Archive for the 'Government' Category

U.K. Grandmother Wins Right to Use Daughter’s Frozen Eggs to Give Birth to Grandchild

Would you ask your mother to carry a child for you?  It’s obviously not the most ideal situation, but it’s not completely unheard of.  A U.K. woman has won the rights to use her deceased daughter’s frozen eggs to give birth to a grandchild.

The 60-year old woman fought The Human Fertilisation and Embryology Authority (HFEA) to allow access to her daughter’s frozen eggs, but was denied because the daughter had not given her full written consent prior to her death to allow her mother to be a surrogate.  The daughter, identified only as “A”, died of cancer at the young age of 28, but had expressed to her mother, identified as “Mrs. M”, that she desperately wanted her mother to have and raise her child after her death.

After being denied, the parents planned to take their daughter’s eggs to a fertility clinic in the U.S. to be impregnated with donor sperm, but HFEA refused to let the parents do so. The parents brought legal action and were denied by the High Court; among a myriad of reasons, the Court of Appeal ruled in favor of the parents and remitted the case back to HFEA for further consideration.

A daughter’s wishes should absolutely play a role in any decision about what’s to happen with her own donor eggs, but U.S. laws don’t always play by a biological (or contracting) mother’s wishes.

Some Surrogacy Laws in the U.S. Consider the Surrogate the Mother

There are cases throughout the U.S. where a grandparent gives birth to a grandchild via surrogacy. For those that desperately want a child and are unable to have one on their own, this can be a saving grace. I imagine in the cases, like above, where a grandparent is the surrogate this is a non-issue, but what happens when the surrogate doesn’t want to give the baby up to the contracting parents?  Legally speaking, many states would recognize the surrogate as the legal mother. Infant 2

Laws surrounding surrogacy aren’t regulated by the federal government, but rather the states are left to decide and they vary throughout the U.S.  Seventeen states are considered surrogate “friendly” and recognize some form of surrogacy agreement. There are however states, 5 to be exact, that absolutely refuse to recognize any kind of surrogacy agreement.

What does this mean?  Well, in those states that won’t recognize an agreement, the biological parents are out of luck if the surrogate decides to keep the baby—in these states, the surrogate is considered the legal mother of the child.

Surrogates and contracting parents in some states even risk potential criminal charges.  California recognizes all surrogacy agreements, whereas Michigan considers it a felony to enter into such a contract. You read that right, a felony!

Child Custody Goes to Legal Parent

What does that mean for the biological or contracting parents?  Would they have custody rights?  Just as with any other legal issues surrounding child custody, custody is going to whomever is considered the mother of the child according to state law, whether that be the birthing mother or the biological mother.

California says child custody will go to a contracting parent, regardless of biological ties.  Michigan says the woman that gives birth to the child is the legal mother of the baby, despite the fact that she may not have any biological ties.

In states like Arkansas, which has a strange mix of surrogacy laws, the biological father and his wife would be recognized as the legal parent.  This is true even if the wife isn’t the biological mother.  Seems a little strange, but if you had biological donors that were not married, then the biological mother could potentially get gipped out of legal rights.

In order for an unmarried biological mother to automatically get legal custody rights of the baby in Arkansas, the biological donor father would have to be from an anonymous donor. The woman that gives birth to the child is considered the legal mother of the baby, despite the fact that she may not have any biological ties.

Laws surrounding surrogacy are primarily geared towards the rights of the surrogate or the rights of the biological parents.  Wait a minute, anyone see something wrong with that sentence?  Of course the rights of a surrogate and contracting parents are important, but what about the rights of the child?  Although U.S. surrogacy laws are by far the most progressive compared to other countries, we still have a long way to go.

Pokémon Go and the Dangers That Come With It

It looks like Pokémon is back at it again. Pokémon Go, the latest product in the Pokémon franchise, has caught on like wildfire. This new app, developed by Niantic, brings a fresh perspective to gaming. Available on both iOS and Android devices, this mobile game allows players to catch Pokémon but must do so in real time. With GPS capability, the app pinpoints where Pokémon can be found and the player then must make the effort to actually go to these locations.

