Here a link, there a link, everywhere a link link

Unfortunately, these links have been hanging around on my desktop long enough that I know longer remember the source for most of them. My apologies to everyone I fail to credit…

  • Good article in The Chronicle of Higher Education, which begins…

    I went to a local megastore to buy a computer hutch for my oldest daughter, and, while I was there, I ran into one of the most talented students I have ever known. She graduated a year ago with a major in English and a minor in information systems. Now she works as a cashier. She wore a red smock and a little plastic nametag with the word “Target” on the bottom.
  • I’ve been having a debate over same-sex parenting with David at Sed Contra. (If you make any comments, please be ultra-polite.)
  • Good Arianna Huffington article on Teresa Heinz Kerry – “In Praise of Unruly Women.”
  • Jonathan Dresner lists some things Bradbury correctly foresaw in Fahrenheit 451. Scary.
  • I’m kind of fond of the whole Kerry and Edwards are secret gay lovers meme, which (oddly enough) is happening among pro-Kerry folks as well as among Republicans.
  • It’s too early to say for sure, but Kerry is looking pretty damn strong.
  • Mark Kleiman tells us What I Learned at the Executive Session on Gang Violence. Really interesting stuff. (However, Mark needs to proofread his titles a bit more carefully.)
  • MaxSpeak discusses the need for a third party, and – more broadly – the need for a genuine left in American politics.
  • Gay conservative Stephen Miller thinks that lesbians and gays should be pissed at the Democrats, and I think he’s right.
  • Media Matters is a reasonably entertaining and well-done left-wing site focusing on examples of right-wing bias in the media.
  • RHETORIC MATTERS: A typically excellent post at Body and Soul discusses how Bill Clinton could have done more to fight poverty. (Jeannie is responding to this post from Jack O’Toole, which I’m planning to respond to myself, sometime in the coming week.)
  • Via Body & Soul, Slacktivist has an excellent post on why some Christians condemn homosexuality but eat pork.
  • For everyone who has been watching the “panic in the skies” story (short version: 14 middle-eastern musicians + one racist right-winger + a plane ride = panic all over the right half of the blogoverse), be sure to read this coda to the story, via Political Animal. Funniest bit: Apparently the right-winger, Annie Jacobsen, was so obviously panicked on the plane that undercover air marshals suspected she was a terrorist plant: “… air marshals on the flight were partially concerned Jacobsen’s actions could have been an effort by terrorists or attackers to create a disturbance on the plane to force the agents to identify themselves.”

    Also, Respectful of Otters debunks the myth that the overly PC FAA has a rule against questioning more than two arab passengers on one flight.

  • Speaking of Respectful of Otters, Rivka also has an excellent post discussing the abortion of disabled fetuses. If you’re interested in this topic, I highly recommend you read Bean’s comments on this “Alas” post, as well.
  • Kip should write a book of essays about comics; there is no better or more interesting critic of the industry, in my opinion. Meanwhile, read this post on comics, fandom, and sex; and this post on the Image rise-and-fall.
  • Amanda at Mousewords is kicking every ass in sight this week. I really don’t know which post to recommend, because there are so many great ones. So just go there and scroll, or if you’re looking for particular recommendations, read Amanda’s critique of ” the proper feminine reaction towards an abortion,” ; or Amanda on how today’s press would have covered the 1968 Democratic convention; Amanda on why Catholics in Politics are not like Evangelicals; Amanda on the mail order bride industry; Amanda on why men can never have an equal voice in the abortion decision; and Amanda on acceptable and unacceptable abortions. Here’s a quote I liked:
    Our need to have public displays of approved emotions from women doesn’t create anything but deceitful women. It always boggles my mind how we demand these displays and then turn around and cough up stereotypes about lying, deceitful women. We need to make up our minds.

    (One tiny criticism, Amanda: Have you thought about using bigger paragraph breaks, or at least indenting the first lines of paragraphs? It would make your blog much easier on the eye.)

  • Larry Lessig does a good job documenting how Bill O’Reilly has been using his media megaphone to slander an ordinary private citizen, again and again and again, with an impressive disregard for truth.
  • Congrats to Jay Allen for winning Six Apart’s “MT Plug In” contest. Jay deserved it; “Alas” is one of hundreds of blogs that couldn’t have comments if not for Jay’s MT Blacklist plug-in.
  • Are parasites eating your royals? Don’t blame the pirates:
    So don’t talk to me about piracy. It’s not the pirates that have ripped us off of hundreds of thousands in lost royalties. It’s been “Real businesses” doing that thank you very much. The position of royalty eating parasite has already been taken.

    It’s the demographic of people who allegedly do all this pirating that’s been paying our bills. People with Internet connections who download games. They pay my salary. They are my overlord now. So I hope you can excuse me if I don’t lose sleep at night that some 15 year old might have downloaded my game while some executive at a company (or former company) is sailing on their boat paid for by my hard work. The software pirate can go to jail on a felony, the business executive who doesn’t pay royalties gets off the hook.

    (The last few links are via Boing Boing.)

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53 Responses to Here a link, there a link, everywhere a link link

  1. terrorist gay wedding comic:
    http://www.stripcreator.com/comics/alcoac14/220290
    piracy article at http://majors.blogspot.com
    (sorry no permalink 7/23 entry.)”parasites eating royals” what an image.

  2. 2
    Kip Manley says:

    Aw, thanks, Barry. Just back from Comic-Con. Bigger than ever: 100,000 people or more, and this is the year I think it permanently crossed the border into “Pop-Culture Con.” Which might not be a bad thing for comics; we’ll see. I’m convinced the key to pop culture success is encoded in the secret signs of posters and the occult commerce of what’s for sale where. But by the time you’ve figured it out, it will have changed.

    On the other hand, the teaser trailer for Serenity fucking rocked. Also: each of the nine cast members is as adorably funny in person as they are on-screen. And: Claudia Black says hi, but you probably guessed that.

  3. 3
    Amanda says:

    Thanks for the linkage! And yes, since you’ve been so kind to send me readers, I’ll be so kind as to indent my paragraphs. ;)

  4. 4
    J Stevenson says:

    In re Amanda’s post at — mousewords.blogspot.com/2004/07/possession.html.

    One issue not addressed is the “property right” in the child/embryo/fetus. Her argument is couched in the terms of the “woman’s right not to be pregnant”. Even before abortion was legal a woman had the right not to be pregnant (abstain, use birth control, etc.) — albeit not long before “Roe”.
    Over the years both men and women have lost the meaning of sexual responsibility. This is most noticible in the black community, where there are women who have had nine or more abortions. Just as men have the right not to get a woman pregnant, a woman has the right not to get pregnant. However, when people are sexually irresponsible (as opposed to not responsible) what are the legal rights of the parties to the “property”. For instance, does a surrogate mother artificialy inseminated, with an embryo not of her genetic make-up, have the right to an abortion? According to Amanda’s argument she does. What compensation is due the father and mother or (Parent B and Parent A) of the aborted child for surrogate’s failure to properly secure the property?
    Women undoubtedly have the right to control their uterus, but as a bailee of the package in the uterus, do they have the right to unilaterally destroy the package? Once someone “voluntarily” takes on the responsibility of holding a package for two parents — there are attendent responsibilities with acceptance of that task. A woman should not be required to have an abortion. However, there are other issues attendent when she has the unfettered right to unilaterally destroy or damage the property. Does a pregnant woman have the right to continually pound shots of vodka on a daily basis?
    Abortion should be legal, however to disavow responsibilities and risks (pregnancy) that are inherent in sexual intercourse is dangerous. To only state that a woman has the right to control her uterus ignores the responsibility a woman has to the property she is charged with safekeeping. Nature made a woman the bailee of the probable fruits of sexual intercourse. This basis would dictate that her desires are not greater or less than those of the other owner of the “property”. A more genuine argument would be — possession is 9/10ths of the law and woman may destroy the “package” because it is 9/10ths her package.

    P.S. My partner and I have one aborted child, two almost aborted children, and one child who was planned.

