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Wednesday, April 06, 2005

From Ethan on A Man's Right to Choose

I appreciate the responses of readers to my recent “A Man’s Right to Choose.”  It isn’t a definitive statement on the subject (how could I fit that into an op-ed?), but is meant to provoke more discussion.  And I’m happy to engage in this idea further.

Let me say at the outset that I am far more interested in the moral story of a couple’s deciding to abort a fetus than I am in the legal one.  If the publication had allowed me to, I’d have foregrounded my real point—and leave the “legal applications” for another day.  That point is this: when a couple is saddled with an unwanted pregnancy, the woman ought to listen to the man’s desires before jumping to her claim that she can do whatever she wants with her body.  The legal “right to choose” has confused the moral terrain—and has blinded us, I think, to how these decisions should be made in the first instance.  Although the crazy case of the (alleged) sperm-stealing I mention in the article is obviously the outlier, I do think many reasonable and educated women assume that if they want to carry a baby to term, the man will just simply have to put up with it with no recourse even though the couple took every reasonable precaution to avoid a pregnancy.  I think that default rule is troublesome.  And I wanted to use the occasion to think through the issue.

I don’t ignore that support payments are there to help children any more than Rivki ignores that the support payments have the effect of helping the mother and incentivizing her to go through with carrying babies to term she might otherwise decide to abort, realizing that she doesn’t have resources to pay for the child’s upbringing.  Moreover, I think it is insufficient to say, as Rivki does, that men just have to live with it.  I think clever institutional design can help the problem and I’m only first taking a pass at what those new institutions might look like.  Why shouldn’t men be able to contract out of paternity?

I do not mean to pooh-pooh the problems with dead-beat dads.  These people are usually criminals—and should be treated as such.  But we can’t deny that there are a class of cases where it makes sense to relieve the father.  And I think that class is somewhat broader than the sort of outrageous conduct described in the Philips case.

To be sure, the deep place inside me that is making this argument is doing so from a radically pro-abortion perspective.  People are too consumed with wanting and having biological children when the world is populated by too many children that do not have proper homes.  Those children should be our priorities; we should not be bringing new ones into the world without caring for them.  Accordingly, more incentives to abort seem perfectly justifiable.  I realize, of course, that many people do not share this view.

I’m happy to continue this conversation; I hope to write a longer and more careful piece on the issue in due course and would love feedback.

Posted by Administrators on April 6, 2005 at 05:30 PM in Deliberation and voices | Permalink

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> People are too consumed with wanting and having biological children when the world is populated by too many children that do not have proper homes.

Telling people what they should and shouldn't want is rarely a good idea, and even more rarely successful.

Posted by: Andy Freeman | Apr 6, 2005 7:56:13 PM

The idea of giving a man the right to contract out of his parental responsibilities, especially if he took all precautions to avoid pregnancy, is appealing to me. I have not thought of it before, but it does make sense as an extension of the right to choose. Although the goal - making sure that every child a woman brings into the world is a well-thought-out decision and one which she can financially support - is a very important one, I think that in a lot of cases this simply wouldn't change a woman's mind about whether to have an abortion. For many women, it is not an option, no matter what the financial burden of a child may be.

Posted by: 1L | Apr 6, 2005 9:46:44 PM

This looks more like an a concern about overpopulation, derived from Malthus, but disguised as an argument in favor of a father's right to abort. The premise of your argument seems to be that there are not enough resources to deal with both "children that do not have proper homes" and non-aborted babies. A better argument would first address the underlying issue of the allocation of resources in society before offering a solution (hopefully more than one).

Posted by: Matt | Apr 6, 2005 11:55:01 PM

As a humorous aside, this reminds me of the scene in Legally Blonde where Elle and Warner are debating in Callahan's class, and Elle ends it by saying, "And for that matter, all masturbatory emmissions where his sperm was clearly not seeking an egg, could be termed reckless abandoment." (thanks to http://www.moviequotes.com/fullquote.cgi?qnum=31277)

And Dan, it's great to see your newest endeavor - already bookmarked.

