How to Remove Copyrighted Content

There’s no denying that the ease of sharing has changed the Internet. The ease to which one can copy/paste or right click and save an image to save on their own blog is too hard to ignore.

This has given rise to a new problem that especially concerns content creators: sharing of copyrighted content without credit or fair compensation.

Sharing copyrighted content is no joke with fines that can go up in the hundreds of thousands but it’s also a white collar crime that’s offten hard to detect. In fact, most small-time publishers are almost counting on that.

They never believe their tiny blog or website will be taken to court over a couple of images. And they’re not completely wrong. The likelihood of being taken to court, with thousands in legal expenses, is, frankly, small.

However, with new services popping up like Copyright Crackdown to remove copyrighted content, this number is sure to go up. For example, Copyright Crackdown promises to monitor copyright infringement and report it to content creators.

So, if you’ve been sharing unzuthorized copyrighted images, be warned. Spending a few dollars for a legitimate license to use the images may save you thousands in the long run.


All Day Kindergarten and The Achievement Gap

Minnesota Governor Mark Dayton has continuously advocated for state funding of all day kindergarten and last month, the Minnesota Senate passed a bill which provides for this funding. Minnesota has struggled with achievement gaps between white students and students of color.  Minnesota is considered to have one of the worst achievement gaps in the nation. Reducing that achievement gap is one of the goals of increased funding for all day kindergarten.

The bills can be found with these citations:

2013 MN S.F.453 (NS) 2013 MN H.F. 630 (NS)

These documents are also the first two that appear if you search in Minnesota Proposed & Enacted Legislation with the following query:

all-day /5 kindergar! & DA(last 6 months)

To explore the idea of all day kindergarten outside of Minnesota, I ran the following plain language search in secondary sources:


My initial results include:

Luke van Houwelingen, Tuition-Based All-Day Kindergartens in the Public Schools: A Moral and Constitutional Critique, 14 Geo. J. on Poverty L. & Pol’y 367 (2007)

Lisa M. Brooks, Full-Day Kindergarten: A Step Towards Breaking the Cycle of Poverty in Indiana, 37 J.L. & Educ. 437 (2008)

Eugenia Tunstall, The Price of Knowledge: Funding Full-Day Kindergarten in Arizona, 39 Ariz. St. L.J. 1325 (2007)

Changing my search by to include “achievement gap” yields these useful sources:

Floyd D. Weatherspoon, Racial Justice and Equity for African-American Males in the American Educational System: A Dream Forever Deferred, 29 N.C. Cent. L.J. 1 (2006)

James E. Ryan, A Constitutional Right to Preschool?, 94 Cal. L. Rev. 49 (2006)

Erin E. Lawson, Fulfilling the Promise of Education to South Carolina’s at-Risk Children: A New Preschool Initiative in South Carolina, 58 S.C. L. Rev. 1025 (2007)


Head Start Research

Earlier this year, President Obama proposed to provide expanded preschool access, the purpose being to reduce the achievement gap between wealthy and poor children. See 2/14/13 Reuters News 20:24:28. But there are concerns as to the effectiveness of preschool programs on the achievement gap. Head Start is a federally subsidized early childhood education program, whose focus is on low-income children from infancy to kindergarten. A recent study, provided by the U.S. Department of Health and Human Services (HHS), showed relatively nominal benefits. See 2/14/13 Reuters News 20:24:28. Supporters claim that the problems exist because Head Start has been inadequately supported. HHS Head Start research can be accessed at the Office of Planning Research and Evaluation.

Governor Messages

Gov. Mark Dayton vetoed education bills in the past because they failed to fund all day kindergarten.  To search governor messages, navigate to the state legislative history page, run a search like this one:

adv: DAYTON & all-day-KINDERGARTEN and veto!

Then, filter by document type.

