The special case of property rights in umbilical cord blood for transplantation

In this Article, Professor Stephen R. Munzer makes a case for limited property rights in umbilical cord blood. Professor Munzer proposes that the unique nature of cord blood distinguishes it from body wastes and qualifies it as a body part in which property rights vest. Employing a theory of property, based in part on the articulation of the principles of utility and efficiency, justice and equality, and "labor-desert," he explores legal and philosophical arguments that justify the acknowledgment of such rights. He also discusses concerns over alleged generous granting of patents in the area of cord blood stem cells in light of these principles. Significant aspects of health policy are explored with particular focus on the potential value of using cord blood to treat various diseases and disorders. Professor Munzer discusses various difficult cases involving the exercise of property rights in umbilical cord blood with respect to the interests and/or motives of newborns, parents, and other parties. He argues that some of the concerns associated with the commercialization and commodification of cord blood are not serious enough to warrant significant barriers to market exchanges of property rights in cord blood. In addition, he concludes that the particular nature and harvesting of cord blood do not make its commodification morally problematic. Finally, Professor Munzer reinforces his treatment of property rights in cord blood by addressing objections that view property as "propriety," as a pragmatic institution, or as social relations.     

Addressing the shortage of kidneys for transplantation: purchase and allocation through chain auctions

Transplantation is generally the treatment of choice for those suffering from kidney failure. Not only does transplantation offer improved quality of life and increased longevity relative to dialysis, it also reduces end-stage renal disease program expenditures, providing savings to Medicare. Unfortunately, the waiting list for kidney transplants is long, growing, and unlikely to be substantially reduced by increases in the recovery of cadaveric kidneys. Another approach is to obtain more kidneys through payment to living "donors," or vendors. Such direct commodification, in which a price is placed on kidneys, has generally been opposed by medical ethicists. Much of the ethical debate, however, has been in terms of commodification through market exchange. Recognizing that there are different ethical concerns associated with the purchase of kidneys and their allocation, it is possible to design a variety of institutional arrangements for the commodification of kidneys that pose different sets of ethical concerns. We specify three such alternatives in detail sufficient to allow an assessment of their likely consequences and we compare these alternatives to current policy in terms of the desirable goals of promoting human dignity, equity, efficiency, and fiscal advantage. This policy analysis leads us to recommend that kidneys be purchased at administered prices by a nonprofit organization and allocated to the transplant centers that can organize the longest chains of transplants involving willing-but-incompatible donor-patient dyads.     

Theorizing waste in abortion and fetal ovarian tissue use.

This article explores the theoretical implications of the concept of waste as it specifically relates to arguments in favour of fetal ovarian tissue use as a source of donor eggs. The author begins by discussing medico-scientific constructions of women's reproductive bodies as wasteful. The article explores the works of Drucilla Cornell on bodily borders, Julia Kristeva on abjection, and Mary Douglas on pollution to develop a nuanced understanding of the relations between waste, women's reproductivity, and abortion in North American mainstream and medico-scientific cultures. This layered reading of waste and abortion deconstructs a significant assumption of arguments in favour of fetal ovarian tissue use as ethical--that such tissue is just "waste." The author suggests that theorizing waste this way may contribute to ethical analyses of uses of other reproductive materials (that is, embryos) that are supported, in part, by an assumption that those materials would otherwise be "wasted."     

Resistance to the mainlandization of criminal justice practices: a barrier to the development of restorative justice in Hong Kong

This article examines the political and legal barriers to introducing restorative justice (RJ) in Hong Kong. It argues that the processes involved in RJ may be in conflict with the rule of law, which is regarded by the citizens of Hong Kong as sacrosanct in their resistance to the "mainlandization" of criminal justice practices after China resumed sovereignty of Hong Kong. It is argued that, because it could admit such potentially harmful Chinese criminal justice concepts as "rule by the people," "absence of the presumption of innocence," "leniency for self-confession and severity for resistance," and "toeing the party line," RJ would be devoid of any restorative substance and could breach the principles of due process.     

执业资格考试与海峡两岸劳务合作交流法律问题探讨

执业资格考试属于行政许可中的特殊职业许可。目前,海峡两岸对对方居民参加执业资格考试都有一定的限制,因此不利于海峡两岸劳务合作交流的需要。应当根据WTO《服务贸易总协定》所确定的渐进式自由化原则、国民待遇原则和最惠国待遇原则,加强海峡两岸劳务合作交流之立法沟通与协调,妥善处理海峡两岸关于执业资格考试的范围、＂国籍＂和学历承认等问题,以促进海峡两岸劳务合作交流的顺利进行和经济社会的协调发展。     

CAUSATION IN EC MERGER CONTROL

"there are ever so many ways that a world might be; and oneof these many ways is the way that this world is" (David Lewis,1986)

