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March 13, 2006

Salon on that pseudo-Roe story

Rebecca Traister has an article in Salon about Matt Dubay, the 25-year-old computer technician who's shamelessly vying for pro-choice cred in his bid for deadbeat dads' rights.

Traister asks whether someone who really cared about choice would be launching what is universally acknowledged to be a nuisance suit to publicize men's alleged "right to choose" when real abortion rights are under coordinated attack. I don't have a lot of patience for this kinds of argument. If it's ever okay to launch a nuisance suit on behalf of child deserters, now's probably as good a time as any. Generally, I don't spend a lot of time worrying about how those who merely claim to be on my side might reflect on me. I think people like Amy Sullivan and Kos waste a lot of energy agonizing about how other pro-choicers reflect on the progressive movement. Obviously Dubay isn't doing pro-choicers any favors by taking a stance that is widely believed to be irresponsible and selfish, given that this is exactly the taint that real pro-choice activists are constantly trying to avoid. On the other hand, I don't want Sullivan and Kos telling me to shut up because I'm responsible for how people perceive Democrats at large. So, I can't very well complain that Dubay is stabbing the pro-choicers in the back by putting his personal struggle above the movement's public image.

On the other hand, I can spot opportunism when I see it. Dubay and the National Center for Men are trivializing abortion rights for the sake of their little publicity stunt.

According to the article, the National Center for Men had been waiting for an appropriate plaintiff for this lawsuit for ten years. And yet Dubay's case is weak, even by the deadbeat dad lobby's standards. If he's the best test case they could find in a decade, it kind of makes you wonder if there are as many sperm-snatching snatches out there as the men's rights activists would have you believe.

Dubay doesn't even claim that his girlfriend knowingly deceived him about her fertility. According to the article, she believed that she couldn't get pregnant because of a medical condition and Dubay believed her. As it turned out, they were both wrong. His girlfriend subsequently decided that she wanted to have the baby. Dubay's only defense was that he said he never wanted children. He isn't alleging that his girlfriend wanted a child and connived to get one against his wishes. He's just whining about the fact that she "changed her mind", as he acknowledged to be her right. (By "her right", he seems to mean simply her right not to be dragged to the clinic under armed guard.)

If Dubay took a woman's right to choose seriously he wouldn't be so blase about a man's right to threaten a woman with destitution if she doesn't get an abortion. The decision to give birth is deeply personal one, but so is the decision to have an abortion. Being financially compelled to get an abortion that you don't want because you are afraid of being left destitute is as much a violation of personal integrity as being forced to give birth.

Dubay argues that Roe gave women the right to consequence-free sex and that society should offer no less to men. At best, he's deeply confused about the principle at stake here. One of the benefits of reproductive rights is that those of us who are pro-choice can enjoy sex without the fear of forced birth. However, Roe was never about the right to consequence-free sex, per se. I take it as a given that consequence-free sex is a good thing. However that doesn't mean that the state has a compelling interest in working to absolve people from the consequences of their behavior, including their sexual behavior when those choices affect non-consenting third parties. On the contrary, we have a compelling social interest in forcing people to accept responsibilities they would otherwise shirk.

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"If Dubay took a woman's right to choose seriously he wouldn't be so blase about a man's right to threaten a woman with destitution if she doesn't get an abortion. The decision to give birth is deeply personal one, but so is the decision to have an abortion. Being financially compelled to get an abortion that you don't want because you are afraid of being left destitute is as much a violation of personal integrity as being forced to give birth."

After the last thread, I was beginning to think you'd never even acknowledge the issue.

THIS is what this is about. There's a decent argument to be made that where the decision of whether or not to abort is entirely the woman's, the majority of the responsibility for that decision rests with her as well. And that since the decision to have sex is (very often) far removed and far different from the decision to have children, that the decision to change one's mind and not obtain an abortion should be regarded as the proximate cause of the birth, while the sex is merely a but-for cause.

