Trade Practices and 'Wrongful Birth'?

A reader has pointed to a Melbourne Herald-Sun item (I must visit Maccas to graze the tabloid bin more often) reporting that "a man who [inadvertently] fathered a baby with a prostitute has taken legal action to stop the woman seeking child support payments from him for the child's upbringing".

The judgement is Lilley & Logan [2009] FMCAfam 868.

Complainant 'Mr Lilley' has apparently told Federal Magistrate Grant Riethmuller that he shouldn't have to pay for inadvertent offspring given the circumstances of conception. He claims that there was "a consumer transaction" with sex worker 'Ms Logan', who potentially breached the Trade Practices Act 1974 (Cth) [here] on the basis of an implied term of contract between clients and sex workers that women would take measures to avoid pregnancy. His affidavit indicates that 'Ms Logan's' basis for seeking financial support is "fundamentally flawed", given her job. One might indeed assume that coitus with a female sex worker would not deliberately result in offspring.

The legal action challenges whether the sex worker and the national Child Support Agency (CSA) have a right to seek money for child support. It follows suspension of initial payments, under an informal agreement between Lilley and Logan, after he lost his $140,000 pa job and fell behind in the payments.(The Court notes that he regained employment at $80,000 pa; things are perhaps not quite as dire as might be inferred from coverage in the tabloids.)

The magistrate said that the circumstances of conception made no difference to the child's entitlements under the Child Support Scheme, notably under the Child Support (Assessment) Act 1989 (Cth) [here]. That conclusion reflected the High Court's decision in Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131 and Magill v Magill 2006] HCA 51; (2006) 231 ALR 277.

Cattanach concerned action against a doctor whose alleged negligence in failing to correctly sterilize a female patient resulted in the birth of an unwanted child, with the parents - in the end unsuccessfully - seeking maintenance payments from the practitioner. Heydon J concluded that

The various assumptions underlying the law relating to children and the duties on parents created by the law would be negated if parents could sue to recover the costs of rearing unplanned children. That possibility would tend to damage the natural love and mutual confidence which the law seeks to foster between parent and child. It would permit conduct inconsistent with a parental duty to treat the child with the utmost affection, with infinite tenderness, and with unstinting forgiveness in all circumstances, because these goals are contradicted by legal proceedings based on the premise that the child's birth was a painful and highly inconvenient mistake. It would permit conduct inconsistent with the duty to nurture children.

Magill eventuated after DNA testing following collapse of the marriage between Mr and Ms Magill indicated that two children of the marriage were not the biological offspring of the husband, who consequently claimed damages in deceit for loss of earnings, loss of use of moneys, personal injury and pain and suffering. The High Court in its judgement noted the relevance of the statutory regime intended to minimise the role of fault in determining legal rights and liabilities following marriage breakdown of marriages and arrangements under Family Law Act 1975 (Cth) for repayment of moneys wrongly paid for child support.

In the current case Lilley was ordered to keep paying $100 per week, pending a foreshadowed appeal to the Social Security Appeal Tribunal.

Riethmuller noted that Lilley might potentially initiate action for damages against the owners of the brothel/escort service or against Ms Logan as an individual.

Observers have unhelpfully commented that "sex without a condom is illegal" in licensed Victorian brothels and escort services ... ss 158-160 of the Public Health & Wellbeing Act 2008 (Vic) appear to be somewhat less restrictive. The Lilley judgement does not make clear whether there was any failure of prophylaxis, a deceptive/mistaken claim by the sex worker that she could not bear children, a decision on the part of the mother not to terminate an unintended pregnancy, or simply no attempt at contraception - consistent with the values highlighted in works such as Tim Dean's Unlimited Intimacy (University of Chicago Press, 2009).