Once there, the player can then attempt to catch the Pokémon. These Pokémon can be found in various locations, from your backyard to public venues and even in government facilities such as courthouses. As this game takes the world by storm, the dangers of this form of gaming have become more apparent. Just as texting and driving has been such a big problem, the same issue could arise with this new app.

Potential Hazards

The Pokemon app demands that the player explore the outdoors if they want to catch Pokemon. Irrespective of this game, mobile devices can be dangerous. Texting and driving has been one of the leading causes of death in the past few years. Pedestrians too have put themselves in risk of danger by crossing the street carelessly while being preoccupied with their smart devices.

Surely, this Pokémon app could pose similar dangers. The game has been out for less than two weeks and there are already news reports of such accidents. One victim reported that he was “wandering aimlessly looking for Pokémon” when a car clipped him. As the game picks up speed, similar reports will undoubtedly come in. Now the question becomes, what can be done about this? Pokemon Go 2

To address this issue, let’s look back at some of the solutions that were reached when it came to driving and texting. For one, California imposed a law that would fine people who were driving and texting. Without a doubt, this has had deterrent effects. Looking at the accident reports as a whole, the numbers have waned due to this law. Can a law be enacted mandating that gamers not cross the street while playing Go?

Now this sounds silly but there have to be some measures that can be taken. Obviously the same aforementioned law applies here because the Go is a mobile game and as such, is on a mobile device. Ultimately, the question becomes what measures can be taken to prevent such incidents from happening and who should be held responsible for them?

Comparative Negligence

The gamer should obviously be held responsible for being careless and negligent. Of course, the degree of blame should also depend on who the gamer is and in particular, how old they may be.

If a 12-year-old has carelessly walked into the street, then they might not have known any better. Now, if it was a fully grown adult doing the same, then this could change things. Comparative negligence, which is the standard of fault in California, adjusts the degree of fault for all the parties involved, depending on the circumstances of the case. This standard applies primarily to personal injury lawsuits. For example, if the gamer is crossing the street when he should have stopped, then the driver who hits this person will not be entirely at fault for the accident.

The point being, if more states adopted this comparative negligence approach, it would make life a whole lot easier for both parties involved in the accident. It also provides a deterrent. The gamer so preoccupied with catching his Pokémon will stop and think because now he knows under this framework, he would potentially have to pay for his own injuries if he isn’t careful. At the same time, the driver will have a defense, which is that the Pokémon devotee was being rather careless.

Trespass

Now this comparative negligence approach is not universal in that it does not apply to all incidents. It applies mainly to personal injury lawsuits. For example, what would happen if the player finds himself in someone else’s private property and the property owner decides to take matters into his own hands? How should this be resolved? Obviously not through the comparative negligence standard.

Each state has its own particular set of laws with regards to gun control and what trespass dictates. These sets of laws will help guide the well-being of people. For now, we will just have to wait and see what our legislators will do in response to this new groundbreaking form of entertainment. This only feels like the beginning. With virtual reality and this “augmented” reality taking shape, who knows which direction we’ll be headed from both a lifestyle perspective as well as a legal one. For now, enjoy and make sure you catch as many lovable Pokémon as you can. Safety first though.

Other Legal Considerations

As mentioned, Pokémon Go is sending ripples through the legal space. Besides personal injury, other areas of the legal field that are facing questions due to the Go are in privacy and intellectual property. In terms of privacy, it is a question of how to protect individual privacy. Go collects account information, location data, and other such data collected through web beacons and cookies.

There are also certain privacy issues at play here. How far can Niantic go in acquiring such data and what can they use this data for other than the game itself? There are intellectual property issues as well. Does catching a Pokémon make that Pokémon your personal intellectual property? This is a bit absurd but it is questions like this that have been coming up. In the meantime, we are left to ponder how this new gadget is changing the legal landscape.