Posted by: Sam | Apr 7, 2005 1:46:55 AM

Ethan, this is a very interesting piece. I found myself wondering about the limits of the "general right to procreative choice" that you posit, which you describe as a non-gendered "right to make private decisions about how and when to procreate." Of course, this right is not unlimited and it is mostly a negative right to be free from state interference. In practice, the "right" exists in some tension with the principle that it takes two to tango. As a woman, my "right to make private decisions about how and when to procreate" is limited by a few factors, not least my ability to find a man willing to fork over some fertile sperm at the time I want to get pregnant, as well as my physcial ability to get (and stay) pregnant with that sperm. So far, at least in the U.S., I don't have a right to have the state help me out with that project. If I miscarry, for instance, I can't force the sperm donor (or anyone else) to give me more sperm, and I can't demand that the state provide treatments for other fertility problems. (In Israel, the state will pay for some infertility treatments, turning the right to procreate into a positive one with tax-funded entitlements.) It seems to me that a man's right to procreate is similarly limited by the realities of our current reproductive system. Your right to have a baby is bounded by your ability to find a woman who, at a minimum, is willing to make sexual contact with your sperm. It's also bounded by her ability to get pregnant. And, it seems to me, it's further limited by her willingness to STAY pregnant. On the other hand, if you don't want a baby, you have a lot more control over the contours of your "right" not to, because all you have to do is avoid spreading your seed around. Once you have put it out there, however, I'm not sure how strong the case is for your right to say what the recipient does with it.

Thanks for the food for thought. All very academic for me as I'm due in 2 weeks (and a bit late for EMT to change his mind now!).

Posted by: Ariela | Apr 7, 2005 2:27:10 AM

"That point is this: when a couple is saddled with an unwanted pregnancy, the woman ought to listen to the man’s desires before jumping to her claim that she can do whatever she wants with her body."

Ethan, the problem with this statement is that only one person can make that decision. While I think it is best for both partners to consult about what to do with an unexpected pregnancy, in the end a decision must be made. And in cases where the partners disagree the deciding vote has to go to the woman because it's her body that's at issue.

"I don’t ignore that support payments are there to help children any more than Rivki ignores that the support payments have the effect of helping the mother and incentivizing her to go through with carrying babies to term she might otherwise decide to abort, realizing that she doesn’t have resources to pay for the child’s upbringing."

First of all, your argument here is faulty to the point of being logically equivalent to "we can't give out condoms because if kids have access to condoms than they'll have sex." Bullshit. Kids will have sex whether or not they have access to condoms and some women will bear unplanned children to term whether or not they have an expectation of child support. Child care is a huge financial burden on both parents, and even with child support the majority of burdens, financial and otherwise, are carried by the custodial parent. Women don't have children because they know that they'll get support payments from their partners. While they may expect their partners to live up to their responsibilities, we all know that deadbeat dads are an epidemic in our society. The number of women who would mess with their birth control to get pregnant knowing that their partner was against it can only be equaled by the number of men who are willing to do the same thing to tie their woman to them. Both are immoral acts but they are not the real issue at hand. Besides, the effect of denying women child support would not be to encourage abortions, it would simply force more women and children under the poverty line. And considering that single parent homes headed by a woman have the least amount of money and make up a huge percentage of those Americans living in povery (1 in 4 children live in poverty remember) one would think that the state would recognize that writing laws that make it even tougher for children to get the support that they need is a bad idea.

I think you still need to take a look at this matter from the point of view of the child's rights. As the rights of the dependant tend to trump the rights of the independant in this country, one would expect that a child's right to be supported is more important than a man's right to deny his child. This is something that needs to be addressed in your argument.

From a legal point of view you also need to address the issue of practicality and unexpected effects of the sort of law that you're proposing. But we can’t deny that there are a class of cases where it makes sense to relieve the father. The problem here is writing a law that has a narrow enough scope to only apply to men who really, truly did everything that they could to avoid fertilization. What would your standard be for allowing a man to contract out of paternity? What sort of proof would be required? Does a statement of intent have to be made before the coitus? Do there have to be medical records or pharmacy receipts for birth control as purchased by the man? Can a man decide six months into a woman's pregnancy that he no longer wishes to be a dad and that absolves him from his responsibilities? Where would you set your limits? And how would you prevent abuse in the form of a man not taking any precations to avoid pregnancy (or even affirmatively avoiding one - ie - not wearing a requested condom) but not wanting to be a father anyway?

In your further exploration of this topic I think you need to take into account that an unplanned pregnancy is unplanned from both sides, and that a woman isn't taking advantage of a man just because she decides not to abort her child. Secondly you need to take into consideration of the child's rights, although you frame this discussion as an issue between men and women the real issue is between a man and his biological child. And the vast majority of case law on this subject suggests that the child has rights and parents only have responsibilities.