Questions about a tort of 'wrongful birth' or 'wrongful conception' continue to be contentious, with disagreements about instances where negligence or bad luck resulted in the birth of a healthy child and those where a child was born with disabilities (the latter inspiring efforts to sue medical practitioners or even parents). They are illustrated in works such as 'Conceptualising Harm in the Case of the 'Unwanted' Child' by Nicolette Priaulx in (2002) 9(4) European Journal of Health Law 337-359, 'Damages for 'Wrongful Birth': Where to After Cattanach?' (University of Melbourne Legal Studies Research Paper No. 89 2004) by Martin Vranken [here], 'Of Wrongful Birth, Wrongful Life, Comparative Law and the Politics of Tort Law Systems' by Ivo Giesen in (2009) 72 Tydskrif vir Heedendaagse Romeins-Hollandse Reg 257-273 [here], 'Abandoning the Common Law; Medical Negligence, Genetic Tests and Wrongful Life in the Australian High Court' by Tom Faunce in (2007) 14(4) Journal of Law and Medicine 469-477 [here], 'Wrongful birth, wrongful conception, and the Irish Constitution' by Brenda Daly in (2005) 12(1) European Journal of Health Law 57-76 and Etienne de Villiers Hugo's 1999 D Legum dissertation 'The actions for Wrongful Life, Wrongful Birth and Wrongful Conception - A Comparative Study from a South African Perspective' [here].

Intersex and Inclusion

The US-based Intersex Initiative advocacy group notes questions about inclusion in US anti-discrimination legislation - along with "sexual orientation, gender identity and gender expression" - of "intersex status".

Arguably, from the perspective of law, that status is as much a legal construction as it is a biological 'fact' beyond contention or "developmental disorder" that can/should be "corrected" through medical intervention.

The Initiative states that

After careful examination, we have come to oppose the "inclusion" of "intersex" or "intersex status" in any legislation that prohibits discrimination in employment, housing or public accommodation.

It justifies exclusion on the basis that

1) The vast majority of people born with intersex conditions [the initiative claims 1 in 2,000 but figures in other sources suggest that the incidence of conditions at birth is much rarer] do not view "intersex" as part of their identity. In fact, many people would not even describe their condition as "intersex," as they feel that they simply have a medical condition, like congenital adrenal hyperplasia or androgen insensitivity syndrome, and not "intersex status." Its inclusion along with "lesbian, gay, bisexual and transgender" further spreads the inaccurate perception that "intersex," like "lesbian, gay, bisexual and transgender," is an identity group.

2) The whole point of intersex human rights violation is that it is erased out of existence, and as such one is rarely recognized as an "intersex" person unless that information is disclosed. There are many other serious human rights violations that occur in the lives of people born with intersex conditions, and the "inclusion" of intersex in the non-discrimination law would give the false impression that they have done enough to protect intersex people's rights.

3) When people say that they were discriminated because of their intersex condition, what they usually mean is that they were discriminated against on the basis of their perceived sexual orientation, gender identity, or gender expression. These types of discrimination should be treated as that, the discrimination on the basis of perceived sexuality and gender; intersex people who are perceived to have different sexuality or gender are better protected by establishing and strengthening LGBT civil rights laws rather than creating an entirely new protected class of "intersex."

Whether an intersex person identifies as gay or trans is irrelevant here, since non-discrimination laws do not protect people on the basis of their identities, but on the basis of how others perceive them to be. For example, a straight person could be discriminated on the basis of his or her perceived homosexuality, and that person deserves the same exact protection as someone who is actually gay.

4) As more people "come out" publicly as "intersex," there is a possibility that some of them will face discrimination for having that status. The discrimination based on medical conditions, such as those categorized as intersex, is considered a disability discrimination, which is already illegal in the United States. One could draw a parallel here between intersex people and people living with HIV/AIDS here: aside from all possible health issues to worry about, both groups have medical diagnoses that could make them vulnerable to discrimination and violence if revealed to the wrong people.

The Initiative goes on to suggest that

whether or not an intersex individual "identifies" as "disabled" is irrelevant (many other conditions covered under disability rights laws are not generally viewed as "disability" either), and intersex people are better protected from this type of discrimination by strengthening the existing laws against disability discrimination, rather than creating a new law.

In fact, it would be impossible to make a convincing case for creating a new protected class of "intersex" because we cannot document (or even conceive of) any actual case of "intersex discrimination" that isn't already covered under existing (e.g. disability rights) or emerging (e.g. sexual orientation and gender civil rights) statutes. ... adding the specific class of "intersex" to non-discrimination laws spreads false impressions about people born with intersex conditions, and trivializes more serious human rights violations specific to intersex. Intersex people are already covered from common forms of discrimination under existing disability rights laws as well as under sexual orientation and gender non-discrimination laws where they exist.

The Statement offers one perspective on advocacy and 'community identification' (interest or affinity group development) explored in 'Intersex and Intrasex Debates: Building Alliances to Challenge Sex Discrimination' by Julie Greenberg in 13(2) Cardozo Journal of Law and Gender (2006) 101-118 [SSRN here].

