The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Citizenship

Bloodright Citizenship (Citizenship by Descent): Who Decides?

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An excerpt from Friday's concurrence in Guerra Quezada v. U.S., by Fifth Circuit Judge James Ho:

The Constitution vests Congress—not the judiciary—with the power to "establish an uniform Rule of Naturalization." And that basic principle dictates the correct result in this case. Federal courts may not confer U.S. citizenship on any individual who fails to comply with all of the conditions and requirements set forth in our naturalization laws—and that includes the requirement of physical presence in the United States.

Yet that's precisely what Plaintiffs [who were born outside the U.S. -EV] urge us to do here: They ask us to grant them citizenship, despite the fact that they plainly fail to comply with the physical presence requirement.

Plaintiffs theorize that they're exempt from the physical presence requirement, because the ancestor from whom they claim citizenship was "wrongly turned away at the border" due to "systemic barriers." They invoke a doctrine of constructive presence, based on a series of atextual rulings from the Board of Immigration Appeals.

But the constructive presence doctrine plainly conflicts with the governing statutory text. A number of our sister circuits have so held. And I'm grateful that our court today has agreed to so hold as well….

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Due Process

U Pittsburgh Denied Due Process to Professor as to Sexual Harassment Allegations

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Some excerpts from Friday's longish decision by Judge Nora Barry Fischer (W.D. Pa.) in Bhattacharya v. Univ. of Pittsburgh:

Plaintiff, Chitrabhanu Bhattacharya, a tenured professor employed in the School of Business of Defendant, the University of Pittsburgh, was suspended without pay for a year, and terminated from the H.J. Zoffer endowed Chair, for "pervasive but not severe" violations of Defendant's sexual misconduct policy….

Plaintiff sued, claiming the University denied him due process, and the court agreed. The court concluded that a one-year suspension from a tenured position, and termination from a $50,000/year chair, were deprivations of "property" that required due process, and that such due process wasn't provided:

Plaintiff contends that Defendant failed to give him adequate notice of the charges against him, or an adequate explanation of Defendant's evidence. He avers, to the contrary, that Defendant provided a July 10, 2023 notice of charges whose "sole allegation was that between June 2022 and May 2023 he engaged in 'unwelcomed verbal advances of a sexual nature.'" The July 10 letter did not disclose any charges of unwanted touching; and (with a single exception) Plaintiff was provided no notice of such charges prior to or at the commencement of a July 27, 2023 interview with Defendant's investigator Laurel Gift, Esq. (in which Plaintiff first learned the specifics of multiple charges against him in the course of being questioned about them by Ms. Gift).

Although Defendant alleges that Plaintiff was "verbally informed of the allegations against him, including allegations of physical touching, during his paid suspension meeting on June 6, 2023," the paragraph of Defendant's [Statement of Material Facts] cited in support of this allegation does not mention physical touching. Ultimately, Ms. Gift concluded that Plaintiff had engaged in pervasive sexual harassment based upon some 16 "behaviors/comments" comprising nine alleged incidents of unwelcome physical conduct and 10 or 11 alleged incidents of verbal behavior, as summarized in a table in her Investigative Report. Crucially, Plaintiff alleges, and Defendant effectively does not deny, that he "had no notice" of nine specified "behaviors and comments listed in the table that he was not asked about during his July 27, 2023 interview or at any other time during the investigation." …

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AI in Court

Judge's Allegedly "Relying Wholly" on AI in Order Is Covered by Judicial Immunity, Court Rules

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From Wednesday's decision in Phillips v. Parlade, by Judge Gloria Navarro (D. Nev.), where a litigant sued a state court judge in his case:

Plaintiff … argu[es] that judicial immunity does not apply in this matter because Defendant unlawfully delegated her official decision-making duties when she relied wholly on artificial intelligence to issue a judicial ruling, without any discretionary human thought, such that her actions cannot be considered a "judicial act." Plaintiff further argues that because Defendant delegated 100% of her decision-making duties, the rulings were in clear absence of all jurisdiction.

