Parental responsibility and abortion

As you may have heard, a New York man and a men's rights think tank are fighting for a dude's right to be a deadbeat dad. They are arguing that equal protection demands that men have the right to walk away from their children because women have the right to abort fetuses.

A woman's right to choose derives from two principles: people have the right to control their own bodies and fetuses aren't people.

It's important to keep in mind neither pregnancy nor child support is a punishment for sex. Child support and visitation are parents' responsibilities to their children, not debts to their exes. Unlike fetuses, children are people with rights and needs. A father who refuses to be involved with his biological child is being deeply unfair to that kid.

This is the point at which the men's right's activists start whining. Why is that kid my problem? The answer is very simple: You helped bring that child into the world and now it's going to have a very, very tough life unless you step up and accept responsibility. If the father knowingly engaged in behavior that might result in the birth of a child, then he has an obligation to help support that child.

Friends of forced birth like to say that if a woman has sex, she should be prepared to face the consequences. I agree. There are two potential consequences of an unwanted pregnancy: birth or abortion. Every sexually active woman knows that she may have to choose one consequence or the other. Getting an abortion is one perfectly acceptable way of dealing with the consequences of sex.

If the woman chooses to become a mother, she incurs responsibilities towards her child. There are different ways to discharge those responsibilities of course. Morally defensible options may include giving the child up for adoption (with the father's consent), giving the father custody of the child and paying child support, or raising the child as a single parent. Once the child is born, men and women are on an equal footing again.

If you believe some men's right's activists, women are constantly getting pregnant by deceit in order to trap them into fatherhood. I'm somewhat dubious about this empirical claim, as is Amanda:

The thing I find interesting is this dude resorts to the standard MRA whine–”She lied to me and told me she couldn’t/wouldn’t get pregnant!” It strains credulity. Every woman I’ve ever known to get pregnant did so either by a contraception failure or by not using anything, but always with her partner’s knowledge and cooperation. And yet there’s apparently hoardes of women out there lying about contraception use and they always seem to end up with guys who have an ideological stance against child support. Funny how that works.

However, let's agree that someone who schemed to get knocked up would in fact be a Conniving Bitch. Even so, the wrongfulness of the conception has nothing to do parents' responsibilities towards their children.

Heterosexual sex is a known high-risk activity for pregnancy, even for couples who take all reasonable protections. Pregnancy is a known risk factor for changing one's mind about wanting an abortion. It should come as no surprise to adults that some people, even those closest to us, may betray us in matters of the heart. And according to the men's right's activists, it's a known fact that hordes of Conniving Bitches are ravening for sperm. So, a guy can't be too careful out there.

There's no way around it--people who engage in consensual sex always run the risk of creating children who will need parents. It's not fair to those children to deny them a decent future just because you don't happen to feel like being a parent.

Arguing that equal protection guarantees a man's right to "walk away" from his child is doubly insulting. If the deadbeat dads got their way, they would create an unequal class of children whose dads absolved themselves of all legal responsibility for them by simply objecting to their being born.

Comments

[Doug]

At least the anti-sodomy laws have been struck down. That should help potential dads out a little bit.

[Bob Koepp]

It might be rhetorically effective to lump all men's rights activists together as responsibility avoiding jerks, but it's no more justified than lumping together all women's rights activists as conniving bitches. I don't think liberal minded people would do either...

[Robert Bell]

If the father knowingly engaged in behavior that might result in the birth of a child, then he has an obligation to help support that child.

What about this:

If the mother knowingly engaged in behavior that might result in the birth of a child, then she has an obligation to help support that child.

The implication of this is that abortion would need to be illegal, i.e. supporting the child militates against prematurely ending a pregnancy (I’m pro choice, BTW).

In my view, both biological parents ought to have a nearly equal part in the decision making process, with deference being given to the mother. That said however, if the mother chooses to carry a child to term against the wishes of the father, then the she ought to bear full responsibility for her decision.

[squashed]

Obviously we have conniving bitches and jerks man boy around. So I propose sterilization for them all. (ya think personal behavior modification can work? yer dreaming. so snip - snip...