  5. 5
    mythago says:

    Not being pregnant, and the right to use methods to reduce chances of pregnancy, are not a “right not to be pregnant.” For that matter, Roe does not talk about a “right not to be pregnant.” It balanced the State’s interest in preserving fetal life–not a fetus’s right to life–against the mother’s privacy interest in her own body, a right that was partly grounded in the birth control cases, Eisenstadt v. Baird and Griswold v. Connecticut.

    In a surrogate arrangement, you aren’t talking about securing property, but about violating a contract. You can’t compel performance, just ask for damages. It has nothing to do with bailment, FWIW.

  6. 6
    J Stevenson says:

    Mythago: I in my analysis of Griswold v. Connecticut. It is my understanding that the right for a woman to control her body IS the right to determine whether or not she can reduce the chances of getting pregnant. Reasonably following, would be her right to determine whether or not she could be pregnant. Nonetheless, are you suggesting that a woman does not have the right “not to be pregnant”. Amanda suggests a woman does have the right “not to be pregnant” and I would agree, both legally — Griswold and logically (women are not farm animals for breeding).

    As for the Roe reference — it was referring back to the clause “even before abortion was legal” (read — under Roe) women had the right to control whether or not they would get pregnant. Griswold v. Connecticut (1965 was eight years before Roe 1973 — hence long before Roe women had the right “not to be pregnant”.

  7. 7
    mythago says:

    It is my understanding that the right for a woman to control her body IS the right to determine whether or not she can reduce the chances of getting pregnant.

    It’s one of the rights, but that’s not the same as a “right not to be pregnant.” The privacy right over one’s body is more general than that.

  8. 8
    Morphienne says:

    “Over the years both men and women have lost the meaning of sexual responsibility. This is most noticible in the black community, where there are women who have had nine or more abortions.”

    Ah, yes, those darned black people. Many of whom are *thrilled,* I’m sure, to be referred to as one single “community,” as though in America two people who share a skin color have everything in common culturally or ethically.

    But of course you’re absolutely right, there aren’t any white, hispanic, Asian-American, Native American, or people of any other race who have had nine or more abortions. That’s entirely a black thing, I’m sure. It’s part of *their* culture.

    You know, it’s odd . . . I hear a lot, a LOT of people complaining about “the black community.” Mostly what those people say is that those blacks are always turning out babies to get their Welfare checks–some of them have even had nine or more!

    Guess there’s no pleasing some people.

  9. 9
    Amanda says:

    Morph’s right-the needless swipe at the black “community” blew my mind so much that I had trouble reading everything else you said.

  10. 10
    jstevenson says:

    Again, I believe a woman has the right to privacy of her own body. I also believe that she has a fiduciary duty to protect things that she co-owns with another person.

    A person undoubtedly has the right to privacy in their own home. That does not give them the right to damage your goods which they keep in their own home. Nor does it give you the right to enter your home to get her goods.

    An embryo may not be a child, but it is still a tangible asset/liability owned by two people with all attendent rights and responsibilities that flow from that asset/liability (prenatal medical costs for example). So I return to the prior statement, either the embryo is property where 9/10ths of the law is possession or the property is owned by the two people who made it. If the latter is true then the mother — who has the right to control her body — has decided to provide protection for the property of Parent A and Parent B. Therefore, if she wants to destroy/damage the property she must get consent — absent public policy issues — from the owners of the property.

    Disclaimer: The “goods/property” analogy is in no way intended to mean I believe children to be property or goods.

  11. 11
    jstevenson says:

    “Ah, yes, those darned black people. Many of whom are *thrilled,* I’m sure, to be referred to as one single “community”. As I am sure all of the black people you know would be appalled at my use of the term “black community”.

    I have no knowlege of the cultural issues experienced by members of other racial, ethnic, national makeup, but I can speak of my cultural experiences. I know personnally several black women who used abortion as birth control, I know of several black men who do not use condoms. I grew up in a culture where men bragged about how many children they have and how many women they have had. I know first hand about the disregard of pre preganancy planning because of cost and post pregancy planning because of ease and availability.

    Perhaps your experience has shown more sexual irresponsibility than that? I am sure there are comparable cultures in America, but the black community is the only one my many years of experience make me qualified to write on.

  12. 12
    Amanda says:

    You know what? I’m sick and tired of the whole argument that because a fetus’s DNA half belongs to the father, that give the father half the “property” rights to the fetus and by hocus pocus, veto rights to an abortion. When it comes to the pregnancy itself, the man doesn’t contribute half of anything but DNA, which is delivered, um, rather painlessly. The mother contributes ALL of the time, ALL of the vitamins, ALL of the protein that the fetus needs to grow. A man can tell his wife, “Hey, we’re in this together” and go play basketball or hockey while she’s bent puking over the toilet. Half my ass.
    If you want to argues about the legal meaning of the sperm to the pregnancy, I would guess that legally sperm is a gift, since it’s given over for her to keep–few men want it back, you see. And, as a gift, it’s hers to do with what she wishes. If my boyfriend gives me a diamond necklace, I can wear it or throw it away and he has no legal recourse.
    Once the child is born, everything changes since that child is a citizen with rights now. The pregnancy is over and therefore not an issue of a woman’s privacy/property rights to her own body. The child has a right to the support of its parents, of which it has two.
    The twists and turns that people take in order to justify policy that is about nothing so much as creating legal situations where men have authority over women’s bodies are utterly ridiculous. Previously, it would have never occured to lawmakers to treat women as full citizens up until the time they got pregnant and then submit them to male authority under weirdly worded logic that avoided stating directly what was going on. No, they just openly treated women as property of men and that included their pregnancies. This half-way stuff makes no sense. Either women own themselves or they don’t.

  13. 13
    jstevenson says:

    Amanda,
    Your argument has been decimated by the “parental responsibility laws”. Those laws, which were pushed for vigorously by women, state that the father has an equal responsibility to ensure the safety and wellbeing of the fetus.

    Unfortunately/fortunately (whichever your bias is) the fallout of that theory, which was not contemplated by the pro-”parental responsibility” lobbiests, was Laci’s Law. Where parental responsibility laws were an unknowing step towards rights of the unborn, Laci’s law is a major leap towards that end.

    Since a fetus is “hers to do with what she wishes” should the woman bear all of the responsibility of gestating that fetus to becoming a citizen. Is it your position that a man has no responsibility to his child until that child is born? That is a dangerous precedent to set in my opinion.

    Because a woman must bear the biological responsibility of bearing a child makes that child no less that of the father. “The mother contributes ALL of the time, ALL of the vitamins, ALL of the protein that the fetus needs to grow.” I do not disagree. Additionally, the mother contributes ALL of the time, ALL of the vitamins, ALL of the protein that the “fetus” needs to grow for four or five months after the “fetus” has left the womb. Does that mean that the father has no say in what happens to his child until the fetus is 4 months post birth? Assuming the father is in Iraq for the first four months of the child’s life. Can the mother do what she wants with the child because she contributes contributes ALL of the time, ALL of the vitamins, ALL of the protein that the “fetus” needs to grow? I think many “parental responsibility” advocates would vehemently disagree with the proposition that because a mother provides her responsibilities as a “bailee” the co-owner of the property has no rights or responsibilities.

  14. 14
    acm says:

    hey, Amp, no Hereville this past week?

  15. 15
    jstevenson says:

    “Either women own themselves or they don’t.”

    Women do own themselves. Every woman has the right to get pregnant or not. That right is firmly rooted in law and logic. If you don’t want the responsibility of protecting a child through to full gestation then don’t get pregnant. In addition, I would say to a man: if you don’t want the responsibility of ensuring the well-being of a fetus through to adulthood then don’t get a woman pregnant. An obvious risk of sexual intercourse is the risk that someone will get pregnant. If that person does not want to get pregnant then they should not take that risk.

    The law of course provides ample provisions for women who did not take on the risk of getting pregnant voluntarily. To ignore the risks and just focus on the rewards is irresponsible.

    I have acknowleged my irresponsible behavior and would never use it as an excuse to absolve someone of their responsibility.

