Establishing Identity: How Direct‐to‐Consumer Genetic Testing Challenges the Assumption of Donor Anonymity

The rise of direct‐to‐consumer genetic testing is challenging the rules and expectations of the fertility industry concerning donor anonymity. While ethicists debate whose rights should prevail, many donor conceived people, recipient parents and donors are currently sharing their genetic information, along with methods to identify genetic links, in vast online communities, invalidating donor anonymity and providing a platform for those who advocate globally for legislative change to support donor‐linking practices. This article looks at why it is important to access this information in relation to identity and kinship formation and how the Family Court Community can apply this knowledge in order to achieve better outcomes for children and families.     

The donor-conceived child's "Right to Personal Identity": the public debate on donor anonymity in the United Kingdom

On 1 April 2005, with the implementation of the Human Fertilisation and Embryology Authority (Disclosure of Donor Information) Regulations 2004, United Kingdom law was changed to allow children born through gamete donation to access details identifying the donor. Drawing on trends in adoption law, the decision to abolish donor anonymity was strongly influenced by a discourse that asserted the ‘child's right to personal identity’. Through examination of the donor anonymity debate in the public realm, while adopting a social constructionist approach, this article discusses how donor anonymity has been defined as a social problem that requires a regulative response. It focuses on the child's ‘right to personal identity’ claims, and discusses the genetic essentialism behind these claims. By basing its assumptions on an adoption analogy, United Kingdom law ascribes a social meaning to the genetic relatedness between gamete donors and the offspring.     

A nation's genes for a cure to cancer: evolving ethical, social and legal issues regarding population genetic databases

The advent of the human genome sequence has focused research on understanding underlying genetic links to complex diseases such as cancer, asthma and heart disease. In the past few years, individual countries, such as Iceland, Estonia, Singapore and the United Kingdom, have created national databases of their citizens' DNA for comparative research. Most recently, an international consortium including Nigeria, Japan, China and the United States launched a $100 million project called the International HapMap to map the human genome according to haplotypes, blocks of DNA that contain genetic variation. Such population genetic databases present challenging ethical, social and legal issues, yet regulation of genetic information has developed sporadically, from region to region, without a consistent international standard. Without a clear understanding of the consequences of genetic research in terms of individual and community-wide discrimination and stigmatization, genetic databases raise concerns about the protection of genetic information. This Note provides a survey of the evolving landscape of population genetic databases as a legislative and public policy tool for national and international regulators. It compares different approaches to regulating the collection and use of population genetic databases in order to understand what areas of consensus are formulating a foundation for an international standard. As the first population genetics project that will span multiple countries for the collection of DNA, the International HapMap has the potential to become an influential standard for the protection of population genetic information. This Note highlights issues among the national databases and the HapMap project that raise ethical, social and legal concerns for the future and recommends further protections for both individual donors and community interests.     

Accessing donor conception information in Australia: a call for retrospective access

Donor conception practices in Australia have left thousands of donor-conceived people, their families and gamete donors bereft of information. The lack of a nationally timeline-consistent approach to information access has driven these people to seek support and information from self-help groups, online communities and even their own DNA. This article examines the historical perspective of information access and how progress is being made through lobbying and public awareness. To determine the current status of information availability, fertility clinics around Australia were surveyed. It is argued that current practices continue to fail donor-conceived people, their families and gamete donors, and that until all donor offspring are afforded the right to know their genetic family history, they will continue to suffer discrimination, and potentially risk psychological and physical trauma.     

Law‐Linked Justice and Existence‐Linked Justice

Abstract. Justice as a manifestation of “the just” is an evasive concept. On the one hand there is the law, an operation run by professionals. On the other hand there are the citizens the law is meant for. Generally speaking the law strives for justice. But the law has to protect many different interests and must work through legal devices. Therefore the justice that emerges from it is necessarily a legal compromise. For the citizens the legal rules are a given reality. Generally they will agree that the law is there to achieve justice but legal arguments that justify a rule or decision cannot have the same value for them. In cases that affect them personally, justice will be a personal, existential experience, which may be incompatible with legal justice. It is hard to keep these two forms of justice under one roof. In order to make this easier this paper proposes a conceptual split between “law‐linked justice” and “existence‐linked justice.” It is argued that the law cannot in truth to its rational origin ignore the citizens’ experience of justice, out of the ordinary as they may be.     

