ELIZABETH S. SCOTT, Columbia University - Columbia Law School
Email: escott@law.columbia.edu

This essay examines the changing social and political meaning of surrogacy contracts over the twenty years since this issue first attracted public attention in the context of the Baby M case in the 1980s. In the protracted course of the Baby M litigation, surrogacy was effectively framed as illegitimate commodification - baby selling and the exploitation of women. This framing can be attributed to a moral panic generated by the media, politicians and a coalition of interest groups opposing surrogacy - primarily feminists and religious conservatives. The framing of surrogacy as commodification had far reaching effects on legal regulation. In the post-Baby M period, lawmakers in many states moved to prohibit or severely restrict surrogacy arrangements. In recent years, however, the framing of surrogacy as commodification has been replaced to a large extent by a more benign characterization which emphasizes the useful service provided by surrogates to childless couples. Further, over the past decade, regulators increasingly have focused on the goal of reducing uncertainty and providing procedures to efficiently establish the parental status of intended parents.

This essay seeks to explain these changes. Several factors have been important: First, hostility to surrogacy has declined because the moral panic has dissipated as many of the predicted harms have not been realized. Further, advances in in vitro fertilization (IVF) have expanded the use of gestational surrogacy, which is less readily framed as commodification and thus, more palatable than traditional surrogacy. Finally, the interest group dynamic has changed: Women's groups have withdrawn, plausibly because the kinds of arguments made against surrogacy increasingly were adopted by anti-abortion advocates. These conditions have contributed to a political climate in which lawmakers have adopted a pragmatic approach, regulating with a goal of minimizing the social cost of surrogacy.

PENELOPE ANDREWS, Valparaiso University - Law School
Email: Penelope.Andrews@valpo.edu

South Africa's post-apartheid constitution has been widely admired and constantly referenced by international scholars, and especially international human rights scholars, for its comprehensive embrace of gender equality. But the commitment to gender equality has been tested by other liberatory discourses, including African nationalism and cultural and religious autonomy. This Article examines the evolution of South African legislation and constitutional jurisprudence in the face of competing imperatives, for example, between equality, legal pluralism, customary law/religious law, and the recognition of polygamy. In particular, it focuses on the Recognition of Customary Marriages Act, a statute that purports to regulate customary marriages, including the establishment of such marriages, as well as their termination. The Article evaluates the influence of this statute, if any, on gender equality, and whether its purported protection of women in polygamous marriages in fact results in such protection.

PAT K. CHEW, University of Pittsburgh - School of Law
Email: patchew@pitt.edu
LAUREN K. KELLEY-CHEW, Stanford University
Email: LaurenKC@stanford.edu

Sometimes, sexist language is blatant and universally shunned. Other times, it is more subtle and even socially acceptable. For instance, as summarized in this article, substantial social science research has considered the use of male-gendered generics (the use of such words as he, man, chairman, or mankind to represent both women and men) rather than gender-neutral alternatives (such as she or he, human, chairperson, or humankind). This research concludes that male-gendered generics are exclusionary of women and tend to reinforce gender stereotypes. Yet, these words may not be recognized as discriminatory because their use is perceived as normative and therefore not unusual. In addition, those who use these words may not be intentionally harmful. Complaining about their use may even be criticized as a trivial activity or an overly sensitive reaction.

Given this social science research, there is a surprising absence of awareness on the use and effect of these words among lawyers, law faculty, law student, and judges. Based on our original empirical analysis of hundreds of legal documents (judicial opinions, legal briefs, and law review articles), we find that the legal community continues to use male-gendered words even though gender-neutral alternatives exist. Thus, while some judges, lawyers, and legal scholars may not intend to be sexist, they are being subtly sexist. The research reveals a strong general pattern of the dominant use of the male-gendered option in a number of word pairs (four out of the nine word pairs) and substantial use in three other word pairs. In contrast, there is the dominant use of the gender-neutral word option in two word pairs.

Finally, the article offers some proactive suggestions. While the legal community is reluctant to change, it did shift from using the male-gendered option of reasonable man to the gender-neutral reasonable person. We suggest that this change occurred because of the legal community's heightened awareness of the sexist nature of the use of reasonable man, and that a heightened awareness of the subtle sexism of all male-gendered generics could prompt further changes. The article ends with a useful guide on gender neutral language that can be duplicated for distribution in the legal community and elsewhere.

SUSAN FRELICH APPLETON, Washington University School of Law
Email: APPLETON@WULAW.WUSTL.EDU

This essay, an expanded version of the 2008 Siben Distinguished Professorship Lecture at Hofstra, explores the recent discourse - from case law, legal scholarship, and commentary - about whether children may have more than two legal parents. This discourse provides a lens for examining not only family law's current practices and trajectory but also family law's unfinished business, unspoken assumptions, and problematic inconsistencies.

Based on this examination, I largely ally myself with those who take a supportive approach to expanding parental numbers, but I include some significant points and elaborations missing from others' treatment of the topic. Specifically, I show how family law is currently well equipped to adopt and operationalize a multi-parent regime, as well as how the prospect of more than two legal parents illuminates a series of difficulties that family law must address even in the more ordinary two-parent case: difficulties in identifying relevant functional criteria for parentage, in imposing parental obligations on unwilling parents, in allocating shared decision making responsibility, and in determining the appropriate jurisdictional regime for parentage contests. The essay also grapples with theoretical issues raised by the recent discourse, including what multi-parentage might mean for the place of gender, sexuality, and biology in family law; how it might change our understanding of parental status itself; and what it reveals about the professed priority of children's interests in family law.

As a whole, the essay suggests that completing the unfinished business of recent reforms-and thereby developing as a larger frame a more normatively coherent family law-might well make the particular question of parents by the numbers a much less difficult and contentious topic.

KIRSTY WELSH, affiliation not provided to SSRN

One of the most striking features of government policy on domestic violence in the last decade has been the promotion of a partnership approach to the problem and, in particular, of partnership initiatives as the means to deliver the approach. Drawing on doctoral research, I suggest that these initiatives are largely attended by voluntary sector organisations and that, although some State agencies show a real commitment to attending, attendance from many State agencies is disappointing at best and is often mediated through the attendance of those with an interest in, and commitment to, the issue. I reflect on what this suggests about who, exactly, carries the burden of partnership responses to domestic violence and, moreover, what this suggests about the effectiveness and efficacy of such responses and their entitlement to such significance in government policy around the problem.

VANESSA E. MUNRO, King's College London - School of Law
Email: vanessa.munro@kcl.ac.uk

International condemnations of people trafficking (particularly of women and girls for prostitution) as a human rights violation have proliferated in recent times. The deployment of human rights in this context has been supported by those who seek to challenge narrow victim hierarchies, but these accounts fail to clearly articulate which particular aspects of the activity violate which particular rights, and how. This article examines the applicability of protections against slavery and inhuman/degrading treatment, arguing that, in the context of the diversity and complexity of contemporary people trafficking, their limitations become apparent. The final part considers the concept of exploitation as an alternative basis for grounding a human rights claim. It cautions that invoking this concept without further elaboration (particularly in relation to the relevance of harm and consent) may be counter-productive, both in terms of theoretical clarity and practical implementation.