  16. 16
    Hestia says:

    I really don’t see how property rights matter here at all. How can someone else “own” something that’s part of your body, and how can they possibly have a “right” to it? I don’t find this argument persuasive at all. (Brings to mind that Monty Python sketch about the organ donor…)

    Pregnancy is a unique issue that has no property-rights parallels. In real life, if someone gives you a vase to keep in your house, but still calls it theirs, then yes, you have the responsibility to care for it. But if you don’t want to do so, you can give it back. Since you can’t “return” a fetus, the two situations cannot be compared.

    As far as I’m concerned, if it’s in your body, it’s yours, and if someone allows you to put something of “theirs” in your body, it’s also yours. Someone who gives you bone marrow or an organ may not ask for it back, and you are not required to take perfect care of yourself in order not to damage it. So I think Amanda’s right in her “gift” assumption.

    I also agree with mythago in that surrogate parenthood depends only on the terms of the contract. The surrogate mother is beholden to the contract, not the donors themselves.

    Your argument has been decimated by the “parental responsibility laws”.

    Please show where parental responsibility laws refer to fetuses; I did a quick Google search on “parental responsibility fetus,” and I could find nothing that supports your argument.

    Is it your position that a man has no responsibility to his child until that child is born?

    Where does it say that men are legally responsible for their unborn children? Men aren’t forced to stay with pregnant women. Of course, they can’t harm the fetus–but that’s because they can’t harm the mother.

    Additionally, the mother contributes ALL of the time, ALL of the vitamins, ALL of the protein that the “fetus” needs to grow for four or five months after the “fetus” has left the womb.

    This is absolutely not true. There is such a thing as formula, you know, and I wasn’t aware that men were incapable of holding a bottle or changing a diaper, and what about adoption?

    You do understand that there’s a difference between an infant and a fetus, right?

  17. 17
    mythago says:

    jstevenson, “bailee” has a very specific meaning. It has no application in the law to pregnancy or parental rights.

    Every woman has the right to get pregnant or not.

    You didn’t really just mean to say that women have a right to get pregnant?

  18. 18
    jstevenson says:

    “I also agree with mythago in that surrogate parenthood depends only on the terms of the contract. The surrogate mother is beholden to the contract, not the donors themselves.”

    My question was obviously directed at the outcome absent a contract. Even in nonsurrogate relationships a contract can determine the responsibilities of the parties. For example, parents (mother and father) can contract for prenatal medical expenses, housing expenses for the mother, and other issues prior to the baby’s birth. However, in the absence of contract the law provides some baseline responsibilities of the parties prior to the baby’s birth. So the question, what are the parent’s recourse for destruction of the property, absent a contract?

    “Please show where parental responsibility laws refer to fetuses; I did a quick Google search on “parental responsibility fetus,” and I could find nothing that supports your argument.”

    California, Wisconsin and several other states have medicaid recovery acts based on the 1992 federal law that requires recoupment from fathers of prenatal medical expenses paid by the state. In addition, State laws that require equal support of the children have been judicially extended to prenatal medical expenses.

    Cal Fam Code § 7604.5 provides that bills for pregnancy, childbirth, and genetic testing as evidence of the cost of those procedures when determining support under § 3900.

    “You do understand that there’s a difference between an infant and a fetus, right?”

    Of course I know the difference between an infant and a fetus. The medical community has long since identified the development of human beings — zygote, embryo, fetus, infant, toddler, etc.

    Men are not forced to stay with pregnant women, however they are required to provide support and security for their child. If a woman decides she wants to do shots everyday the court may require her to cease and desist. So just as a man cannot harm the embryo/fetus a mother cannot either.

    In re “All the Support”: “This is absolutely not true. There is such a thing as formula, you know, and I wasn’t aware that men were incapable of holding a bottle or changing a diaper, and what about adoption?”

    Because a mother chooses not to provide all of the nourishment for the child does not mean that she does not provide all of the nourishment absent scientific improvements. Formula feeding any bottle feeding for that matter is called “supplemental feeding” for obvious reasons. Mothers are biologically made to provide “ALL of the vitamins and ALL of the protein” for infants up to four months or more without “supplemental nourishment”. Should women be able to do what they want with a fetus that is post gestation (within the strictures of the law) without input from the father because she is biologically made to provide “ALL of the vitamins, ALL of the protein”?

    As for changing diapers — a father does not have to change diapers, but he should. If the father does not have any rights to the fetus then he should not have any responsibility. If the basis for denial of rights is because the mother bears the bulk of the burden of rearing the child for the first 34-42 weeks then that denial of rights and responsibilities should extend to a point where the mother no longer provides “ALL of the vitamins and ALL of the protein”.

    I do not agree in that “Either women own themselves or they don’t”. When a man and a women undertake sexual intercourse both of them accept the responsibility that a life may be the result of their actions. Therefore, a mother who wants to keep the child has already recieved consent by the father to have the child. However, a mother has not recieved consent by the other party to destroy the “property”. By having sexual intercourse she has consented to the possible risk of being required protect the property she and her partner have created.

    A personal analysis of the rights of surrogates in this situation would expose the failure of the “if it is in my bag, then it is my stuff” theory.

  19. 19
    Amanda says:

    He’s right in that there are a bunch of laws on the books that redefine a fetus as a child with rights. But as those laws were usually written with the end result of eliminating a woman’s reproductive rights, I think we pro-choicers have more than enough reason to be suspicious of the precedent they set.

  20. 20
    jstevenson says:

    Amanda: “Thanks for the track on your blog”.

    I DO believe that all everyone should have the right to go through the same issues my partner and I went through. Meaning everyone should have the right to make a choice.

    If a woman is pregnant she does not lose any rights — quite the contrary, she gets more rights under the law — I don’t think choice laws that value the responsibilities of both parties to the child-rearing contract deprive women of their rights (anymore than the basic fact of having a child reduces either parent’s freedom). Nor will women allow these laws (or men) to control their body or their reproductive rights.

    Because a woman should get consent from the other parent before terminating the child-rearing contract this somehow restricts her right to get pregnant? I think if she chooses not to be pregnant then a woman may do so.

    Sexual intercourse, given today’s equality, is a contract between two people to reap the benefits of such interaction (a sterile definition). In reaping these benefits both parties must be willing to accept the responsibilities of such action. For a woman, that responsibility is much greater than a man’s resposibility for the first 56-62 weeks after insemination. Nonetheless, that does not diminish the rights of the co-owner during this time. Rights under the contract are not determined by relative input into the enterprise unless it is specifically enumerated in a separate writing.

  21. 21
    Hestia says:

    I think if she chooses not to be pregnant then a woman may do so…Nonetheless, that does not diminish the rights of the co-owner during this time.

    What, then, are the “rights” of the “co-owner” of a fetus?

    A woman gets pregnant with a man’s child. The woman wants an abortion and cannot be persuaded otherwise. The man wants the child and cannot be persuaded otherwise. Who gets to make the final decision?

  22. 22
    mythago says:

    jstevenson, I can’t really make this any clearer: you are applying terms like “contract” and “bailee” in ways that don’t make any sense.

    A fetus is not property under any law. Parents have rights and obligations over their born children, but their kids are not “property.” If a mother throws her newborn into a Dumpster, the father may sue her for wrongful death–but not for violation of a contract, or bailment, or destruction of his “property.”

    Sexual intercourse does not create a contract about a resulting pregnancy. Perhaps you feel it should, but it doesn’t.

  23. 23
    Nick Kiddle says:

    jstevenson: Do you think a woman should be forced to get permission from anyone she sleeps with to use an IUD to prevent pregnancy? What about contraception?

  24. 24
    jstevenson says:

    Mythago: I refer you to my disclaimer –”Disclaimer: The “goods/property” analogy is in no way intended to mean I believe children to be property or goods.” The courts also agree that embryos are not chattel — “Whether embryos are viewed as having life or simply as having the potential for life, this characteristic or potential renders embryos fundamentally distinct from the chattels, real estate, and money . . .”

