gender stereotyping theory in the federal courts. Although courts in the past have appeared ambivalent and even hostile toward the theory, recently more courts have begun equating gender stereotyping with sex discrimination, even in cases brought by gay and lesbian plaintiffs. These cases suggest that transgendered plaintiffs may also be capable of obtaining favorable judgments through the use of this theory. This article concludes, however, that the theory of gender stereotyping emerging in recent cases will not be availing to transgendered plaintiffs for the following reasons. First, federal courts have not yet questioned the idea that one's gender is the same as one's biological sex. To use the gender stereotyping theory of sex discrimination, then, transgendered workers must allege discrimination based on their chromosomal sex and not on the basis of the gender they believe themselves to be. Second, despite emerging protection against gender stereotyping, courts continue to affirm employers' prerogative to establish dress codes that differentiate between male and female workers and restroom policies that segregate workers based on biological sex. As a theory of sex discrimination, then, gender stereotyping is qualified in precisely the ways that would otherwise render it supportive of transgendered workers' employment discrimination claims.

Discrimination, employment, sex, gender, stereotyping, transgender

Abstract:
In this Article, Professor Storrow articulates a theoretical foundation for extending the privilege of intentional parenthood to all individuals, regardless of their marital status. Noting the failure of traditional methods of defining parentage to resolve the parentage issues arising from the use of assisted reproduction, Storrow turns to recently enacted and proposed statutory provisions that clearly define intentional parenthood but reserve the status to married couples alone. Taking issue with the exclusionary criteria of these provisions, Storrow's analysis aligns the emerging doctrine of functional parenthood with current theories in support of intentional parenthood to demonstrate that planning and preparing for the birth of a child--not marriage--are the essential criteria in determining who is--and is not--an intentional parent.

parentage, assisted reproduction, surrogacy, artificial insemination, functional parenthood

Abstract:
Recent scholarship on family privacy suggests that family privacy is not a right belonging to family units per se but to each member of a family. This article, reexamining family privacy doctrine in light of recent controversial developments in the areas of grandparental visitation rights and the abortion rights of minors, among others, argues that the quality of family privacy bestowed on individuals depends in large measure on whether the choices made by those individuals promote the formation and longevity of nuclear families. This bias in favor of nuclear families is reflected not only in constitutional law jurisprudence, but, likewise, permeates even policy reform efforts seemingly aimed at safeguarding the rights of nontraditional families. To show this bias at the level of policy reform, this article analyzes recent reform efforts in the areas of inheritance, adoption, and move-away custody disputes and explains how in each of these contexts the substance of policy reform proposals perpetuates the law's bias in favor of nuclear families.

constitutional law, family law, privacy, succession law, nonmarital children, adoption law, move-away custody disputes, policy

Abstract:
In its recently completed Restatement (Third) of Property, Wills and Other Donative Transfers, the American Law Institute determines that the distinction between will interpretation and will construction is no longer tenable. The distinction has been prominent in the American will interpretation tradition. It holds that when a will's language is not plain, courts may consider extrinsic evidence for the purpose of resolving ambiguities arising from, for example, problems identifying the named beneficiaries or the described property. If such interpretation fails to reveal the testator's intent and ambiguity persists, courts then resort to rules of construction - presumptions that allow a court to attribute an intent to the written instrument. Arguing that the current judicial practice is to consider actual and presumed intention simultaneously, the new Restatement rejects the view that interpretation and construction are discrete parts of a sequential process. It proposes a one-step process in which courts will consider extrinsic evidence and rules of construction simultaneously.

