Before returning to the legal boundaries of monetary policy, I wanted to briefly highlight some interesting contract and regulatory issues lurking just beneath the surface of an unusual Kansas state court order declaring a sperm donor to be the legal father of a child, against the wishes of all persons involved.
In 2009, a Topeka man answered a Craigslist ad soliciting sperm donations. The ad was placed by a lesbian couple, Jennifer Schreiner and Angela Bauer. The man supplied a donation. Schreiner became pregnant and delivered a baby. Schreiner began receiving Kansas welfare benefits for the child. Seeking child support payments, the state sued the sperm donor to establish paternity. The state argued that the donor—who lacks any relationship with the child or the couple (now estranged) beyond supplying the donation—was the child’s legal father, and therefore must pay child support.
This is where the case gets interesting as a matter of private ordering and trade regulation.
Prior to the donation, all persons involved—the donor and both members of the couple—signed a non-paternity agreement in which the donor waived his parental rights and was released from his parental obligations.
Both mothers opposed the state’s campaign to declare the donor the child's legal father.
Nevertheless, the court granted the state’s paternity petition, which means it can now seek to compel the donor to provide child support. The paternity finding also appears to give the donor a good shot at asserting parental rights (though he seems unlikely to try).
Justifying its decision to ignore the wishes of both parents and the donor, the court intoned:
A parent may not terminate parental rights by contract, however, even when the parties have consented.
Well, maybe this case is a morality tale about those who would seek a father for their child on Craigslist. A warning from a heartland state to those who would selfishly try to contract around their sacred parental obligations. A sign that courts place the welfare of the child above all else. Right?
Haha, of course not!
Kansas law makes it easy to conclusively terminate the parental rights and obligations of sperm donors by contract. Care to guess what you need to do, besides sign a contract?
Pay a doctor.
The court explained:
Through K.S.A. 23-2208(f) [PDF], the Kansas legislature has afforded a woman a statutory vehicle for obtaining semen for [artificial insemination] in a manner that protects her and her child from a later claim of paternity by the donor. Similarly, the legislature has provided a man with a statutory vehicle for donating semen to a woman in a manner that precludes later liability for child support. The limitation on the application of these statutory vehicles, however, is that the semen must be “provided to a licensed physician." [FN1] (emphasis added)
The parties failed to do this.
So, the upshot is that you are free to find a father for your child on Craigslist—and you can even count on the State of Kansas to keep him out of your child’s life in the future—so long as you hire a doctor to do the procedure. Similarly, you can spend your free time fathering children on Craigslist without losing sleep over child support suits—as long as you kick some of the action upstairs to an M.D.
It’s not just Kansas; California, Illinois, and as many as 10 other states [FN2] follow the same law, the Uniform Parentage Act of 1973.
I’m not a family law expert, but it seems to me that a complete list of legitimate and unique public policy concerns that are implicated when a couple and a third-party sperm donor settle their parental obligations by contract looks something like this:
- Ensuring that the state can identify who can be held legally responsible for supporting the child.
Nevertheless, let’s assume there are also truly compelling public health reasons to involve a physician in artificial insemination. After speaking with a few doctors, I’m skeptical that this is the case, but even if it were here are ten points that I think are worth considering:
- Should a mother who became pregnant by artificial insemination be forced to share parental rights with a stranger who donated sperm simply because she decided not to hire a doctor for the procedure?
- Conversely, should the scope of a sperm donor’s rights and responsibilities as a father turn on the decision whether to enlist a doctor to oversee the procedure?
- Should the adequacy of a child support scheme turn on whether couples using sperm donors choose to hire a doctor?
- There are sound public policy reasons to be concerned about voluntariness in agreements that waive paternity. But if this case is really about ensuring voluntariness, why is enlisting doctors the solution? Establishing consent during contract formation is not some novel problem. Hiring a doctor is a novel solution, but as an evidentiary device it is not very probative.
- Hiring doctors for artificial insemination is not cheap. A single attempt through a physician’s office costs about $3,000, and sometimes multiple attempts are necessary. Unsurprisingly, the American Fertility Association (a trade group for the fertility industry) applauded the court’s decision.
- This rule looks even more like an attempt to extract rents when you consider that for many people, the price of artificial insemination without physician assistance may be zero.