    Nevertheless, the Courts have aknowledged contractual balancing in making determinations on the rights of genetic donors of embryos. See the 2000 Iowa case In re Marriage of Witten, 672 N.W.2d 768 (2003). This Court found three approaches to disputes — (1) the contractual approach, (2) the contemporaneous mutual consent model, and (3) the balancing test. These approaches are used as analogous analysis because embryos are not considered human, but there are inherent rights and obligations of the genetic donors. To try to mesh out some logical result — the courts resort to these three approaches.

    I believe the balancing test takes is the best test. This test is more in line with cases regulating government regulation of marital privacy (Planned Parenthood v. Casey) and other cases involving reproductive privacy (Roe v. Wade). This test as stated in the leading case of Davis v. Davis, 842 S.W.2d 588 (Tenn., 1992), where the “procreational interests of both parties must be considered.” Davis recognized the procreative autonomy of both gamete providers, which includes an interest in avoiding genetic parenthood as well as an interest in becoming a genetic parent.

    Depending on the facts and circumstances the fundamental right of of one party not to procreate may outweigh the right of the other party to procreate. J.B. v. M.B., 331 N.J. Super. 223, 233 (N.J. Super. Ct., 2000) (Amanda’s proposition). However, the courts have illuded to a right of a party to procreate given certain circumstances. Johnson v. Calvert, 5 Cal. 4th 84 (Cal., 1993)(a parent is infertile or one parent has died).

    It is also important to note that Roe v. Wade and Casey all deal with government regulation of reproductive and privacy rights of married couples and women. This does not preclude private actions for enforcement of reproductive rights by the courts. Given the invasive surgery required by abortion and the fact that father has initially consented to reproduction (through sexual intercourse), the courts would favor a pregnant mother the right to reproduce over the father’s right not to be a parent. Converse analysis would say — given the invasive nature of carrying a foreign body for 36-42 weeks, the courts would inure to rule in favor of the woman’s desire not to reproduce (regardless of the fact that she consented to the child-rearing contract) over the father’s desire for parenthood.

    BTW: It is unconstitutional to contract against a surrogate’s opportunity to abort an embryo. This is based on the clause prohibiting involuntary servitude. see Johnson v. Calvert, 5 Cal. 4th 84 (Cal., 1993).

  25. 25
    jstevenson says:

    “What, then, are the “rights” of the “co-owner” of a fetus?”

    The rights of the “co-owner” are the fundamental right to CHOOSE whether or not to reproduce and with respect to government regulation, the right to reproductive privacy.

    “Do you think a woman should be forced to get permission from anyone she sleeps with to use an IUD to prevent pregnancy? What about contraception?”

    Absolutely not! Our Constitution guarantees the right to reproductive privacy. Regardless of the Constitution I personnal would not advocate such heinous step towards such an invasion.

    As I have said numerous times a woman and a man have the fundamental right NOT to reproduce. I am not a Ob/Gyn so I may be speaking out of turn, but an IUD essentially dissallows an embryo from attaching to the uterine wall. That action may infringe on the right of a party to reproduce. A woman’s right to privacy coupled with the right of reproduction clearly outweigh the reproductive rights of the other party prior to the zygote attaching to the uterine wall for a substantial period. Women have the fundamental right to put an embryo in their body, once they have voluntarily accepted this right, the rights of the other party are increased.

    As for contraception, which prevents a woman’s body from ovulating. Undoubtedly a woman has the right to prevent herself from ovulating. To suggest otherwise is an illogical step towards control of the female body. I nor American jurisprudence would allow such a step.

  26. 26
    Amanda says:

    Truly, I think a misunderstanding of property rights are at issue here. A fetus isn’t a man’s property, not by 50% or 75% or anything. Contrary to popular belief, a fetus has never been a man’s “property”. In the past, men controlled women’s abortion decisions because WOMEN were men’s property. Under this system, it was well-understood that the fetus was not property. Only now when property rights to female bodies belong to females themselves do you see convoluted arguments about how a man’s semen can or cannot give him said rights over a woman’s body depending on the circumstances blah blah.
    Just checking to make sure that proprietary rights over female bodies isn’t still assumed to be a male birthright, I asked my boyfriend what would happen if I got pregnant–before I suggested options, he was all over that whole your-body-your-choice thing. And if you want to call him less of a man for not exerting control over me, well you best fuck with him since he’s pretty scrappy.
    Men have complained and made excuses for the fact that they simply do not make babies for centuries now. It’s tiresome. Everything men have taken from women in history to compensate was an act of cruelty–respect for our creativity and our intelligence, equal rights in marriage, the right to take credit for giving birth after actually bothering with the pregnancy and childbirth thing,the right for our work to be taken seriously even when our gender is known…shall I go on?
    We can pregnant and men can’t. In the grand scheme of things, this shouldn’t be so big. Men can pee standing up and I can’t and I don’t lose sleep at night. In the end, both men and I pee and it works out. In the end, babies are born or not and usually only men who want credit for coming and often for not much else are the ones causing legal problems.

  27. 27
    mythago says:

    “Disclaimer: The “goods/property” analogy is in no way intended to mean I believe children to be property or goods.”

    Bailment and ownership of property only apply to property. If you’re referring to the mother as ‘bailee’, then indeed you are talking about the fetus as property, disclaimers not withstanding.

    As I have said numerous times a woman and a man have the fundamental right NOT to reproduce.

    In fact, this is not true. Please read Roe and following decisions, which find that a State may restrict abortions later in pregnancy. If I get hit by a car, go into a coma, am raped while unconscious, and wake from my coma to find myself eight months pregnant, do I have the right to an abortion? Not likely, unless the pregnancy is life-threatening or dangerous.

    Roe most certainly applies to unmarried women. Eisenstadt make it perfectly clear that privacy rights wrt reproduction do not apply only to the married.

    You’re treating legal arguments like spaghetti–throw them at the wall and see what sticks.

  28. 28
    J Stevenson says:

    Amanda: Whoa . . . I applaud your boyfriend for acknowledging the rights women have long fought for and earned — most likely, well before you or he were an issue of reproductive rights. Nevertheless, ranting about men taking away rights, nor the fact that men exert unlawful pressure on women’s civil liberties is not justification for taking away the rights of others. fx. genocide in Bosnia, South Africa, and Uganda.

    A disection of the law is required to ensure we are not mired with bad precedent. The reason a woman has the right to choose is not because “your-body-your-choice”. Both parties have equal reproductive rights. However, when it comes to abortion — the desires of the holder of the fetus will normally be favored over that of the non-childbearing party. The reason for that is that the bearer of the child has the extra burden of carrying the child. Any other argument would cause bad precedent.

    An example would be female A, married to female B, carries an embryo from the gametes of female B and male A. Under your assumption female B has no rights to her embryo. In addition, when the embryo is born female B may have no parental rights, absent written agreement. “My body, my choice” — if it is in my body and comes from my body I have responsibility and control over it. In this case what are the rights of female B over her fertilized egg? Is it a gift to female A? Suppose Female B had cancer and chemo would render her sterile and this child were her only opportunity to parentage with her spouse, female A. Under your analysis female B is out of luck.

  29. 29
    J Stevenson says:

    “a woman and a man have the fundamental right NOT to reproduce. In fact, this is not true. . . unless the pregnancy is life-threatening or dangerous.”

    Just because it is a fundamental right does not mean the government cannot regulate it. “Where certain “fundamental rights” are involved, regulation limiting these rights may be justified only by a “compelling state interest”[.]” Roe v. Wade.

    Following strict scrutiny balancing test of the state’s interests and the fundamental right, the Court upheld the ability of the state to intrude on the reproductive privacy of couples and the specific privacy rights of women as it relates to their body.

    “Roe most certainly applies to unmarried women.”

    In light of this phrase: “and other cases involving reproductive privacy (Roe v. Wade).” I am remiss to see where I said that Roe philosophy does not apply to unmarried women? Roe v. Wade was regarding an “unmarried pregnant woman”, Eisenstadt notwithstanding.

