Your Baby is an Alien: Outdated Immigration Rules and Assisted Reproductive Technology (original) (raw)
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childs right to be well born.pdf
An extensive literature describes the legal impact of America's eu-genics movement, and the laws mandating sterilization, restriction of marriage by race, and ethnic bans on immigration. But little scholarship focuses on the laws adopted in more than 40 states that were commonly referred to as " eugenic marriage laws. " Those laws conditioned marriage licenses on medical examinations and were designed to save innocent women from lives of misery, prevent stillbirth or premature death in children, and save future generations from the myriad afflictions that accompanied " venereal infection. " Medical journals, legal journals, and every kind of public press outlet explained the " eugenic marriage laws " and the controversies they spawned. They were inextricably bound up in reform movements that attempted to eradicate prostitution, stamp out STIs, and reform America's sexual mores in the first third of the 20th century. This article will explain the pedigree of the eugenic marriage laws, highlight the trajectory of Wisconsin's 1913 eugenic enactment, and explore how the Wisconsin Supreme Court case upholding the law paved the way for the majority of states to regulate marriage on eugenic grounds.
Paternity Statutes: Thwarting Equal Protection for Illegitimates
1978
When measured against United States Supreme Court decisions since 1968 and the newly evolved standards they embody in equal protection for illegitimate children, the Florida statute for the determination of paterntity is constitutionally infirm in three areas: restrictions on standing, statute of limitations, and its fixed schedule of support obligation. A review of current statutory and case law throughout the United States will demonstrate the urgent need for the adoption in Florida and elsewhere of the Uniform Parentage Act.
Bargaining or biology? The history and future of paternity law and parental status
Cornell journal of law and public policy, 2004
Paternity suits make good headlines, 1 but they often make bad law. The headlines are news, no doubt, because people care as much about the tangential question, who was sleeping with whom, as they do about the ultimate question, who is the father? This article will suggest that whatever the allure of examining peoples' sex lives, the law should abandon its interest in determining biological paternity. The legal rights and duties of fatherhood should emanate from commitment and contract, not from sex or genes. Currently, fatherhood is a status that brings with it rights and obligations. For the most part these rights and obligations attach regardless of whether one meets or exercises them. They attach, at least according to paternity doctrine, by virtue of one's blood connection to the child. This article challenges that law of parental status at two levels. First, it demonstrates that often, notwithstanding paternity doctrine, blood has little to so with one's status as father. What matters instead is one's relationship with the mother. More specifically contract, or private bargaining between individuals, often tells us more about who the law will consider a father than does blood. Second, this article suggests that thinking about fatherhood as a fixed status is Bargaining or Biology? 2 problematic. One's status as father (or mother) should depend on whether one exercises the rights and fulfills the obligations of parenthood, not on whether one has a blood connection. This second level challenge, to the idea of fixed fatherhood, is a logical outgrowth of the first challenge, to paternity law, because it is the logical outgrowth of thinking about parenthood as contract. If one fails to meet the obligations of a contract to parent, one can lose the rights that the contract provides. By the same token, if one promises to perform the obligations of parenthood, or performs them in a context in which a promise to do so can be inferred, then one can be bound in contract, not because of one's status, but because of one's deliberate acceptance of fatherhood. The argument begins in Section I with a brief historical and contemporary explication of the paternity suit. Section I then demonstrates just how little the law actually cares about biological paternity by examining those cases in which the law rejects biology as a basis for paternity. The last part of Section I analyzes potential rationales for holding a biological father 2 This idea is not new. Martha Finem an endorsed a m other-focused family that elim inated all notions of fatherhood almost ten years ago. See MARTHA FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES 228-233 (1995). This article does not go nearly as far. It endorses a fam ily structure in which m others hold initial rights and obligations, but in which those rights and obligations are alm ost always shared with fathers. See infra Section III. 3 examines how contracting for parental rights fits the reliance and will theories of contract, the consideration theory of contract and relational theories of contract. Section III then scrutinizes the entitlements and obligations that are actually exchanged in these contracts. It suggests and defends two ideas that are likely to be controversial. First, a gestational mother holds all initial rights and obligations to a child. 2 With some built-in limitations, parental rights and obligations are the mother's to contract away as she chooses. Second, the obligation to support a child can be limited temporally, so that the paternal obligation reflects what was bargained for in the agreement between mother and father, not a static notion of fatherhood. Section III concludes with some examples of how the contract regime would work in practice. Section IV explores the relative costs and benefits of embracing this contract model. Among the benefits is the elimination of the current distinction between how parental status is determined for parents of children born by virtue of reproductive technology and how parental status is determined for parents of children born by virtue of sexual intercourse. Also eliminated is the distinction between how parental status is assigned to straight and gay parents. The partner of a gestational mother (or one who contracts with that mother) acquires parental rights and obligations by virtue of an agreement with the mother, not by virtue of genetics. More important, the proposal offered here recasts fatherhood as a truly volitional status, a set of rights and obligations that one willingly agrees to. It does so, in part, by severing the the legal link between sexual activity and reproduction, as medicine now routinely does, and as is necessary in order to bring the law of parental status up to date with contemporary mores and the contemporary law of sexual activity. The proposal also makes clear that if one does not fulfill the obligations of fatherhood, one can lose the status of father, and if one enjoys the rights of fatherhood, one can become a father. Bargaining or Biology? 3 See infra notes 169-174 and text accompanying.