- If the state interest in the use of doctor-assisted artificial insemination is so compelling, maybe the law should simply require it on penalty of criminal sanction. I have never even heard this idea floated, probably because it would be perceived (rightly) as an excessive intrusion on various important freedoms…
- …yet while they do not provide criminal sanctions, about 13 states are willing to provide unbelievably harsh "family-law sanctions." If a woman declines to hire a doctor, she is placing herself and her child in eternal jeopardy; at any time, the donor or the state can move to declare the donor to be the legal father, which would put the donor in a position to seek full parental rights—even if he is a stranger. (The same is true in reverse re: child support.) It is unsurprising that both mothers opposed the state’s petition.
- Although facially neutral, this rule is almost certainly discriminatory in practice. It means that lesbian couples must either hire a doctor or adopt—there is no other way they can safely preclude the donor from being granted parental rights. And of course this is just one of many unofficial taxes gays and lesbians must pay, especially in states like Kansas that do not allow them to marry. It seems to me that there’s a good argument the law should fail rational basis or equal protection review, but I will leave that brief to the con law scholars.
- Finally, beyond any constitutional infirmity, this law should serve as a reminder that protectionist regulations—which often take the form of onerous occupational licensing restrictions and NIMBY zoning rules—frequently have regressive distributional consequences, because they tend to favor powerful incumbents. And although probably not the case here, such laws can harm the broader economy as well by stifling innovation.
I welcome your comments. And I hope my doctor friends still talk to me.
* * * *
[FN1] It should be noted that under the letter of the statute as well as a 2007 Kansas Supreme Court decision (PDF) on this issue, the court did not have an obvious alternative to finding for the state. The problem, such as there is one, is with the statute.
[FN2] An accurate count is not possible without doing a full 50-state survey. As I have written about previously, the Uniform Law Commission’s Enactment Status Maps are often unreliable or imprecise (see FNs 163 & 188).
The latest edition of The Economist has a fascinating article on “Chilecon Valley” that discusses the emergence of a startup community in Chile. The article focuses on a unique program of Startup Chile (a new Chilean governmental body) that gives grants to entrepreneurs in the United States and elsewhere to move to Chile for several months as they work on building their company and developing their technology. The grant recipients are then expected to network with, speak to, and mentor Chilean entrepreneurs.
The article touches on how law can foster or hinder the growth of a startup community, including by liberalizing immigration laws and allowing failed ventures to get a fresh start in bankruptcy.
Chile is making considerable efforts to diversify its economy beyond extractive industries like mining and agriculture. My spouse is co-organizing a fantastic three-day conference in Santiago from November 28 to December 1st that will focus on social entrepreneurship, sustainability, and innovation. The conference includes a fantastic line-up of speakers, including a keynote address by Al Gore, a pitch competition for social entrepreneurship startup companies, and some awesome music, including Devendra Banhart and Denver’s own Devotchka. Several panels will analyze the contribution of law to developing a entrepreneurial ecosystem in Chile.
You can check out my wife’s newly launched blog and website on the Chilean startup community here.
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Tonight at a law school event, I fell into a discussion of parenting with several friends. We discussed various methods of behavior modification, and one person endorsed the 30-day challenge. Inspired by Matt Cutts, see the video below, I have been doing a series of 30-day challenges, including one that had me blogging every day for the month of January. (Did you notice?)
Next up: work on the next edition of my casebook every day for 30 days. That should enable me to finish off this next edition, which has been in the works for about two years.
You can criticize all you want, but you can’t argue with success. Above the Law has confirmed that Sophia Chua-Rubenfeld, the oldest daughter of Amy Chua and fellow YLS professor Jed Rubenfeld, received her Harvard acceptance earlier this week. Sophia has already made up her mind that Harvard is where she’ll attend college. (Can you blame her for wanting to trade New Haven for Cambridge?)
Some readers of Amy Chua’s book wondered whether it was premature of her to “end a parenting story when one child is only 15,” in the words of Elizabeth Chang of the Washington Post. Well, now we know how the story ends — very, very happily. As I previously observed, speaking from my own personal experience, “to Asian parents, sending a child to a top college is the ultimate vindication.” And colleges don’t get more “top” than Harvard (which is #1 in the current U.S. News rankings; but even if it weren’t this year, it would still be #1 in the minds of many Asian parents).