    I will ignore the mildly humorous “spaghetti” remark.

  30. 30
    Hestia says:

    The rights of the “co-owner” are the fundamental right to CHOOSE whether or not to reproduce and with respect to government regulation, the right to reproductive privacy.

    I’m totally lost. What argument are you making? I thought you were claiming that fathers have a right to make decisions regarding a fetus to which they contribute sperm, but here you’re saying nothing of the sort. In fact, later in your recent posts you appear to be saying that women can terminate pregnancy at any time, which implies that fathers actually have no rights to that pregnancy and everything it involves.

    OK, people have the rights to decide whether or not to have sex and privacy regarding that decision. How is this at all related to either abortion, what “rights” a man has to a woman’s body, and the concept of property in general?

    Am I missing something?

  31. 31
    Amanda says:

    I’m not only a ranter, but I suffer from hysteria, too. Possibly I need some sense slapped into me, old movie-style.

  32. 32
    J Stevenson says:

    My posts (vice a few noted personal views) have all been related to consideration of various issues that are frequently lost in the “my body-my choice” criteria for decision making.

    The “my body-my choice” argument obfuscates the issues that have only been addressed in pre-zygote litigation and are wholly applicable to arguments relating to embryos. The Supreme Court’s analysis of a woman’s right to choose has only dealt with legislative regulation of that choice.

    No cases have dealt with (apart from touching on it in dicta) the Court’s acknowledgement of the EQUAL reproductive rights of a party of the gamete who happens not to be the keeper of the embryo. Remember that it is possible for a woman to be the mother of a child and not give birth to a child. It is also common for two people in a loving relationship not to prepare a surrogate contract when inseminating one Partner with the other Partners embryo. My body-my choice takes on new implications in that context.

    In dealing with these issues the courts have fashioned much of this analysis on property and contract rights because they are the most analogous. That is the basis for the contractual/property discussion.

    Argument: A woman’s right to have an abortion is not unfettered. A woman cannot unilaterally terminate a pregnancy whenever she wants. The Court in Roe v. Wade stated that her right to privacy is limited by the states interest in the viability of the child.

    “[You were] claiming that fathers have a right to make decisions regarding a fetus to which they contribute sperm.” Given that both parties contribute 50% to the zygote, it is 50% their zygote (just as a female A contributes 50% to the embryo carried by female B) both contributees have an interest in the wellbeing of the embryo. As such, both have equal rights to the determination of the child. However, because the embryo is inside female B, female B has interests in deciding what to do with her body. In that female B has decided to avail her body to the protection and care of the embryo of female A and Male A, she should have to get consent from the other parties prior to destroying their embryo. She does not lose control because she had the CHOICE of using her body or not using her body for the benefit of female A and male A. That does not mean that female A or male A control female B’s body it acknowledges that they have an interest in their embryo. The Court has stated that female B body supercedes the interests of the State prior to the second trimester.

    I believe the fundamental reproductive rights of female A and male A are at least equal to the interests of the State. “My body-my choice” position puts the interests of the State higher than the fundamental interests of human reproductive rights (in this case the right of parenthood).

    This analysis only changes slightly when the interests of female A and female B coincide or they are the same person. If female A wants to get rid of the embryo she has voluntarily opted to carry, then she should (ethically and morally) get the consent of Male A.

    I would point out that the privacy right of a woman’s body, given the Courts analysis, outweighs the reproductive rights of either female A or male A prior to the second trimester when the states interest begins to exceed the interests of the parties. At that time, however, the interests of individual citizens should be held higher than those of the state.

    I hope that clears up any confusion re: “later in your recent posts you appear to be saying that women can terminate pregnancy at any time, which implies that fathers actually have no rights to that pregnancy and everything it involves.”

  33. 33
    mythago says:

    No cases have dealt with (apart from touching on it in dicta) the Court’s acknowledgement of the EQUAL reproductive rights of a party of the gamete who happens not to be the keeper of the embryo.

    That’s because Roe is not about ownership of an embryo. It’s about a woman’s privacy interest, which is the ‘compelling interest’ in Roe.

  34. 34
    Seth Dominguez says:

    Posted by jstevenson:
    “I have no knowlege of the cultural issues experienced by members of other racial, ethnic, national makeup, but I can speak of my cultural experiences. I know personnally several black women who used abortion as birth control, I know of several black men who do not use condoms. I grew up in a culture where men bragged about how many children they have and how many women they have had. I know first hand about the disregard of pre preganancy planning because of cost and post pregancy planning because of ease and availability.

    Perhaps your experience has shown more sexual irresponsibility than that? I am sure there are comparable cultures in America, but the black community is the only one my many years of experience make me qualified to write on.”

    I remember working as a waiter and later on as a manager in the U.S.
    Being mexican, a lot of people thought I was a dishwasher!!!!
    People thought I was a macho type of guy and people thought that I beat women on a regular basis. Oh, a guy also came up to me and asked me to sell him mariguana once. Since I am mexican I guess I had to be all those things…

    Like jstevenson, all these people figured they knew everything about mexicans because they knew a few dishwashers…

    It seems amazing that people still judge an entire race just on their personal experiences.

    sorry for the late post about this!!!!

  35. 35
    Hestia says:

    So, if I have it right:

    * You essentially want to ban abortion after the third trimester (let’s call it post-viability), during which “the interests of individual citizens should be held higher than those of the state.” At that point you would probably consider the fetus to be an “individual citizen.” Or else you want to give other people control over the pregnant woman’s body at that point, possibly against her will.

    This is a typical pro-life argument that ignores the “interests” of the woman.

    * You want women who agree to be surrogate mothers to let others make decisions about their bodies, post-viability. This strikes me as so extremely unlikely that it’s a non-issue in the abortion debate. But let’s pretend it could happen.

    A surrogate mother should be, and, I believe, is able to terminate her own pregnancy if she wants to. She will then need to deal with the consequences outlined in the contract she has with the biological “parents,” which would probably amount to monetary compensation. If there is no contract, than the “parents” can do nothing. That’s a risk they take when they ask another person to carry their child. (So is miscarriage. So are latent diseases.)

    You’re suggesting that someone should be able to force someone else to use her body in a particular way against her will. No one has the right to do that, no matter what their relationship is. And, as many people have pointed out, property has nothing to do with pregnancy because pregnancy is a completely unique situation.

    How about this: If a surrogate mother wants an abortion, she must give the aborted fetus back to the couple who paid for her services. That way, the couple has regained their “property.” Again, there may also be financial consequences, but only if a contract stipulating those consequences exists.

    * You want women to get men’s “consent” when they want an abortion, which shows an incredible disrespect for women. Ethically and morally, maybe, the couple should discuss it–but the woman has neither the ethical nor the moral responsibility to act in the man’s interest when it conflicts with her own.

    What if the man doesn’t give his consent? I noticed you didn’t answer this question when I posed it earlier, perhaps because it would force you to take a position you’re trying to avoid…

  36. 36
    J Stevenson says:

    “This is a typical pro-life argument that ignores the “interests” of the woman.” That is a total mischaracterization of the argument. The interests of the all the women involved in bringing a person into this world should be acknowledged and celebrated. That is the interest of the mother who provided the egg and the interest of the woman who is carrying the embryo. To deny the woman who provided the egg any rights and hold the interests of the State higher than those of the woman who provided the egg would deny the woman her right to be a mother. I do not believe that should be permissible.

    “. . . At that point you would probably consider the fetus to be an “individual citizen.”
    I agree that characterizing a fetus to be an individual citizen is a typical pro-life argument. Not that it matters, but I believe in a woman’s right to choose. Nevertheless, that stand is not predicated on my position that a fetus is NOT a citizen. My view of a woman’s right to choose is based on her right to privacy. However, I do not ignore the right to parenthood, which many pro-abortion activists do. Someone who is truly pro-choice knows that recognizing the reproductive rights of humans is an essential foundation of the freedom to choose.

