Jane Maslow Cohen
This article discusses critical debate about individual control over the beginnings of life that has sprawled across the fields of academic law, philosophy, politics, religion, the life sciences, and the self-christened field of bioethics from the 1960s up to the present. The subject has formed in and around a cascade of popular pressures; biomedical advances; legislative, judicial, and public policy initiatives; media attention; and the boiling politics in which, at least in the United States, the whole series of enterprises has been bathed. The present undertaking will train on the law. It covers contraception in the United States, abortion law and policy in the United States, and contraception and abortion in Europe and the United Kingdom.
Eleanor D. Kinney and Priscilla Keith
This chapter examines the issue of access to healthcare, with particular emphasis on the five dimensions of the model proposed by Roy Penchansky and J. William Thomas: availability, accessibility, accommodation, affordability, and acceptability. It also discusses the constitutional powers of states and the federal government with respect to health, along with relevant health law. It outlines the three categories of law governing access to physicians and hospitals: direct obligations of physicians and hospitals to provide free care to the indigent; federal programs to provide health insurance or health services to vulnerable populations; and laws that affect the delivery of care based on the patient’s physical characteristics and immigration status. The chapter concludes by considering the United States’s failure to realize the human rights aspect of health in international treaties and suggesting that the country’s efforts when it comes to access to physicians and hospitals leave much to be desired.
Jenny S. Martinez
Armed Conflict and Forced Migration: A Systematic Approach To International Humanitarian Law, Refugee Law, And International Human Rights Law
This chapter examines the application of three branches of international law to forced migration and refugee protection in an armed conflict. It provides a comparative assessment of these branches of international law in terms of their application to protection of refugees in war, refugees fleeing war, and refugees in post-war contexts. The analysis indicates that international humanitarian and refugee law are not a panacea in terms of protection, and that it is international human rights law that fulfils the central function of filling the gaps in protection left by humanitarian and refugee law.
This article focuses on debates, both historic and contemporary, surrounding assisted reproductive technologies (ART) and abortion. After providing a historical background on ART and abortion and their integration into modern reproductive life, the article discusses the current usage of both techniques in America. It then compares the populations who avail of ART and abortion before turning to an analysis of the regulatory landscape surrounding the two procedures, along with reproduction as a fundamental right. It also examines the issue of whether the existing jurisprudence concerning the right to avoid procreation can be applied equally to the right to access parenthood through assisted conception. The article concludes with an assessment of three areas in which ART and abortion have overlapped: selective reduction of multiple pregnancy, the personhood movement, and perinatal genetic diagnosis.
Catriona Mackenzie and Denise Meyerson
This chapter evaluates the relationship between autonomy and freedom of speech, examining a variety of autonomy-based justifications for the importance of speech and especially of freedom of speech. The differences between these justifications relate not only to the different conceptions of autonomy that underpin them, but also to their different responses to the problem of competing autonomy interests. It is plausible to think that the state should respect, protect, and promote the autonomy of everyone—speakers, listeners, thinkers, bystanders, and members of the public at large. Enhancing the autonomy of some might, however, require restricting the speech of others. The liberty-based conceptions of autonomy prioritize the interests of speakers and listeners and hold that the primary obligation of the state is the negative duty not to interfere with the autonomy of individual speakers and listeners. By contrast, the relational conceptions of autonomy hold that the negative liberty interests of individual speakers and hearers should be balanced against the positive duties of the state to promote the social conditions necessary for the development and exercise of autonomy by all citizens.
Wouter Vandenhole and Gamze Erdem Türkelli
The best interests of the child principle is considered a pillar of children’s rights law and, according to the UN Convention on the Rights of the Child (CRC), is to be a primary consideration in all actions concerning children. Yet best interests is an elusive concept and principle that has no single authoritative definition or description. Internationally and domestically relevant in such diverse areas as family law, adoption, migration, and socioeconomic policymaking, the best interests principle requires flexibility and is best served by a case-by-case approach, as has been recognized by the UN Committee on the Rights of the Child and the European Court of Human Rights. This chapter analyzes relevant international case law and suggests the use of a number of safeguards to prevent such requisite flexibility from presenting a danger of paternalism, bias, or misuse.
Chris A. Robinson
Mark Barnes and David Peloquin
This article examines federal and state laws on biomedical research in the United States. It also considers the tension among various regulatory regimes and highlights conflicting regulations that could be better harmonized. The article first describes regulatory regimes that govern protections for human subjects, with particular reference to the federal Common Rule and the Food and Drug Administration’s regulations on the protection of human subjects. The discussion then turns to state laws on informed consent; privacy laws; laws on clinical trials registration and data transparency; financial disclosure requirements; research misconduct such as fabrication, falsification, and plagiarism; and animal research requirements. The article concludes by presenting additional considerations related to federal funding of research.
This chapter starts with a critical assessment of the legal foundation of the concept of child participation from the perspective of the UN Convention on the Rights of the Child. It is followed by a discussion of how the right of the child to express her or his views should and could be implemented in the family, school, health care settings, legal proceedings, and in the community and society (public participation) and of the challenges children and others face with this implementation. The chapter concludes with recommendations for further actions that promote and support the participation of children in all areas of their lives.
Barbara Bennett Woodhouse
This chapter discusses the role played by human rights charters, such as the UN Convention on the Rights of the Child, the European Charter of Human Rights, and the African Charter on the Rights and Welfare of the Child, in establishing that children are not mere property of their parents but persons with their own independent rights to protection of family relationships and family identity. The chapter identifies specific provisions in these charters relevant to children’s family rights. It then examines various decisions of the European Court of Human Rights that address claims of violations of children’s rights to family in contexts including adoption, child protection, family reunification, access to birth records, and immigration, and that define appropriate remedies. The chapter closes by highlighting the growing threat to children’s rights to know and be cared for by their families posed by the populist backlash in wealthier nations against migrants fleeing war, violence, and poverty.