Pokѐmon Go Privacy Problems: The Legalities of Mobile App Data Collection

Pokémon Go is the most popular mobile game in U.S. history. In the 24 hours after its release last week, it surpassed the daily active users numbers of every other mobile game that has ever existed—attracting nearly 21 million active users at once.  As a user myself, I can say that when the servers of the game are working properly, it’s a heck of a good time.

The game was created by Niantic and the Pokémon Company and allows users to roam the streets catching Pokémon in an augmented reality version of the real world. So successful is the game that Nintendo’s minority share in the game has boosted their market value by $11 billion in the week or so since it hit the market.

The game is free to play but features a number of available microtransactions—digital offerings within the app itself—to bring in money. However, like many mobile games, this is not the only source of revenue.  The app also collects personal information from its users, which it then strips of identifying information and sells to would-be advertisers.

In the last few days, this data collection has drawn the concern of not only users, but also U.S. Senator Al Franken. He has gone on record with serious concerns about the overreach of the privacy policy of the app—especially considering how many children it counts as users. The whole kerfuffle began in response to a blog post revealing that among the permissions you granted Niantic by creating an account was—for iPhone users using a Gmail to sign in—full access to your Google account.

The Pokѐmon Privacy Policy

The concerns, now known to be slightly alarmist, suggested that the permissions gave Niantic read/write permission for your emails, access to your Google Drive, and even the ability to pilfer your Google Wallet. This came as a heck of a shock to users, because, although the Pokѐmon Go Privacy Policy is available online, there was no indication such access was being granted when users made an account.

Since the initial accusations a few days ago, it has been established that Niantic did indeed get full access to your Google Account, however it was not quite the insidious plot that was initially insinuated. Pokemon Go

Niantic issued a statement that the overreach in permission was a mistake and the access had never been taken advantage of—an assertion that Google has verified.  What’s more, while the permissions did give Niantic potential access to a substantial amount of biographical information such as your email address and phone number, they did not have access to any emails, Google Drive, or Google Wallet.  Niantic patched the access out of the app days after the concerns were raised.

However, don’t let these developments completely send your privacy concerns over Pokѐmon Go blasting off again. If you have not yet updated the app, do so in order to patch out the access to your Google account.  What’s more, it is important to stay informed about exactly how much information you agree to share by making an account or clicking “yes” to those Terms & Conditions.  Pokѐmon Go is still collecting a staggering amount of information on you for later sale.

By using the app, you are accepting that Pokѐmon Go will collect data from you and use it in accordance with their posted privacy policy.  As it stands, they collect your Internet Protocol (IP) address, browser type, operating system, the web page you visited before going on Pokѐmon Go, anything you click on or go to while using Pokѐmon Go, how long you stay on pages you go to, search terms, and more.  Also, because Pokѐmon Go uses GPS tracking to determine where you are and thus which Pokѐmon are around you, the app collects where you go, where you left from, how long you take to get somewhere, and how long you stay at any given location.

Once this data is collected Niantic, per their privacy policy, strips identifying information from the data and pools it together to sell to advertising companies.  If the company or Pokѐmon Go is ever purchased, all this information is part of what will be purchased.

This probably seems like an incredible amount of information for strangers to know about you—and it is. Unfortunately, the only way to avoid this data collection (as with many apps) is stop using Pokѐmon Go.  What’s more, the practice is both common and perfectly legal when done carefully.

Mobile App Overreach: An Ongoing Problem

The Federal Trade Commission requires that mobile apps clearly disclose their privacy policies and what sort of information they collect. They also require that businesses give users an option to decline collection—although that can just mean letting them choose not to use an app.  Failure to do any of these things, or to comply with your own privacy policy, can give rise to an FTC charge of deceptive practices.

For example, Runkeeper is a jogging app that has recently been in hot water for tracking your location—when the app is not active. This information is then sent to advertisers.  In 2012, a social media app called Path got in trouble for taking its users’ entire address book without their knowledge.  They settled an FTC charge, paying $800,000.

Apps that seek overreaching permissions, a perfectly legal practice, unless state law says differently, when properly disclosed, are also common. In 2015, it came to light that quite a few third-party flashlight apps were asking for a lot more permissions on your smartphone than they needed.