I don't know why everybody is spending such enormous amount of brain time on this. :-)

[Brock]

I don't know why everybody is spending such enormous amount of brain time on this.

I'm spending so much brain time on it because it's a philosophically interesting case. Note that Lindsay categorized this as "philosophy."

Perhaps you'd prefer that she discuss the analytic/synthetic distinction? (So would I, but I still find this case interesting!)

[Ereshkigal]

Robert, women have a legal obligation to participate in supporting their children I know of no state in which child support payments (made by non-custodial parents) come close to meeting the support needs of the child.

Usually states have a formula that generates minimum support owed, based upon such factors as the number of nights the child spends with each parent, mother's income, father's income, unusual medical needs, etc.

Lindsay, your equal protection argument is exactly on target. In fact, states once had different sets of statutes; one set governing children born to married parents, and set governing children born outside wedlock. Such laws, usually called "bastardy statutes". have been abolished universally under the 14th Amendment and other instruments of enlightenment.

Forbid that we lapse back into the days when we judged children's worth by the legal status of their sexually active parents.

[Bob Koepp]

Ereshkigal - I don't think anybody here raised a question about whether equal protection applied uniformly to children. The question was whether it applies uniformly to biological parents.

[Patrick]

"I know of no state in which child support payments (made by non-custodial parents) come close to meeting the support needs of the child."

The support needs are calculated subjectively based on the income of the household. As such, if the noncustodial parent suddenly gets a raise and earns twice as much income, that parent isn't twice as able to pay the support needs of their child. Instead, the courts will increase the child support payments to match the new, twice as large support needs of the child.

At the end of the day, family law basically doesn't make any sense unless you look at it as a conglomeration of morals and values stitched together from wildly disparate sources into some sort of ugly frankensteinian monster. The values which undergird some sections of the law are completely reversed in others. Its a highly political realm, and the alleged goal of family law, protecting children, is inconsistently pursued at best. I found it amazing in law school when I'd read up on two separate sections of the law, and find that what were fundamental assumptions about fairness and equity in one, were completely ignored in another.

That means that arguments about it are easy to get into, and basically everyone has something they'd really like to change. This will probably continue to be the case.

[Emily]

Perhaps the underlying unfairness is that women have some control over the consequences of an unintended pregnancy, while men do not.

[Mark]

Emily, it's encouraging that somebody here acknowledges that!

[m]

There are quite a few improper and unethical practices in family courts that can be harangued against. And, in many cases the rights of some parents, or worse non-parents, can be egregiously abused, often on the basis of gender.

But this case is not one of then. Engage in sexual activity, and you bear the responsibility for the sequels of that behavior. Just as in any activity, you are responsible for the results. Drive a car, have an accident, pay. Not punishment, consequences.

[Lindsay Beyerstein]

Giving men the right to abandon their unwanted children won't make the situation fair. If the New York computer programmer got his way, all men would have a free pass to walk away any women they impregnate.

Would-be deadbeat dads don't have any authority to force women to get abortions. All they could do would be announce their preference for an abortion. Some unscrupulous guys would say they wanted their partner to get an abortion just to get out of paying child support. Once you know that the woman has decided to have the baby, you might as well object. That way, you wouldn't have to pay child support.

He happens to have a sob story about how he was "tricked", but that's not the legal argument he's using. He's saying that men deserve "equal rights" to abandon their children. In fact, women don't have the right to abandon their children either. Women have the right to abort fetuses, but only because those fetuses aren't people with rights.

I'm in favor of a strict liability model for sexual intercourse. It doesn't matter what somebody else tells you about their fertility. Unintended pregnancy is always a readily foreseeable risk, even if your partner swears up and down they're protected and/or infertile. People are often sincerely mistaken about their fertility and every form of birth control has a failure rate.

[Bob Koepp]

Lindsay -
Is there something about sexual intercourse that warrants the application of the strict liability standard? Even though I don't think false pretenses play a role in very many unintended pregancies, your apparent absolute rejection of mitigating circumstances doesn't seem to mesh with the way responsibility is usually apportioned. What's going on?