Judges enjoy absolute immunity from civil liability, even if their action was in error, done maliciously, or in excess of their authority. Judicial immunity applies unless the challenged conduct is accompanied by a clear absence of all jurisdiction or where the challenged conduct is not judicial in nature. Courts determine whether an act is judicial in nature by considering whether: (1) the act is a normal judicial function; (2) the events occurred in the judge's chambers; (3) the controversy centered around the case pending before the judge; and (4) the events at issue arose out of confrontation with the judge in his or her official capacity.

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Judge Rudofsky Will Be An Excellent Addition To the Eighth Circuit

I appreciate the trend of elevating District Court judges to the Circuit Court.

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I was extremely pleased to see that President Trump nominated Judge Lee Rudofsky of the Eastern District of Arkansas to a new vacancy on the Eighth Circuit. I have known Judge Rudofsky since his service as Arkansas Solicitor General nearly a decade ago. Judge Rudofsky is a committed originalist and a careful jurist. I echo the Wall Street Journal's strong editorial in support of Judge Rudofsky:

Over the past seven years, Judge Rudofsky has earned a reputation as a cerebral jurist willing to reconsider legal disputes from an originalist perspective. In 2022 he ruled that private parties can't sue under Section 2 of the Voting Rights Act, which was meant to be enforced by the government (Arkansas State Conference NAACP v. Arkansas Board of Apportionment). The left treated his reading of the law as sacrilege, but it was upheld on appeal.

This summer Judge Rudofsky dismissed the equal protection claim from a lawsuit challenging Arkansas's ban on critical-race theory in public schools (Walls v. Sanders). "A desire to protect students from 'left-wing indoctrination' is not tantamount to a discriminatory intent or purpose to adversely impact African American students," the judge wrote. "End of story."

I also appreciate President Trump's trend of elevating district court judges that he appointed to the court of appeals. Perhaps the best predictor of how a circuit judge will perform is past practice. Recently my friend Rob Luther flagged a number of Trump's district court picks from the past two years who should be on the short-list for any vacancy:

Let's review some of Warrington's best, young, District Court nominees/judges in: 1) Missouri (Divine, Benton, Bluestone, Lanahan); 2) Texas (Ganjei, Davis, Mitchell, Colmenero); 3) North Carolina (Orso, Rodriguez, Freeman, Bragdon); 4) Alabama (LaCour); 5) Kentucky (Meredith); 6) Montana (Smithgall Lane); 7) Kansas (Kuhlman); 8) Louisiana (St. John --- already elevated to the Fifth Circuit) and 9) Tennessee (Lea --- and ---today --- Adkisson --- one of Warrington's most active and trusted deputies).

Notably, no Court of Appeals seats are anticipated to open in most of these states anytime soon. In other words, many of these recently-minted District Judges are presumptively a blueprint of the next Republican President's Court of Appeals judges.

These nominations are among David Warrington's most important contributions. And I fully expect White House Counsel Will Scharf (who I've known since law school) to keep the momentum moving forward on nominations.

Israel

Israeli Settler "Terrorists" Unjustly Expel West Bank Palestinians From Their Land

I am generally pro-Israel. But these actions amount to ethnic cleansing and gross violations of property rights.

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As a general rule, I support Israel in its conflicts with adversaries like Hamas, Hezbollah and Iran. While I am no great fan of either the present Israeli government or the ideology of Zionism, Israel upholds liberal democratic values to a far greater extent than any of its enemies, and their victory would be a terrible catastrophe. Thus, I've even gone so far as to argue that it is a mistake for the Israelis to make hostage exchange deals with groups like Hamas, because doing so encourages more more terrorism.

But it is also important to remember that not all Israeli actions are just, and that Palestinian Arabs also have human rights that must be respected. This is one of those times where these points must be emphasized. Over the last few years, Israeli settlers on the West Bank have repeatedly attacked Palestinians living there, seeking to force them off their land. These actions are deeply unjust, amounting to ethnic cleansing and gross violations of private property rights. They also highlight broader dangers of ethno-nationalist claims to exclusive control over land.

The Times of Israel (a center-right Israeli publication) has a helpful overview of the recent settler violence:

Mahmoud Tubasi has not lived in his home in the village of Jalud, south of Nablus, since late July, after fleeing following weeks of settler violence…

Tubasi built the house some seven years ago on land owned by his family on the outskirts of Jalud. The property sits in Area B, where, under the Oslo Accords, Israel maintains security control while the Palestinian Authority is responsible for civilian affairs….