Genetic Data and the Data Protection Regulation: Anonymity,multiple subjects,sensitivity and a prohibitionary logic regarding genetic data?

Owing to the unique qualities of genetic data, there have been numerous criticisms of the current data protection framework's ability to protect genetic data. It has been suggested that the Directive did not recognise the sensitivity of genetic data and that it ignored a number of legitimate interests in this data (in particular interests which multiple data subjects may have and those which may remain in anonymous data). In 2012, the first results of a reform process of EU data protection law were released. These results included a draft Regulation (to replace the Directive) which introduced a new framework for the protection of genetic data. This Article considers whether the innovative approach to genetic data in the Regulation will provide a more adequate framework for the protection of genetic data. It concludes that the Regulation has rectified the lack of recognition of sensitivity, but still stutters in recognising a number of legitimate interests.     

Constitutional Balance in the EU after the Euro‐Crisis

This article analyses how the European Union's response to the euro‐crisis has altered the constitutional balance upon which its stability is based. It argues that the stability and legitimacy of any political system requires the structural incorporation of individual and political self‐determination. In the context of the EU, this requirement is met through the idea of constitutional balance, with ‘substantive’, ‘institutional’ and ‘spatial’ dimensions. Analysing reforms to EU law and institutional structure in the wake of the crisis – such as the establishment of the ESM, the growing influence of the European Council and the creation of a stand‐alone Fiscal Compact – it is argued that recent reforms are likely to have a lasting impact on the ability of the EU to mediate conflicting interests in all three areas. By undermining its constitutional balance, the response to the crisis is likely to dampen the long‐term stability and legitimacy of the EU project.     

THE SELF‐REPRESENTED LITIGANT: IMPLICATIONS FOR THE BENCH AND BAR

It is widely accepted that the number of self‐represented litigants has skyrocketed nationwide, especially in family law cases. Although nationwide comprehensive data on the number of self‐represented litigants do not exist, anecdotal evidence supports the belief that self‐representation is increasing. The challenge for courts and the entire legal profession is how to respond. Most observers in Indiana would agree that the traditional model of family law litigation—both spouses represented by lawyers settling their disputes before a judge—is no longer the norm in family law cases. Judges face a dilemma: assisting a self‐represented litigant to level the playing field against a represented party is seen by many as violating impartiality, even if the assistance is rendered to create a just result. In an effort to address the situation, the Indiana Supreme Court created the Pro Se Advisory Committee in April 2001. This article explores the long‐range implications of the issue of self‐represented litigants on Indiana's court system in hope that it will provide some insight for other jurisdictions. The first part of the article addresses the numbers of self‐represented litigants by tracking growth or declines in self‐represented cases and assessing whether there are any pockets of self‐represented litigants geographically or in certain case types. The second part of the article puts Indiana into context with the rest of the nation and reviews national trends. The third section reviews Indiana's response to self‐represented litigants over the last decade. The fourth section reviews current and ongoing projects in Indiana. The article concludes that the issue of self‐represented litigants will not fade away and that the challenge that guides the legal profession is how we provide equal access to justice for all who enter our courthouses.     

Testing Times Ahead: Non‐Invasive Prenatal Testing and the Kind of Community We Want to Be

This article reviews the Nuffield Council on Bioethics’ report on Non‐Invasive Prenatal Testing (NIPT); and introduces two general questions provoked by the report – concerning, respectively, the nature and extent of the informational interests that are to be recognised in today's ‘information societies’ and the membership of today's ‘genetic societies’. The article also considers the role and nature of the Nuffield Council. While the Council's report identifies a range of individual and collective interests that are relevant to determining the legitimate uses of NIPT, we argue that it should put these interests into an order of importance; we sketch how this might be done; and we suggest that, failing such a prioritisation of interests, the Council should present its reflections in a way that engages public debate around a number of options rather than making firm recommendations.     