That is, after all, our general moral intuition where a moral actor with a 100% veto power and a duty to carefully consider its use intervenes in the decision making process. That intervention entails some of the responsibility for the results.

Your comment is, finally, a possible response.

It is a... philosophically interesting response. Financial costs of giving birth are always a factor in the decision of whether or not to have children. Because I tend to look at the decision of whether to have an abortion as less of a decision about the abortion itself and more of a decision about whether the pregnancy should be taken to term, I can't agree with your reasoning. The further you move from viewing abortion as an act of some sort of personal moral introspection, and more as a decision on whether or not childbirth is appropriate given the social situation balanced with your personal desires, the less bad it is if financial concerns factor in. That's what they're supposed to do. The fact that they are often very compelling is not the same as being coercive.

I think the best response to the argument this guy is actually making is that a general rule like he wants is incompatible with a society like ours where a significant percentage of the population is not pro-choice, or is weakly pro choice in the sense that they generally think abortion is allowable, but wouldn't personally want one on moral grounds. His rule would lead to a significant amount of harm to children because the women involved would often not make the decision to abort, even where that would lead to giving birth to a child in impoverished circumstances. While that harm would be primarily attributable to the mothers, its a grave enough harm that hits an innocent 3rd party that imposing a strict duty upon men is justifiable even in a situation like this where their contribution to the chain of events leading to the birth is massively mitigated by the presence of another rational moral actor who first shares equally in the decision to have sex, then later possesses a 100% veto power which is not shared equally.

If I had to put it in legal terms, I'd say that in order to best protect children, men and women in these situations need to be held jointly and severably liable. That does NOT imply that they are equally responsible. They're not- one of them had more control. But that's going to be a problem to be decided between them, AFTER the financial duties to the child are covered in whatever way is most financially expedient. As a practical matter, that leaves us exactly where we are today. But it makes more sense.

"...however that doesn't mean that the state has a compelling interest (Roe v. Wade) in working to absolve people (Norma McCorvey) from the consequences of their behavior, including their sexual behavior (pregnancy) when those choices affect non-consenting third parties (unborn child)."

A few substitutions and that statement sounds like some rabid pro-lifer. Don'tcha just love semantics..or do I mean sin-tax?

Frylock, if I thought that fetuses were human beings with rights, I'd probably be a moderate-to-rabid pro-lifer. A person's right to control their own body is very important, but not so important that it automatically overrides their duties to innocent third parties, especially if party at risk got into that precarious position wholly or partly because of the negligence of the person whose body they impinge upon. However, I don't think that embryos and fetuses have rights comparable to those of children, so I maintain that woman's right control her body is the controlling interest. Getting an abortion is not evading responsibility or shirking the consequences, it is one way of embracing responsibility for an unintended pregnancy. Women who get pregnant never have the option of simply ignoring the problem, they always have to deal with the situation somehow, whether by gestating or aborting. It's only if you presuppose that fetuses are people that you consider abortion to be any more of an evasion of responsibility than childbirth.

Personally, I'm going to bow out of the discussion at this point--contain your disappointment--because I have no desire to support a reactionary, sexist organization, presuming that Lindsay is right in describing this Men's Organization that way (not an unreasonable assumption).

My only concerns were these: that 1) on the issue of burdensome child support payments, the extreme panic a woman feels about meeting her bills for her kid can be felt equally by a man; 2) it does seem as if the idea of considering a man's feelings or situation is laughed off, not to say screamed down, by the women here. If a man voices his feeling that a woman has injured or could injure him, he is characterized as whining; 3) it's worth remembering that there are many thousands of people affected by this problem, and I think it might be worth doing a study of the men's real ability to pay, and how often child support is insupportable, before deciding that the men who can't meet it are all simply at fault, simply because of their gender (though such a study might indeed reveal only few injustices, or that they were indeed being suffered much more by women). I'm not trying to say "get off your high horse," but just remember that there are real human beings involved here. I just don't think we should come into this screaming, "I'M OBVIOUSLY RIGHT! AND THE OPPOSITE GENDER IS ALWAYS AT FAULT IN ANY SUCH CASE!" even if we're pissed at the snottiness and reactionary nature of this men's organization.