For nearly seven years, he and his family, including his two children and grandchildren, lived there peacefully, he said. But in April, some four months ago, settlers began targeting the home, first setting fire to it and then laying siege to Tubasi and his family.

On July 22, after his pleas for help went unanswered, the family fled. Watching from afar, Tubasi has since seen settlers moving around his home….

In recent years, settler extremists in the West Bank have stepped up campaigns of harassment and violence aimed at driving Palestinians from their homes, sometimes displacing whole communities….

Over the three years from January 2023 through April 2026, some 5,900 people in the West Bank were displaced from their homes due to settler violence, the UN Office for the Coordination of Humanitarian Affairs said in early July.

The figure includes mostly Bedouins (and some Palestinian farmers) living in what the UN defines as "communities." According to the UN, 45 such communities were completely displaced and another 72 were partially displaced.

In some cases, settlers subsequently established illegal outposts on land where the displaced communities had lived.

The UN is far from an unbiased source, when it comes to Israel. But even if the true number of people expelled from their homes is "only" a half or a third of the one they give, it's still awful.

I rarely agree with Mike Huckabee, an extreme social conservative and the Trump Administration's ambassador to Israel. But he is right to call these violent settlers "terrorists" and demand the Israeli government put a stop to their activities. As conservative (and generally pro-Israel) New York Times columnist Bet Stephens points out, the right-wing Israeli coalition government led by Prime Minister Benjamin Netanyahu has largely turned a blind eye to these actions because his rule is dependent on the support of far-right parties that back the violent settlers.

The settlers' actions are reprehensible for multiple reasons. Most obviously, they seek to expel Palestinian Arabs from their land simply based on their ethnic background. Such ethnic cleansing is obviously unjust. In addition, the seizure of homes, farms, and other property is a blatant violation of private property rights. Private property is both an important human right in itself, and a vital element of liberty and autonomy more generally. Palestinians are no less entitled to these rights than any other group.

The settlers claim they are justified in their actions because Jews are the true, exclusive owners and sovereigns of the area and therefore have the right to exclude and expel members of other groups. This kind of ethno-nationalist claim to exclusive territorial rights is far from unique to Israeli settler extremists. All sorts of nationalist movements make similar claims - including, of course, many Arab and Palestinian nationalists.

But the ubiquity of such claims cannot justify them. In my book Free to Move, and other writings, I have argued that racial and ethnic claims to exclusive territorial rights are inherently unjust for much the same reasons as racial and ethnic discrimination is unjust in other contexts: race and ethnicity are morally arbitrary characteristics that should not determine what rights people have, including where they are allowed to live and work.

In addition, historical claims that one group has a right to exclusive rule of some territory founder on the reality that almost all inhabited territories have a history of multiple ethnic and racial groups living there. Thus, none can claim history proves they are the exclusive owners. This is clearly true of Israel and the West Bank. Jews, of course, have lived there for thousands of years. But the same is true of Arabs and other groups.

Most people are unwilling to go as far as I do in rejecting ethnic territorial claims. But even those who accept such historical arguments to a limited degree, should still recognize it is unjust to engage in ethnic cleansing of people who have lived in an area for decades or centuries. Their historical claim to live there is as good as anyone else's.

I readily recognize that my arguments imply that Jews also should not be barred from living in the West Bank, as many Palestinian nationalists would like them to be. They should indeed be allowed to live there, if they choose. But they should not have the right to take Palestinians' land and other private property by force.

One can also defend the violent settlers on the grounds that their actions aren't as bad as those of Palestinian terrorists, most notably Hamas. It is indeed true that - so far, at least - the Israeli settlers haven't murdered, raped, or tortured civilians on anything like the same scale as Hamas has, especially during the horrific October 7 attack.

But that in no way justifies the Israeli settler violence, most of which is directed against innocent civilians, whose only wrong is that they are Arabs living on land the settlers want to take for themselves. "Not as bad as Hamas" cannot be the standard of judgment here. You can be less bad than Hamas, but still a terrorist criminal.