Amanda Knox Retrial: Extradition Research

By now nearly everyone is familiar with the story of Amanda Knox: In 2009 Knox, a University of Washington student studying abroad in Perugia, Italy was convicted of the November 2007 murder of her roommate, Meredith Kercher. Her Italian boyfriend, Rafaelle Sollecito, suffered the same fate. Knox and Sollecito were sentenced to 26 and 25 years of incarceration, respectively. A third defendant, Rudy Guede, was sentenced to 16 years in prison in a separate trial.

In October 2011, after years of struggle, an Italian jury cleared Knox of murder and other charges. She was sentenced to three years on a defamation charge but received credit for time served. Knox eventually returned to her hometown of Seattle where she resides with her family. She had reportedly resumed her studies at the University of Washington. However, the Italian High Court recently quashed her acquittal and ordered a retrial for Kercher’s murder. The retrial is expected to be heard early 2014 in an appellate court in Florence. If convicted in the retrial, Knox would have the option of appealing to the High Court.

The retrial raises issues regarding extradition and the principle of double jeopardy. If convicted, Knox could be ordered to return to Italy. Should she refuse, the Italian government could seek her extradition. This initiated debate focusing on the extradition treaty (1983 WL 472059) between the United States and Italy, and its reference to double jeopardy. Alan Dershowitz, a Harvard law professor, noted that in the United States, “when you appeal a conviction, you waive your double jeopardy rights.” It remains to be seen whether double jeopardy will be binding on the Knox case. She has vowed to fight the charges, and her attorneys have stated that Knox one day hopes to visit Italy again as a free woman.

It’s been said that freedom isn’t free, and if Amanda Knox retains her freedom after the retrial she will have paid a very heavy emotional, physical and psychological price.

To find extradition treaties, navigate to United States Treaties and Other International Agreements (Home > Administrative Decisions & Guidance > Federal Administrative Decisions & Guidance > Department of State > United States Treaties and Other International Agreements)  Enter extradition into the title field:


For additional materials on these matters, try the following searches on WestlawNext:

double jeopardy and extradition to foreign country (14)

Search Type: Plain Language

Content: Overview

Jurisdiction: All Federal

adv: extradit! /s treaty /200 foreign /2 country /200 “double jeopardy” (25)

Search Type: Boolean T&C

Content: Cases

Jurisdiction: All Federal

adv: extradit! /s treaty /p foreign /3 country /p “double jeopardy” (4)

Search Type: Boolean T&C

Content: Secondary Sources

Jurisdiction: All State & Federal

Minnesota Legalizes Same-Sex Marriage

I had a brief discussion today with one of our editors  who tells me that Minnesota Laws 2013, Chapter 74, legalizing same sex marriage should be on Westlaw very soon after the governor signs the bill at a 5:00 pm ceremony (Central time).   Roughly, that means the law should be available around 6 pm depending on how much ceremony there might be before the governor signs the bill.  For obvious reasons, we do not publish session laws to our collections until they are actually signed.  Until then, you may read the engrossed bill here:  2013 MN H.F. 1054 (NS). To find the law, once published, navigate to Minnesota Enacted Legislation on WestlawNext or to MN-LEGIS on Westlaw Classic. Try a simple Terms and Connectors search for chapter 74:



A bill for an act relating to marriage; providing for civil marriage between two persons; providing for exemptions and protections based on religious association;amending Minnesota Statutes 2012, sections 363A.26; 51 1; 51 3, subdivision 1; 51 8, subdivision 1a; 51 9; 51 7 The bill becomes effective in August of this year.

Researching the New Copyright Royalty Judges

It was reported yesterday that the U.S. Copyright Royalty Board (CRB) appointed two new “royalty judges”: David Strickler and Jesse Feder. The CRB might not be a well-known entity, but “billions of dollars and the fates of entire industries can ride on the Copyright Royalty Board’s decisions”  SoundExchange, Inc. v. Librarian of Congress 571 F.3d 1220 (2009).

The role of the CRB is to set royalty rates and terms for statutory licenses.  See generally, 37 C.F.R. Chapter III. These include rates webcasters pay for broadcasting music, rates paid for cable and satellite retransmissions, and rates paid by musicians for  “covers” of other musicians’ musical works.