Many of the apps has the ability to read phone status and identity, view Wi-Fi connections, modify system settings, obtain full network access, and determine your precise location via your phone’s GPS, among other permissions. This was quite an ask for an app that is primarily for finding your keys when they fall under your car seat.

It’s not surprising that people were sensitive to potential privacy issues with Pokѐmon Go given the history mobile apps have with overreaching permissions and privacy law violations. A huge portion of apps include data gathering of some kind as part of how they make their money—especially free to use apps.

Even if you trust a business with this information, that same information makes them a target for hackers. The sheer popularity of Pokѐmon Go, combined with its ability to track your location, means that it is going to be capable of nearly unprecedented data collection.  While Niantic has a solid privacy policy and has complied with FTC privacy regulations, it still can be a privacy risk given how much information is going to pass through its hands.  Don’t let this stop you from catching them all—just remember to know what you’re getting into with Pokѐmon Go and any app you use.

Waitress Told to Wear a Skirt and Look More Feminine Wins Sex Discrimination Case

In Scotland, an eighteen-year-old part-time waitress was asked to wear a skirt and makeup so she would be “easy on the eyes” to male customers.

The young woman claims that she was offered a full-time position as a waitress at the restaurant, but was pulled aside by the manager and told to wear a skirt, makeup, and her hair down to look more feminine and attractive to the customers. After she complained, she was told her existing hours would be cut and that she was no longer offered the full-time waitressing position. She decided to file a sex discrimination lawsuit.

A judge at an industrial tribunal, who makes decisions in legal disputes regarding employment law, awarded her $4,372 for discrimination and lost wages.

Would a case like this prevail in America?

What is Sex Discrimination?

Sex discrimination includes any unequal treatment on the basis of sex. The treatment must not only be different, but also unequal, and therefore lead to inequality between the sexes. For example, designating male versus female bathrooms for each gender does not rise to the level of sex discrimination. However, an employer who pays a woman less for the same work a man performs does constitute sex discrimination because it is unfair. Waitress

Title VII of the Civil Rights Act of 1964 provides protections against sex discrimination in the workplace. The Act makes it illegal for employers to either:

  1. fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation terms, or privileges of employment, because of that individual’s sex; or,
  2. limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise affect that person’s status as an employee because of such individual’s sex.

In laymen terms, all employees or applicants must be given equal opportunities for employment and advancement within the company organization. Further, no person can be deprived of any employment opportunity based on his or her gender.

Sexual harassment is also a form of sex discrimination. Generally, sexual harassment may be found if an employee experiences unwanted sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature.

Can An Employer Require Female Employees Wear Skirts?

The short answer is “yes.” Generally an employer can impose a dress code that requires female employees to wear skirts. However, the employer must have a legitimate business necessity for this requirement and it must be reasonably related to the employer’s business needs.

For instance, if the employer wants to foster a professional atmosphere, the employer may require more formal dress, which includes a requirement that female employees wear skirts while their male counterparts wear slacks. There have been some cases where employers have been found guilty of sex discrimination against women for requiring them to wear skirts and not having any equivalent policy (such as wearing slacks) for men.

While it is generally admissible for employers to impose dress codes, it must be done with sensitivity and strict adherence to the law. A dress code cannot impose a greater burden on one gender than another. Referring back to the previous example, it would be sex discrimination require female employees to wear skirts, but have no formal dress code requirement for male employees.

Further, the employer must be careful about sex discrimination and stereotyping claims. Therefore, it is advised that the employer create exemptions in some cases to the dress code, or to forego a dress code altogether to avoid claims of sex discrimination.

Just as an employer is entitled to establish a dress code that requires female employees wear skirts, they may also require female employees wear makeup. However, the employer cannot pass up a female employee for advancement, or terminate a female employee because she did not wear makeup.