In 2020, the Israeli Supreme Court struck down a government policy intended to expropriate Palestinian property for transfer to Israeli Jews (citing some of my own writings on takings and property rights, in the process). Some of what I wrote then is applicable to the current situation, as well:

Jews, including my own ancestors, have a long history of being victimized by unjust property expropriations at the hands of both European and Arab Muslim governments (as well as even more severe forms of persecution). Israel should not be in the business of perpetrating similar injustices of its own against other groups. The fact that this case was not on the same scale as many of the expropriations perpetrated against Jews is noteworthy, but still no excuse.

At the same time, it is also worth noting that Israel has an independent judiciary that curbs some of its government's unjust policies, as it has in this case. The same can't be said for most of Israel's adversaries.

Sadly, the present Israeli government hasn't shown the same commitment to liberal values as the Israeli Supreme Court did in 2020. Indeed, among its other sins, that government has been trying to undermine judicial review, in part for the purpose of establishing a kind of "tyranny of the majority." Israel must do better, and the US and other Western states should apply pressure to that effect, even as we also keep in mind that there is still a major moral gap between the Israelis and their adversaries.

Free Speech

Dissenting Parents' Defamation Claim Over School's Allegations of Racism Can Go Forward

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Some excerpts from the long Turpin v. Charlotte Latin Schools, Inc., decided today by the N.C. Supreme Court, in an opinion by Justice Richard Dietz, joined by Chief Justice Paul Newby and Justices Philip Berger Jr., Tamara Barringer, and Trey Allen:

According to the complaint in this case, Plaintiffs Doug and Nicole Turpin sent their children to a private school called Charlotte Latin School. Beginning in the summer of 2020, the school began to change its curriculum to focus on politicized issues of race and gender identity. At some point, the Turpins learned that the school was teaching their sixth-grade child various polarizing concepts such as "Republicans are white supremacists." The school also required young students to read books on sexuality and gender identity that were not age appropriate.

The Turpins started organizing with other parents to voice their concerns about the school curriculum in 2021. Eventually, the Turpins scheduled a meeting with school leadership. At the meeting, the school was not interested in discussing the Turpins' concerns. Instead, the school terminated the Turpins' enrollment contracts and expelled their children with no advance warning.

Among other things, the Turpins sued the school for defamation, and the court allowed the case to go forward:

The Turpins allege that Charlotte Latin and Baldecchi made false statements [to third parties] about the contents of the [Turpins'] PowerPoint presentation [that the Turpins delivered at the meeting]—specifically, that the PowerPoint contained the racist assertion that minority students and faculty at the school "have not earned their positions and honors" and that those minority students and faculty were "not up to the merit of the school" like the white students and faculty ….

The defamatory statements by Charlotte Latin do not accurately characterize the "gist" or "sting" of the PowerPoint discussion. First, the only portion of the presentation referencing how the school's approach "erodes the quality of student" and the "quality of teacher" expressly addresses all students and faculty, regardless of color. That section of the presentation asserted that the excessive focus on "DEI and Critical Theory" was shifting the school away from a classical education teaching "objectivity," "science," "canonical reading," and so on, to instead embrace a "political and ideological agenda."

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Free Speech

Fraud Claim Over "No Blowback" Assurance by Private School to Complaining Parents, Followed by Children's Expulsions, Can Go Forward

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Some excerpts from the long Turpin v. Charlotte Latin Schools, Inc., decided today by the N.C. Supreme Court, in an opinion by Justice Richard Dietz, joined by Chief Justice Paul Newby and Justices Philip Berger Jr., Tamara Barringer, and Trey Allen:

According to the complaint in this case, Plaintiffs Doug and Nicole Turpin sent their children to a private school called Charlotte Latin School. Beginning in the summer of 2020, the school began to change its curriculum to focus on politicized issues of race and gender identity. At some point, the Turpins learned that the school was teaching their sixth-grade child various polarizing concepts such as "Republicans are white supremacists." The school also required young students to read books on sexuality and gender identity that were not age appropriate.

The Turpins started organizing with other parents to voice their concerns about the school curriculum in 2021. Eventually, the Turpins scheduled a meeting with school leadership. At the meeting, the school was not interested in discussing the Turpins' concerns. Instead, the school terminated the Turpins' enrollment contracts and expelled their children with no advance warning….