I don't want to diminish Sophia's many accomplishments, which are extraordinarily impressive. But all this excitement over Harvard seems a bit overblown. For my particular brand of Asian upbringing--Indian by way of Goa--Harvard was never that big a deal. The advice I think I'm going to give my daughters when they're Sophia's age (many, many moons from now) is not to focus too much on getting into the "best" undergraduate institution. Save that stress for graduate school, where it really matters. But maybe I'm wrong? I have nary a hint of Ivy in my education, a conscious choice. Am I foolishly discounting the value of getting into Harvard? (HT: Dahlia Lithwick)
My immediate reaction to Amy Chua's fascinating and brave book and the media storm that followed it was surprise. My surprised reaction was not to Chua's story but to the distinction between Western parenting and Chinese parenting on which it was based and that was particularly highlighted by the media. Strict ambitious Chinese parenting described by Chua was consistently compared to permissive Western parenting. Having spent a lot of time in the last two years thinking and writing about the transformation of American parenting norms - I believe the differences are not as stark.
Chua describes Chinese parenting as extremely intense, demanding children to excel at all costs and investing family resources (time, money and energy) to ensure these goals are met. In our article titled Over-Parenting, Zvi Triger and I describe the ways in which parenting in the United States has changed over the last two decades and has become what we call "intensive parenting." Intensive Parenting is prevalent in middle and upper-middle class families. Intensive parenting is first of all cultivating. Parents spend time and resources identifying their children's strengths and scheduling their days to cultivate these strengths. Children's lives are chock-full with activities designed to make sure they develop to their full potential. Intensive parenting is also informed - parents spend significant amounts of time making sure that they are abreast of all the information necessary to excel at child-rearing. This may mean reading volumes of child development literature or spending hours researching the best after-school French class. Finally, intensive parents consistently monitor their children to assure these goals are met, whether through constant cell phone communication or regular involvement in schools. So really Western intensive parenting and Chinese parenting share a lot in common. Both have high expectations and ambitions for children and parents alike.
Since both parenting styles have high expectations from parents, they both exert an enormous toll on parents. Chua in her book describes in many words the cost of her parenting style to her relationship with her youngest daughter - the daughter who resisted. But neither Chua nor Western intensive parents discuss the toll of these parenting styles on themselves. Both Western intensive parenting and Chinese parenting are extremely intense for parents. They require a massive investment of time. whether it is to accompany your child to piano lessons and oversee hours of practice as Chua describes or whether it is to take children from one after-school activity to another and continually negotiate that each institution caters to your child's need as many Western intensive parents do. These parenting style have costs for adult careers, time spent with spouses and just general adult free time. Unlike our parents, parents today have far less free time that is real adult-time -- not catered to children activities. Yet, this is a topic rarely discussed by Chua or by Western parents.
Having said all of that, I should acknowledge that there are obviously differences between the two parenting styles. These differences become stark particularly when things go wrong. When things go wrong and the child fails, the Chinese parent, according to Chua, blames the child and demands more work to achieve the goal. The Western intensive parent instead blames the institution or the teacher, arguing that the child would have excelled, absent a problem with the institutional arrangement.
Finally, I have to say that I am very glad that Chua wrote her book. Glad not just because it was an honest book and a fascinating read. I am glad because I believe it underscores the message of our Over-Parenting article. In the article we show that the law in many ways is already endorsing Western intensive parenting norms and we caution against further incorporation of intensive parenting norms into the law. We argue that Western intensive parenting is class and culture dependent and not shared by all cultures and classes. In the article we highlight other cultures' parenting practices, which endorse less parental involvement and more free play. Chua's parenting style is a different variation, endorsing intense involvement but using methods that are foreign to Western intensive parenting. The storm that followed the publication of Chua's book showed how strongly people feel about their parenting styles and the danger of enforcing one parenting style through legal standards on all.
