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March|April 2004
Not So Bon Voyage By John Swansburg
World Wide Water Cooler By Charles Duhigg
Taken to the Cleaners By Katharine Mieszkowski
the prudent jurist By Stephen Gillers
Cases & Controversies
The Shawshank Reputation By John Swansburg

Cases & Controversies


Inconceivable Differences

THE LESBIAN LOVERS E. G. AND K. M. were a perfect match. When they met in San Francisco in 1992, E. G. had been struggling for years to get pregnant because she could not produce enough eggs to conceive. K. M. had a diseased uterus and could not bear children, but her eggs were fine. The solution seemed fated: K. M. donated her eggs and E. G. carried the resulting twin girls to term. Living together as registered domestic partners, the couple raised the girls for five years as a family, taking the girls to visit both sets of grandparents, attending school open houses, and taking turns staying home and caring for the kids when they caught the occasional bug. Then, in 2001, the couple broke up—and began fighting about who should get the kids.

Claiming them as her own, E. G. moved to Massachusetts with the girls. K. M. had signed a release form where jammed between the descriptions of possible medical complications was this promise: "I waive any right and relinquish any claim to the donated eggs or any pregnancy or offspring that might result from them." But K. M. is suing for parental rights, arguing that though she signed the waiver she fully expected to be a mother to the girls. The contract is unenforceable, she claims, saying that she wasn't paid for the eggs. She spent five years caring for and supporting the twins, which—above and beyond her genetic link, she contends—should qualify her as a second parent.

To the dismay of gay rights advocates, a county court dismissed K. M.'s suit. She has appealed that decision to the California Court of Appeals. If she wins, the ruling would raise questions about the validity of the contracts that enable fertility clinics to function. But if she loses, the state may be allowing something much more precious—being a parent—to be signed away in the fine print.

Fashion Victim

GOOGLE, THE INTERNET SEARCH ENGINE popular enough to spawn its own verb, has built its reputation on its speed and efficiency in recommending useful websites. Displayed alongside Google's continually updated results is a column of paid advertisements that link to e-commerce sites. Called the AdWords program, it can tailor ads to specific searches. So a shopper who types in "Burberry" in search of the season's must-have scarf will come up with links to companies like Neiman Marcus and eBay that then pay Google if the shopper clicks through to their websites.

This system has come under fire from trademark holders. In France, Louis Vuitton sued Google last August for using the tony bag-maker's name to hawk advertisements for third parties, who, Louis Vuitton argued, have no right to its trademarks. In October, a French court ordered Google to pay 75,000 euros ($95,000) to two travel agencies that claimed to have suffered from similar trademark violations.

At least one U.S. court seems swayed by this argument. In 1999, Playboy Enterprises sued Netscape over similar paid-for links displayed when individuals typed "playboy" or "playmate" into Netscape's search engine. The Ninth Circuit recently overturned a lower court's dismissal of the suit, finding that because Netscape's ads were unlabeled, they may have been illegal. Google is concerned enough that it has asked a federal district court to declare broadly that the links created by AdWords do not constitute trademark infringement. Now courts in the United States and France must decide how much French handbags have in common with American playmates.

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