The rate making proceedings can be politically charged.  For example, check out the Radio and Internet Newsletter accounts of the initial rate-making proceedings for webcasters. To maintain the fairness of these proceedings, Congress  amended the process several times. Most recently, the Copyright Arbitration Royalty Panels (CARPs) were replaced by the CRB in 2004 (PL 108-419).  Before that, Copyright Royalty Tribunals were replaced by CARPs in 1993 (PL 103-198).

Today’s Copyright Royalty Judges are appointed to six-year terms and are afforded a great deal of power; specifically, they are given “full independence in making determinations concerning adjustments and determinations of copyright royalty rates and terms, the distribution of copyright royalties, ….” 17 U.S.C. § 802(f)(1)(A)(i).

With so much at stake, it’s worthwhile to examine our new CRJ’s legal profiles.  A word of caution here: We make no assumptions about how these individuals might rule or what kind of parties they might favor (e.g., big vs. small).  Consider Jesse Feder, for example.  He served the Business Software Alliance for many years, an organization that has arguably favored a “maximalist” interpretation of copyright law.  Note that opposing counsel for recent BSA litigation includes two public interest groups; the Electronic Frontier Foundation and Public Citizen.

But also note that Mr. Feder  sits on the Section 108  Study Group whose mission is to reexamine “the exceptions and limitations applicable to libraries and archives under the Copyright Act, specifically in light of the changes wrought by digital media.”  One cannot say for certain how this advocacy might affect CRB decision-making so we recommend a search across multiple sources:


The table above can be found on a company report from  Monitor Suite.  Simply search for Business Software Alliance.  The resulting report allows you to view a litigation profile for the BSA that may be filtered by court, practice area, opposing counsel, etc.  For help on this, contact a Reference Attorney at 877 347 6360 (Select 1). You may also run litigation profiles for law firms here.


Both attorneys have numerous documents attributed to them on WestlawNext.  To find them, begin by typing profiler into the search box. A pop-up box will recommend a collection of resources.  Choose, Profiles of Attorneys & Judges:

Use the template to identify the attorney, then access the References tab to view relevant documents (briefs, cases, dockets, etc.)


Simple Terms and Connectors searches seem to work though “David Strickland” is a more common name and requies additional filtering.

adv: feder /5 jesse and copyright

For more on the political back-story, try a plain language search in Blogs on Demand

“copyright royalty judge”

Remember that quotes on WestlawNext do not function as a boolean operator unless you direct it do that.  This recommended search  clusters relevant terms near one another. To run as an advanced search click the link at the top of the page after running this recommend search:

Or, start with this:

adv: “copyright royalty judge”

Who Owns My Nude Photos?

If you have a cell phone, you’ve likely snapped a nude photo of yourself or your significant other. And you aren’t alone. According to new research, attention craving nude celebrities aren’t the only ones to bare all in front of a mirror.

But what happens when those photos leak? The law makes it very clear that the person who took the photos owns the copyright on them.

So are you out of luck if an ex is threatning to leak said nude photos? The good news is the law also makes it extremely clear that extortion is a crime. This should be reported to your local authorities immediately to be dealt with.

In Vitro Fertilization

Robert Edwards, a Nobel prize winning pioneer of in vitro fertilization (IVF) technology died last week. His work and achievements contributed to the birth of the first “test tube baby” born in 1978. In vitro fertilization involves fertilizing a human egg outside of the body, in a laboratory. Once the egg is successfully fertilized, it is then transferred to a woman’s uterus, where the hope is that the egg will implant and result in a successful pregnancy.