Posted by: Rivki | Apr 7, 2005 8:47:09 AM

Ethan: interesting treatment of an issue that I think some people -- including myself -- have been half-thinking about for a while. I think it's a matter of confronting the burdens. The woman has two burdens inherent in childbirth: the physical burden and the financial burden. By contrast, the man has only the financial burden. The legal system has recognized the physical burden, but has failed, thus far, to give independent legal import to the financial burden.

Riviki's practical concerns are the most troublesome, however. How would, at bottom, the decision be made in a disputed case? Obviously, it can't just be left to the woman because her burdens are higher, or the male right to refuse childbirth would be meaningless. Similarly, it can't just be equal, because the woman does suffer a greater burden from childbirth, and should be given correspondingly greater rights to decide.

Perhaps a tort-style cause of action for unwanted pregnancy with a very short statute of limitations (say 6 months, with expedited procedure, so hopefully short enough to give the woman the abortion option if she loses) whereby the man must prove by clear and convincing evidence that
(a) he had a reasonably certain expectation that the sexual acts undertaken would not result in pregnancy (i.e. representations of infertility, use of multiple effective forms of contraception, sperm-stealing), and
(b) the woman bears significantly greater culpability for the pregnancy that occurred (i.e. she told him she was on the pill, she negligently failed to take said pill, or outright deceit like in phillips v. irons)

That might be a workable system to account for the man's burden's in the legal system, while still heavily weighting the right to choose. It would, however, still leave open the question of the remedy. Also as Riviki pointed out, the child support right is that of the child. If the relief for this tort was "no child support" it would be an injustice on the child, unless the mother had independent means to support the child. Perhaps a judgment for damages equal to the total child support paid, which is not enforceable until the child reaches majority??

Anyway, just some ideas on how to make this idea practical without screwing (no pun intended) men or women.

On the lighter side of things: I think Irons' behavior will be a great way to test the norm theory of punishing misbehavior... if it works, nobody will EVER give her any nookie ever again!

Posted by: Paul Gowder | Apr 7, 2005 9:53:23 AM

This is all very useful. Careful institutional design is admittedly key; and the details all have yet to be worked out. The article was a very superficial treatment to start a conversation.

If you follow me far enough to begin thinking that women should consider the man's views before she makes her decision and invoking her legal trump card (WHICH I HAVE NEVER DENIED IS RIGHTFULLY HERS), I feel I've accomplished enough for the time being. If you are suddenly feeling that the discourse of procreative choice might have some deep problems, I'm getting people to reconsider a firmanent of our joint liberal ideology that could use revisiting.

Rivki id certainly right to keep pushing the point that support rights belong to the child. But in the first few months -- when the child is a fetus -- it has no right to life, no right to be brought into the world. The woman, who holds the right to terminate, is the cheapest cost avoider. So if the fetus is given the privilege of being brought into the world by the mother only -- against the express wishes of the father, who had a mutual understanding that neither party wanted to bring an unneccessary child into the world -- it is hard to see why the child's rights obviously trump the unwilling father's.

I like Paul's solution and need to think some more about it. These are all great comments!

Ariela: Love to EMT and Eden!

Posted by: Ethan Leib | Apr 7, 2005 10:27:42 AM

Ethan, you want a simple, practical solution? Here it is: Before having sex, the two people sign a contract, stating that they are not intending sex to result in pregnancy, listing their precautions taken, and if a pregnancy does occur and the woman choses to carry the pregnancy to term, the man will not be a parent or pay child support.

A simple solution, yes, but there are problems. The right of child support is the right of the child, as pointed out by Rivki. The second is I do not believe that women would sign this -- a cavelier attitude to potential children is sure to wreck the mood.

Posted by: R | Apr 7, 2005 1:07:41 PM

Rights of the child or not, who such payments come from is still worth debating.

Posted by: Ethan Leib | Apr 7, 2005 1:50:20 PM

"Who such payments come from" assumes that an individual parent has resources to support the child alone. That's why I suggested the judgment-entered-after-maturity thing: to ensure that enough resources flow in to support the child, while still minimizing the financial impact for the innocent father.

Posted by: Paul Gowder | Apr 7, 2005 2:02:14 PM

"That's why I suggested the judgment-entered-after-maturity thing: to ensure that enough resources flow in to support the child, while still minimizing the financial impact for the innocent father."

