Author: TSA Press

Politics

One of the worst men in America admits the obvious about Donald Trump.

By Elie Mystal

Nov 20, 2019 at 6:15 PM

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It’s about that time of the year. No, not the holidays. It’s the time when some of us start to panic trying to cram in our CLE credits before the calendar year is over. Also, why are ethics courses always the most boring CLE credits to earn? In any event, while you are thinking deep thoughts about ethics, or merely trying to stay awake for the sake of maintaining your law license, consider adding to your ethics reading list this thought-provoking article on Surrogacy Professionalism by assisted reproductive technology law attorney Christina Miller and ethics professor June Carbone. The article is a must-read for any attorney starting out in the surrogacy field, facing a rocky road paved with ethical dilemmas. Maybe your state will even give you some self-study CLE credit.

Taming The Wild West … Through Lawyers

Surrogacy Professionalism characterizes American surrogacy law — often described as “ART” law even though there are no paintings — as “confusing, inconsistent, evolving, and difficult to categorize.” As you know from reading this column loyally, that’s not wrong. The article takes a hard look at the different ways jurisdictions have attempted to regulate the practice of surrogacy within their borders — banning or even criminalizing the practice, accepting the practice and setting guidelines and standards, or doing nothing (a popular choice!).

Miller and Carbone argue that all of these methods have their flaws. Even the most well-thought-out state regulation suffers from the pervasive defect that people and entities can travel beyond the regulations’ reach by merely crossing into other jurisdictions with friendlier legal environments. “It cannot be overstated how much uncertainty there is in the practice of ART law. Even if a surrogacy arrangement takes place in a jurisdiction like California that has clear law on the subject, the intended parents cannot rule out the possibility that a gestational carrier will flee to another jurisdiction, such as Michigan, where she will be the legal parent.”

The authors argue that a more effective route than creating laws on surrogacy arrangements themselves is to regulate the attorneys who practice in the area.

If There Isn’t Law, Why Do We Need Attorneys?

Miller and Carbone argue that, given the contractual emphasis prior to an attempted pregnancy in a surrogacy arrangement, the attorneys drafting and advising the participants are key players to mitigating future conflicts. They also contend that a number of standard surrogacy contract provisions might be unenforceable. These include abstaining from eating sushi or deli meats, or avoidance of microwaves. Or, more seriously, the common provision that a surrogate agrees to terminate, or not to terminate, a pregnancy in accordance with the intended parents’ wishes.

In the infamous Melissa Cook case, written about here previously, the gestational surrogate claimed that she never read the 75-page contract that she signed, and did not know that she had agreed to aborting part of her pregnancy from triplets to twins, or even a singleton if asked of her by the intended parent. When it was requested, her refusal sparked a long and arduous legal battle, ending with all three babies being born, but with her application for parental rights being denied. The case went all the way to the Supreme Court before a denial of certiorari ended the matter.

In Surrogacy Professionalism, the authors argue that the importance of such a key provision for one party normally would have led skilled attorneys to question whether Melissa Cook really wanted to be a surrogate for the intended parent in this case. Even if they parties ultimately wanted to proceed, perhaps they might have chosen to only transfer one embryo at a time, instead of the three that resulted in triplets.

Certification Time?

Surrogacy Professionalism argues that there is “a clear need for a surrogacy practice group to develop a specialty certification program that could be accredited by the American Bar Association, and whose members agree to abide by the ABA’s ethical guidelines.” The authors point to California’s specialty certification in family law. This doesn’t mean that you can’t practice without certification, but the certification would arguably give an attorney extra credibility in the marketplace. Only after practicing in the area for five years, spending 25 percent of professional time focused on the area, and passing a written exam, can a California attorney be certified as a family law specialist. A similar state-specific or national program could at least give consumers confidence in choosing an attorney with substantial experience in the area, although objectors will point toward further “cartelization” of the legal practice.

Conflicts Everywhere

The authors also explore the daily conflicts faced by surrogacy attorneys. For one, the legal fees of the attorney representing the surrogate are inevitably always paid by the intended parents (aka, the opposing party). This, of course, could possibly make the attorney more inclined to give in or appease the opposing party (the source of their fees), instead of zealously advocating for their client. In another regularly occurring conflict, most surrogacy attorneys receive many of their referrals from matching organizations. While it might not be in the client’s interest to go forward with the match, a broken match could mean a reduced or dried up referral source for the attorney as a result.