Background: (1) I'm a scrapbooker. I say that proudly and with knowledge that I have exceptional scrapbooking talent. (2) Every so often, someone in the blawgosphere posts on the misuse of the phrase "splitting the baby." The wisdom of King Solomon's ruling that two contending women would receive half of the disputed baby's body, necessitating in killing the baby, is that the true mother would reveal herself by demanding that the baby stay intact and go with the non-mother. So first of all, Solomon never split a baby. Secondly, a ruling that "splits the baby" is an order that pleases neither party and extracts all of the value out of whatever is in dispute. "Splitting the baby" is most definitely not splitting the difference.
So, here is my worst-case (non-child) splitting-the-baby case. According to the NYLJ, a couple in New York, who otherwise seem fairly amicable, couldn't agree on how to split the family photo albums (with approximately 7000 photos). First, the photos were attempted to be scanned, but the quality was not comparable. The husband asserts that he was the family historian, meticulously archiving the photos and creating the photo albums, and that the wife is wanting them for spite. So, the judge decrees that the wife is entitled to 25% of the photos given her minimal participation but honest interest in photos of her children. The kicker is the method:
"The method of selection shall be in a manner agreed to by the parties or the selection process shall be as follows: starting with the first album, the Wife shall, counting from the first page thereof, be entitled to receive every fourth original photograph in that album," the judge wrote, adding that she should continue in that matter until reaching the end of the final album. The judge ordered the couple to complete the process by June 3 or show up on June 24 "for direction to an appropriate location in the courthouse to conduct the selection process."This judge seems very wise indeed. A true family photo archivist, like myself, would cringe at the idea of every fourth picture being taken out of albums that were intentionally created according to topic, event, timeline, etc. The true "owner" of these pictures would rather see them transferred intact than be mutiliated in such way. I hope that just as in the biblical tale, this judge never has to follow through with his order!
Kim Krawiec (Duke) has a new paper on SSRN, “A Woman’s Worth”, in which she disputes some of the traditional arguments for legal regulation of prostitution, oocyte donation, and surrogate pregnancy. Here is the abstract:
This Article examines three traditionally “taboo trades”: (1) the sale of sex, (2) compensated egg donation, and (3) commercial surrogacy. The article purposely invokes examples in which the compensated provision of goods or services (primarily or exclusively by women) is legal, but in which commodification is only partially achieved or is constrained in some way. I argue that incomplete commodification disadvantages female providers in these instances, by constraining their agency, earning power, and status. Moreover, anticommodification and coercion rhetoric is sometimes invoked in these settings by interest groups who, at best, have little interest in female empowerment and, at worst, have economic or political interests at odds with it.
Krawiec’s focus is on whether regulation of these markets reflect an inherent bias against women. For example, she questions why regulations of egg donation are so stringent (and appear to push women to “donate” for altruistic motives) while men face little comparable restrictions in sperm donation. This contributes to the shocking statistic cited by Krawiec that egg and sperm donors receive roughly the same hourly compensation for their services.
I see these regulations less as a means to regulate women differently and more as a way to protect the marriage contract as a social institution or tool of social control. There are some interesting connections between Krawiec’s work on these “taboo trades” and her research on financial derivatives. Whereas financial derivatives are often used as ways to unbundle the various economic rights associated with financial assets such as debt and equity, these taboo trades – prostitution, egg donation, and surrogacy – represent the unbundling (or decoupling) of the marriage contract. Religious and legal strictures traditionally bound sex, conception, and childbearing all within the confines of the marriage contract. As with derivatives, new technology and markets combined to allow these services to be unbundled. Regulation of trades of these unbundled services may be aimed at protecting the marriage contract (or at least minimizing its damage) and not just at regulating women per se.
In fact, these regulations also serve to control men – albeit indirectly. Regulating the availability of prostitution pushes men to seek sex in a relationship (like marriage). Raising the cost of surrogacy impacts men – including gay men -- who want fatherhood outside of heterosexual marriage. What explains then why women are the dominant targets of these regulations and not men? Perhaps it is gender bias. But law & economics may offer an alternative explanation. Women may be the cheapest cost avoiders. For example, it may be far cheaper to regulate the relatively fewer number of prostitutes compared to the larger number of johns. It may be easier to regulate egg donation and surrogacy – which often require more invasive technology than sperm donation.