[Emily]

I doubt there is any way to make the situation completely fair. But I think men do have less control over the consequences of an unintended pregnancy and that it would be a mistake to pretend otherwise. I also suspect that most women choose to abort a pregnancy more because they don't want to have a baby and responsibility towards a baby than because they don't want a fetus growing in them.

I don't know. Maybe men could all buy "accidental pregnancy insurance" and call in the policy to pay when their partner chooses to deliver and keep a baby. The men would have to forfeit all rights to the child as a woman does in an adoption. That would meet the financial obligations, and the law already can't enforce any parenting obligations.

[Trystero]

Maybe men could all buy "accidental pregnancy insurance"...

Heh. I would totally buy that insurance. That said, administering the thing would be a nightmare. Bad drivers' rates go up. How do we figure out if someone is a "bad fucker"?

Would it not also increase irresponsible behavior in men? Pregnancy has way more consequence for women than men already, even when intentional. If men could really walk away from an unwanted pregnancy with no consequences at all?

[thump]

Could there be a way for a man to sign away his rights and responsibilities within a certain period of his sexual partner's pregnancy, a sort of legal equivalent of abortion? The time limitation would have to be short enough that, with the knowledge of her male partner's signing such a statement, a woman still has time to get a legal abortion.

[Patrick]

thump- That's basically what the guy in this suit wants.

[thump]

Patrick,

Hmmm... yes, you're right. Thanks. I hadn't bothered to go read the original article, as it seemed to me that this case, with the child born already, wouldn't be a useful way to argue for this sort of proposal. Apparently I was wrong .

[Lindsay Beyerstein]

Sex is like any other high-risk activity with readily foreseeable consequences. In those cases, you're responsible for the effects of your behavior on innocent third parties. If you're a man who engages in heterosexual intercourse, you know that there's a non-trivial chance that you will end up fathering a child even under optimal circumstances (perfect birth control use, mutual honesty, etc). It's possible that intercourse is an even higher-risk activity than you anticipated because your partner is untrustworthy.

Nobody's saying that the guy is 100% responsible for the child. All he's being asked to do is to help support the kid that he helped create (knowing the risks involved). There's no question of mitigation here. A guy who refuses to be a father to his child is potentially screwing up an innocent person's whole life. The guy may be an innocent victim of trickery, but he was a willing participant in sex (which carried a high risk of parenthood anyway).

People keep saying that if women can have abortions because they don't want to be mothers, then guys should be able to abandon their children because they don't want to be fathers. This does not compute. A mother's motives for having an abortion are irrelevant. The fetus doesn't have any rights, and the woman has the right to control her own body. So, she has the right to terminate a pregnancy for any reason. Whereas, nobody has the right to simply ditch their parenting responsibilities because they don't feel like fulfilling them.

[Brock]

Maybe men could all buy "accidental pregnancy insurance" and call in the policy to pay when their partner chooses to deliver and keep a baby.

I was thinking about that earlier today, but came to the conclusion that moral hazard issues mean that no firm would ever underwrite such insurance.

[Brock]

Whereas, nobody has the right to simply ditch their parenting responsibilities because they don't feel like fulfilling them.

But parents do have a right to ditch their parental responsibilities, provided they both agree to: they put the child up for adoption.

The question this case raises is whether a parent can unilaterally ditch his or her parental responsibilities, if the other parent does not want to put the child up for adoption.

My tentative conclusion, which I haven't yet seen any good arguments against: in general, no (too much moral hazard); but if there's deception on the part of one of the partners that leads to the pregancy, then the deceived partner has a right to unilaterally ditch his or her parental rights and responsibilities.

Is this rule in "the best interests of the child"? No, I suppose not. But that's an absurd standard, if it's unqualified by other considerations. If "the best interests of the child" were the unqualified standard, we'd assign a random rich person (the gender is really irrelevant) to every child of a single parent, and make that person pay child support.