I want to make clear, again, that 1) I, at least, never cast the woman this case represented as some kind of Snidely Whiplash diabolical villain, but only as someone who (presuming the guy's telling the truth) made an agreement, then decided to go back on it when faced with financial realities. 2) I do not condone, in any way, abandoning one's child, or being a deadbeat dad.

>many thousands of people affected by this problem,

Er, that is, the problem of insupportable child support payments, of course, not the exact problem of the lawsuit.

I just mean that maybe we shouldn't lapse into rage and hatred over this question. I never think that's a good idea anyway, but think of it this way: let's say this lawsuit is an aberration as Lindsay says, and not representative of a trend (of men getting stuck with child support payments even though a child they said they didn't want and couldn't raise was brought to term). This may well be the case, and I'd even say it probably is.

Given that, why spend three posts worth of virtual ink over it? Shouldn't we then talk instead about the Real Human Beings I keep mentioning? The men and women who may be overburdened, or if all the men really are all deadbeats, shouldn't we agitate for a study to find out? Or if one has been done, tell us, tell us the recommendations, so as to actually help out the women who are getting screwed over by deadbeats. Shouldn't we find out, so as to do more for the more decent single mothers out there, who we presume are far more numerous than the man and woman in the lawsuit? The Men's Organization said they wanted to start a discussion. Right, then: surely, if we all feel that the issue raised is a small subset of child support issues, why should we not make the discussion into what we think it should be??? Does this not make sense? Do something positive and helpful for someone, instead of just anger (anger is sooo overrated).

Oops, but I was bowing out.

I haven't read every comment on all the posts on this subject, so maybe someone said this before, but:

Could the issue of financial responsibility for a possible baby resulting from consensual intercourse be addressed by a contract between the man and woman?

Like a pre-nup, except it would be a pre-schtup.

</Thanks, thanks, I'll be here all week...>

We seem to have two arguments going- so

1) In the position where two consenting adults have consentual sex in the full belief that the woman is infertile, should the man be financially responsible for any child that results from said union, however improbable the chance?

Yes, he was not lied to and she simply had to make a choice based on new evidence. Her original decisions were based on the assumption that she was infertile- it is easy to write off a potential pregnancy that cannot happen. A pregancy and its hormonal hurricane are harder to write off as they affect and effect every aspect of life for a period of time. As well, regardless of her medical condition, he could have still opted to control his end of the reproductive cycle.

2) What is the level of financial responsibility and how do we set that level on a legal basis that is fair to all three parties?

I would argue that his best bet is to go into this with a financial advisor and leave the lawyers and courts out of it. Find an equitable balance that will ensure that all parties have a reasonable freedom from financial ruin without the assumption that the child needs to be raised like a Hilton or a Trump. Be ready to change course as needed and as the child grows, it may be that your child is a supergenius who will enter Yale at 10 but the odds are that you will need to negotiate sports fees and who pays for lost school books. However a child is conceived the end result is Moms and Dads and that is a matter of negotiation.

For the people defending the guy: so the woman who made a decision believing in good faith that she was infertile should be punished when it turns out that her doctors were wrong?

Maybe the father should be suing the doctors and not the woman, since it seems she didn't "lie." She only told him what the doctors had told her. Sounds like a malpractice suit to me.

Who's advocating "punishing" the woman? Rhetorical excess doesn't help us to understand the ethical nuances of a very complex situation.

One small point: funny how often those supporting this guy seem to make the assumption that child support payments equal total financial support for that child. They don't. They're a contribution.