    The fundamental right to privacy has been judicially construed into the Constitution. The right to choose to have an abortion is based not on a right to choose what to do with one’s body, but more broadly based on the right to parenthood (which encompasses private reproductive rights of women and their body). The right to parenthood or freedom from it is one of the long acknowledged bases of privacy rights. The right to parenthood extends to all people. The Court unequivicolly stated that a woman’s right to choose is not unfettered unilateral right and her interests affect the interests of other parties to the parenting agreement. Within the last five years the Court has upheld the standard that the production of an embryo entails fundamental rights of at least two parties (see the TN Planned Parenthood cases and the Cal two mothers case). The Court recognizes a need to balance those rights against State interests AND each other if they are conflicting.

    An analysis of various precedents – a man could not destroy an embryo where the mother was sterile and it was her only chance to parenthood — indicates that the Court may hold that a woman does not have the right to an abortion if her interests do not overcome the interests of other parties. This has been upheld regarding laws banning of 7-9 month voluntary abortions and medical consent laws for 4-6 month abortions.

    In a private capacity, for example, if female B voluntarily impregnates herself with female A’s egg, her spouse, female B is 24-26 weeks, female A has sufficiently held the embryo out as her own, shown palpable interest in motherhood and female A is subsequently found sterile. The Court may find female B’s choice to abort impermissibly interferes with female A’s right to parenthood.

    Furthermore, it is disingenuous to say that considering the rights of the all parties involved ignores the “interests” of the woman. That is an unfounded leap of faith and denigrates any argument in favor of choice. Because someone considers the interests of ALL parties who are part of the child-rearing agreement does not in any sensible definition of “ignore” mean they ignore the intersts of one of the parties inherent in the agreement.

    Is it your position that no one has any other rights to the embryo except the person holding the embryo? What interests does female A have in her embryo that was implanted in her partner? None?

  37. 37
    J Stevenson says:

    Mythago: “That’s because Roe is not about ownership of an embryo. It’s about a woman’s privacy interest, which is the ‘compelling interest’ in Roe.”

    First of all it is not because Roe is not about ownership of an embryo. A pregnancy is difficult to litigate because of the inherent time constraints. Roe v. Wade. Those time contraints are why there have not been any cases as of yet. However, there are several cases working their way up the appellate process regarding the rights of females who impregnate female partners with their fertilized egg and the attendent rights to their embryo.

    It is not only about a woman’s privacy interst, but the privacy interests of all persons to freedom of governmental interference with the right of parenthood. (the court claryfied this position in Casey and other parental consent cases).

  38. 38
    Hestia says:

    Though everyone may have the right to be a parent–and I’m not convinced that’s the case, since 1) it’s an unreasonable assertation when it comes to biology; no one has the “right” to see clearly or have four limbs, and 2) children are sometimes taken from abusive parents, thus depriving those adults of parenthood–no one has the right to be the parent of a particular child. They can have other children. They can adopt. They can become parents in other ways.

    So the right to parenthood has no bearing on the question of whether or not anyone, including surrogate mothers, can have an abortion (which, as you admitted yourself, is legally, is constitutionally, her right).

    And ayway, a person’s “rights” in regards to a surrogate mother’s embryo are trumped–they’re always trumped, both legally and ethically–by the rights of the surrogate mother to control her own reproductive system.

    Someone who is truly pro-choice knows that recognizing the reproductive rights of humans is an essential foundation of the freedom to choose.

    If a woman cannot terminate her pregnancy, she by definition does not have the right to choose. I can’t understand how you don’t see this.

    Is it your position that no one has any other rights to the embryo except the person holding the embryo?

    Absolutely. You’ve given me no reason to believe otherwise. (“Because that’s the way it should be” is not a good reason.)

    a man could not destroy an embryo where the mother was sterile and it was her only chance to parenthood

    You’re joking, right? The man is not pregnant. This point is utterly irrelevant.

    This has been upheld regarding laws banning of 7-9 month voluntary abortions and medical consent laws for 4-6 month abortions.

    These laws have nothing to do with third parties; they have everything to do with the fetus in and of itself. So, again, irrelevant.

    (see the TN Planned Parenthood cases and the Cal two mothers case)

    Please point out, or at least quote the relevant parts of these cases; I can’t find them online. (I did find something about a British woman who sued her CA surrogate mother because she didn’t selectively abort; I can’t find the result of the suit. And in any case, I’m siding with the surrogate mother’s decision to continue the pregnancy.)

    [female A-female B stuff]

    This is mere conjecture based on a ridiculously narrow hypothetical situation.

    You’re still not answering my basic question, which is: If the interests of two (or more) parties conflict, who gets to make the final decision about an abortion? I can’t continue this discussion unless you provide an answer, because until you do, you aren’t taking a position. You talk about the “rights” of persons involved in the creation of a child other than the pregnant woman, but so far you’ve refused to say what those rights actually consist of.

    “Those who contribute both the egg and the sperm have rights that must be considered” is not a valid argument by any stretch of the imagination. You need to enumerate those rights–and you need to address the potential of conflict.

  39. 39
    J Stevenson says:

    “You’re suggesting that someone should be able to force someone else to use her body in a particular way against her will.” Of course I do not suppose a person should be forced to use their body in a particular way against their will. No where have I suggested that if a woman does not consent to getting pregnant that she must get pregnant. If she voluntarily gets pregnant then no one has forced her to use her body in a particular way. Arguing that if woman is voluntarily pregnant she is forced being forced to use her body in a particular way against her will is ludicrous. This goes back to my first post – sexual irresponsibility is not a basis to provide the right to be irresponsible. If you are irresponsible and that irresponsibility creates negative ramifications outside of being able to do with one’s body what they want, on what basis may you “unreasonably” affect another due to your irresponsibility? How is a woman who voluntarily decides to “use her body in a particular way”, being forced to use her body in that way, against her will?

    “If a surrogate mother wants an abortion, she must give the aborted fetus back to the couple who paid for her services. That way, the couple has regained their “property.” Again, there may also be financial consequences, but only if a contract stipulating those consequences exists.”

    What if the woman was part of the couple and the father was not the one objecting to the abortion? The law does not allow a surrogacy contract to deny a woman an abortion, involuntary servitude clause of the Constitution. However, it only applies to surrogacy (pregnancy for money). A person who carries a baby for their spouse/partner is not covered by this clause and may be liable for negligence.

    “* You want women to get men’s “consent” when they want an abortion, which shows an incredible disrespect for women. Ethically and morally, maybe, the couple should discuss it–but the woman has neither the ethical nor the moral responsibility to act in the man’s interest when it conflicts with her own.” I don’t remember where I stated I want a woman to get men’s “consent” when they want an abortion. What I said is that: “a woman should get consent from the other parent before terminating the child-rearing contract”. It was an inclusive statement of all parents, such as the woman’s partner, who may happen to be a woman. If you accurately restate my positions, it will make them easier to understand and you would seem more genuine in your dissent.

    What if the man doesn’t give his consent? In this situation I will interpret you to mean, what if the other parent (could be mother or father) does not give his/her consent? Well, the Courts have dealt with this issue in same-sex relationships of women where both women contribute biologically to the child. In one case the Court stated the child had no mother/parents in the other the court stated that the mother was the one who provided the egg. First of all, the answer to this question is not a bright-line test, but a facts and circumstances analysis. If the facts dictated that female A were now sterile and it was only after 18 weeks that female B (the child-bearer) wanted to have an abortion I would say that female A’s interest in parenthood was greater than female B’s fundamental interest in not being a parent. If the circumstances were that female B wanted the child and female A did not, female B’s interest in parenthood would trump female’s A’s interest in not wanting to be a parent (biological mother does not always trump the birth mother in determining maternity).

    “I noticed you didn’t answer this question when I posed it earlier, perhaps because it would force you to take a position you’re trying to avoid…” Does that answer your question?

  40. 40
    J Stevenson says:

    “They can have other children. They can adopt. They can become parents in other ways.”

    This was a major factor in balancing the interests of a father in not being a parent and denying a mother the right to parenthood in a N.Y. case from the late 90′s. As always, it is a facts and circumstances test, not a bright-line test.