Karl Hanson and Olga Nieuwenhuys
A child-centered approach to children’s rights law recognizes that children shape, interpret, and practice what their rights are and that they have the right to do so. This chapter starts with critiquing essentialist tendencies that diminish children’s active engagement with their rights and discusses how the concepts of living rights and translations may help provide children the space needed to negotiate meanings and influence interpretations of their rights. The concept of living rights contends that the meaning, interpretation, and practice of children’s rights constitute a living, dynamic process. The concept of translations challenges the one-way idea of implementation to analyze what happens with children’s rights in the complex encounters of children’s and other actors’ perspectives. Taken together, living rights and translations help to understand the multiple readings of children’s rights, including those of children, at work in a given situation.
This chapter addresses a particularly vulnerable population of children, namely, children associated with armed forces or armed groups. These children are colloquially known as child soldiers. This chapter begins by surveying the prevalence of child soldiering globally. It then sets out the considerable amount of international law that addresses children in armed conflict, in particular, the law that allocates responsibility for child soldiering and the law that sets out the responsibility of child soldiers for their conduct. The chapter identifies significant gaps between the law and the securing of positive outcomes for former child soldiers, notably when it comes to post-conflict reintegration. The protective impulse that envisions militarized youth as faultless passive victims may not always reflect how youthful fighters see themselves nor necessarily support an emancipatory and empowering vision of how international law should promote the rights of children.
Maya Sabatello and Mary Frances Layden
Children with disabilities are among the most vulnerable groups in the world—and a children’s rights approach is key for reversing historical wrongs and for promoting an inclusive future. To establish this argument, this chapter explores the state of affairs and legal protections for upholding the rights of children with disabilities. It critically examines major developments in the international framework that pertain to the rights of children with disabilities, and it considers some of the prime achievements—and challenges—that arise in the implementation of a child-friendly disability rights agenda. The chapter then zooms in on two particularly salient issues for children with disabilities, namely, inclusive education and deinstitutionalization, and highlights the successes and challenges ahead. The final section provides some concluding thoughts about the present and the prospect of upholding the human rights of children with disabilities.
Jonathan Todres and Shani M. King
Significant progress has been made on implementing children’s rights and securing child well-being in the thirty years since the adoption of the Convention on the Rights of the Child. Yet millions of children continue to suffer children’s rights violations. Looking forward, this concluding chapter of the volume focuses on two areas: cross-cutting themes in children’s rights and selected critical issues in children’s rights. First, the chapter argues that a core group of key themes are particularly relevant to children’s rights and require greater attention: the time-sensitive nature of children’s rights, the interrelated nature of children’s rights, autonomy’s application to children, child participation, and the need to mainstream both children and children’s rights. The second part of the chapter discusses pressing issues that have and will continue to have major impact on children’s rights, including large-scale human rights crises, the private sector, technology, genetic and related scientific advances, the rise in populism, violence against children, and climate change. Through the combination of these cross-cutting themes and current issues, the chapter maps an agenda for research and advocacy that can advance children’s rights law scholarship and help foster progress toward ensuring the rights and well-being of all children.
This article highlights the trials and tribulations of citizenship in a world of increasing mobility and diversity. The discussion is divided into three parts. Section I provides a concise overview of citizenship's multiple meanings and interpretations. Section II constitutes the bulk of the discussion. It begins by exploring questions of membership acquisition and transfer, which legally determine ‘who belongs’ within the boundaries of a given political community, either by birth or naturalization. It then assesses three recent developments: the growing recognition of dual nationality; the revival of debates about involuntary citizenship revocation; and the ‘cultural turn’ in citizenship discourse, which often makes inclusion in the body politic more difficult for those deemed ‘too different’ from the majority community. Section III charts the major challenges and opportunities facing citizenship in the twenty-first century.
The relationship of citizenship and human rights has become a central issue for contemporary politics. This chapter begins with a brief overview of theories of human rights, before addressing two pivotal topics for this relationship: a human right to citizenship (as membership of a state) and a human right to democracy. It then turns to consider the practical salience of the international human rights regime for citizenship and human rights, before concluding with a discussion of the relationship of human rights as cosmopolitan norms to the principle of the self-determination of peoples.
David B. Thronson
Citizenship plays a larger and more critical role in the life of children than it should. Children who lack citizenship are incredibly vulnerable to exploitation. In the migration context, a child’s citizenship can be largely determinative of where and with whom a child lives. Despite a modern children’s rights framework that recognizes the humanity and autonomy of children, citizenship and nationality still form an integral part of a child’s identity and play a critical role in a child’s development. It has a pervasive impact in securing other rights for children and can be a central factor in a child’s cultural and linguistic background, education, economic and environment exposures, and virtually all aspects of a child’s daily life. This chapter examines children’s right to citizenship and explores the ongoing crisis of statelessness that undermines these rights. It reviews the role that citizenship plays in both voluntary and forced migration of children, child-specific protections found in both universal and regional human rights frameworks, and the role of children’s citizenship in promoting family unity.
This chapter traces the development of citizenship in immigrant-receiving states, comparing the Gulf States in the Middle East with the Western states of Europe and North America. In particular, I juxtapose these states` opposite responses to the fact of immigration, which is exclusion in the Gulf and inclusion in the West. These opposite responses articulate a structural ambivalence of citizenship, which is to be inclusive to the inside but exclusive to the outside. Among the factors conditioning inclusive or exclusive outcomes are the liberal-democratic features of Western states and the autocratic and rentier character of Gulf States.