The development of this procedure and technology was met with a host of ethical and legal concerns. The Catholic Church early on objected to the work, arguing that human life should only commence through intercourse, and not artificially outside the human body.  And of course, there are a wide variety of legal implications resulting from the use of this technology. With IVF, traditional notions of parenthood thrown aside – the woman donating eggs may not be the woman carrying the child, and may not even be the woman meant to be the eventual mother of the child. The technology has opened up many options for hopeful parents who, for one reason or another, may not be able to have children “the old fashioned way.” It has opened doors for same-sex couples and unpartnered/unmarried individuals to be able to have biological children, or at least genetically related children. But alternatively, there are ethical and social concerns to be considered as well. The Washington Post provides:

“At the same time, because women are paid to donate their eggs or offer their wombs to become surrogate mothers, worries have arisen that the costly procedure has turned reproduction into a commodity. Because infertility clinics are largely unregulated in the United States, critics say many push ethical boundaries. For example, some enable couples to choose the sex of the child.”


I ran the following search in WestlawNext Secondary Sources:

TI,PR(i.v.f. “in vitro fert!”)

In the first few results I found articles about health plan exclusions regarding IVF:

Health Plan that Specifically Excluded In Vitro Fertilization Did Not violate California Law,  2009 WL 3936285

Health Plan Not Obligated to Pay for Teacher’s Infertility Procedure9 No. 5 Andrews Health L. Litig. Rep. 5

There are several articles about employment related issues, including discussion about sex discrimination claims after women expressed intentions to undergo IVF, or took time off to do IVF treatments:

7th Cir: In Vitro Fertilization Not Gender-Neutral; Secretary May Proceed with Sex Bias Claim, 2008 WL 8850278

Bar Server Fired After Pursuing IVF Treatement Could Proceed With Her PDA, Title VII Claims, 2011 WL 8828854

There are also articles addressing problems that have arisen in the IVF process:

Couple to Sue for Emotional Damages from Embryo Mix-Up, 8 No. 10 Andrews Health L. Litig. Rep. 10

Fertility Clinic to Face Medical Malpractice Claim, Paretta v. Medical Office for Human Reprod., 10 No. 12 Andrews Health L. Litig. Rep. 5

Ability of Twins Posthumously Conceived Through in Vitro Fertilization to Qualify for Child Survivor Benefits Under the Social Security Act, 11-18-2011 U.S. Sup. Ct. Actions 4


Check out the Citing References from this recent Supreme Court decision: Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 182 L. Ed. 2d 887 (2012)

Child of assisted reproductive technology, 2 Family Estate Planning Guide § 33:20 (4th ed.)

Legal Status of Posthumously Conceived Child of Decedent, 17 A.L.R.6th 593 (Originally published in 2006)

Genetics and reproductive science, Forensic DNA Evidence: Science and the Law § 13:15


My last thought was about IVF and divorce. Some couples might preserve embryos or preembryos resulting from IVF for later use. What happens to those embryos upon the decision of a couple to divorce? I ran the following search in WestlawNext:

i.v.f. “in vitro fert!” /250 divorc! dissol!

A brief glance at some of the initial cases:

J.B. v. M.B., 170 N.J. 9, 783 A.2d 707 (2001), holding: “former wife’s fundamental right not to procreate would be irrevocably extinguished if a surrogate mother bore former wife’s child through use of preembryos, and thus, Court would not force former wife to become a biological parent against her will; and (3) agreement regarding disposition of preembryos entered into at time IVF is begun is enforceable, subject to right of either party to change his or her mind about disposition up to point of use or destruction of any stored preembryos.”

Kass v. Kass, 235 A.D.2d 150, 663 N.Y.S.2d 581 (1997), holding: “(1) informed consent document and uncontested divorce instrument in which parties unequivocally stated their intent as to manner of disposition of cryopreserved fertilized human ova produced during in vitro fertilization procedure governed the disposition of those ova following parties’ divorce, and (2) informed consent document required ova to be used by IVF program for scientific purposes following parties’ divorce.”

J.B. v. M.B., 331 N.J. Super. 223, 751 A.2d 613 (App. Div. 2000) aff’d as modified, 170 N.J. 9, 783 A.2d 707 (2001), holding: “that in vitro fertilization (IVF) contract by which former husband and former wife agreed to relinquish control and ownership of embryos to IVF program if their marriage were dissolved was unenforceable.”

