Adoption and Age Discrimination

In recent years, we’ve heard a lot of discussion of interracial adoptions and adoptions by same-sex couples.  But it is possible that the most pervasive form of discrimination in adoption is discrimination against older prospective parents.  3L Sara Mills explores this topic in a new paper on SSRN entitled “Perpetuating Ageism Via Adoption Standards and Practices.”  She argues that age discrimination in adoption may be unconstitutional and proposes a new statute to address the problem.  Here is the abstract:

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it affects minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic examination of the issue of age discrimination in adoption and proposes both constitutional and statutory remedies to counter the problem.  The justifications for age discrimination in adoption are no longer supported by empirical evidence or societal realities.  Ultimately, when an older petitioner is denied the right to adopt, the agency, the court, and, fundamentally, society are implicitly rejecting the worth and dignity of older individuals and impermissibly discriminating based on ageist stereotypes.

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Can New Patent Rules Help to Reduce Biopiracy?

Endowed with extraordinary genetic diversity, the world’s tropical rainforests have produced the raw material for many highly profitable pharmaceuticals.  Yet, the nations in which the rainforests are located — many of which are among the poorest in the world — often realize little economic benefit.  “Bioprospectors” have traditionally had little difficulty operating outside the legal regulation of source nations.  And, once biological materials are transported to the developed world, they may be made the basis for legally enforceable patents there.  Then, adding insult to injury — or perhaps more accurately, injury to insult — the patents may impair the ability of source nations to use their own genetic resources.  To critics, this dynamic — often labeled “biopiracy” — calls to mind the long tradition of exploitative north-south relationships going back to colonial days. 

The Convention on Biological Diversity aims to strengthen the position of source nations by requiring bioprospectors to obtain prior informed consent before using materials from other nations.  However, the treaty has a weak enforcement mechanism, and the United States is not even a party to it.

Responding to the weaknesses of the CBD, 3L Laura Grebe has an interesting new proposal to incorporate the prior informed consent concept into U.S. patent law.  Her proposal is described and defended in a new paper on SSRN entitled “Requiring Genetic Source Disclosure in the United States.”  In essence, Laura would require patent applicants to disclose the origin of their genetic materials and whether they obtained prior informed consent from the source nations.  Among other things, she hopes that U.S. reforms along these lines would become a model for other nations.

The abstract to Laura’s paper appears after the jump. 

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Reconciling Competing Definitions of Death

When does life end?  The question has important consequences for many areas of law, from criminal law to trusts and estates to taxes.  The law has traditionally associated death with a cessation of cardiac and respiratory functioning, but advances in medical technology now mean that hearts and lungs can be kept working artificially for long periods of time.  As a result, U.S. law has generally shifted over the past half-century to a new definition of death that turns on whether there has been an irreversible loss of brain functioning.  However, as 3L Rachel Delaney explains in a new paper on SSRN, Orthodox Jews have continued to adhere to the old cardiac standard as a matter of religious law.  This creates a potential for conflict and the possibility of further emotional harm for family members at a time when they are already dealing with the loss of a loved one — for instance, if a brain-dead patient were withdrawn from life support at a time when the patient was not actually dead according  to the family’s deeply held religious beliefs.

Rachel thus argues that the law should recognize a religious exception to the brain-death standard.  Indeed, she contends that such an exception may be required by the Free Exercise Clause.

Rachel’s article is entitled “Defining Death: Why All Fifty States Should Adopt the Uniform Definition of Death Act with a Religious Exception.”  The abstract appears after the jump. 

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