  41. 41
    jstevenson says:

    “a man could not destroy an embryo where the mother was sterile and it was her only chance to parenthood”

    You’re joking, right? The man is not pregnant. This point is utterly irrelevant.

    See – Davis v. Davis, 842 S.W.2d 588 (1992): where the mother of an embryo wanted to destroy the embryo against the father’s will. The court stated one of the factors in making their determination was the infertility of the father. Not joking, not irrelevant.

    J.B. v. M.B., 783 A.2d 707 (2001): Right of wife in divorce proceeding to prevent implantation of embryos was affirmed because court would not force wife to become biological parent against her will and husband’s right to procreate would not be lost.

    However, Kass v. Kass, 91 N.Y.2d 554 indicates that on other facts where a woman’s reproductive system is implicated would weigh heavily in the analysis, but is not dispositive.

    “This has been upheld regarding laws banning of 7-9 month voluntary abortions and medical consent laws for 4-6 month abortions.”

    These laws have nothing to do with third parties; they have everything to do with the fetus in and of itself. So, again, irrelevant.

    The laws have to do with the third party interests of the “State and the fetus”. If the fetus is a nonentity-an organ of the mother’s reproductive system, then how could any law have “everything to do with the fetus in and of itself?” Again not irrelevant.

  42. 42
    mythago says:

    “a man could not destroy an embryo where the mother was sterile and it was her only chance to parenthood”

    Actually, he can, if the embryo is not in her uterus (i.e. a “frozen embryo”). Her desire to be a mother does not trump his desire not to be a father, in the absence of any competing interest, such as the mother’s control over her body.

    A pregnancy is difficult to litigate because of the inherent time constraints

    But not impossible, and certainly the term of pregnancy is not holding courts back from considering these issues.

  43. 43
    jstevenson says:

    [female A-female B stuff]

    The female A-Female B stuff is not mere conjecture, but based on actual cases, not a narrow hypothetical.

    “This is mere conjecture based on a ridiculously narrow hypothetical situation.” Even if that were the case does that mean you will provide no analysis of these scenarios based on your propositions and analysis of the law?

    The court ruled that the egg “donor” qualified as an interested party and had standing under Cal. Fam. Code § 7650 to determine parentage because of her genetic consanguinity. K.M. v. E.G., 118 Cal. App. 4th 477, 482 (Cal. Ct. App., 2004).

    As basis for analyzing fetuses with regard to property rights the court said this:

    As [***44] jurists, we recognize the traditional role of the common (i.e., judge-formulated) law in applying old legal principles to new technology. (See, e.g., Hurtado v. State of California (1884) 110 U.S. 516, 530 [4 S. Ct. 111, 118, 28 L. Ed. 232] ["This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law."]; Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal. 3d 382, 394 [115 Cal. Rptr. 765, 525 P.2d 669] ["in the common law system the primary instruments of this evolution are the courts, adjudicating on a regular basis the rich variety of individual cases brought before them"].)

    The courts have also ruled that fetuses are not persons and are not property, but have articulated non-status individual rights of the parties who intentionally create the fetus, as opposed to sperm or egg donors. I hope that clears it up?

    In applying the standards: The court in applying old legal principles to new technology and [new relationships] would need to fashion rules regarding the rights of female spouses in Same-Sex marriages. In doing so it will have to look at 1)traditional rules regarding reproductive rights and common law as applied to surrogacy. The courts in fashioning laws regarding surrogacy, in the absence of a written agreement, have used estoppel and latches to determine the respective rights of the parties. In fashioning the respective rights of the parties to a same sex relationship, the courts have used a combination of traditional reproductive rights analysis and surrogacy analysis as it relates to marriage and identifiable gamete contributee.
    It is important to note: I stated that an unrelated surrogate cannot be forced to have an abortion under a surrogacy agreement, not that she had the unfettered Constitutional right to an abortion at any time.

    In light of former precedent, what would be the respective rights of female A in regards to her embryo implanted in her spouse female B. I would say that the answer would change regarding the circumstances — not a narrowly written hypothetical, but based on true facts. The hypothetical was just one fact scenario. Another hypothetical could result in another outcome. Nevertheless, would your position be that female B has the unfettered right to overcome female A’s reproductive rights. Remember the right to parenthood also includes the right to reproduction. Which means that a person cannot unreasonably interfere with anothers right to reproduction — if nature has done so that is another issue, but a person and the government could not.

    What is your answer? Anything, but denying female A’s reproductive interests in all accounts would be discriminatory. In your posts you have stated that a male’s reproductive interests can be infringed upon by a female in all circumstances. This logic is flawed in that a woman cannot make a choice in all circumstances because of the States interests. On the other hand a child-bearer can choose to circumvent the interests of a non child-bearing party regardless of the circumstances. That puts the state interests above the interests of the female A. Is that ok with you?

  44. 44
    jstevenson says:

    Mythago: See – Davis v. Davis, 842 S.W.2d 588 (1992): where the mother of an embryo wanted to destroy the embryo against the father’s will. The court ruled that she could not and the father’s interest in parenthood trumped her interest in not being a parent. Two basis for this decision: first the father was sterile and could not have children; 2) the mother consented to having children in the first place. Of course if the embryo were in her body then the mother would have an additional interest that would strengthen her factors, however “control over a woman’s body” is not a dispositive factor.

  45. 45
    Dan J says:

    Getting pregnant is not the same thing as being pregnant. Any woman who gets pregnant, but does not want to be pregnant, may terminate. Even if she got pregnant voluntarily. Even if she is carrying a fetus that is completely genetically unrelated to her. I really don’t see where the space for nuance is.

    When we speak of reproductive rights we aren’t asserting that reproducing in itself is a right. That would be ridiculous. Men and infertile women cannot reproduce their own genetic material without a woman to carry the fetus. That’s simple biological luck of the draw. The woman carrying the fetus must be absolutely willing, not just at the beginning, but every step of the way, or else, no deal. All reproductive rights really means is that a person cannot be compelled by the State to reproduce or to not reproduce.

    Intercourse is not a contract. That should be blindingly obvious (and in all fairness, I think it is to everyone here). The reproductive interests of the man are irrelevant in all pregnancies because the man does not carry the fetus. The man does not do any of the work (and it is work. I really had no idea until my own wife was pregnant, but you really have to want it, let me tell you). It might be unfortunate, but until such time as extra-uterine fetal gestation becomes possible, a willing woman is required to make a baby. Again, no space for nuance. The reason courts haven’t established equal reproductive rights for the party that doesn’t carry the fetus is because the party that doesn’t carry the fetus doesn’t have equal reproductive rights. To assert such rights would in and of itself violate the rights of the person carrying the fetus, should the interests of the parties involved be at cross purposes to each other. At what point does this become a complex situation ethically?

  46. 46
    jstevenson says:

    “Men and infertile women cannot reproduce their own genetic material without a woman to carry the fetus. That’s simple biological luck of the draw.”

    A woman may be able to carry the fetus, but that does not mean she can reproduce her own genetic material. Exclusion of fertile women is not correct in your analysis. Better stated — men and women cannot reproduce their own genetic material without a woman to carry the fetus.

    “The reproductive interests of the man [or non child-bearing mother] are irrelevant in all pregnancies because . . . [neither party . . . carries] the fetus. [C]ourts haven’t established equal reproductive rights for the party that doesn’t carry the fetus [] because the party that doesn’t carry the fetus doesn’t have equal reproductive rights. To assert such rights would in and of itself violate the rights of the person carrying the fetus, should the interests of the parties involved be at cross purposes to each other.”

    While, I respect your view that reproductive interests of nonchild-bearing parents are not relevant, it is not the view of U.S. and several States’ high court. The Supreme Court and the courts of several states have held or stated in dictum, this proposition in numerous opinions ranging from abortion to surrogacy to cryogenically preserved embryos. They have also held the reproductive interests of all parties are equal. See the above cases, Casey, marital property dissolution case and other parental consent cases.

