Friday, November 17, 2006

Family law & technology: addendum

Salon does it two days in a row, this time with a post in Broadsheet about a German court ordering a gynecologist to pay child support to a woman whose contraceptive implant failed.

It's one thing to call for the men responsible for making babies to cough up the cash and provide for their chitlins, but a court in Germany this week has redefined the concept of responsibility for children with a ruling that will no doubt stand as a low moment in judicial discretion. According to the BBC, a gynecologist who inserted a contraceptive patch that left his patient chagrined and with child has been ordered to pay child support.

Thursday, November 16, 2006

Proving yet again that the law is inadequate

Today's Salon has a compelling story about a fertility clinic mixup. Two couples go for treatment- Couple One wants HIS sperm in HIS girlfriend only; Couple Two needs an anonymous donor. The clinic (by all accounts, accidentally) used the first man's sperm in the second man's wife. Now Man One wants paternity and visitation; Man Two does not. The lawsuits fly, and the law is not in the position to resolve it. One hundred years ago, people would have laughed if someone suggested that a man could donate his sperm. Today it is perfectly acceptable- but the laws that govern the family are not much different.

The law is perpetually changing, but at a glacial pace; technology is also perpetually changing, but at Moore's pace. This has been especially apparent in intellectual property law, where patents now routinely outlive the useful life of the invention, but the march of technology now requires entirely new frameworks in just about everything. For example, the Fourth Amendment protects people from unreasonable searches "in their persons, houses, papers, and effects." Is a word processing document a "paper"? Does one's "house" extend to the server on which the document is stored? Is there a reasonable expectation of privacy in the call log on your cell phone?

These issues will explode in the coming years. Despite the thousands upon thousands of pages of new laws and regulations that spill forth each year, the bulk of the law that governs the way people live from day-to-day is roughly 1,000 years old. The Constitution is a mere babe in the woods compared to the Magna Carta, and yet the Constitution- without question the most important legal document in the history of all humanity- was written for a world lit by candlelight and coal fire; for a world in which the trip from Philadelphia to New York took about a week; for a world in which goods rarely left the town they were produced in, never mind the state- but the Interstate Commerce clause is (textually, at least) unchanged in that entire time.

The law is supposed to change slowly. The trick is to try to think ahead, to leave room for the future. This is hard to do even during times of relative stability, but it has been done before. And sometimes, the changes are actually good. There is a reason that the Constitution survives after 200-plus years.