经济法对宏观调控权的规制——以房地产市场、证券市场调控为例

经济法是国家调节社会经济之法。宏观调控是国家调节三方式之一,宏观调控应以市场调节为基础,需要处理好国家与市场之间的关系,调控措施应当科学、合理。需要依法调控,用法律控制权力,防止滥用宏观调控权损害民众利益。宏观调控包括控制与引导、宏观与微观管理相结合,不能片面理解为"控制"、从紧,也不能把各种行政干预措施都当成宏观调控,借宏观调控之名行行政命令计划管理之实。     

Bridging the Gap – Non‐state Actors and the Challenges of Regulating New Technology

Designing a system of regulation that will deliver defined policy objectives is not easy. This is particularly so when regulating new technologies, where challenges relating to uncertainty and risk, resource asymmetry, and regulatory disconnection are especially significant. By adopting a pluralistic, decentred approach to regulation that utilizes a range of soft‐law regulatory techniques, non‐state actors can contribute in a variety of ways to these special challenges. However, using non‐state resources in this way (either formally or informally) is not a panacea. Public trust and confidence in the regulation of risk is crucial in ensuring the viability of the control framework. Yet, it is difficult to maintain, not least because regulatory pluralism often envisages state and industry cooperation. Nevertheless, the involvement of non‐state actors, including industry, is important if the regulatory framework is not to hamper technological development or expose the public to unacceptable risks.     

MARRIAGE,IN‐LAWS,AND CRIME: THE CASE OF DELINQUENT BROTHERS‐IN‐LAW*

With marriage comes in‐laws, and if the in‐laws include delinquent males, their delinquency could affect the prosocial effects of the given marriage. In this article, I focus on the effect of having a convicted brother‐in‐law as a general indicator of this broader phenomenon of family‐formation processes impairing the positive impact of marriage on crime desistance. I use registry data on all men from birth cohorts 1965–1975 in Denmark (N = 69,066) to show that when a man marries, his new family ties to delinquent brother(s)‐in‐law do indeed hinder his criminal desistance. The results that take into account the characteristics of husbands, wives, their shared family‐formation process, and the criminality of male family members suggest that 1) family dynamics tend to keep criminality within family networks and 2) influences from one's broader social network through marriage are important for the protective effects of marriage. Analyses of previous conviction, co‐offending between a man and his brother‐in‐law, as well as analyses of in‐laws who reside in close proximity confirm the two mentioned main findings. In all, the findings reported in this article add to our understanding of the processes by which families are tied, and how these family‐formation processes influence men's behavior.     

Hidden Law‐Making in the Province of Medical Jurisprudence

Judges articulate their role in controversial cases of medical ethics in terms of deference to Parliament, lest their personal morality be improperly brought to bear. This hides a wide range of law‐making activities, as parliamentary sovereignty is diffused by ‘intermediate law‐makers’, and judicial activity is more subtle than the deference account implies. The nature of litigation raises questions about the contributions of other legal personnel and also the nature of the parties' interests in test‐cases. While judges demonstrate an awareness of some of these issues and anxiety about the constitutional legitimacy of their work, a more nuanced account is needed of their proper role. This may be built on Austin's theory of tacit legislation. It may draw from human rights law. However, considerable work is required before the complexities of hidden law‐making can be properly incorporated into the province of medical jurisprudence.     

“大数据杀熟”行为政府治理路径探讨

“大数据杀熟”行为严重损害了消费者权益。相对于传统商业“杀熟”行为,“大数据杀熟”行为更隐蔽,消费者维权更艰难。这种利用算法应用技术损害消费者权益的行为严重违背商业伦理,不仅关乎消费者个人权益,更会影响公共利益,仅凭市场调节难以纠正,需要通过法律进行救济。政府应在遵循辅助性原则的前提下,通过算法应用技术备案、建立“政府-社会”合作规制等制度,用新制度规制新技术,更好地发挥政府在治理“大数据杀熟”行为过程中的作用,保护消费者权益和社会公共利益。     

