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Thursday, April 07, 2005

More on the Right to Choose

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 on April 7, 2005 at 06:25 PM | Permalink

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In some class, long ago, I wrote a piece similar to yours. I was shocked at how many people had never even considered the issue, though presently surprised at the number that said something like, "you may have something there."

I think I went further than you and said a man should have the right to opt out, even if there were no protective measures taken at the time of conception. Though I would say in such a case that the man would then have no more rights vis a vis the child than some stranger, but he similarly would have to contribute to the costs of the birth or abortion. I think I would add that the man would have to make his decision within a short period of time after being informed, and that it would be irreversible.

Posted by: Ugh | Apr 7, 2005 7:47:25 PM

Ethan, I certainly did not intend to misrepresent your argument, although it is possible that I did not fully understand it. In order to clarify my concerns, why don't I got back to your original op-ed. In this piece you proposed three remedies as well as a request for women to take their partner's desires into account.

On that issue, of consulation and discussion between partners, I agree with you, and I believe that I've made that clear. It is in everyone's best interest to discuss situations with all those affected by them. Barring extraordinary circumstances (abuse, inability to find partner, etc.) consultation should take place. And we both agree that, in the end, it is the woman's choice that rules.

Your third remedy (I realize I'm going out of order, but I'll try to be as clear as I can) involves creating a contract which allows a woman to recognize that her partner does not desire paternity and absolve him of any financial responsibility for the resultant child. I don't see how this isn't already a possibility (though it may not yet be enforceable). Child support and custody only come before the courts when there is a dispute between parties. If the mother chooses not to pursue child support than the father does not owe any. So, I'm perfectly happy to agree with you on this point.

Your first point, allowing suits charging forced paternity as intentional infliction of emotional distress, is rather more thorny. The decision to bear a child is not a malicious one, and quite frankly not made with the intent to harm. The elements of intentional infliction of emotional distress are: "In order to prevail in a law-suit for intentional infliction of emotional distress, the plaintiff typically must show the following: (1) the defendant intended to inflict emotional distress; (2) the conduct of the defendant was extreme and outrageous; (3) the actions of the defendant were the cause of the plaintiff’s distress; and (4) the resulting emotional distress to the plaintiff was severe."* While the third and fourth elements may be proven, I highly doubt any court would grant the first two elements. The first element, intent, is difficult to prove because the distress is the side effect of a woman's decision to bear a child to term, and not the desired outcome. In other family law an analogy may be made to a custodial parent moving: if the move is being made to deprive the noncustodial parent of visitation the move is judged to be illegitimate, however, if the move is being made for clear financial or social motives and the deprivation of visitation is an unfortunate side effect the move is judged to be legitimate and is allowed. The second element would be even more difficult to prove as it relies on a judge to consider bearing a child to term as an extreme and outrageous act. Considering that the majority of the country considers bearing a child to term to be the correct, and in many cases only, moral choice I doubt that this element will ever be proven. (Obviously cases such as Irons would be able to meet this burden. I think that everyone would be outraged by the intentional theft of sperm to create a child with the sole intention of inflicting emotional and financial damage. But since I think that the guy is a liar I can't really side with him.)

Your second remedy, simply absolving unwilling fathers of their financial duty to their children, was the remedy that I was focusing on in my earlier posts. I concentrated on this point, admittedly to the exclusion of the others, because I found it to be the most troubling both legally and morally. First of all, it does not take into consideration the rights of the child to support, a right that has been the bedrock of family law for years. I will not belabour this topic as I believe that I have covered it exhaustively in my earlier posts. However, I have yet to hear your answer to this dilemma, both legally and morally. Perhaps you simply believe that the law is wrong and that a child is not entitled to the financial support of its parents. I don't know what you think about this topic, but I do know that if you want to change this you'll be taking on the entire family law system. I also would like to repeat the point I made at the end of my last comment, that any law which allows a man to deny child support should his will not be followed would become a dangerously coercive tool disproportionately effecting the poor and vulnerable.

