The Zika Virus and Abortion Laws in Latin America

Recently, global attention has fallen on the Zika virus which has been declared a “global public health emergency” by the World Health Organization. The Zika virus is a disease that is spread mainly through infected mosquito bites, and it is very prevalent in Latin America.

In adults, the Zika virus can cause “fever, rash, joint pain, and conjunctivitis,” and it rarely requires infected adults to be hospitalized. Unfortunately, the virus can cause detrimental effects to infants born to women who were pregnant when they were bitten by the infected mosquitos. Specifically, the virus may cause microcephaly in infants (who were in utero when their mother was initially infected). Microcephaly can cause infants’ heads to be much smaller than normal and can cause infants to have underdeveloped brains. In addition, the disease may cause seizure, developmental problems, and visual and hearing problems for these infants.

In light of these dangers, public debate has ignited over several Latin American countries’ abortion laws. For example, there is a complete ban on abortion in Nicaragua, El Salvador, the Dominican Republic, and Chile. In Colombia, the law allows abortions where the mother’s health is at risk and when the “fetus displays signs of severe deformity.” In Brazil, abortion is permitted in cases of rape, when the mother’s life is at risk, and when the fetus has ancephaly.

Unfortunately, all of these countries have reported cases of the Zika virus. As of recent reports, at least 100 El Salvadoran women have tested positive for the Zika virus. In Brazil, at least 3,893 infants were born with microcephaly from October 2015 until the middle of January 2016. In response to the outbreak, the governments of “Ecuador, El Salvador, Jamaica, and Colombia . . . recommend that women delay their pregnancies.

In addition, the dangers of the Zika virus has cause several Latin American governments, such as Brazil, to consider revising their abortion laws. In other Latin American countries, such as Colombia, women are permitted to get abortions if they have been infected with the Zika virus. However, these exceptions are not well known “in the most affected areas [, where there is less] clarity over these laws.” In these affected areas, “there is [also] a lack of information and access to [such abortion] services.”

Even with the threat of severe deformities caused by the virus, lobbyists exist on both sides of the issue in Latin America. There are many arguments both for and against abortion in the Zika virus context. For example, lobbyists against abortion argue that aborting a fetus (who may have microcephaly) is prejudice against a disabled person. Supporters for more relaxed abortion measures argue that the virus may cause very severe birth defects, and that women will still get abortions—although poorer women (compared to wealthier women) will be more likely to get abortions in life-threatening and unsanitary conditions.

Latin American countries that completely ban abortions (even in Zika virus cases) should consider revising their laws to make the virus an exception to these abortion laws. Further, countries with Zika virus exceptions should publicize the exceptions to areas that are heavily impacted by the virus. If these countries cannot make such exceptions, then those countries’ governments should provide financial assistance for the medical costs associated with caring for the infants who suffer from microcephaly.

Kelci Scirrotto is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.

“Tik Tok”: Exclusive Deals’ Time Restrictions in the Music Industry

Kesha—whether you’ve heard her music, haven’t heard it, or wish you never heard it, one thing rings true—you haven’t heard a new song from her in at least a year. Now, many people assume that she has gone the route of one-hit wonders or entertainers who’ve retired or just couldn’t produce another hit song. However, this isn’t the case with Kesha (who is famous for songs such as “Tik Tok”). Currently, Kesha is swamped in a legal battle at the Los Angeles County Superior Court with music producer Dr. Luke on the allegations that he sexually assaulted her. Dr. Luke has also countersued. Dr. Luke’s company is responsible for many artists’ hits, including Rihanna and Katy Perry, and his record company is “housed” by Sony.

Under Kesha’s contract, she has agreed to a six album deal with Dr. Luke’s record company. Because of this contract, Kesha is effectively not allowed to make any music with any other music producer. As a result of her contract and the law suit, she has been unable to produce new music, tour or promote any of her merchandise. This is especially a problem for her because the majority of artists make most of their money from merchandise and tour sales. While some people may not be upset about not hearing new music from her any time soon, this raises an interesting legal question about the restrictions placed on artists’ recording contracts, specifically restrictions regarding time and the number of albums an artist must produce with a company.

Essentially, there are three types of recording contracts in the music industry, which include a development deal, a licensing deal, and an exclusive deal. The development deal is a contract where the record company will help to develop the artist, and the artist agrees to record around five tracks. Unlike the other two types of contracts, an album here is unlikely to be recorded, and the company is unlikely to support a new artist for a tour or music video, unless another type of contract is formed. Like the other two types of deals, the licensing deal gives the record company copyright for the artist’s tracks for a set amount of time.

The exclusive deal is basically what most artists want in the industry. However, this type of deal restricts the artist to recording for only a certain company for a set period of time. This is the type of deal that Kesha is involved in.