人体组织提供者法律保护模式之建构

在我国民法界，在如何保护人体组织提供者利益问题上尚有分歧，但一般认为，与人体分离后的组织和器官为“物”。基于知情同意的人格保护模式可以有效地保护人体组织提供者就组织的分离、使用和处置进行控制的权利，能达到我国目前的财产保护学说所需要的效果，单辟一个不完整的财产权利价值不大。更重要的是，启用知情同意和人格保护的制度有利于保护人的尊严和自主权，能与各国所倡导的无偿捐赠模式达到一致，且能促进利他主义价值观和社会凝聚力，副作用较小但益处却不小，应得到优先考虑。知情同意原则的不断发展将使其发挥更大的作用。主张基于知情同意的人格保护和无偿捐赠并不排斥人体组织提供者就商业后续开发主张利益分享。     

The citizen‐makers: Ethical dilemmas in immigrant integration

The topic of citizen‐making—turning migrants into citizens—is one of the most politically contested policy areas in Europe. Access to European citizenship is governed by national law with almost no EU regulation. The Article brings to the fore normative concerns associated with citizen‐making policies in Europe (Section 2). It examines ethical dilemmas involved in the process of creating new citizens (Section 3) and promotes the adoption of a European legal framework on access to citizenship (Section 4). The overall claim is that every newcomer will be required to demonstrate, as a prerequisite for citizenship, attachments to the constitution of the specific Member State, yet the test will be functional, flexible and non‐exclusive. As the topic of EU citizenship law is currently at the centre of the European agenda, this article has both theoretical significance and policy implications.     

The Rule of Law and Automation of Government Decision‐Making

Governments around the world are deploying automation tools in making decisions that affect rights and entitlements. The interests affected are very broad, ranging from time spent in detention to the receipt of social security benefits. This article focusses on the impact on rule of law values of automation using: (1) pre‐programmed rules (for example, expert systems); and (2) predictive inferencing whereby rules are derived from historic data (such by applying supervised machine learning). The article examines the use of these systems across a range of nations. It explores the tension between the rule of law and rapid technological change and concludes with observations on how the automation of government decision‐making can both enhance and detract from rule of law values.     

“I WANT MY MOMMIES”: THE CRY FOR MINI‐DOMAS TO RECOGNIZE THE BEST INTERESTS OF THE CHILDREN OF SAME‐SEX COUPLES*

In child custody cases, courts will look to the best interests of a child to maintain visitation/custody rights only with the child's biological parent, not third parties. However, with a same‐sex couple, it is inevitable that one parent will not be the biological parent. Thus, when that parent is in a mini‐DOMA state, where same‐sex couples from non‐mini‐DOMA states do not have to be recognized, that parent will be viewed as a third party and lose all visitation/custody rights if the couple separates. This note advocates that mini‐DOMAs allow both the biological and nonbiological parents of a same‐sex couple to have visitation/custody rights of their children if it would be in the best interest of the children to do so.     

Revolution Blues: The Reconstruction of Health and Safety Law as ‘Common‐sense’ Regulation

This article reviews the last five years of coalition government policy making in relation to occupational health and safety law. It shows that the most significant and influential element of this activity has been the reframing of the wider regulatory system according to a dominant ideological paradigm of ‘common‐sense’ regulation, to the detriment of other considerations and interests. A social constructionist framework assists in setting out the means through which this new ‘symbolic universe’ of regulatory possibility has been constructed and promulgated within the policymaking arena. In particular, it identifies the key role played by processes of deliberative regulatory engagement in the construction and development of this approach, and identifies the inherent vulnerability of ‘thin’ forms of deliberation to this sort of application.     

SEX EDUCATION LEFT AT THE THRESHOLD OF THE SCHOOL DOOR: STRICTER REQUIREMENTS FOR PARENTAL OPT‐OUT PROVISIONS

Current state law creates the risk that, if sex education is not provided to a child in public school, no similar instruction will be given to the child. Legislatively enacted opt‐out provisions give parents broad control over their child's education by granting them the option to have their child excused from any sex education requirements within a public school's curriculum. Through public school sex education, professionals provide youth information aimed at protecting them from the dangers of pregnancy and sexually transmitted diseases (STDs). A stricter statutory opt‐out provision should be enacted by state legislatures that only allows parents to excuse their child from sex education after a parent attends a 90‐minute STD prevention course and receives the instructional material used in the school's sex education curriculum. Parents should be provided up‐to‐date information and a structural framework designed by the school to encourage them to discuss with their child the many sexual issues addressed within a school's sex education curriculum.