Some secondary source results include:

Right of Husband, Wife, or Other Party to Custody of Frozen Embryo, Pre–embryo, or Pre–zygote in Event of Divorce, Death, or Other Circumstances, 87 A.L.R.5th 253 (Originally published in 2001)

Erecting Women: Contracting Parenthood From Marriage To Divorce, Rachel Polinger-Hyman, Erecting Women: Contracting Parentenhood from Marriage to Divorce, 2 Hous. J. Health L. & Pol’y 241 (2002)

Disposition of Cryopreserved Preembryos after Divorce, Karissa Hostrup Windsor, Disposition of Cryopreserved Preembryos After Divorce, 88 Iowa L. Rev. 1001 (2003)

AIG, with a straight face

On Wednesday, AIG refused a demand that it sue the federal government over unfair bailout terms.  How is it possible that AIG might, with a straight face, consider such a suit? Didn’t they just thank us for our contribution?   However shocking AIG’s participation in this suit might seem, AIG says it had no choice but to consider the demand from its former chief executive, Hank Greenberg. Is this true?

As many of you are no doubt aware, a derivative action is a suit brought by a shareholder on behalf of the company.  In order for a shareholder to usurp this role reserved for corporate management, a shareholder must first demand the directors bring suit.  Only after the board fails to take action may a shareholder bring a suit derivatively.  See,  Rule 23.1 of the Federal Rules. But, does AIG have an obligation to consider this action?

We tried this simple search on WestlawNext in Delaware:

liability for refusal to consider presuit demand

Our results address whether a plaintiff is excused from the demand requirement.  But, our top case law results recite the basic principle that a board’s decision not to take action on a pre-suit demand is subject to the business judgment rule. Citing a key case, Zapata Corp (430 A.2d 779), the court in Aronson v. Lewis noted:

…where demand on a board has been made and refused, we apply the business judgment rule in reviewing the board’s refusal to act pursuant to a stockholder’s demand.

Aronson v. Lewis, 473 A.2d 805, 813 (Del. 1984) overruled by Brehm v. Eisner, 746 A.2d 244 (Del. 2000)

AIG has been careful to point out that Delaware law requires them to make this consideration.  It’s a difficult marketing challenge.  Although the general public might hold a strong opinion on whether AIG might be “too big to fail,” few of us will confess a detailed familiarity with the intricacies of derivative actions and corporate governance.


Demand Letters

Generally these demands can be difficult to find but, Rule 23.1(b)(3) requires “that the complaint in a shareholder-derivative action allege with particularity the efforts made by plaintiff to obtain the action plaintiff desires from the board of directors.” See Wright and Miller,  FPP 183.   So, look for exhibits in complaints.  We found the following example by searching federal pleadings for 23.1 /p demand /p exhibit:

By letter dated May 23, 2008, in compliance with Rule 23.1 of the Federal Rules of Civil Procedure, Plaintiff, through counsel, made demands on BOAC’s Board to, inter alia, pursue through litigation, the claims alleged in this action and name as Defendants those identified above, among others responsible for the wrongdoing as alleged herein (the “Demand Letter”). A copy of the Demand Letter is attached as Exhibit “A.” The Board apparently treated the Demand Letter as if it had no material significance since, as of the date of this Complaint, four months after it was sent, the Board has neither responded to the Demand Letter nor taken the actions demanded therein.1Accordingly, Plaintiff’s demands have been effectively rejected by the Board.

P.E. LUCAS, Derivatively on Behalf of Bank of America Corporation, and its shareholders…, 2008 WL 5168452 (C.D.Cal.)


The Exhibit A referenced in the allegation can be found here: 2008 WL 6893654.


Related Action See Starr Int’l Co. v. Fed. Reserve Bank of New York, 2012 WL 5834852.