    Nevertheless, the party that does not carry the fetus has equal reproductive interests, but does not have rights over the reproductive system of the person carrying the fetus. The interest in controlling your reproductive system, in addition to your equal reproductive interests, is greater than the single interest of the nonchild-bearing to reproduction or not.

    I don’t understand why that is such a hard concept to grasp. Party one has one interest implicated and party two has two interest implicated if weighted equally (note that even if the child-bearer is not implicated in the reproductive interests — not her biological child, that single interest will still prevail for a certain time period depending on the States interest) then party two will win because they have two competing interests to the nonchild-bearing parties one interest.

    Of course the balancing test is not reduced to a soccer match by the courts, but the balancing test of interest does take all interests into consideration, including the equal interests of reproduction.

    My question is why does the State’s interest supercede the interest of party one’s right to reproduction? I will explain one instance: If party one wants an abortion and party two does not party one will be a parent. If party one wants and abortion and party two wants an abortion, but the states interest in the fetus and safety of the mother is greater then the two will be parents. If party one does not want an abortion, the biological mother cannot decide (incapacitated), and the States interest dictates an abortion, health of the mother — party one and part two will be parents, maybe.

    This illustrates that the interest of the State is greater than the interest of party one, the nonchild-bearing party (regardless of gender).
    Under the theory of “All reproductive rights really means is that a person cannot be compelled by the State to reproduce or to not reproduce.” Party one will be forced to reproduce or not reproduce based on the states interest. How do you reconcile that. Additionally, say the child-bearing party does not want to bear a child and the parties (parent A and parent B) do not want to reproduce . . . how do you reconcile the state interfering in their right not to reproduce if the right to reproduce is an unfettered right bestowed upon a fertile female, carrying a fetus?

  47. 47
    Dan J says:

    What exactly do you mean by State’s interest in the examples above? If neither party wants to reproduce and the person carrying the fetus doesn’t want to carry it to term, then what’s the problem? What possible compelling State interest could interfere with the decision of the person carrying? Are there any examples?

    Additionally, I think you’re splitting hairs on the equal interest point. After all, the person carrying the fetus will always have the extra interest of reproductive privacy on top of whatever interest she has in the fetus itself. So really, that makes the competing interests inherently unequal, therefore no equal reproductive rights. It’s always going to be two-to-one.

  48. 48
    jstevenson says:

    “What exactly do you mean by State’s interest in the examples above?”

    The State may restrict abortions when the fetus is deemed viable, regardless of the desires of the parties involved in the fetus’s life. That is based on the State’s interest in protecting the welfare of a potential citizen. Roe, Casey, etc. have all stated this proposition ad nauseum. Further, regardless of the interests of the parties, the State may restrict abortions if it may endanger the life of the child-bearing party. Those are the State interests the Court has deemed compelling enough to regulate the fundamental reproductive rights of parents, to include the child-bearing parties reproductive organs.

    “It’s always going to be two-to-one.” This is not necessarily true. A person may not be carrying the embryo of their genetic makeup. Therefore, the reproductive interests of the “mother” who is bearing the child does not necessarily have reproductive interests in a child not of her biological makeup. She does retain interest in her reproductive organs which provide a “qualified” right — based on the analysis in Roe — to reproductive choice. That would make it one-to-one-to-one. Nevertheless, the Court has held that the “qualified” right to reproductive choice ORDINARILY outweighs all other interests within the first trimester, but the State’s interests are greater by the third trimester.

  49. 49
    Hestia says:

    I can’t continue this discussion, jstevenson. Maybe I’m just not smart enough to handle your arguments, but quite frankly, I feel like I’m talking to a brick wall that’s been built by MC Escher.

    You’re misreading me, and I can’t understand how. When I said that a woman should not be forced to use her body against her will, I clearly meant that she should not be forced to remain pregnant if she does not want to be; when I said that you were showing disrespect for the woman, I clearly meant the pregnant woman. In misinterpreting what I’m saying, you’re avoiding the points I’m making.

    You also haven’t really addressed the other points I’ve been bringing up, namely, a woman is never, and should never be, legally or morally, required to be pregnant against her will, no matter what the circumstances; you have confirmed this claim in saying that women should have–indeed, do have–the right to choose. This contradicts your claim that other people may on occasion restrict that right. You can’t have it both ways.

    I’m having a lot of trouble figuring out why the court cases you refer to are relevant to your main argument. None of the cases you cite–from what I can tell; you never provide links–restrict the woman in question’s right to an abortion at all, not even indirectly.

    I still have no idea exactly what “rights” you think a partner has to a fetus; you seem to be trying to get at them in a roundabout fashion that I just can’t follow. You invent incredibly improbable hypothetical situations and use them as if they’re the standard. You refer to vague or abstract concepts and use them in confusing ways. (What are “interests,” anyhow? and why would any interest supercede a woman’s right to an abortion?)

    And your writing style is very difficult for me to interpret; I acknowledge that this may be my problem. As an example: “Party one has one interest implicated and party two has two interest implicated if weighted equally (note that even if the child-bearer is not implicated in the reproductive interests — not her biological child, that single interest will still prevail for a certain time period depending on the States interest) then party two will win because they have two competing interests to the nonchild-bearing parties one interest.” I’ve read that sentence four times, and I still have no idea what you’re saying.

    So you go ahead and think whatever you want, and I’ll continue to think whatever I want, and let’s just leave it at that.

  50. 50
    Amanda says:

    You know, it’s always the “radical feminists” that are accused of wanting people to get an airtight verbal agreement before going to bed. But these men’s rights type seem like they want people to have a written “in case of pregnancy” contract. A whole new field of law?

  51. 51
    mythago says:

    jstevenson, you might want to take a second look at Davis v. Davis. The mother did not win the right to have the embryos put into her body; the court held that the embryos could be donated to a childless couple, i.e. the biological father would have neither rights nor responsibilities wrt them, as they would legally be somebody else’s children.

    There has been at least one case where a mother wishing to become pregnant was not allowed to implant an embryo because the father no longer wanted to become a father.

  52. 52
    jstevenson says:

    I am sorry for my confusion. I will be concise.

    “What are “interests,” anyhow? and why would any interest supercede a woman’s right to an abortion?”

    An example of an “interest” is a woman’s “interest” in protecting the sanctity of her reproductive system or the State’s “interest” in protecting a future citizen and the welfare of the mother.

    Those are two competing “interests”. The State’s interest prevails in the third trimester. What that means is that a woman does not have the “right” to choose to have an abortion in the third trimester. “[The] right [to terminate] may be significantly limited only where the State demonstrates that its regulation is narrowly drawn to serve a compelling state interest. American College of Ob/Gyn’s v. Thornburgh, 552 F. Supp. 791, 796 (E.D. Pa. 1982). The Supreme Court also explained interests in Roe v. Wade: “The right of personal privacy includes the abortion decision, but this right is not unqualified and must be considered against important state INTERESTS in regulation.” Roe v. Wade.

    Other interests are the interest of a person (man or woman) in parenthood. A person has an “interest” in privacy regarding their choices in parenthood. Everyone has those interests. A person also has an “interest” in their biological off-spring.

    All of these are competing “interests” used by the Supreme Court to determine if a State may regulate those interests or someone has an actionable claim against another for violating those interests.

    I am HTML illiterate and cannot provide links to cases, but findlaw.com is a good website. http://www.findlaw.com/casecode/#federal will direct you to the appropriate case law. If you enter in the parties and the date you should be able to find the cases. Also, “The G.I.F.T. of Two Biological and Legal Mothers” — http://www.wcl.american.edu/journal/genderlaw/09/9-1gift.pdf — is a good paper regarding the rights and ramifications of lesbian motherhood. (it is a little one sided, but more to the middle than the religious fundamental papers I have read). I hope that helps.

    My only point was to ignore the realities of other’s viable arguments is dangerous. The issues I brought up are not narrow. They are real issues encountered by real lesbian and straight couples. They would most certainly beg to differ that their lives are remote.

  53. 53
    ccanning says:

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