Krawiec’s article opens up a number of interesting questions for future research – particularly how the unbundling of the marriage contract have different effects across class lines. This has long been an interesting area of inquiry in economics – see for example George Akerlof and Janet Yellen’s work on “reproductive technology shocks.” One hypothesis would be that both the markets and the restrictions Krawiec describes have widely differing impacts along two axis -- higher income and lower income women on the one hand and women seeking to be part of a long-term opposite sex relationship or not on the other. Disaggregating the analysis based on class might yield some very provocative conclusions. Might higher-income women favor price controls (including indirect price controls that operate through moral suasion) on surrogacy and oocyte donation because it keeps the cost of having a baby artificially low?
Happy Commercialized Romance Day!
Just in time for March Madness, Sneaker Wars has just come out, recounting the modest origins of the now-multinational multi-billion-dollar sports shoe industry. I just happened to catch the book review in this morning's WSJ. The story begins with the Dassler brothers' little Bavarian shoe factory, started during the thick of WWII. Fraternal rivalry caused the brothers Adi and Rudi to part company in the late 1940s, when Rudi walked across the river to the other side of town--the medieval town of Herzogenaurach--to set up a competing factory. Adi Dassler's shoe became, of course, Adidas. Rudi developed the Puma brand. Together, the rivaling brothers and their rival brands came to dominate the world sports shoe industry for decades. Adi and Rudi pioneered what are today's standard marketing strategies for sporting goods and other consumer goods, giving away free shoes to athletes and later paying stars to wear the logo.
It's a treat for me to read about the history of Adidas. Anyone who played grade-school basketball in the 70s remembers the dominant basketball shoes--Converse All-Stars and the Adidas Superstar, with the latter gradually overtaking the former both in the pros and in the school yard. According to Wikipedia, three quarters of all NBA players in the mid-70s were wearing the Superstar. I remember well getting my first pair. They were navy felt with white stripes (I know, I know . . . but remember, this was the 70s). I was a mediocre basketball player at best, but at least the shoes looked cool.
The sports shoe industry took a big jolt in the mid-80s, when Phil Knight signed Michael Jordon for Nike and launched the Air Jordan, which became the best-selling basketball shoe ever. Nike has dominated the U.S. market ever since, though Adidas and Puma appear to be making comebacks. You can read about Adidas' recent comeback efforts with its signing of David Beckham in the Prologue to Sneaker Wars.
This weekend, my daughter Carter donated her hair to Locks for Love, an organization that donates wigs to children with diseases that prevent them from growing their own hair. She has been growing her hair out for about two years (or 1/4 of her life!) with this goal in mind. We have known many young girls, and two young boys, who have made this donation. I think the act of donating something so valuable is very empowering to these young people, and they certainly have a competitive advantage in the hair-growing area! We were very proud of Carter, and there were only a few tears shed at the hair salon. Of course, they were her mother's! Check out Carter's new hip summer 'do!
My daughter returned home from BYU today, just in time to miss the protests. For reasons too many to explain here, we ended up flying her from SLC to Midway in Chicago, which meant that I spent most of the day on the road. I really hate driving in Chicago, even if it's only on the fringes.
By the way, about those protests, how lame is Steven Greenstreet for mocking the students for not being confrontational enough? Very.
3:00 -- Returned to my office after my afternoon class. My oldest son should be taking his road test right now ...
3:15 -- We have one teenage driver (who is off at college and without a vehicle at the moment), but I am not so hardened that I have forgotten what's at stake. I'm nervous for him, even though my advice to him this morning was, "just relax and you'll be fine." Is it my imagination or are the examiners tougher on boys?
3:45 -- He passed! And he doesn't like his photo.
Another right of passage successfully navigated.
You may have noticed that I have not been posting recently. For the past eight days, I have been out of sync with time and the rest of the world. Instead, I have been caring for my sister-in-law, her husband, and her two older children while her third child peacefully labored in the final stages of cancer. I went to Dallas last Saturday on a whim, but apparently I was supposed to be there as little Evie took a turn for the worse and entered the hospital for the last time twelve hours after I arrived. Evie left this world late Wednesday night, in the arms of her parents in a room filled with all four grandparents and one uncle. Her mother tells me that her six-month-old taught her humility, how to accept help from others, and the importance of living in the moment. May we all live such full lives, loved deeply until the end.