This article looks at two areas of merger control under EC Lawwhere the principles of causation are applied and, in our view,misapplied. The article traces the development of the conceptof the "counterfactual" in antitrust law. It then draws on thisanalysis in considering the operation of the "failing firm defense,"and in particular the standard of proof employed by the Commissionwhen analyzing the "counterfactual" in relation to the failingfirm defense. We argue that the Commission employs an excessivelyhigh standard of proof, and that this standard of proof contributesto the drawing of the failing firm defense too narrowly, througha misapplication of the principles of causation. We then proceedto contrast and prefer the approach of the UK Competition Commissionin recent cases. In the final part of the article we considerscenarios where two or more mergers are contemplated in thesame market at the same time, in cases of both parallel andoverlapping mergers. In these complicated scenarios, which requireprospective, multifaceted analysis, we set out in detail how,despite inherent difficulties, a similarly rigorous applicationof the principles of causation produces coherent results.     

论特别行政区应自行立法禁止叛国等行为

香港、澳门两个特别行政区基本法都规定特别行政区应自行立法禁止叛国等行为。这是维护“一国两制”、维护国家主权和领土完整的基本要求。作者认为特别行政区应根据我国宪法、特区基本法、并借鉴我国内地刑法、参考其原有刑法规定,履行法定义务、制定法律禁止叛国等行为。     

商业银行并购的法律性质及其制度完善

商业银行并购行为具有多重法律性质,对其进行调整的法律体系应当体现意思自治、效率、反垄断等基本原则。我国现有商业银行并购法律未能严格遵循以上原则且缺乏系统性。有必要在准确把握银行并购法律性质的基础上制定《商业银行并购条例》,完善银行并购民事合同制度、申报审批以及反垄断制度等,从而有效地维护我国银行业金融体系安全和金融市场发展。     

政治哲学中的“自由”观论

在当代社会的法律和政治话语中,“自由”已取得了支配性的地位,但其内涵和外延仍然较为模糊,甚至一切非“自由”的或反“自由”的也成为了“自由”的。应在现代性的情景下重新审视政治哲学中的“自由”观。     

行政法基本原则的反思与重构

我国行政法学者对行政法基本原则的认识先后经历了从早期之“行政管理原则论”到晚近之“行政法治原则论”这样一个逐步成熟和发展的过程 ,但仍旧存在种种分歧和不足。本文在反思国内现有理论研究的基础上 ,采用矛盾分析、价值分析与宪政分析的方法 ,重新界定了行政法基本原则的概念和确立标准 ,并进而以行政法的根本价值———“法的正义价值”和行政法的基本矛盾———“法与行政的关系”为内在根据 ,结合现代宪政所包含的民主、法治、人权等原则与精神 ,提出应当将行政法的基本原则确立为行政法定、行政均衡和行政正当三大原则     

Arising from the dead: challenges of posthumous procreation

The medical capabilities derived from modern reproductive technology, such as in vitro fertilization and cryopreservation, have enabled physicians and scientists to intervene in the procreative process in innumerable ways. However, this intervention in the natural reproductive process raises both moral and legal concerns. In this Article, Professor Schiff explores some of the conflicts that may result when an individual or couple elects to cryopreserve gametes or embryos and subsequently, one or both of the contributors dies, or when gametes are harvested from a dead body. This Article will specifically address the moral and legal responses to circumstances where the decedent has either clearly expressed opposition to posthumous use of the reproductive material or else the decedent's intent regarding posthumous use of the material is ambiguous. By discussing philosophical and moral positions relating to personhood and the body and analyzing legal issues such as reproductive choice and organ donation, Professor Schiff creates the necessary format to examine and recommend the proper legal treatment of this controversial aspect of posthumous procreation.     

Webster and the fundamental right to make medical decisions

Members of the American Medical Association, the American Academy of Child and Adolescent Psychiatry, American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American Fertility Society, American Medical Women's Association, American Psychiatric Association, and the American Society of Human Genetics have submitted an "amici curiae" brief in support of the appellees of "Webster." The brief did not endorse or oppose the view that the state's interest in fetal health is compelling as fetal viability. Instead, the brief said that: 1) everybody has the right to make medical decisions without the state interfering "up to the point where the state's compelling interest arises;" and 2) even after a compelling interest comes up, state rules must go along with good medical practices. Because some provisions of the Missouri law were not consistent with good medical practice, these provisions were not constitutional. The fetal viability testing requirement would increase risks to the woman and fetus without providing substantial information on viability. The counseling ban would prevent doctors from giving necessary information to pregnant women so that they could make informed decisions. The 1st section of the brief discussed "the medical background of pregnancy and abortion." The earliest age at which a fetus can survive has remained unchanged since "Roe." The medical complications and adverse health effects are fewer from than from childbirth. Abortions have become safer. The brief said that the "right of privacy" is broad enough so that a woman could decide whether or not to end her pregnancy. In "Roe," the Court found that if a woman was going to make a choice about pregnancy, this was the same as other private decisions which are protected in the Constitution. Individual medical decision making is "deeply rooted" in US "history and tradition." Accepted principles are reflected in the fact that the patient has a right to make these decisions based on the "liberty component of the Due Process Clause." Section 188.029 of the Missouri Law would make a doctor do certain tests for fetal viability. They would have no medical value, in most cases, and put a risk on the health of the mother. It was not related to any goal of the state, and was, therefore, unconstitutional. Section 188-205 of Missouri law - which says a doctor can't consult unless the mother's life is endangered was also unconstitutional.     