The conflicts take on another dimension when the matching entity and the representing attorney have intertwined interests. But the authors come out as “agnostic” as to whether such a conflict is permissible and reasonably overcome with disclosure, exploring both the pros and cons of the interconnected professional roles.

These are merely a few of the conflicts discussed that a surrogacy attorney will inevitably encounter. While I may not be eager to see more attorney regulation (it’s hard enough to keep up with all the CLEs!), Miller and Carbone pose some fascinating questions in their focus on the ethical issues regularly faced by surrogacy attorneys, and suggest reasoned proposals for improving the field. Definitely worth a read, especially if you are new to the area or considering bravely venturing into the surrogacy field.

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Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

REUTERS

In our series of letters from African writers, journalist-turned-barrister Brian Hungwe says the need for cash has not been eased by the release of new Zimbabwean dollar notes over the last week.

In Zimbabwe, cash is king.

You need notes in your hand to avoid paying a premium for goods.

This has come about because of a chronic shortage of physical cash – which has led to a three-tier pricing model.

For example, if you go into a supermarket to buy a 15 Zimbabwean dollar loaf of bread, you can pay:

• Z$15 in cash
• Z$18 in mobile money
• Z$20 by debit card.

You also need cash to pay for bus fares – electronic transactions are not accepted on public transport – and road-side vendors or some small grocery shops only take cash.

REUTERSStreet vendors prefer notes or coins to electronic payments

A family of five with children of school-going age will need Z$250 a week for transport.

Extra weekly cash costs for bread, tomatoes and sugar could tot up to about another Z$150.

Yet banks have been rationing cash withdrawals to Z$300 a week – and ATMs have been empty.

Often people have been waiting fruitlessly in bank queues as there has not been enough money to give out.

Collusion

The cash crunch has led to a spike in inflation – it was running at 100% in June, when the local currency was officially reintroduced, and is now between 300% and 400%.

It has also led to a new term: “cash baron”.

REUTERSThere are long queues at banks for people waiting to get their weekly ration of cash

These are the people who never seem to have problems getting hold of cash – and are also in part to blame for rising inflation.

They make money from people needing local cash or foreign currency notes.

A family that needs cash to get their children on to buses to go to school will look for a cash baron – or their acolytes – to buy the cash, often paying 30% more for the notes.

These money speculators tend to hang out in the centre of the capital, Harare, or in busy markets.

It is alleged the cash barons are able to get hold of notes because of corrupt relationships with some banks officials.

Last week, the bank queues began moving forward thanks to a new supply of Z$2 and Z$5 notes, worth about Z$30m, that were released by the central bank, although some banks were rationing daily withdrawals – not allowing people to take out their Z$300 weekly allowance in one go.

However, the influx of cash did not seem to affect the cash barons.

In fact social media was awash with pictures of some alleged barons walking out with loads of newly minted green Z$2 notes.

Two banks have since been put under investigation for releasing huge tranches to some customers – who apparently used the money to source hard currency on the black market.

And President Emmerson Mnangagwa has issued a warning to the cash barons that they will soon face justice.

But any penalties may not be enough to deter the appetite for US dollars on the black market as businesses need them to purchase desperately needed products.

People also need hard currency to buy medicines or to go abroad for treatment, given the failing health service, where doctors have been on strike for months.

And Zimbabweans have little faith in how the government has managed the economy over the last decade.

Back to the future

The Zimbabwe dollar was abandoned because of hyperinflation in 2009, when the country mainly adopted the US dollar and the South African rand.

Annual inflation reached 231 million per cent in July 2008. Officials gave up reporting monthly statistics when it peaked at just under 80 billion per cent in mid-November 2008.

Scolastica Nyamayaro has had to choose between buying her medicine or food.

In June the Zimbabwe dollar was reintroduced and foreign currencies were banned because the country had effectively run out of forex – as it was importing more than it was exporting.

Prices are now increasing on average about twice a month while salaries have remained stagnant.

REUTERSPrices continue to rise but salaries remain stagnant

The central bank says over the next five months there will be a gradual injection of Z$1bn in cash.

And while Zimbabweans may be wary of high dollar bills – with memories of trillion dollar notes – there are now ironically calls for higher denominations such as a Z$50 bill.

For many it feels very much like it’s back to the future.

At the moment the highest denomination of Z$5 – which is worth about 30 US cents – cannot buy a soft drink or ice cream.

Post published in: Business

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