Evie's mom kept a blog chronicling their three-month fight with rhabdoid tumor of the kidney, one of the most aggressive pediatric cancers, here.
We attended the Smith Family Reunion in Eau Claire, Wisconsin today. The SFR is a subdued affair. My parents are over 80 years old, and they enjoy just sitting in the backyard and telling stories.
My mother recently had cataract surgery, which left her with a black eye. Is that common? She seemed to be taking it in stride, but it looked horrible. In any event, it prompted a retelling of the story about the time my father punched my mother between the eyes while she was sleeping. She was pregnant with my older sister at the time.
That all sounds perfectly horrible, and I assume that it was, though my mother laughs about it now. Apparently, earlier in the day, my father has gotten into an argument with someone at work, which, for my father, was a Naval base. He was still agitated that night when he went to sleep, and he dreamed about a confrontation with this fellow. "If you so much as move," he thought, just as my mother rolled over in bed.
My father blamed his co-worker, and the next morning he went to work and finished the argument they had started the day before.
Sometimes I wonder if I am adopted.
UPDATE: To avoid the possibility of confusion, this was the only time my father ever struck my mother. He grew up on a Wisconsin dairy farm in the 1920s and 1930s, when fighting with other boys was a form of entertainment. Fighting also was part of the culture of the military in which he made his career, but he was not a violent man at home. Indeed, when I was engaged to be married, he made a special point of having a conversation about spousal abuse. In his view, it was cowardly behavior, unworthy of his son.
At the Smith household, we have lots of Christmas traditions, none of which include blogging on Christmas day. So I will not be blogging Christmas, but here are some of our Christmas traditions:
Christmas Eve Meal: one of my favorite traditions! Turkey or ham, mashed potatoes, fresh rolls, etc. All served on a decked out table. Very Rockwellesque ...
Christmas Presents: we open family gifts on Christmas Eve and Santa's gifts on Christmas morning. Among the presents is a stocking with smaller gifts. The presents always include lots of practical things, like clothes and toiletries, and some just-for-fun gifts, too.
Christmas Day Breakfast: waffles with strawberries, whipped cream, and real maple syrup.
Christmas Movie: we usually attend a movie on Christmas Day. Since we do not attend movies on Sundays, this year some of us went to King Kong on Christmas Eve.
Family Games: we love to play games as a family, and the presents usually include some new games. I have always had good luck with Mensa Award games, so this year I bought a few from this list. On this Christmas, we have invited two other families to share our games tradition.
Because Christmas is on Sunday this year, we will include a Church service in the morning. And at some point in the middle of all of this, I hope to take a nap!
Maggie Gallagher has finished her guest stint at VC, and I have to say that I am unpersuaded. I am probably in the demographic that her arguments would persuade, but they did not. Most of her posts seemed much like retellings of the last post, with some sections repeated (repeatedly): "Sex makes babies. Society needs babies. Babies need mothers and fathers. This is the heart of marriage as a universal human idea." (Maybe if you chant it like a football cheer, it would actually convince me that then marriage (i) can't be an institution for people who can't make babies using sex as the method but (2)can be used as an institution for people who theoretically can, but practically can't or choose not to have babies using sex as a method.)
Enough about that -- that argument is for another blog. We're all about corporate law here (and Miers and football and baseball. . . .) What really bothered me today was the complete absence all week of any talk about the historical use or consequences of marriage with respect to property. Nada. Gallagher is either ignorant of this issue or purposefully avoids it. I would say that she's too smart to be ignorant of property law and corporate law, but then she throws away this statement as a strawman in her last post:
Or take the fact that marriage is an economic partnership. Suppose we expand the definition of marriage to include two business partners? How could that possibly hurt marriage? After all we aren't running out of marriage licenses, are we?
Actually, we already have business marriage statutes -- take a look at the UPA and the RUPA. Two business people couldn't get any more protection or commitment from most state marriage statutes. In fact, it's much easier to form a partnership by default than a common law marriage. Do we do this because we want to throw the state interest around the intimacy of business relations? No. We do this to decide who has duties to whom and who owes what property. Hmmm. Just like marriage. If Gallagher is against civil unions as well as SSM, then maybe she's against partnership statutes as well?