I have a serious problem with characterizing the father here as "innocent." He participated in the sex, in the babymaking and is therefore a full participant in the creation of the resultant child. Besides if the father is "innocent" that must make the mother "guilty," and I think that's rather twisted view of the sitution. A woman isn't committing a crime by bringing a child into this world, unwanted or otherwise. And punishing a child for daring to be born against a man's will is pretty sick.

While I am loathe to say "if you don't want children, don't have sex," I think everyone needs to both understand and accept that sex (even protected sex) can result in children. Unplanned pregnancies happen, a man should not (and legally does not) have the right to say "whatever happens I'm not responsible." Once you help create a life you are responsible for it.

"So if the fetus is given the privilege of being brought into the world by the mother only -- against the express wishes of the father, who had a mutual understanding that neither party wanted to bring an unneccessary child into the world -- it is hard to see why the child's rights obviously trump the unwilling father's."

Ethan, the reason that the child (once born) has rights that trump his/her fathers is because said child is a minor and a dependant. In our society we recognize that minors need to be cared for and we have put in place a system by which the parents of the child are responsible for that care and support. Since the child cannot support or take care his/herself then the burden lies with the parents. Both parents. A grown man has many more rights and opportunities than a newborn - and many more responsibilities. One of those responsibilities is to care for any life that you create - willingly or otherwise. (Any extreme case in which the man did not willingly engage in the behavior which led the creation of the child is another matter but not one we're talking about here.)

"If you follow me far enough to begin thinking that women should consider the man's views before she makes her decision and invoking her legal trump card (WHICH I HAVE NEVER DENIED IS RIGHTFULLY HERS), I feel I've accomplished enough for the time being."

I don't think that anyone has really argued that this isn't the case. People in relationships, even purely sexual ones, should talk before making decisions about an unplanned pregnancy, that's just common sense. Your argument (as far as I understand it) isn't that men should be able to express their views, but that if a man's views are not followed then he can absolve himself of any responsibility for the life that results. How much control are we planning on giving these men, and how much are we taking away from women who go againt their husband/lovers wishes? Considering the fact that in this country men still have the majority of the power and many women are subject to control by their partners due to their economic disadvantage I am very uncomfortable with the idea that a man can be absolved of his responsibilities if his partner does something that he disagrees with.

While you seem to be concentrating on the lives of well-off, well-educated men and women who have easy access to birth control and abortion and plenty of financial support as well as a clear cut and clearly expressed desire not to have children, that is not the majority of Americans. And any law written as you propose would affect all Americans. And it would affect many of them, especially the more vulnerable groups of women and children, disproportionately. Too many women are already too afraid to leave abusive homes because their husband/lover controls the finances and she'd be destitute, and consequently unable to support her children, if she left. I can't imagine the impact on women's lives and well-being if their reproductive choices could be legally controlled by their partners on pain of serious financial loss. In most cases passing the law you propose would be nothing more than financial blackmail used to ensure that women's reproductive systems are totally in the hands of their male partners.

Posted by: rivki | Apr 7, 2005 3:58:10 PM

R. re innocence/guilt:
That's why strict standards need to be in place to ensure that any cases where such a rule would be applied would be only in cases of SERIOUS misconduct, either gross negligence (the woman gets the man to agree to sex upon saying she's on the pill, but neglected to take it) or actual malicious intent (as in the plaintiff's version of events in the blow job case). In those two hypothetical (extremely rare) cases, the man would indeed be innocent as compared to the guilty woman. And the point of my personal gloss on Ethan's idea, at least, is to avoid punishing the child by only going after the grossly guilty mother after the child is an adult.

True "accidents" are one issue, and one that both parents should take responsibility for.

Blow jobs that lead to babies are another issue altogether. I mean, assuming the facts are as the plaintiff says they are in that case (which of course is an open question), isn't that a horrible injustice?

Posted by: Paul Gowder | Apr 7, 2005 4:45:39 PM

Paul, I don't think that we're really in dispute with each other.

I just don't think that what you're talking about really addresses the issue that Ethan is bringing up. While I disagree with you in the case of the negligence issue that you describe, I believe I've already stated that cases of malicious intent are different then your run of the mill unintended pregnancy. Although, quite frankly, I think that unless sperm was obtained absent sexual intercourse, then the man is still financially responsible for his child. But Ethan is talking about all unintended pregnancies. All of them, even in cases in which birth control is used faithfully and correctly.