Questions about Australian law's ambivalence regarding intersex - centred on gender reassignment and marriage - are highlighted in 'Twisting the Knife: Discrimination in Law' by Karen Gurney in 9(2) Deakin Law Review [2004] 339-364 [here] and in case law such as O'Keefe v Sappho's Party Inc [2009] SAEOT 4 and In Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074.

On Equity

In between marking I'm reading the new On Equity (Pyrmont: Lawbook Co 2009) by Peter Young, Clyde Croft & Megan Smith ... 1,296 pages of loveliness, abeit in a softcover. There are worse things, I suppose, to do on a windy Canberra saturday afternoon.

The authors announce that

With some trepidation, we offer the first wholly new work on Australian equity for some time. For some years, fundamentalist members of the restitutionist school have proceeded on the basis that equity does not exist, or at least cease to be recognised as a discrete body of principles. Our observations have led us to conclude that this is an idle pretence. Equity is not only alive and well, but continues to grow and develop. It may be that this growth and development is more vigorous in Australia than in England due to the fact that in Australia we are removed from the corrupting influences of continental based civil and Roman law.

Not the book to read in bed at 1:00 AM but then neither is Gordon Horwitz's Ghettostadt - Łódź and the Making of a Nazi City (Cambridge: Harvard University Press 2009), which I confess I'm reading sporadically and slowly. It's a mix of a sober account of moral dilemmas facing the person in the street (a street sometimes knee-deep in mud and effluent) and those with a measure of power such as Rumkowski, notes on appropriation (warehouses of stolen feather blankets and baby caps and booties) and searing descriptions of what the bureaucrats characterised as 'resettlement' of small children, the ill and elderly.

Ghettostadt lacks the grand vision and pace of Adam Tooze's Wages of Destruction - The Making and Breaking of the Nazi Economy (London: Allen Lane 2006) or the focus provided in Gotz Aly's Hitler's Beneficiaries: How the Nazis Bought the German People (London: Verso 2007) and arguably elides the presence of Roman Catholic Poles around the Łódź ghetto but is worth reading for a scarifying account of inhumanity.

Gender, Law and Sport

Caster Semenya's controversial victory in the 800-metre final at the World Athletics Championships in Berlin earlier this week has featured questions about her gender status, reflected in an announcement by the International Association of Athletics Federations (IAAF) that it had asked Semenya to "undergo tests to verify that she was female". Testing reflects the 2006 IAAF policy [PDF].

The controversy and associated testing is of interest as illustrating questions about

• law & identity,
• the nature of gender,
• popular culture (one critic claimed that Semenya must be a man because she has beefy arms, a claim dismissed by her father on the basis that she has a passion for doing push-ups),
• human rights ('bend, spread & be searched for witches' marks' as a condition of competition?),
• media ethics (one tabloid headline reads "Prove You're Not A Boy") and
• athletics as a weakly-regulated business.

Semenya now faces a panel of experts convened by the IAAF to adjudicate challenges regarding her gender. The panel comprises an endocrinologist, a gynaecologist, an expert in internal medicine, a psychologist and a 'gender-transgender issues' specialist.

The ostensible significance of gender verification in athletics is attributed to the perceived advantage of masculinity, with males having significantly greater testosterone (critical to building muscle bulk for the strength that can determine a competition). In reality verification also reflects anxieties in popular culture about genetic endowments (covert/overt racism), fixity of characteristics in an age of pharmaceutical or other modification - noted for example in Maxwell Mehlman's The Price of Perfection: Individualism and Society in the Era of Biomedical Enhancement ( Johns Hopkins University Press, 2009) - and about gender roles.

As Jonathan Reeser notes in 'Gender identity and sport: is the playing field level?' in 39(10) British Journal of Sports Medicine (2005) 695-699, 'verification' is not new. It was systematised by the IAAF during the early 1960s, with female athletes in international sporting events undergoing physical examinations of their private parts, perceived by some people as demeaning (and by others as the price paid for entry to endorsement-land) and problematical in instances of 'ambiguous external genitalia' - characterised by some theorists as signifying an intersex identity and by smutty schoolboys as the sign of hermaphoditism.