Professor Storrow argues that the new Restatement formulation of will construction is misguided. First, Storrow reveals that the judicial practice cited in justification of the new formulation is employed primarily in cases involving disputes over the quantum of estates - cases that, because of their peculiar context, have historically received treatment different from those cases involving the problems with identification that the law of will interpretation was designed to address. Second, through the lens of a recent case that interpreted the will of a decedent who owned vast holdings of mineral-rich land, Storrow demonstrates how the new Restatement formulation vests courts with excessive discretion and virtually invites them to flout the principle that, in every wills case, locating and carrying out the testator's intention is the primary and paramount concern.

wills, interpretation, construction, judicial discretion, plain meaning, ambiguity, extrinsic evidence, estates in land and future interests

Abstract:
This article offers clinicians a legal perspective on how to decide which of their patients should receive medical assistance to reproduce. Part I discusses how infertility clinics in the United States and Europe screen their patients with the use of a child welfare standard that encompasses concerns ranging from whether the applicants possess minimal parenting competency to whether it would be in the best interests of the child that the applicants become parents. This Part notes that although there has been extensive scholarly treatment of procreative liberty, discrimination in the provision of medical services, and physicians' prerogative to refuse treatment, clinical gatekeeping on the whole is a topic that the legal academy has neglected. Part II examines doctrines from constitutional law, family law, and trust law in an attempt to locate legal support for clinical screening practices. This Part first locates assisted reproduction along a regulatory continuum ranging from unassisted reproduction on the one extreme to adoption on the other and finds justification, despite the Constitution's solicitude for procreative liberty, for a certain level of governmental oversight of access to infertility treatment. With this justification as a background, Part II challenges the best-interests-of-the-child standard from family law as an appropriate standard for clinical screening, since that standard contemplates an identifiable, living child, not one that has yet to be conceived. The parental-fitness standard may apply however, since infertility clinics may properly express a legal and ethical interest in preventing harm to others by not serving those who possess below a minimal competency to parent. The doctrine of virtual representation from trust law supports this view in its tendency to presume that potential parents will act in the best interests of their prospective children in the absence of strong evidence to the contrary. Part III's recommendations assert that, although the best-interests-of-the-child standard has no place in the clinical screening of applicants for assisted reproduction, clinics should be permitted, if they choose, to perform fitness screening on their applicants.

reproductive medicine, gatekeeping, procreative liberty, parental fitness, best interests of the child, virtual representation

Abstract:
Infertility is a devastating global malady triggering worldwide demand for a vast array of reproduction assisting technologies. Infertility is particularly devastating those "pronatalist" societies marked by high rates of infertility and large disparities in access to medical services. Poverty in particular impedes large segments of the population in pronatalist Third World countries from gaining access even to very basic techniques of infertility treatment and consigns them to ineffective traditional remedies. In this Article drawing on both ethnographic work on infertility in the Third World and on Margaret Atwood's The Handmaid's Tale, Professor Storrow examines two starkly class-stratified societies where reproduction is regulated by means of rigid adherence to religious doctrine. He notes in particular that in such societies the participation of third-party gamete donors and surrogates in the reproductive process seems to depend upon whether the society in question is devoted to a program of repopulation. Where it is, Storrow finds a potent metaphor in fertility tourism where infertile couples of means treat third parties from disenfranchised groups as "passports" to reproduction. Storrow concludes that in resource-poor, pronatalist societies, programs of repopulation are a tipping point beyond which exploitation of third parties in infertility treatment is actively pursued and expediently justified.

human reproductive technology-law and legislation, human reproduction-moral and ethical aspects, infertility, pronatalism

Abstract:
Much of the current groundswell of support for heterosexual-only marriage in the United States arises from the belief that children do best when raised by their married, biological parents. This sense of what marriage and biological ties mean to children individually and to society as a whole has led states to pass laws that directly or indirectly bar unmarried persons from becoming parents through adoption or assisted reproduction, contexts in which parent-child relationships often lack any biological component. Upon close examination, discrimination against the unmarried in adoption and assisted reproduction relates neither to the purposes of marriage nor to child welfare. In the context of assisted reproduction, marital-status discrimination fails to survive interpretivist scrutiny, a standard for policymaking requiring legislation to conform not only to constitutional strictures but also to contemporary legal principles and legislative trends. Marital-status discrimination in adoption, apparent in the law's differential treatment of step-parent adoption and second-parent adoption, fails to meet interpretivism's requirement that the law exhibit both neutrality and consistency. Only by satisfying an interpretivist standard can discrimination against the unmarried in assisted reproduction and adoption command broad public support - the essence of all sound public policy. By continuing to advocate vociferously for favored treatment of married couples in matters of legal parenthood, the heterosexuals-only marriage movement not only works against our legal traditions and values, but also ultimately undermines the welfare of many children whose best hope lies with parents the law does not allow to marry.