And one larger point: I'd entertain an argument that a man who's been "trapped" into fatherhood in the classic MRA sperm-stealing-bitch scenario shouldn't necessarily be liable for that financial contribution -- if and only if it were possible to suggest any kind of legislative framework for that which wouldn't instantly mean an automatic get-out for any man who is either reckless as to whether or not he fathers children, or who allows his partner to believe that he is happy to be a parent and then backs out when it's too late. I haven't seen anyone suggest any way of even trying to square that circle.

Eleanor -
If the courts could be persuaded to honor pre-coital agreements, then there would be a procedural (i.e., not automatic) get-out. No need to square circles.

You mean pre-coital agreements would have to be compulsory at all times? Otherwise they don't do anything to address the problem.

No, I don't think they would have to be compulsory -- pre-nuptial agreements aren't compulsory, but most definitely do address (perceived) problems. And just as some people lose their enthusiasm for nuptials when presented with a pre-nuptial agreement, I suspect some people would forgo coitus rather than sign a pre-coital agreement.

Speaking just for myself, I'd prefer to base my coital relationships on trust. But for those who want sex without trust, pre-coital agreements seem to offer one approach to limiting liability -- if, that is, they would have standing in the courts.

So how do you envisage them working, practically? A woman intending to trap a man into fatherhood (going with the MRAs' nightmare scenario here) isn't going to sign a contract debarring her from doing so, so that doesn't deal with problem scenario 1, and a woman who doesn't agree that a man should avoid any financial responsibility for a child (as in the other scenarios) isn't going to sign either (unless coerced or misled, which she can then plead in court). And if a woman is happy for a man to have no such responsibility, then no problem arises and it isn't an issue anyway. So where's the practical effect on the problem?

The problem addressed is when one party has a change of heart/mind. If the agreement is in black and white, and honored by the courts, then the agreement could offer protection in the event of such a change.

And when one party refuses from the get go to sign off on a proposed agreement, there is (presumably) a practical effect: no coitus, no unintended pregnancy, no decision whether to carry to term or abort, no baby, no responsibility for support, no problem.

Granted on the second point, it might reduce numbers!

On the point of "change of heart/mind", the difference between this and a pre-nup is that a pre-nup relates to actual and concrete matters, whereas a pre-coital agreement about future provision relates to hypotheticals, with a high degree of accident involved. Where the analogy is closer, I think, is that a lot of people who go in for pre-nups aren't the people who need them, and vice versa, which would apply even more closely to this issue.

And (sorry, l'esprit de l'escalier) -- are you talking about a "change of heart/mind" as to whether a specific accidental pregnancy should be carried to term or not, or about the principle of whether men should have a financial responsibility to a child accidentally conceived? Because a change in the former doesn't necessarily mean a change in the latter, and it's the latter which underlies the signing (or not) of the contract.

And! (sorry, I will shut up after this one) -- what provisions would there be for review of such a contract? If it was signed in the context of a casual relationship, is it still valid if that relationship develops into one that's longer-lasting and more committed, and who decides, and at what point, that renegotiation is called for?

You see what I mean about practicalities...

For purposes of the present thread, I assume that the purpose of a pre-coital agreement would be to determine, before the (f)act, the parties' respective rights and obligations should a pregnancy result. Also, as with other sorts of agreements, I assume that there are some rights and duties that could not be contracted away -- such as the right to change one's heart/mind. But a well-crafted agreement would take that eventuality into consideration.

Most of the discussion is a distraction from what I think are the real issues in this case. As I understand it, the guy wants a way for men to legally relinquish rights and responsibilities for a future child within the same time frame in which a woman can get an abortion.

1) The issue is not "deadbeat dad's rights". It is having the right to not be in the possible position of being a deadbeat dad. If you know right away that you don't want to be a parent, why be forced by law to become one? It would also relieve women of the uncertainty about what kind of financial support they would get from the biological father before making the decision about whether to abort or give up for adoption.

2) The comparison to abortion, while headline-grabbing, is a bit unfortunate. Even without abortion rights, women can still choose to give the child up for adoption, relieving herself of parental responsibilities which she feels she's not up to. Men shouldn't be able to do the same thing? If you feel that biological fathers should have a say in whether a child gets put up for adoption, why should't they have a similar statement of record in whether he will support keeping the child.