The reason I have a problem with your issue of negligence is that a) you're putting all the onus for birth control on the woman and b) it's an incredibly hard thing to prove. What evidence can be shown to demonstrate that the pregnancy resulted from a missed pill instead of simple failure? Even if a woman does miss a pill a pregnancy is in no way certain - especially if she remembers to take it the next day. And even if she misses a pill and subsequently gets pregnant I don't believe that it can be proven that the pregnancy was a result of the missed pill and not simple failure. At the end there would be no physical evidence to support either side and depending on how the law was written it would make cases of negligence impossible to prove (by placing the burden on the man) or impossible to disprove (by placing the burden on the woman). In the first case the law would be useless and in the second it would unduly burdensome on women to prove that they used their birth control correctly.

In the case of the blowjob pregnancy I can only laugh. If it actually happened that way it was a medical miracle. As it is, it's just a ridiculous story being told by a man who doesn't want to pay child support. Using this case as a strawman to demonstrate that women are deceptive harpies pulling a fast one on innocent men to collect child support is insulting. If a law was passed based on Ethan's idea of a man's right to choose it would not be limited to cases of malicious intent, it would include everyone. And the consequences of such a law would be far reaching and damaging.

Posted by: rivki | Apr 7, 2005 5:13:00 PM

This article -- http://writ.news.findlaw.com/colb/20050309.html -- (hey Dan, you might want to enable html comments) appears to cover the issues pretty well.

What about carefully crafted sex contracts? For example:

Dude and Gal agree to have sexual intercourse on DATE. Gal warrants that she has faithfully consumed oral contraceptives in accordance with an ordinary perscription covering DATE. Should Gal not have consumed such contraceptives, and should pregnancy result from this act of intercourse, Gal agrees to pay litigated damages, falling due on the child's eighteenth birthday, of all child support sums which Dude shall be required to pay by any tribunal of competent jurisdiction as a result of the birth of this child. Gal shall have no liability if she has in fact consumed such contraceptives, regardless of whether pregnancy results.

It could go the other way too -- Dude could warrant that he had a vascectomy, or is wearing condoms purchased from an ordinary supplier within the last month, and agree to pay for the abortion or alternatively pay damages for Gal's share of child care obligations (also on 18th birthday) if he failed to do so and pregnancy results.

Apart from being a serious turn-off (oooh baby sign here yes oh god initial here yes baby ooh), do you think this would be fair?

Posted by: Paul Gowder | Apr 7, 2005 6:08:30 PM

Oy. I really hope I've been clear that Rivki is misreading me. Indeed, I feel she may be willfully misrepresenting the argument. Three out of four of the proposed solutions in the article she should have no quarrel with. In the article, my most important claim is that a woman should not jump to her legal right to choose before hearing out the semen provider's positions. Is that really controversial? I can't see how. But it still manages to raise people's ire.

I further proposed that a man and woman jointly could contract out of forcing support payments. That is an option not apparently available under current law (that I know of) and could enable women to say: I agree with you, semen-provider, that we had agreed--explicity or implicitly--not to reproduce and that I now am choosing to carry that child to term against your wishes. Accordingly, I am enabling you to sign a document that will prevent me from trying to collect money from you to support this child for the next many years. While the support rights might belong to the child, I have the right to make decisions for the fetus now and am doing so, terminating your rights and responsibilities. The man still has to pay the cost of having a child in the world, an emotional cost that cannot be ignored. Is this actually deeply controversial? I'm not convinced it is.

Under a second potential legal implementation, the man can sue for intentional infliction of emotional distress. Obviously, there are evidentiary problems. Are they insuperable? I doubt it. If the woman was on the pill and the man concededly wore a condom and a medical miracle happened anyway, it isn't clear to me that it would be inappropriate to relieve the father of support payments. I acknowledge this assumes that both parties were pro-choice when they had intercourse. There is a complexity if the man knows ahead of time that the woman would keep the child. If he is on notice, the equities may change. But I still hope having the discussion ahead of time might lead to contractual arrangements, as unromantic as they seem. Hey, so are marriage contracts and pre-nups. But many people get over it to protect themselves and reap the benefits thereof.

I know there are hard questions--both evidentiary and moral--about the garden variety case, where the man just wants an abortion and the woman doesn't. I probably would cede some territory here down the road. But for now I'm content to expose a weakness of the rhetoric of "procreative choice" and think through ways to be more egalitarian about it. Nothing rides on Irons and Philips--it was always an ad absurdum to begin thinking through the limits of the right to choose.

Posted by: Ethan Leib | Apr 7, 2005 6:22:33 PM

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