The parents sued for, among other things, fraud, and the court let the claim go forward; here's the majority's analysis (the partial dissent doesn't focus on the particular "no blowback" statement that the majority discusses here):

To bring a claim for fraud, a plaintiff must allege a "(1) false representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party." …

Here, the complaint alleges that Charlotte Latin promised the Turpins there would be no "blowback" or "retaliation" against them or their children if they met with school leadership to discuss their concerns; that this promise was false and, from the beginning, Charlotte Latin intended to deceive the Turpins and lure them to the meeting in order to create a pretext for expelling the children; that the Turpins believed Charlotte Latin's promise and spoke openly about their concerns because they believed the school would not use those discussions as the pretextual grounds to expel the children; that the school, in that same meeting, expelled the children, as they intended from the outset, despite promising the Turpins they would not do so; and that the school's deceit caused significant damage to the Turpins.

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Free Speech

Contract Claim Over Private School Expulsions, Allegedly Caused by Parents' Organizing Against Ideological Curriculum Changes, Can Go Forward

"Beginning in the summer of 2020, the school began to change its curriculum to focus on politicized issues of race and gender identity. At some point, the Turpins learned that the school was teaching their sixth-grade child various polarizing concepts such as 'Republicans are white supremacists.'"

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Some excerpts from the long Turpin v. Charlotte Latin Schools, Inc., decided today by the N.C. Supreme Court, in an opinion by Justice Richard Dietz, joined by Chief Justice Paul Newby and Justices Philip Berger Jr., Tamara Barringer, and Trey Allen:

According to the complaint in this case, Plaintiffs Doug and Nicole Turpin sent their children to a private school called Charlotte Latin School. Beginning in the summer of 2020, the school began to change its curriculum to focus on politicized issues of race and gender identity. At some point, the Turpins learned that the school was teaching their sixth-grade child various polarizing concepts such as "Republicans are white supremacists." The school also required young students to read books on sexuality and gender identity that were not age appropriate.

The Turpins started organizing with other parents to voice their concerns about the school curriculum in 2021. Eventually, the Turpins scheduled a meeting with school leadership. At the meeting, the school was not interested in discussing the Turpins' concerns. Instead, the school terminated the Turpins' enrollment contracts and expelled their children with no advance warning….

The subject matter of this lawsuit no doubt touches on divisive topics in contemporary social discourse. But none of those divisive topics have any bearing on the legal issues before this Court today. Our task is to determine if the Turpins' complaint satisfies the "notice pleading" standard that applies in civil cases. That well-settled standard requires the complaint to contain a "short and plain statement" sufficient to notify the defendants of "the events or transactions which produced the claim." When reviewing a complaint under this standard, courts must take all the allegations as true and cannot grant a motion to dismiss unless it "appears certain that plaintiffs could prove no set of facts which would entitle them to relief." …

There's a lot going on in the 16K words of opinions, but here's the heart of the analysis allowing Turpins' breach of contract claim to go forward:

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Politics

Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

Hunting ICE, unremarkable arson, and lewdness at the Founding.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: The First Amendment is for listeners too.

  1. New York may have Page Six for its celebrity gossip. But Washington puts it to shame with Page One Hundred Thirty Six, courtesy of the D.C. Circuit wading into White House ballroom drama. The majority blocks much of the construction, saying congressional authorization is needed. The dissent is largely flummoxed at allowing aesthetic objections to overcome security concerns (and concludes in knowing celebrity-rag fashion by poking fun at District Judge Leon's famous exclamation points).
  2. Congress reformed the immigration removal system three decades ago, allowing some—but not all—aliens to be released on bond pending their hearing. A regulation issued soon after explaining that bond was available only for people already within the U.S., not for those arriving at the border. The feds reversed course last summer; now, no bond for any aliens. Cool? Fifth, Eighth circuits: Yup. Second, Sixth, Seventh, Ninth, Tenth, Eleventh, and now First circuits: No. Read More

Free Speech

"Professors' Speech in Class Has Not Been Regulated; It Has Been Hired"

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Yesterday's Seventh Circuit opinion in McDonald v. Trustees of Indiana Univ. held that public university professors lacked standing to challenge a state law that called for faculty members to be evaluated based in part on whether they were

(1) unlikely to foster a culture of free inquiry, free expression, and intellectual diversity within the institution;

(2) unlikely to expose students to scholarly works from a variety of political or ideological frameworks that may exist within and are applicable to the faculty member's academic discipline; or

(3) likely, while performing teaching duties within the scope of the faculty member's employment, to subject students to political or ideological views and opinions that are unrelated to the faculty member's academic discipline or assigned course of instruction….