In the end I think the best choice for actually solving issues of unwilling paternity is prevention and not subsequent remedies. If unwanted children are not conceived (or are not conceived at nearly the rate they are now) then this issue will never come up. In order to implement such prevention a number of issues must be faced. First, the right of women to abortion must be enshrined and no longer controversial, and abortions must be cheap and easy to obtain. None of this is currently true - women are still threatened and shamed for daring to abort and many women do not have access to any abortion services at all. Second, the right of women to cheap and effective birth control must also be enshrined. But birth control is still not as easily available (or as cheap) as it ought to be, and there is a growing movement in this country to do away with is entirely. Third, men's access to hormonal birth control should be drastically improved. A male pill would go far in ensuring against unwanted pregnancy. Using a condom and female birth control already prevents the vast majority of unwanted conceptions - adding another layer of protection on top of that can only improve matters. It would also give men more control of their own reproductive systems, which is obviously a worthy goal. Quite frankly, if your goal is to minimize the number of men who are stuck with unwanted children, then your best bet is prevention.

*http://www.hofstra.edu/PDF/law_labor_cavico.pdf

Posted by: rivki | Apr 8, 2005 11:57:17 PM

I THINK MANY PEOPLE FAIL TO CONSIDER THE MOST IMPORTANT FACTOR OF A FORCED PARENTHOOD; THE LACK OF EMOTIONAL ATTACHMENT FROM THE FATHER TO THE CHILD. I AM IN A SITUATION THAT HAS ME SO BITTER THAT AT ANY TIME IN THE DAY I HAVE SUICIDAL OR HOMICIDAL TENDENCIES. I NEVER WANTED CHILDREN BEYOND THE AGE OF 30, YET BECAUSE OF SOMEONE ELSE, I AM FACED WITH TWINS THAT I DON'T HAVE AN ABILITY TO LOVE. I'VE TRIED TO VISIT WITH THEM AND EVEN TRIED TO TALK WITH THEM. THE HARSH REALITY IS THAT I WILL NEVER LOOK UPON THEM AS I DO MY OTHER CHILDREN. IN FACT, I LOOK AT THEM AS CAUSES THAT WILL KEEP ME FROM PROVIDING FOR MY OTHER CHILDREN.

LET ME LET IT BE KNOWN, I DON'T WANT ANYTHING TO HAPPEN TO ANYONE WHO IS ALREADY HERE. I JUST TRULY DON'T WANT THIS BURDEN AND I TOLD THE MOTHER THIS THROUGHOUT OUR RELATIONSHIP. IN FACT, SHE SAID HER TUBES WERE TIED AND COULDN'T GET PREGNANT. SHE HAD THREE OTHER CHILDREN AND NO JOB PRIOR TO THE BIRTH OF THE TWINS. NOW, WHAT KIND OF SENSE DOES THAT MAKE?
IF I CAN BE EVEN MORE BLUNT; LOOK AT THE STATE OF SOME URBAN AREAS, MINORITIES (I AM A BLACK MAN) ARE PRODUCING OUT OF WEDLOCK CHILDREN AT A RATE SO ALARMING THAT IT IS REDICULOUS TO SUPPORT THE RIGHT OF CHOICE FOR WOMEN OR MEN WHEN THE ECONOMIC STATE OF THE PARENT DOESN'T SHOW THE ABILITY TO SUPPORT THEM WITHOUT GOVERNMENT ASSISTANCE. WITH THIS BEING THE CASE, WHY SUBJECT ANYONE TO FORCED PREGNANCY WHEN THERE IS NO "MODERN EVIDENCE" TO SUPPORT ANY SOCIAL BENIFIT FROM OUT OF WEDLOCK PREGNACY. THIS APPLIES TO THE MOTHER, THE ALLEGED FATHER, OR THE CHILD.
THE TIME HAS COME FOR AMERICA TO TAKE A CANDID LOOK AT THIS PROBLEM. I STRESS THE ISSUE IN THE BLACK COMMUNITY BECAUSE IT IS THE ONE THAT IS MOST EASY FOR ME TO IDENTIFY WITH. ANY ARGUMENT ABOUT MORALITY ARGUEMENT IS THROWN OUT OF THE WINDOW FROM THE MOMENT 2 UNMARRIED PEOPLE HAVE SEX.
TOO MANY BASTARD CHILDREN ARE BEING BORN TO WOMEN WHO ARE DOING NOTHING SHORT OF BREEDING. MOTHER'S HAVE TRUE INTANGIBLES THAT MAKE THEM SPECIAL. GIRLS ARE HAVING BABIES AT 14 AND 15 AS IF IT WERE A "RIGHT OF PASSAGE" OR BADGE OF HONOR. I'M SURE IF YOU LOOK INTO THEIR HISTORY YOU'LL SEE SOME SORT OF NEGATIVE PATTERN. MOST OF THE WOMEN I KNOW WHO HAVE MULTIPLE CHILDREN HAVE MULTIPLE FATHER'S FOR THEIR CHILDREN. ALSO, THERE ARE A NUMBER OF WOMEN WHO HAVE MULTIPLE CHILDREN WHO HAVE NEVER BEEN MARRIED AND PEOPLE TALK ABOUT THE MORALITY OF KEEPING CHILDREN.