Fletcher Cyclopedia Reference

The Fletcher Cyclopedia (at 13 Fletcher Cyc. Corp. § 5969) cites Schick v. Amalgamated Clothing  for the idea that a board of directors has no obligation to take any specific type of action to respond to the demand:

The “demand” contemplated by Rule 23.1 is really a form of notice designed to afford to the corporation’s board an opportunity to consider the facts asserted and to exercise its business judgment whether to press any arguable claim the corporation may possess or to take other action. Zapata Corporation v. Maldonado,Del.Supr., 430 A.2d 779 (1981). The board has no obligation to take any specific type of action to comply with a demand under Rule 23.1. The board may, for example, ignore the demand, or it may take other action it deems appropriate if, in the exercise of its good faith judgment the circumstances indicate that the corporation’s interests would be served thereby. But, because a Rule 23.1 demand serves a notice function, it makes little difference with respect to the board’s duty, upon receiving information of the kind contained in the Union’s letter, whether the information comes from a stockholder or from another and thus it makes little sense to think in terms of “entitlement to make a demand.”

Schick Inc. v. Amalgamated Clothing & Textile Workers Union, 533 A.2d 1235, 1240 (Del. Ch. 1987)

Refusing Vaccines

It’s a hot topic among the parenting crowd, that’s for sure. I have friends and acquaintances who run the gamut on vaccination opinions; from those who don’t vaccinate at all, to partial/selected vaccinations, delayed vaccinations, and those who choose to fully vaccinate their kids.

A Vegan’s Beliefs

Now, the issue has come up in the realm of labor and employment law. Indiana University Health Goshen Hospital recently terminated employees for refusing the flu vaccine in late December, 2012. As far as we know, no claims have been filed but the IU nurses did claim medical and religious reasons for why they should be exempted from the hospital’s policy.

A recent federal court decision in Ohio touched on the issue of religious objections to vaccinations. An employee was discharged after refusing to be vaccinated for influenza as required by her employer, a children’s hospital. The employee had in previous years been granted a waiver to this requirement, because she claimed that, as a vegan, she could not ingest any animal or animal by-products. After being discharged, the employee filed suit against the employer, alleging religious discrimination and wrongful discharge.

The employer hospital moved to dismiss, but the court declined to dismiss, finding that the plaintiff’s beliefs in regards to veganism to be ones that could be “held with the strength of traditional religious views” in accordance to precedent. The court also notes, as did the plaintiff, that the Code of Federal Regulations definition of religious practices can include “moral or ethical beliefs as to what is right and wrong” as long as they are “held with the strength of religious views.” Chenzira v. Cincinnati Children’s Hosp. Med. Ctr., 1:11-CV-00917, 2012 WL 6721098 (S.D. Ohio Dec. 27, 2012)




Case Law

For related case law, try the following terms and connectors search on WestlawNext:

 sy,di(refus! +10 vaccin! innoculat!)

Many of the most relevant cases were older:

Anderson v. State, 84 Ga. App. 259, 65 S.E.2d 848 (1951) – Parents were found guilty of failing to enroll their children in school as a result of their refusal to allow them to receive required vaccinations. The parents objected to the vaccinations on religious grounds. The court here noted that “The refusal of the defendants here to have their children vaccinated amounted to a transgression of the rights of others.”

State v. Miday, 263 N.C. 747, 140 S.E.2d 325 (1965) – Defendant convicted of failure to vaccinate his child and failure to send his child to school. The court ultimately found that whether the father was justified in his religion-based refusal to vaccinate was a matter for a jury, and that “it is not necessary for a religious organization to forbid vaccination in order for its teachings to come within the meaning” of the statutory exemption for vaccination requirements.

Kolbeck v. Kramer, 46 N.J. 46, 214 A.2d 408 (1965) – Student was denied admission to a University due to his refusal to submit to smallpox vaccination. Student sued to compel admission, arguing that he objected to the vaccination on religious grounds, for which the University allowed an exemption to the vaccination requirement. The court upheld the trial opinion that the student had sufficiently proven his religious justification for refusing the vaccination.