[Jillian]

I think the reason that people keep splitting into two groups on this issue comes down to that fundamental division over when a conceptus becomes a "person" to whom we have moral obligations.

IF the unborn conceptus is a person, then both the father has a financial responsibilty AFTER birth AND the mother has a carry-to-term responsibility BEFORE birth.

IF the unborn conceptus is NOT a person, then the pregnant woman has the right to do whatever she wants with it while it's in her body and completely physically parasitic upon her, but loses that right once the conceptus is born and becomes a person. At which point in time, the father (once again) has that pesky financial responsibility.

Yeah, it's unfair to the man that the woman has the right to decide what to do with the conceptus while it's in her body in the second scenario, but biology is inherently unfair. It's unfair that women die of cervical cancer that they get from having sex with men, while men never do. It's unfair that a man who wants to be a biological parent doesn't have to do anything more than have an orgasm at the right time and place.

There are some issues of biological unfairness that the law really cannot address fully. Some day, when it's possible to remove a conceptus within the first month of pregnancy in a fashion no more invasive than an abortion currently is and transport it into an artificial amniotic environment, all these questions of fairness will be behind us. Until then, we have to be sure we're clear about how we're using our terms.

[Lindsay Beyerstein]

Brock, you're saying that people are obliged to fulfill their parenting obligations unless they were deceived. Suppose a condom manufacturer deceives the public about a manufacturing defect in a batch of condoms. And suppose an unfortunate guy knocks up his girlfriend because the condom company tricked him. Would the condom company's deception give him the right to unilaterally opt out of his parenting responsibilities?

We agree that a man who's sperm was literally stolen from him by rape or illicit surgery shouldn't be responsible for child support. Whereas, if both parties take all reasonable precautions during consensual sex, the guy still has parenting responsibilities.

The underlying reason is that heterosexual intercourse is a high-risk activity for parenthood. Every reasonable man knows that it's possible that he will end up fathering a child as a result of intercourse. So, if worse comes to worst, he's responsible for mitigating the harm that his behavior might do to an innocent person, i.e., his child. Nobody's saying he's 100% responsible, just that he's not entitled to abrogate completely.

The risk of deception is just one more risk that a rational man should anticipate when he gets involved in a sexual relationship. At the very least, he has to worry about birth control failures, mutual lapses, bad luck, etc. Those background risks alone are enough to obligate him to his future child. It's also possible that he's dealing with an even higher-risk scenario than--sex with a deceptive or unstable sexual partner. Sometimes, the guy should also have known better than to trust someone like that in the first place. Is it fair to say to a child: "You're on your own because I was too gullible to wear a condom or too desperate to say no to that psycho woman who became your mom."

Child support is an obligation of the parent to the child, not a punishment for irresponsible behavior. Sometimes people are blameworthy for unwanted pregnancies. In the case of deception or irresponsibility, the blame may fall squarely on one person. In cases were everyone took all reasonable precautions, it's arguably nobody's fault. The fact remains that an innocent child has been born into a severely disadvantaged position because of other people's choices. Therefore, those people have a shared responsibility to do right by that child. Nobody's talking about unchecked obligations. Even regular parents aren't obliged to give absolutely everything to their children, they just have to provide a decent life for them. All I'm saying is that a father is obliged to contribute to the well-being of the child he helped to create, even if the pregnancy was the result of an accident or deception.

[Bob Koepp]

We could play fast and loose with the facts of the case, and imagine that the parties had both signed off on a pre-coital agreement stipulating that if an inintended pregnancy should occur, it would be aborted (with whatever additional allocation of responsibilities you prefer). Would such an agreement be honored under the law?

[Patrick]

"Would the condom company's deception give him the right to unilaterally opt out of his parenting responsibilities?"

He would have a wrongful birth cause of action against the condom company. Damages would be calculated based on support of the child.

So, YES. He would have the right to unilaterally opt out of his parenting responsibilities.

Maybe you meant to ask, SHOULD he have this right. I don't know. Republicans keep trying to outlaw wrongful birth suits, so many people think he should in fact not have this right.

But if the question is, DOES he have this right, umm, yes.