Because the professors lacked standing, the court didn't consider their substantive First Amendment challenges to that law. (For more on the law, and the standing issues, see this post.) But Judge Frank Easterbrook also added a concurrence that opined on the underlying First Amendment issue; I've emphasized the key passages:

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Free Speech

Indiana Professors Lack Standing to Challenge Indiana "Intellectual Diversity" Statute

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Some excerpts from yesterday's longish McDonald v. Trustees of Indiana Univ., written by Seventh Circuit Judge Joshua Kolar and joined by Judges Frank Easterbrook and Doris Pryor:

Senate Enrolled Act 202 added a provision to Indiana's education code titled "The Protection of Free Inquiry, Free Expression, and Intellectual Diversity." … [The Act's] "promotion provision" … requires universities to establish a policy "that a faculty member may not be granted tenure or a promotion" if the university determines the faculty member is:

(1) unlikely to foster a culture of free inquiry, free expression, and intellectual diversity within the institution;

(2) unlikely to expose students to scholarly works from a variety of political or ideological frameworks that may exist within and are applicable to the faculty member's academic discipline; or

(3) likely, while performing teaching duties within the scope of the faculty member's employment, to subject students to political or ideological views and opinions that are unrelated to the faculty member's academic discipline or assigned course of instruction….

[The Act's] "review provision" … requires a university to review tenured faculty every five years to determine whether they have met certain criteria. These criteria include "whether the faculty member" has:

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Some More Thoughts About Surrogacy and Abortion

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My post yesterday on surrogacy and abortion has generated many responses, as I had suspected. Surrogacy is one of those issues that conservatives simply don't want to talk about. It is often heart-wrenching when couples are not able to have children, and IVF and surrogacy are viewed as miracles to let these couples have children. To raise any moral or legal objections to this practice is sometimes seen as a third-rail, even in Republican pro-life circles. And on the left, how many of the women who wore bonnets from the Handmaid's Tale to protest Justice Barrett hired poor women in Eastern Europe to carry their children? This is an issue that needs to be discussed more on both sides of the spectrum.

Here, I'd like to offer a few more thoughts.

To start, the terminology is important. In my earlier post, I used the phrase "biological parents" to refer to the couple that established the surrogacy contract, and the "surrogate mother" to refer to the woman that carries the child to term. I don't think these terms are precise enough.

Surrogacy can take many different forms. In some cases, the fertilized embryo includes biological material from both the male and female who establish the surrogacy contract. In other cases, the fertilized embryo includes the biological material from one member of the surrogacy contract (the male or the female). And in rarer cases, the fertilized embryo consists of material from a male and female donor, and includes no biological material from the couple that established the surrogacy contract. And in super-rare cases, there are three people who contribute biological materials. I'm not sure what the right terminology is, but "biological parents" is not always accurate.

I also don't like the phrase "surrogate mother" as that presumes the woman's only relationship with the child is the contract. In some cases, the woman carrying the child to term had her own egg fertilized, so she does have a biological connection to the child, even if the surrogacy contract purports to to nullify all parental rights.

If we want to be legalistic, perhaps we can use the language of contract law: the woman that performs the labor (literally) by carrying the child to term is the contractor, and the party/parties that receives the benefit of the contract is the contractee(s). Still, I find the entire commercialization of child-rearing to be unseemly, so this terminology is not ideal.

Maybe descriptive terminology is better. The woman carrying the child to term is, quite literally, the birth mother. Once the embryo is implanted, that person is the only person who can let the child be born. That role cannot be transferred to another person. To use the lingo, the contractual duties cannot be assigned to a third party. If another party/parties to the contract has a biological connection to the child, I would use the phrase biological parent(s). If the other party to the contract has no biological connection to the donor (both the egg and sperm were donated), then I would use the phrase contractual parent(s).