3) While Lindsay is correct that Roe did not establish the right to consequence-free sex, she is wrong that it establishes women's right to choose whether to continue a pregnancy independent of economic concerns. ("Being financially compelled to get an abortion that you don't want because you are afraid of being left destitute is as much a violation of personal integrity as being forced to give birth.") Indeed, a vital part of abortion rights is that they give women, whether single or married, the economic choices tied up in their reproductive decisions. If a woman is single, she should be able to know ahead of time whether she'll receive support from her fetus' biological father. If she wouldn't, she can make her decisions accordingly. The law shouldn't compel men's decisions in this regard. If you really want women to be able to decide about pregnancy independently of economic worries, work for greater societal support of mothers.

I'm curious- how can either adult sign a contract on behalf of the newborn? As an (unlikely but sharp enought to draw distinctions) example, what if the mother dies right after childbirth. At the minimum, contract or no, won't the father have to sign adoption papers?

After birth the baby is a member of society- it needs care from people, but it doesn't specifically require its birth mother. [Several connecting statements could go here, but I'm writing quickly...] Therefore after birth the father's contracts would have to be with the baby as well- i.e. like the legal requirements of adoption.

Or what if after birth the mother wants to give it away for adoption, and the father changes his mind- he wants to be the legal father. Can he have written a contract so strong that he can't change his mind?

Dubay doesn't even claim that his girlfriend knowingly deceived him about her fertility.

In the other threads I was defending the hypothetical person (of either gender) who was deliberately deceived about his or her partner's fertility. At first I thought this should absolve the deceived of having to pay child support, but after some thought, I came to the tentative conclusion that the deceived should have a tort claim against the deceiver. Which may or may not amount to the same thing, depending on which party has custody and whether the deceiver is judgment proof.

I disagreed with Lindsay, because she thinks deception about one's fertility should be non-judiciable. (I'm not trying to rehash that discussion, just providing some background.)

But I admit I hadn't paid enough attention to the actual story to discover that this guy is not even claiming to have been deliberately deceived.

With that fact in place, I can agree with Lindsay that this guy is an utter and complete tool.

I must say I'm rather surprised at the volume of people who evaluate the justice of a child support arrangement on the behavior/honesty of the mother. This seems immaterial. I've always thought that the primary justification of child support ought to be the interests of the child--the innocent party in all this. Society has a strong interest and a strong obligation to keep children out of destitution when possible, and child support payments are a reasonable way to do this.

Like Lindsay, I think consequence-free sex is ceretis paribus a good thing. Providing this value for men would be fine, but not the risk of impovershing children. The state determines what contracts are enforcable. Some classes of contracts contrary to the interests of justice shouldn't be enforced. A contract--verbal or written--for one party to provide no material support for any child borne of consentual sex seems to fit in that category

Hold on here. I'm going to call BS on the whole "Roe v. Wade did not mean that people could have rampant sex without suffering the consequences of it" argument. The "consequences" that we are speaking of here--compulsory child support--are entirely artificial. A man is only financially responsible for an unwanted child because we have passed laws saying that he is. STDs, hurt feelings--those are the inescapable risks of sex. Laws requiring men to pay tens or hundreds of thousands of dollars if they are unlucky enough to father a child with a woman who wants to keep it? Yeah, not so much. The argument should be about whether those laws are a good idea,* not whether given that they exist, a man should be able to take action to circumvent them.

* In a similar vein, let's please try to avoid the argument that the laws are a good idea because a man "should be responsible" for his children. This is also BS. He should be "responsible" because you say he should be. I could say he shouldn't. Let's not use ephemeral terms like "responsible." The question is: is it a sound policy idea to force a man to pay thousands upon thousands of dollars to support an unwanted child? There are good arguments in support of this position. The above arguments are not them.

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