marriage, discrimination, adoption, assisted reproduction

Abstract:
In the context of abortion, parental notification and consent statutes attempt to strike a balance between a young woman's right to choose to terminate her pregnancy and her parents' right to autonomy in making childrearing decisions. Where a minor is mature and well informed enough to make her decision on her own, or where she would be at risk of abuse or neglect if her parents learned of her decision, these statutes allow her not to involve her parents if she obtains a judicial bypass. Increasingly, these statutes include a third basis - best interests - for allowing a minor to make her decision without parental involvement, but according to what rationale is unclear. In this Article, Professor Storrow and Ms. Martinez articulate a theoretical foundation for granting best-interests minors a judicial bypass. After reviewing the underpinnings of parental notification and consent statutes and analyzing recent developments in the constitutional protection of parental autonomy, the authors conclude that a best-interests minor, like a parent defending against a third-party visitation petition, is entitled to special respect when she elects to terminate her pregnancy.

Abortion, parental notification, parental consent, judicial bypass, children's rights, parental autonomy, best interests, third-party visitation, family privacy, constitutional law

Abstract:
Attorneys have a long history of voluntarily providing legal services free of charge to the indigent. Such service is a tenet of the Anglo-American tradition of lawyer professional responsibility. Mandatory pro bono, by contrast, has been reviled by many in the legal profession as a contradiction in terms and, even worse, as tantamount to involuntary servitude. Mandatory pro bono programs in American law schools, however, are on the rise, in part because they advance the aspirational and pedagogical goals of law schools in many ways. In this Essay, we reflect on the role of mandatory pro bono in American legal education, relate how mandatory pro bono at Texas Wesleyan University School of Law evolved from an idea to a reality in less than one year and analyze the data emerging from the two years since the program was implemented. In the course of our examination of how the spirit of pro bono became part of the educational mission and culture of Texas Wesleyan, we call upon other American law schools to adopt pro bono graduation requirements.

Legal education, pro bono service

Abstract:
In response to the arguments of social, religious and medical ethicists that reproductive cloning undermines human dignity and should be banned, Illegal Beings: Human Clones and the Law by Kerry Macintosh marshals constitutional law and policy arguments toward a critique of legislative efforts to prohibit human reproductive cloning. This is a welcome perspective, given the tendency of efforts to ban human reproductive cloning to rely on philosophical imponderables rather than serious, thoughtful consideration of the practical ramifications of cloning bans on those who will inevitably be born via the use of this technology. This review joins those who have favorably received Macintosh's book. It begins by situating Macintosh's book within the debate over human reproductive cloning and executing a close reading of her constitutional-law argument. It praises in particular Macintosh's meticulously honed insight that bans on human reproductive cloning perpetrate an insidious existential segregation of human clones. This review concludes with some reflections on how the Supreme Court's jurisprudence mandating equal treatment for non-marital children might be brought to bear against reproductive cloning bans.

human reproductive technology, law and legislation, cloning law and legislation, equal protection

Abstract:
In the regulation of assisted reproduction around the world, countries have taken two directions. Some prize a genetic connection in parent-child relationships so highly that access to assisted reproduction is tightly controlled. Whether justified in terms of optimal rearing conditions, a child's right to know, or that heterosexual marriage has no value apart from the children it produces, such regulation is based on a narrow view of what constitutes family life. Within such a regulatory structure, adoption tends to be regarded as at best a substandard form of parenting or, at the other extreme, is legally impossible and culturally rejected. Countries with a less constrained view of the possibilities for organizing family life believe strong commitments to both individual autonomy and child welfare are compatible. They reject the notion that medical assistance to reproduce should be employed only to enable heterosexual couples to complete the picture of a family that, under happier circumstances, could have arisen without medical intervention. Under this view, access to both assisted reproduction and adoption is more open.

