Suchergebnisse

The extent to which English law remedies injury to autonomy (ITA) as a stand-alone actionable damage in negligence is disputed. In this article I argue that the remedy available is not only partial and inconsistent (Keren-Paz in Med Law Rev, 2018) but also gendered and discriminatory against women. I first situate the argument within the broader feminist critique of tort law as failing to appropriately remedy gendered harms, and of law more broadly as undervaluing women's interest in reproductive autonomy. I then show by reference to English remedies law's first principles how imposed motherhood cases—Rees v Darlington and its predecessor McFarlane v Tayside Health Board—result in gender injustice when compared with other autonomy cases such as Chester v Afshar and Yearworth v North Bristol NHS Trust: A minor gender-neutral ITA is better remedied than the significant gendered harm of imposing motherhood on the claimant; men's reproductive autonomy is protected to a greater extent than women's; women's reproductive autonomy is protected by an exceptional, derisory award. Worst of all, courts refuse to recognise imposed motherhood as detriment; and the deemed, mansplained, nonpecuniary joys of motherhood are used to offset pecuniary upkeep costs, forcing the claimant into a position she sought to avoid and thus further undermining her autonomy. The recent Singaporean case ACB v Thomson Medical Pte Ltd, awarding compensation for undermining the claimant's genetic affinity in an IVF wrong-sperm-mix-up demonstrates some improvement in comparison to English law, and some shared gender injustices in the context of reproductive autonomy. ACB's analysis is oblivious to the nature of reproductive autonomy harm as gendered; and prioritises the father's interest in having genetic affinity with the baby over a woman's interest in not having motherhood imposed upon her.

1. Introduction -- 2. Potential responses, and the experience thus far -- 3. Restitution from traffickers -- 4. Restitution from the state -- 5. Clients' liability for direct contact : battery and conversion -- 6. Clients' negligence in contributing to trafficking : duty -- 7. Breach -- 8. Causation -- 9. Practical challenges : access to justice, evidence, recovery -- 10. Conclusion : the promise of private law.

Sex Trafficking: A Private Law Response examines existing and potential causes of action against sex traffickers, clients and the state and argues for fair and effective private law remedies. Combining a theoretical inquiry about the borders of liability in torts and restitution with a political commitment to protecting the interests of victims of sex trafficking, this book offers a comparative doctrinal and socio-legal analysis of private law remedies, their justification, and their effectiveness. Tsachi Keren-Paz innovatively and convincingly makes the argument that all those dir.

In this article I seek to apply a general claim about tort law - that it should promote as one of its goals a better attainment of distributive justice - to the context of maternal prenatal duty. My argument is that, contrary to common belief among lawyers, the negative burden that a maternal prenatal duty of care would place on potential defendants' autonomy, although significant, is not a convincing reason in itself to oppose such a duty. Crucial to this argument is the fact that it is the autonomy of women that is limited. Moreover, and somewhat counter-intuitively, I argue that a genuine distributive-egalitarian concern can in fact support the imposition of liability, within the limits of actual insurance coverage, when certain conditions are met, at least according to one understanding of this concern.