D.C. Vote Leaves Accident Victims in Dismay

Washington D.C. council has postponed a vote to change the city’s contributory negligence laws to comparative negligence with regards to automobile-bicycle collisions. This decision has frustrated bicyclists and pedestrians because under the current contributory negligence framework, the victims of such accidents are not entitled to recovery. Under contributory negligence laws, if the victim is viewed as being at least partially responsible for the accident, they will not be awarded damages.

D.C. has a “pure” contributory negligence system, which means that even if the victim of the accident is 1% at fault, they may not recover from either the driver or insurer. This is a very strict standard and in most circumstances denies any form of compensation to victims of such accidents. The only time the damaged party may recover is if their behavior which led to the accident was non-negligent (meaning entirely free from fault) and that the driver was negligent. It is very difficult to establish non-negligence.

Transition Phase – Contributory to Comparative Negligence

In general, the United States as a whole has been transitioning from a contributory negligence framework to that of comparative negligence over the last few decades. Aside from D.C., only four states have stayed with the contributory negligence system. Under a comparative negligence approach, the victim can be compensated even if they are partially at fault; however their recovery will be deducted by the percentage for which they are at fault. This seems like a far more reasonable approach than the other more stringent standard that is slowly fading out.

For the driver and the insurance companies, contributory negligence is ideal because they will not be held liable whatsoever. This of course is a double-edged sword.  Victims prefer the comparative negligence standard, but there is a nefarious element to this. Victims surely will be awarded damages under the comparative framework. Bicycle

However, there have been instances where bicyclists and/or pedestrians have intentionally come into the crosshair of the driver simply to recover damages. One of the reasons contributory negligence exists is because politicians and congressmen such as D.C. Councilmember Kenyan R. McDuffie want to provide safeguards against such acts. The driver should not always be held responsible, for there are times when the victim is in fact the perpetrator.

News reports and various statistics, including one from Gallup, show that states which enforce the contributory negligence standard have far fewer cases of automobile-bicycle accidents than states with comparative negligence.

Obviously, statistics only provide a glimpse of the truth but they should be given some thought. This statistic implies that bicyclists under this framework are more wary of accidents because of the fact that they will not be awarded damages, and it also has a deterrent effect on those “particular” bicyclists/pedestrians that want to fill their pockets by intentionally engaging in vehicular accidents.

Comparative Negligence Discrepancies

Of course, even under those states that apply comparative negligence, they are not all uniform. There are variations on comparative negligence; for example, there is something known as “pure” comparative negligence and another common variant is the modified comparative negligence scheme.

Under the “pure” comparative system, which is the typical approach, the victim may recover, but recovery will be reduced based on the degree of fault. In the modified system, there are two approaches. One is if the victim is 50% or more at fault, then they cannot recover whatsoever. The second approach is that if the victim is 51% or more at fault, then they cannot recover. The difference between the two approaches is a mere 1%. In general, the modified system is far less favorable to the damaged party than is the pure comparative system.

Impact – How It Will Affect Both Driver and Pedestrian

Just to reiterate what has already been stated, D.C. transitioning from one system to another can have drastic implications. For one, as mentioned above, the comparative system favors the victims and the contributory framework benefits the driver and/or insurer. The people of D.C. are unhappy that the vote came out the way it did, as they would prefer to be compensated in the case of an accident. They don’t want the insurers walking all over them. The contributory negligence framework allows for this and gives the insurance companies an excuse not to cover the damages.

At its core, these two diverging systems provide a mechanism that a defendant can invoke if he or she is sued. On the other hand, there are nuances to the law that prevent full protection for one party or the other. Ultimately, the law of the state will determine how both perpetrators and victims of accidents will be treated.

The country is headed towards a comparative approach but as is the case here in D.C., not all legislators are ready to give up on contributory negligence. There are repercussions that go beyond benefiting the insurance companies. The comparative negligence framework might lead to increased insurance premiums and this potential effect is not ideal for the many decision-makers that want to maintain their seat on the throne.

The comparative negligence approach seems like the more reasonable approach because it gives the victim of an accident some form of remedy. It gives certain remedies to the driver and the victim depending on the circumstances. The driver may not be penalized fully if the damaged party was somewhat responsible and the victim will be rightfully compensated.



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