2015
The first clause of the Fourteenth Amendment to the U.S. Constitution, known as the Citizenship Clause, provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This generally has been taken to mean that any person born in the United States automatically gains U.S. citizenship, regardless of the citizenship or immigration status of the person's parents, with limited exceptions such as children born to recognized foreign diplomats. The current rule is often called "birthright citizenship." However, driven in part by concerns about unauthorized immigration, some have questioned this understanding of the Citizenship Clause, and in particular the meaning of "subject to the jurisdiction [of the United States]." Proponents of a narrower reinterpretation of that phrase argue that the term "jurisdiction" can have multiple meanings, and that in the Citizenship Clause, "jurisdiction" should be read to mean "complete jurisdiction" based on undivided allegiance and the mutual consent of the sovereign and the subject. This has been termed a "consensual" approach to citizenship. Conversely, proponents of the conventional view interpret the term "jurisdiction" to mean territorial jurisdiction, that is, the authority of a sovereign to enforce its laws within its boundaries. Under the conventional rule, citizenship is ascribed to a person at birth on the basis of the geographic location of that person's birth in the United States. This birthright citizenship rule has sometimes been termed an "ascriptive" approach to citizenship. Proponents of either side of this legal debate argue that a variety of sources and arguments support their respective positions. The two approaches differ in their interpretations of pre-Revolutionary English common law, pre-Civil War understandings of citizenship, the legislative history of the Civil Rights Act of 1866 and the Citizenship Clause of the Fourteenth Amendment, and subsequent case law. Two key Supreme Court cases in particular, Elk v. Wilkins (1884) and United States v. Wong Kim Ark (1898), interpreted the Citizenship Clause. Elk held that a member of a recognized Indian tribe was outside the scope of the Citizenship Clause because he was born owing allegiance to the tribe, rather than the United States, and the tribe was a political community not fully subject to the jurisdiction of the United States. Wong Kim Ark held that a person born in the United States to resident aliens became a U.S. citizen at birth, even when the person's parents were barred from ever naturalizing. However, some argue that Wong Kim Ark's statements limiting the exceptions to birthright citizenship were not necessary to its holding, and that no Supreme Court case has ever squarely held that the Citizenship Clause requires a broad view of jurisdiction that extends birthright citizenship to children of unlawfully or temporarily present aliens. Twentieth and 21 st century case law also can be seen to support the conventional interpretation of the Citizenship Clause, but again, not in direct case holdings. Bills have been introduced since the early1990s to deny birthright citizenship to persons born in the United States to aliens other than lawful permanent residents. While a few proposals have suggested constitutional amendments, most seek to change the birthright citizenship rule by statute. It would likely fall to federal courts to determine whether such a statute could be upheld as constitutional. The weight of the legislative history of the Fourteenth Amendment, the analysis and discussion in Wong Kim Ark, the statements in various cases defining "jurisdiction" more often on the basis of territory rather than undivided allegiance, and the embrace of the prevailing birthright citizenship interpretation by more than a century of subsequent law, would probably factor against the constitutionality of a statute limiting birthright citizenship. Nevertheless, the scope of the guarantee of the Citizenship Clause remains a legal question of great interest and importance to many.