The 1968 Mexico City Olympic Games saw introduction of a buccal smear genetic test, ie analysis based on a sample of cells scraped from the test subject's mouth. That 'sex chromatin' aimed to definitively determine gender by ascertaining whether the subject had the XY chromosomes of a male or two XX chromosomes of a female. It proved contentious because of false positive and false negatives, questions about the performance (or merely availability) of laboratories for processing the samples, and disputes about women endowed with the XY chomosomes that from a legal perspective could be seen as constructing 'maleness' but experienced who 'androgen insensitivity syndrome' and were thus in every other respect female. The test has been substantially replaced by more sophisticated analysis centred on the sex-determining SRY gene in the male chromosome.

What of Semenya? Her coach has said that she has "nothing to hide" and reportedly even offered journalists the telephone numbers of room-mates who have seen her naked in the shower. Next stop, a centrefold? After dropping the ball the IAAF has now indicated that gender verification will involve several measures, potentially including a psychological profile that will supposedly determine whether the athlete 'feels' that she is a woman. That profiling has some recognition in treatment or recognition of gender dysphoria, including surgery such as that featured in the Western Australian case featured earlier this week.

Points of entry to the large medical literature include 'Intersex and the Olympic Games' by Robert Ritchie, John Reynard and Tom Lewis in 101(8) Journal of the Royal Society of Medicine (2008) 395-399; 'Gender verification of female athletes' by Elsas, Ljungqvist, Ferguson-Smith, Simpson, Genel, Carlson, Ferris, de la Chapelle & Ehrhardt in 2(4) Genetic Medicine (2000) 249-54; 'Gender verification testing in sport' by Ferris in 48(3) British Medical Bulletin (1992) 683-697; and 'Gender verification of female Olympic athletes’ by Dickinson, Genel, Robinowitz, Turner & Woods in 34(10) Medicine & Science in Sports & Exercise (2002) 1539-1542.

Among the legal literature on interse and transgender in sport see 'Defining male and female: Intersexuality and the collision between law and biology' by Julie Greenberg in 41(2) Arizona Law Review (1998) 265-328 and her 'Intersex and Intrasex Debates: Building Alliances to Challenge Sex Discrimination' in 13(2) Cardozo Journal of Law and Gender (2006) 101-118; 'Far from the finishline: Transsexualism and athletic competition' by Pilgrim, Martin & Binder in 13 Fordham Intellectual Property, Media and Entertainment Law Journal (2002) 495-550; 'Swallows and Amazons, or the Sporting Exception To the Gender Recognition Act' by David McCardle in 17(1) Social & Legal Studies (2008) 39–57; 'Hacking the gender binary myth: recognizing fundamental rights for the intersexed' by Benson in 12 Cardozo Journal of Law & Gender (2005) 31; 'The Use of Drug Testing to Police Sex and Gender in the Olympic Games' by H Olsen-Acre in 13 Michigan Journal of Gender & Law (2006) 207-248; 'Transsexual Bodies at the Olympics: The International Olympic Committee's Policy on Transsexual Athletes at the 2004 Athens Summer Games' by Sheila Cavanagh & Heather Sykes in 12(3) Body & Society (2006) 75-102; 'Who will make room for the intersexed' by Kate Haas in 30(1) American Journal of Law & Medicine (2004) 41-68; 'Verifying the myth: olympic sex testing and the category "woman"' by Laura Wackwitz in 26(6) Women's Studies International Forum (2003) 553-560; and 'Gender Verification' by Arne Ljungqvist in Women In Sport (Wiley, 2000) 183-193.

Chocolate Starfish

IP Wars notes the Federal Court decision in Chocolaterie Guylian N.V. v Registrar of Trade Marks [2009] FCA 891. The judgement by Sundberg J, upholding the Registrar's decision to refuse trade mark registration of Guylian's seahorse-shaped chocolate, includes the comment that

there is a danger that first impressions will be sidelined when an analysis of a shape’s individual components or features is undertaken. In this case, the immediate impression one has of the mark in suit is of an ordinary seahorse. I would not expect most ordinary consumers to know that the tails of seahorses do not curl backwards, only forwards. I think most would know that seahorses have a tail and expect that they curl up in some direction. Accepting that the tail and the stocky appearance might, to a studious observer, appear unusual, I consider on balance that the average consumer would see it as a relatively ordinary representation of a seahorse. The possibility for confusion therefore between Guylian's shape and any other seahorse shapes is, I think, a real one

and that

In my view, it is quite possible that as at the priority date other traders might want to depict a seahorse, along with starfish, crabs, prawns for example, in a way that is similar enough to cause potential confusion in the minds of consumers. ... It might be thought that that fact, together with the fact that Guylian had been selling its seahorse shape in Australia for a long time (since the 1980s), would diminish the likelihood that, as at 2002, other legitimately motivated traders might in the ordinary course of their business wish to sell seahorse chocolate shapes. However, the absence of other seahorses on the market does not in my view mean it was unlikely that others may in the future wish to depict that particular sea creature.