In this Article, the foregoing analysis emerges in the course of a critique of recent work by Lynn Wardle and Robin Fretwell Wilson advocating preferential treatment for married heterosexual couples in assisted reproduction and adoption.

assisted reproduction, adoption, marriage, family, parent, child

Abstract:
The United States Supreme Court's decision in Oncale v. Sundowner Offshore Services, Inc., declared that claims of same-sex sexual harassment are cognizable under Title VII of the Civil Rights Act of 1964. This article, the first in the law reviews to respond to Oncale, synthesizes all of the extant case law and commentary and argues that the recognition of same-sex sexual harassment claims will have several desirable effects. First, same-sex sexual harassment cases will inspire support for an amendment to Title VII outlawing discrimination on the basis of sexual orientation, or, in the alternative, judicial recognition that discrimination on the basis of sexual orientation contravenes the sex stereotyping proscriptions of Title VII. Second, same-sex harassment litigation will expose the inconsistency in Title VII jurisprudence that arises from an over-reliance on presumptive heterosexuality in sexual harassment cases. The resulting refinement and clarification of the causation analysis in sexual harassment jurisprudence will promote consistency, judicial economy, and ultimately, a more reasoned and just application of Title VII.

sex discrimination, employment discrimination, Title VII, same-sex sexual harassment

Abstract:
Bioethicists have long looked to literature for insight into the difficult questions that arise from developments in biotechnology. Two recent novels, Kazuo Ishiguro’s Never Let Me Go and Jodi Picoult’s My Sister’s Keeper, wrestle with the ethics of using reproductive technology to create donors of human tissue and organs. Read together, the novels call into question presumed distinctions between reproduction and therapy and between the family and the state that have animated debates about ethically permissible and ethically impermissible uses of reproductive technology. They caution that what we fail to appreciate in holding to these distinctions is that reproduction and therapy do not inhabit wholly separate spheres when either parents or the state undertake to harness reproductive power to create children for the therapy of others. In addition, the novels reveal the concept of human dignity to be an inadequate standard for determining what is good or bad about therapeutic reproduction. Although arguments against reproductive cloning often rest on beliefs that cloned humans would not truly be human, in Ishiguro’s reimagined Britain, it is actually the dignity of the cloned organ donors that underscores the indignity of creating them for the therapeutic needs of others. Picoult’s story asks whether any test or standard could ever adequately assess whether parents who create “savior siblings” have treated them with sufficient dignity. In affording readers a rare glimpse into a family brought to its knees by illness, the novel suggests that the least understood ethical aspect of this problem is what we expect of parents in times of crisis. As a pair of novels responding to scientific developments at the intersection of reproductive technology and human tissue and organ donation, Never Let Me Go and My Sister’s Keeper both counsel against ill-informed policymaking in the context of difficult bioethical questions.

assisted reproduction, cloning, pre-implantation genetic diagnosis, sex selection, savior siblings, organ banking, Kazuo Ishiguro, Jodi Picoult, Never Let Me Go, My Sister's Keeper

Abstract:
In a legal system wedded to the notion that only two mutually exclusive sexes coexist, transsexualism poses a daunting challenge. In the legal realm, where judges purport to decide disputes based on principles of justice, fairness and adherence to stare decisis, transsexualism engenders responses ranging from understanding and acceptance to disbelief and hostility. These responses engender curiosity as to what influences underlie their inconsistency. This Article explores the inconsistency in judicial reactions to transsexualism and attempts to shed light on why issues of gender incongruence raised by this phenonmenon are so troubling to the bench. After a discussion of the discrepancies in courts' use of medical authority in cases considering the rights of transsexuals, and their ultimate refusal to recognize transsexuals' psychological sex, the forces possibly compelling such inconsistencies will be examined with the aid of certain literary and psychological theories.

transsexualism, marriage, prisoners' rights, employment discrimination, parental rights, changes of name