Exclusive deals or contracts aren’t rare in the United States. They aren’t rare throughout the rest of the world either. In fact, versions of these types of contracts have caused many problems in South Korea’s music industry. Many of the recording deals in South Korea require the artist to only work for the company for a long period of time, and these deals can be incredibly restrictive on the artist. For example, one South Korean pop group named Dong Bang Shin Ki sued its management company because their contract required the group to only work for their management company for thirteen years, because the contract was very restrictive, and because they made little profit. The court in that case agreed with the group, and South Korea’s Fair Trade Commission then set out a model contract for the music industry.

Exclusive deals tend to greatly favor the record company over the artist. This raises an ethical concern about the period of time that the company can require an artist to exclusively work for that company. Record companies should consider making these types of deals fairer to the artists, with respect to potential legal issues and time constraints. However, it seems very unlikely that a company would do this. After all, who would want to lose such a superior bargaining position? In Kesha’s case, she is unable to work because of the lawsuit, while Dr. Luke’s production company is continuing to produce hits for other artists. Frankly, this type of control is more concerning in comparison to artists who are not nearly as wealthy and who do not have as much money to fall back on as Kesha. While this type of contract restriction is unlikely to change in the near future, music companies should consider placing lower time or album-number constraints on artists in exclusive deals.

 

Kelci Scirrotto is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.

Commercial Whaling: A Brief Explanation and a Call for Better Legal Solutions

Every year, over 2,000 whales are killed due to commercial whaling. While this may not seem like a large number, the major issue is that many of these whales are a part of an endangered species. Despite a Convention that is already in place, three countries still allow commercial whaling. Overall, better legal solutions are needed to protect whale populations, particularly endangered ones.

To help conserve whale populations, in 1946, the International Convention for the Regulation of Whaling was created and the International Whaling Commission (“IWC”) was formed as a result of that Convention. The IWC itself has 88 member governments. In addition, this “Convention includes a legally binding Schedule which . . . sets out catch limits for commercial and aboriginal subsistence whaling.” The IWC can amend these limits, and, in 1986, the IWC banned commercial whaling. This action is commonly known as the commercial whaling moratorium.

Despite the 1986 moratorium, Japan, Iceland, and Norway have continued to allow commercial whaling. Japan, for example, argues that Japanese commercial whaling falls under a Convention loophole that allows commercial whaling when it is done for scientific purposes.

Both Norway and Iceland, which are members of the IWC, protest the moratorium. Norway, for example, followed the IWC ban until 1993 when it set limits on commercial whaling, but Norway allowed the practice to continue. Similarly, in 1992, Iceland withdrew from the IWC, joined the IWC in 2004, and continued commercial whaling starting in 2006. In 2010, commercial whalers in Iceland, for example, have killed and shipped 750 tons of product made from whale meat to Japan. This is a serious matter since commercial whalers in Iceland tend to go after Minke and Fin whales, and, in 2010, Icelandic commercial whalers killed 148 Fin whales, which are endangered. Overall, these three countries also argue that they should be allowed to perform commercial whaling because of their countries’ histories in whaling, despite the ban.

Several solutions have been offered to further protect whaling populations from commercial whaling, despite these three countries’ continual practice. For instance, as she discusses in an article for Arizona State University, Dr. Leah Gerber, a marine conservation biologist at Arizona State University, argues that monitoring and regulations could curb the number of whales killed each year due to commercial whaling. For example, Dr. Gerber argues that commercial whaling does not severely harm all whale populations, but some populations, such as one population of Minke whales (in the Sea of Japan, Yellow Sea, and East China Seas), have been negatively impacted by commercial whaling. In contrast, animal rights groups tend to call for trade sanctions, but this approach may be too difficult, because of the economic impact of commercial whaling on these countries’ economies. Because of this impact, trade sanctions may be too harsh and unnecessarily harm these countries’ economies.

However, stricter enforcement needs to be put in place. Iceland and Norway already report commercial whaling numbers to the IWC. For example, in 2013, Norway was responsible for commercial whaling of 594 whales, and Iceland was responsible for 169. Because Japan is allows commercial whaling due to a legal loophole, the simplest solution would be to eliminate the loophole in the Convention that allows for scientific research. While this could be a slippery slope, closing the loophole could prevent commercial whaling or, at a minimum, reduce commercial whaling. While Norway and Iceland protest the moratorium and provide commercial whaling numbers, the IWC should place greater restrictions on commercial whaling limits, at a minimum. For example, perhaps the Convention could be modified to place even greater limits on the number of whales killed by commercial whaling in Norway, Iceland, and Japan. No matter what the solution, more attention needs to be drawn to this issue, and legal steps are needed to reduce commercial whaling, if not completely eliminate it.

Kelci Scirrotto is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.


Citations to articles & documents are included in the aforementioned underlined hyperlinks.