吉林省西部特色经济区服务业跨越发展的基本对策

加快服务业发展是当今产业发展的大趋势,对于经济相对落后的吉林省西部而言,在建设特色经济区的过程中实现服务业跨越发展十分重要。本文分析了吉林省西部地区跨越发展中面临的困难和存在的主要问题,进而提出其实现跨越的基本对策。     

Ambiguous exchanges and the police

This article analyses exchange relationships involving public police agencies and external institutions. It specifies three general forms of exchange (Coercion, Sale and Gift), then observes that, in practice, the three may not be mutually exclusive. It identifies ambiguities that may exist within exchange relationships, and discusses the implications of these for three important aspects of police performance: efficiency or value for money; equity in the distribution of police services; and the legitimacy of the police organisation. The article concludes that managing ambiguity in exchange relations has become a challenge of 21st century policing, and that police are well advised to have elaborate guidelines in place to govern their exchange relations.     

We Continue the Discussion "the Neighbor who Shares your Apartment"

Note by editors of Sotsialisticheskaia zakonnost': In no. 1 of our journal for this year we published an article by Professor A. Ushakov, "The Neighbor Who Shares Your Apartment," dealing with the imperfections of the prevailing legislation governing exchange of dwelling space. The editors circulated this article to people engaged in application of this legislation in practice and to scholars dealing with this problem and sought their opinions.     

论刑事司法鉴定制度的基本原则——以刑事诉讼法的修改为视角

刑事司法鉴定制度的基本原则有丰富的内容，既包括刑事诉讼法的基本原则，也包括证据法的原则，还包括鉴定制度所特有的原则。其中，无论是刑事诉讼法中的基本原则还是证据法的原则，在鉴定问题上又都有其特殊的要求。本文以刑事诉讼法的修改为视角，从解决刑事司法鉴定程序失灵等疑难问题出发，选取其中不可替代的三个原则，即权利保障原则、程序...     

PERSONS WITH DISABILITIES AND THEIR SEXUAL,REPRODUCTIVE, AND PARENTING RIGHTS: AN INTERNATIONAL AND COMPARATIVE ANALYSIS

Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.     

Reproductive choice: screening policy and access to the means of reproduction

The practice of screening potential users of reproductive services is of profound social and political significance. Access screening lacks a defensible rationale, is inconsistent with the principles of equality and self-determination, and violates individual and group human rights. Communities that strive to function in accord with those principles should not permit access to screening, even screening that purports to be a benign exercise of professional discretion. Because reproductive choice is controversial, regulation by law my be required in most jurisdictions to provide effective protection for reproductive rights. In Canada, for example, equal access can, and should be, guaranteed by federal regulations imposing strict conditions on the licenses of fertility clinics.     

Oocyte donation for reproduction and research cloning--the perils of commodification and the need for European and international regulation.

The demand for women's egg cells is increasing and is leading to reproductive tourism and transnational oocyte trafficking. The article considers the regulatory landscape of oocyte donation in Europe and analyses different types, particularly whether oocytes are provided within or outside of the IVF context, and whether anonymity of the donor is legally possible or not. The bifurcation between different purposes of egg extraction, particularly the challenges raised by ova demands for cloning research (SCNT) are highlighted. In emphasizing the need for supranational regulation, nine rules for supranational minimum standards are proposed to protect both donor interests and the public good. A particular focus is directed to the commodification of oocytes with regard to the European principle of non-commercial, voluntary and altruistic donation.     

Keeping mum about dad: "contracts" to protect gamete donor anonymity

This article considers the legal status of so-called contracts for anonymity between fertility clinics and donors of gametes that were made in the period before legislation authorising disclosure. It notes that while clinics frequently cite the existence of these "contracts" to argue against retrospective legislation authorising disclosure of the donor's identity, they may be nothing more than one-sided statements of informed consent. However, the article notes that even if an agreement between a donor and a clinic is not contractual, it does not follow that a person conceived through assisted reproductive technology has any right of access to the identity of the donor. The writer has not been able to locate examples of written promises by the clinics promising anonymity. There are written promises by the donors not to seek the identity of the recipients. These promises do not bind the resulting offspring nor do they appear to be supported by consideration. The article suggests that the basis for any individual donor to restrain a clinic from revealing their identity may be found in promissory estoppel. Nevertheless, there is no real issue in Australia concerning clinics revealing these details absent legislative authority. The issue is whether parliaments will legislate to authorise the disclosure. The article notes that it would be rare for parliaments to legislate to overturn existing legal contracts but suggests that the contract argument may not be as strong as has been thought.