THIS CYCLE ONLY BENIFITS THE CRIMINAL JUDICIAL SYSTEM, BECAUSE IT JUSTIFIES MOST OF ITS EXISTENCE BY PROVIDING BODIES TO KEEP IT IN MOTION. ALMOST EVERY MODERN STUDY WILL SHOW THAT THERE IS NO CORRELATION BETWEEN SUCCESSFUL AND ABSENT FATHERS. MOST CHILDREN ARE BORN FROM A SEXUAL ACT TO RELEASE PRESSURE OR PLEASURE. THAT IN NO WAY DEMONSTRATES A DESIRE FOR ALL MEN WHO HAVE SEX TO BE FATHERS. IN MY OPINION, THERE ARE ONLY TWO REAL REASONS THAT THE COURTS HAVEN'T REALISTICLY ADDRESSED THIS ISSUE: 1) THE AFFECTS ON THE GREATER POPULATIONS MALE ISN'T AS SEVERE AND 2) IT'S A CASH COW THAT RAPES THOSE WHO ARE LEAST ABLE TO DO ANYTHING ABOUT IT.
YOU HAVE THE ABILITY TO GO INSIDE THE NUMBERS. DO IT AND TELL ME WHERE I'M WRONG.

Posted by: GDOSS | Sep 13, 2005 9:56:00 AM

I'm not as well spoken as everyone who posted earlier. I am a wife to a wonderful man,who was a single Dad to 2 small boys when I met him in 1992. In 1995, one year after we were married, a girl he had dated in 1989 filed for a paternity test. She had a baby in 1991. He never knew about it. She claimed to be on birth control while they dated. It turned out to be his biological child. We were devistated to say the least. At the time, we were raising his 2 boys and my son, (3 children). She already had 1 child out of wedlock. She won an order of 600 per month, they took away his lisence, biz lisence, and all our accounts and taxes were siezed. We lost everything within 8 months. We had to move in a studio apt. and go to food banks for over 2 years to feed our 3 boys while she gets $$, housing, Insurance, Medical, free edjucation, & on and on. because of CSE/DOR. What rights do men have? NON! They are just a paycheck for irresponsable woman who USE children for $$$ and emotional blackmail! I've known a few! If men had the same rights as women, things would change quick and I don't think this Country would have this huge problem. If women knew that a man had a right to say NO, she would make other choices. SORRY women, but most of you are horrible and blame men for all YOUR bad choices and hold them accountable. IT IS A CASH COW!

Posted by: Lelia DeMello | Apr 26, 2006 8:10:46 PM

This may be tangential, if not outright orthogonal, but here it is:

You say that your setup "assumes that both parties were pro-choice when they had intercourse." Interestingly, this seems to use the term pro-choice to mean "open to having an abortion." Yet, many pro-choicers insist that the term means only "willing to preserve the legal option for others, i.e., no government ban." Thus the formula: "I'm personally pro-life (against abortion, would never have one, etc.), but am pro-choice."