I wanted to see more recent cases on these issues, so I filtered my cases by date. I decided to see how many results we get since January 1, 2000. There are 22 remaining cases. These include:

Boylan v. Matejka, 331 Ill. App. 3d 96, 770 N.E.2d 1266 (2002) – Navy veteran who received General Discharge under honorable conditions, one reason for which was his refusal to submit to an anthrax vaccine, was not eligible for a grant that was limited to veterans who had received an honorable discharge.

Adoption of Shelley, 55 Mass. App. Ct. 1115, 774 N.E.2d 686 (2002) – Court upheld finding of parental unfitness where (among other reasons), she had refused to allow her child to submit to necessary vaccinations.

Martin v. Donley, CIV.A. 11-1590 RBW, 2012 WL 3574048 (D.D.C. Aug. 21, 2012) – Former Air Force Reservist who had received general discharge due to his refusal to submit to a required vaccination requested that it be changed to honorable. Military board denied request, and court upheld decision, finding the decision to not be arbitrary and capricious.

Baetge-Hall v. Am. Overseas Marine Corp., 624 F. Supp. 2d 148 (D. Mass. 2009) – Medical officer on a maritime prepositioning ship sued former employer claiming retaliatory discharge after she refused to receive the smallpox or anthrax vaccinations. The court held “[t]erminating an employee for allegedly stating her intent to notify federal authorities about dangerous or harmful activities aboard a seagoing vessel raises significant public policy concerns” such that the plaintiff established a prima facie case for retaliatory discharge under maritime law for whistleblowing. But the court also held that the plaintiff’s refusal to take the vaccinations qualified as a non-retaliatory reason for her termination. The court addressed a variety of other issues, including evidence of disparate treatment.

Secondary Sources

Try a search using the title and preliminary fields:

ti,pr(vaccinat! innoculat!) & refus! /25 vaccinat! innoculat!

In my secondary source results, I see the following:

Compulsory Vaccination, 12 Yale L.J. 504 (1903)

Lea Ann Fracasso, Developing Immunity: The Challenges in Mandating Vaccinations in the Wake of A Biological Terrorist Attack, 13 DePaul J. Health Care L. 1, 2 (2010)

Ben Horowitz, A Shot in the Arm: What A Modern Approach to Jacobson v. Massachusetts Means for Mandatory Vaccinations During A Public Health Emergency, 60 Am. U. L. Rev. 1715 (2011)

Jay Gordon (FNd1), Parents Should Not Be Legally Liable for Refusing to Vaccinate Their Children, 107 Mich. L. Rev. First Impressions 95 (2009)

Christine Parkins, Protecting the Herd: A Public Health, Economics, and Legal Argument for Taxing Parents Who Opt-Out of Mandatory Childhood Vaccinations, 21 S. Cal. Interdisc. L.J. 437 (2012)

Daniel B. Rubin, Sophie Kasimow (FNd1), The Problem of Vaccination Noncompliance: Public Health Goals and the Limitations of Tort Law, 107 Mich. L. Rev. First Impressions 114 (2009)

Unintended Fatherhood? Kansas Court to Determine Sperm Donor’s Paternity

On Tuesday, January 8, a hearing in Shawnee County (Kansas) District Court is scheduled to determine whether a sperm donor may legally be determined to be the father—and, therefore, responsible for child support—of a child conceived via artificial insemination. See, e.g., 2012 WLNR 28090983.

In 2009, William Marotta answered a Craigslist ad for sperm donation placed by a lesbian couple—Jennifer Schreiner and Angela Bauer—who wished to conceive a child. The sperm donation resulted in the birth of a girl, now three years old. Schreiner and Bauer have since separated, and Schreiner, the birth mother, has sought financial assistance from the state of Kansas to care for the child. To lessen the state’s burden, the Kansas Department for Children and Families filed a petition last October requesting Marotta be named as the child’s legal father, under Kansas Statutes Annotated § 23-2208, which involves scenarios in which paternity may be presumed.