For starters, I think there is a strong argument that all surrogacy contracts violate public policy. I am not aware of any other context where courts will enforce a contract that requires a person to perform physical labor. The usual remedy when a party breaches a contract is damages. In some cases, specific performance is allowed, but that is usually akin to producing some fungible widget. Personal services are not going to be enforced. But surrogacy is just that. The biological or contractual parents do not want some form of monetary damages in case of breach. They want the birth mother to carry the child to term (unless they want the birth mother to have an abortion). This sort of contract would seem to flunk the most basic principles of specific performance.

Let's assume that the surrogacy contracts, in general, are enforceable. The far more problematic situation occurs where the biological or contractual parents demand that the birth mother have an abortion. Here, I think the distinction between biological and contractual parents matters. Contractual parents have no biological claim to the child. Their right is only contractual. A biological parent as least has some biological claim to the child, and thus a constitutional interest in directing the upbringing of the child.

What should happen if a contractual parent seeks to enforce an "abortion" clause in a surrogacy contract? I think a court should declare the entire surrogacy contract to be null and void, whether as a violation of public policy or a violation of the Thirteenth Amendment. The contractual parents would then have no legal claim to the child. All relationship would be severed. Is that outcome really so harsh? After all, they wanted to have the child terminated. What continuous interest could they possibly claim? Parents, and I use that term only in the legal sense, that seek to abort their child have demonstrated that they are no longer serving the best interests of the child. This is not the routine case where two parents disagree about the proper course of treatment for a child's care. Here, both parents simply want to end the child's life to avoid the grief the parents might suffer. Or perhaps they want to euthanize the child so the child will not feel any pain. A child is not some sort of item that can be ordered from a boutique and returned if the couple no longer wants it.

I think a state could even establish a statutory presumption that contractual parents who seek to enforce an abortion clause for a surrogate contract are by definition unfit parents. And in a sense, because these parents have no biological connection to the child, they have no constitutional right to direct the child's upbringing. At that point, a mechanism should be established to award temporary custody of the child to either the birth mother or to a guardian ad litem. This temporary custody would last until the child is born. The state should also mandate that hospitals perform all necessary procedures to ensure the child can be sustained through delivery. After delivery, a more fulsome procedure could be established to ensure proper custody is awarded for the child, either to the birth mother or through the foster system.

I think the analysis would be different when one of the contractees, for lack of better words, is a biological parent. Terminating parental rights is a serious affair, even when that parent seeks to terminate their child being carried by another person. If biological parents seek to have the birth mother perform an abortion, the birth mother or the state could petition a court to temporarily award custody to the birth mother or to a guardian ad litem until the child is born. After delivery, a court could adjudicate whether the biological parents or the birth mother has the stronger claim for custody. Presumably, once the child is born, the biological parents would no longer seek to euthanize the child. Again, I think the legislature could create a statutory presumption that biological parents who seek to terminate their own child are ipso facto unfit parents, but I think this presumption could be rebuttable.

There is another situation that is worth discussing. Surrogacy contracts have abortion clauses in both directions: contractual parents can force the birth mother to have an abortion and contractual parents can prevent the birth mother from having an abortion.  In the latter case, could a court issue an order restraining the birth mother from having the abortion as a means of enforcing the surrogacy contract? Again, I think these sorts of contracts violate public policy, so unenforceable. Alternatively, does a biological parent have a right to protect their own child? Imagine that a husband and wife contributed a fertilized embryo, which was implanted in a surrogate. In the conventional sense, the surrogate would be seeking to abort another couple's child. I think a court could block the abortion in that context, apart from the surrogacy contract. In light of Dobbs, states can prohibit the abortion altogether, so the issue is somewhat moot. Of course, in blue states that permit abortion until the moment of birth, it is unlikely the legislature or court would bat an eye if a birth mother wants to terminate her pregnancy. And with mifepristone being sent through the mail like Tic Tacs, not much can be done to stop the surrogate mother from acting alone.

There are many issues here. I'm sure I'll write more on the topic in due course.

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