Conceiving harm: disability discrimination in assisted reproductive technologies

Applying the Americans with Disabilities Act (ADA) to denials of treatment by assisted reproductive technology (ART) practitioners raises particularly challenging legal and ethical issues. On the one hand, the danger that physicians will inappropriately deny treatment to patients with disabilities is especially worrisome in the context of ARTs, given the widespread stigma associated with reproduction by individuals with disabilities. On the other hand, patients' disabilities may sometimes have potentially devastating implications for any child resulting from treatment, including the possibility that the child will be born with life-threatening or seriously debilitating impairments. Some physicians have strong ethical objections to helping patients become pregnant in the face of such risks. In this Article, Professor Coleman develops a framework for applying the ADA to disability-based denials of ARTs that addresses these competing considerations. In recognizing risks to the future child as a potential defense to a disability discrimination claim, Professor Coleman rejects the view of some commentators that such risks are relevant to reproductive decisions only if the child is likely to suffer so much that he or she would prefer not to exist. Instead, he proposes that, when a patient's disabilities create significant risks to the future child, the question should not be whether the child's life is likely to be so awful that nonexistence would be preferable, but how the risks and benefits of the requested treatment compare to those associated with other available reproductive and parenting options. Professor Coleman provides a theoretical justification for adopting this comparative framework, and examines how ADA precedents developed in other contexts should be applied to decisions about ARTs.     

Problems with the regulation of assisted reproductive technology: a clinician's perspective

The use of the Infertility Treatment Act 1995 (Vic) as a model for regulating reproductive technologies throughout Australia poses many problems. This article argues that the legislation in Victoria is overly restrictive. In particular, banning embryo research is hypocritical. Embryo research was required to develop the clinical procedures and should be used to test innovations. Other problems are restricted access; privacy infringement; an intrusive regulatory body; conflicts with other laws; and confusion because of poor drafting or lack of foresight. Uniform statutes are unnecessary. The interests of individuals and the community are better served by regulation through the Reproductive Technology Accreditation Committee.     

Law,state and economy: A Canadian overview

Within the last two decades increasing attention, both public and academic, has been directed towards the relationship between law and social change in Canadian society. A body of literature has emerged, including texts, articles and a journal, which focus upon relationships between law and society, institutionalized law reform commissions, and socio-legal centres. Theoretically the work has gone from an early focus upon consensus, order related assumptions to more recent critical studies in political economy. In order to appreciate the complex and contradictory nature of law and social institutions, a dialectical approach seems appropriate. This allows one to incorporate relevant research and insights from other theoretical perspectives, while providing a comprehensive, structural sense of legal activity and change within a social context. Of particular significance is the appreciation of human action and struggle, praxis, within changing structural and historical conditions.     

The criminal act of commercial surrogacy in Australia: a call for review

Australian surrogacy legislation punishes the pursuit of a commercial surrogacy arrangement as a criminal offence. Such legislation was first introduced in Victoria in 1986 and has since been applied in every Australian jurisdiction except for the Northern Territory. The current application of criminal law is based upon this 1980s policy which has never been subject to public debate. This article argues that the continued application of criminal penalties to commercial surrogacy requires review.     

When Law and Practice Collide: the Implementation of the Plea-Bargaining Process in Malaysia

The amendment of the Malaysian Criminal Procedure Code in 2010 formalised the plea-bargaining process and introduced two new sections, 172C and 172D. The new procedures are intended to reduce the backlog of cases in the criminal courts and as a swift alternative to a full criminal trial. However, the law in action does not appear to be in line with the law in the statute book because currently the actors involved in the process are avoiding the use of the new procedural law. Instead, those actors are following the old informal practice of plea-bargaining to achieve their personal goals which may be inconsistent with the organisational goals of the judiciary and prosecution. This paper adopts a qualitative methodology, in which the primary data is obtained from semi-structured interviews with twenty respondents comprising the stakeholders in the criminal justice system.

     

Beyond conception: legal determinations of filiation in the context of assisted reproductive technologies

This article argues that legal determinations of filiation are normative ideological constructions about how societal relations between parents and children should be ordered. They are based upon regular understandings of the relationship between biological and social facts and, as this article demonstrates, operate to create an asymmetrical relationship between the categories between paternity and maternity. I suggest that fairly recent developments in reproductive and genetic filiation have been made and offer the potential for an expanded understanding of relatedness or kinship which does not take the two-parent--one of each sex--model of the family as its normative form. While the examples I draw on arise in the context of reproductive technologies, I suggest that the analysis has broader implications for the recognition of broader family forms and relationship.     

The existing tensions in the defining of human trafficking at a UK and international level: a critical overview

Human trafficking is an ancient trade that took several forms over the centuries, from full blown state-perpetrated slavery through to illegal exploitative employment of migrants in the sex and other labor industries. At the start of the twenty-first century, a new definition of human trafficking was produced by the United Nations, within which are contained terms such as “coercion,” “deception,” “abuse of power” and “consent.” While the definition itself has largely been agreed upon, deep divisions – about the interpretation of those terms within the definition – continue to polarize the views of antagonizing political and feminist lobbying groups. The agreement on the definition seems to have served little in ironing the differences and the debates continue to be fuelled. In this article, the author elaborates on the tensions that surround the interpretation of the definition and argues that the main group to have fallen victim to the relevant yet inept international and individual state regulations is the trafficked people, while the traffickers tend to largely escape punishment. Rectifying the situation can be extremely challenging and requires sustained and large scale multinational collaborative work. So far, only little is being done to address the problem and the expectation is that it will become significantly worse before it eventually gets better.