Marotta contends that subsection (f) of § 23-2208 applies to absolve him, as a sperm donor, of paternity. That subsection, rather than listing a paternity presumption like other subsections, mandates definitively that a sperm donor shall not be deemed the father of any child(ren) resulting from his donation, unless the donor and the woman agree to the contrary in writing. Not only did Marotta opt to forego a written instrument accepting paternity, he did the exact opposite in signing a written agreement with Schreiner and Bauer wherein Marotta disclaimed all parental rights and associated obligations.

But, importantly, § 23-2208(f) only mentions sperm donations “provided to a licensed physician.” Therefore, the state argues, the subsection does not apply to shield Marotta from fatherhood, because he, Schreiner, and Bauer failed to use a doctor in their efforts at artificial insemination. Indeed, the parties have admitted as much—that after agreeing to be a sperm donor, Marotta simply dropped off a container of semen at the couple’s house and the two women achieved the insemination themselves.

I will be curious to read of the conclusion reached by the Shawnee County District Court and the reasoning it used in so doing. One case that is likely to be addressed is In re K.M.H., 169 P.3d 1025 (Kan. 2007), where the Supreme Court of Kansas held Kansas Statutes Annotated § 38-1114(f) (later renumbered at § 23-2208(f)) applied to bar a sperm donor from seeking paternity. Like Marotta, the donor in In re K.M.H. did not deliver his semen sample to a medical professional. A licensed physician was involved, however, in the insemination process—the donor gave his container of sperm to the woman hoping to get pregnant, and she, in turn, provided it to the doctor who performed the insemination—and the court deemed this sufficient to bring the parties’ actions within the scope of § 38-1114(f).

In re K.M.H. gives a good overview on the development and state of paternity laws regarding sperm donation existing at the time of the opinion, both in Kansas and nationally. In re K.M.H. at 1033-39. But if you are interested in researching additional related decisions that have come out in the five years subsequent, you may find the following search of interest:

Query: status presum! relationship /5 parent! patern! matern! don! father! mother! & (sperm semen /7 donat! donor) (assist! artificial /5 reprod! fertil! conce! inseminat!) & (self /5 administer!) (#no #not #never #without fail! lack! /7 doctor physician surgeon “medical professional”) & DA(aft 10/26/2007)
Content: Cases
Jurisdiction: All State & Federal

The very first decision in the list of 52 resulting cases is E.E. v. O.M.G.R., 20 A.3d 1171 (N.J. Super. Ct. Ch. Div. 2011), wherein, faced with a similar statute to the one in Kansas, the New Jersey court found the state law, otherwise shielding a sperm donor from paternity, does not apply if a licensed doctor was not involved in the insemination.

Many states’ laws on this topic are derived from the Uniform Parentage Act (UPA). See, e.g., id. at 1174; In re K.M.H. at 1034. The UPA, as originally promulgated in 1973, mandated the involvement of a licensed physician if a sperm donor is to relinquish paternity. In re K.M.H. at 1034. Notably, however, the revised UPA deleted any such reference to doctors. Run the following searches to see for yourself:

Query: donor donat! semen sperm egg ova ovum /p doctor physician “medical professional”
Content: Uniform Parentage Act (1973)

Query: donor donat! semen sperm egg ova ovum /p doctor physician “medical professional”
Content: Uniform Parentage Act (2000) (Last Amended or Revised in 2002)

Lastly, for a listing of all state statutes on the topic that also include reference to doctor- or physician-inclusion in the process, try the following query:

Query: status presum! relationship /5 parent! patern! matern! father! mother! don! & (sperm semen egg ova ovum /7 donat! donor) (assist! artificial /5 reprod! fertil! conce! insemin!) & SD(doctor physician surgeon “medical professional”)
Content: Statutes & Court Rules
Jurisdiction: All States