Adding constitutional depravation to untimely death: South Dakota's living will pregnancy provision

In 1991, the South Dakota Legislature enacted a living will statute. Included is a pregnancy provision that prevents pregnant women from obtaining the full benefit of the statute. A South Dakota Attorney General's opinion was released discussing the conflict of laws problems posed by the statute. That opinion, however, did not address the more important question of the constitutionality of the pregnancy provision. This comment analyzes the pregnancy provision under the Due Process, Equal Protection, and the Establishment Clauses and concludes that South Dakota's pregnancy provision is unconstitutional under all three doctrines.

Wrongful birth and the politics of reproduction: West German and English law considered

This article considers the law relating to compensation in tort and contract for failed sterilizations and failed abortions leading to the birth of an unplanned but healthy child in the Federal Republic of Germany and England. It uses a policy-based analysis which takes the social construction of gender as a significant factor in judicial decision making. It criticizes existing literature for failing to take into account gender divisions in society and points to ways in which both the framework within which wrongful birth cases are discussed generally and the limitations which have been placed on recovery specifically reflect gender stereotyped notions of female and male behaviour and sexuality. I conclude that there are three main areas of concern in the wrongful birth cases: a) the inadequate recognition which the law accords to women's work in the home when awarding damages for maintenance of the unplanned child to majority; b) the awarding damages exercised by the politics of abortion, which can lead to undue restrictions on recovery; and c) the difficulties which the law experiences when attempting to conceptualize an interference in a woman's procreative autonomy in the same terms as an interference in a typically 'male' sphere of life, such as professional autonomy. Thus there is an urgent need to reconsider the categories of the law of obligations such as 'damage' and 'compensation', which are central to the principle of individual responsibility for harm caused, in order to reveal their gendered content and differential effects.

On teaching biopolicy and values in selected reproductive technologies: abortion, in vitro fertilization, and surrogate motherhood

This article is divided into three parts: "Faculty Preparation: Immersion in the Literature," "Conceptualizing and Organizing the Course," and "Course Design." The first part is addressed particularly to readers without access to a computer search of the literature. It suggests resource materials for each of the technologies. It also speaks to the meanings of and approaches which may be used to study biopolitics. Biopolicy is the approach used in the course. The second part addresses the problem of finding a unifying concept which would bring cohesion to the multiple and diverse materials and issues. It also includes the statement of purpose and course objectives. It is here that the development of identifying and demonstrating the nexus between the reproductive technologies and public policy begins. It also discusses methodologies used in the course. The third part lists the activities that served as a guide in designing the course and cites remaining caveats in course development. The paper concludes with statements about required reading materials, review materials, audio-visual aids, and a broad outline of the course.

Forensic obstetrics

Some of the more important and current aspects of forensic obstetrics are, broadly,1. Fulfillment of basic criteria in all cases of alleged traumatic abortion.2. Utilization of therapeutic abortion review boards, as well as sterilization committees, in all hospitals, with the active support of such committees by all those physicians interested in advancing the art and practice of obstetrics.3. Early and active joint study of professional liability problems by combined groups of physicians and lawyers in every community.