(2009) 4(7) Journal of Intellectual Property Law & Practice 461-463 reported on Chocolaterie Guylian NV v Commissioner of Japan Patent Office, Case No. H-19 (gyo-ye) No. 10293 in the Intellectual Property High Court of Japan (IPHCJ), where that court found that Guylian's more famous seashell-shape chocolate was inherently distinctive and registrable without secondary meaning evidence. The decision was described by John Tessensohn & Shusaku Yamamoto as

a significant pro-trade mark development, being the first time that an appellate Japanese court has held that a 3D shape was inherently distinctive and registrable, outlining the distinctiveness criteria which will control future 3D trade mark examinations. The IPHCJ revoked the Japanese Patent Office (JPO) Board of Appeals' non-distinctiveness decision and held that the 3D shape of a seashell-featured chocolate bar was inherently registrable, the JPO having failed to discharge its evidentiary burden to support its non-distinctiveness rejection.

OECD on digital piracy

The OECD has released a new 134pp report (browsable here) on Piracy of Digital Content as a follow-up to the 2008 Seoul Declaration on the Future of the Internet Economy [PDF]. 

It centres on sports rights and overall is a statement of received wisdom. A dash of wasabi might have helped. 

The report is described as studying ...

digital piracy - the infringement of copyrighted content (such as music, films, software, broadcasting, books, etc.) - where the end product does not involve the use of hard media, such as CDs and DVDs. It presents the unique economic properties of markets for pirated digital products, where the existence of a large number of suppliers willing to provide pirated content at virtually no cost poses new and difficult challenges to copyright owners and policy makers in combating that piracy. These economic features, together with rapid technological developments, create special and unique problems to policy makers and the large number of actors involved in different jurisdictions.

Adoption changes in Qld

The Queensland Parliament today passed the Adoption Bill 2009 (Qld), which among other things will allow de facto couples to adopt children. People of different gender who have been in a de facto relationship for at least two years will be eligible to be adoptive parents. Children and birth parents involved in pre-1991 adoptions will also have more access to information about each other.

Child Safety Minister Phil Reeves announced provision of $1.2 million over three years for adoption support services, with a statewide post-adoption service offering "information, support and counselling to those affected by past or present adoptions in Queensland".

Premier Bligh, in responding to questions about whether gay and lesbian couples would be allowed to adopt children in Queensland, said that there is almost no chance of that happening. Proponents of 'no same-sex adoption until hell freezes over' might have benefited from a new paper by Elizabeth Burleson on 'International Human Rights Law, Co-Parent Adoption, and the Recognition of Gay and Lesbian Families' [here].

Burleson argues that children would benefit substantially from legal recognition of same-sex marriages and parenting. Her paper analyses international human rights law, co-parent adoption, and the recognition of gay and lesbian families. It addresses civil marriage and adoption challenges for same sex families, in particular looking at European Court of Human Rights jurisprudence relating to same-sex adoption and efforts to implement the 'best interest of the child' standard.

Human rights advocates are unlikely to be satisfied with the Government's announcement (18 August Hansard 1593) [PDF] that same-sex couples would be included in forthcoming legislation to decriminalise altruistic surrogacy. Commercial surrogacy (ie surrogacy done for profit) will continue to be illegal and no financial gain will be permitted other than reimbursement to the birth mother for reasonable hospital, medical and other associated expenses. Advertising for surrogacy births will also remain prohibited.

The rationale for the inclusion, egregiously inconsistent with exclusion from adoption, is that

We will do this because each and every Queenslander who wants to become a parent should be allowed the opportunity to do so. We will do this because anyone who is unable to conceive a baby but who wants to become a parent should know the joy of bringing a child into the world, providing them with life lessons, shaping their future and guiding them into adulthood. We will do this on an across-the-board basis, not shying away from the difficult and controversial choices. Today I can advise the House that same-sex parents will be included among those who will be affected by the decriminalisation of surrogacy because everyone, regardless of their sexual status or their gender, should be afforded the privileges of parenthood.