But it seems that your usage does not mean "legally pro-choice," as it would be meaningless for this hypothetical couple to merely support the legal rights of others to abort, but were both opposed to it themselves.

So does this usage mean nothing, or does it reflect that in normal usage -- i.e., when one's antennae are not up for some battle with those who do support legal restrictions -- most of us really do think that pro-choice means personally OK with it in some circumstances?

Just wondering.

Posted by: just me | Apr 26, 2006 11:54:46 PM

Not set up! The right to choose! We do not believe in abortion, though we do support adoption! That's a choice!

Posted by: L DeMello | May 7, 2006 5:18:10 PM

I just happened upon a link to this discussion, and I apologize if I'm beating a dead horse by following up two years after the fact. It's a pet issue of mine, and some of the more recent material here seems to indicate that the topic's still of some interest to Ethan, at least, so I'm giving in to the impulse to toss out my two cents' worth.

First, let me note that while I disagree with the bulk of Ethan's policy proposals, I'm also not a big fan of the counterarguments that rely on the rights of the child. I do think children are entitled to support, but (dangerous pinko type that I am!) I see that as an entitlement against society as a whole, not against producers of sperm. Frankly, I see the current US-law constructions of biological fathers' obligations to children as illogical, ahistorical, and not altogether compatible with due process. They also draw way too heavily for my comfort on our nasty cultural tendencies to pass the buck whenever possible, to delight in the dire consequences of other people's sexual behavior, and to forget our impassioned concern for children's well-being whenever the children in question don't come from the right genetic stock.

Besides, while playing the "interests of the child" card may be expedient for feminists in this context, and while I realize it's important to recognize the frequent identity between children's interests and women's interests in practice, I think it can also do us real harm to continually subordinate our own interests to children's interests in this dialogue.

But leaving off the interests of the child, I do think that when two people have consensual sex, and it turns out to have expensive consequences for one of them, it's only fair that, to the extent possible, the other be obliged to share in the expense. And I think fathers' child support liability is a better way to implement that than any alternative I've seen proposed.

In that vein, one of the suggestions from Ethan's article entirely fails to persuade me: Letting the man off the hook because he tried to avoid a pregnancy effectively lets him enjoy a "negligence" standard for responsibility, while the one who's pregnant despite anyone's best efforts is stuck with strict liability. If she has to roll the dice and take her chances, so does he. That she has (maybe, as Rivki already discussed) the option to abort doesn't cure anything for me, because it's not clear that that option actually reduces the costs (including personal as well as financial costs) she faces. I'm sure there are situations in which women become unexpectedly pregnant and think "Well, abortion would be a fine option, but hey, having a baby would be even better!" Just as often, though, I suspect it's a lesser-evil kind of situation--one decides to go ahead and take on (or even embrace) parenthood because it's even harder to reconcile oneself to the alternative. Under those circumstances, it's awfully hard to claim that the existence of the alternative makes the pregnancy itself cost-free, and thereby let the man off the hook for his responsibility for it.

Of course, one way to dodge this is to take the woman's feelings and moral compunctions out of the analysis, claiming that the woman is wholly responsible for those internal factors. Then you can argue that any costs associated with the abortion (beyond cost of the procedure and a bit of physical pain and suffering) aren't caused by the pregnancy; they're caused by the woman herself. So the man doesn't share in the responsibility for those, and they don't belong in the equation, and we're back to the pregnancy itself as just a little thing that doesn't have to cost the woman much of anything and shouldn't cost the man anything either. After all, it's not like we're asking her to commit suicide to save us the costs of letting her pregnancy go to term; it's just a simple medical procedure that a reasonable person would recognize as the efficient alternative...so of course we shouldn't make the man pay for any inefficiency caused by the woman's unreasonableness, right?

That works, if you can sell me on that idea of the reasonable person. Problem is, I think constructing a reasonable person that way serves the interests of men who want sex to be cheap, but only by denying the real experience of women in this society, and the natural effects that that experience has on how women view their choices. I think if one's arguments depend on a reasonable person's--and in particular, a reasonable pregnant person's--seeing abortion as an appropriate more-efficient alternative to having a baby, one needs to go way beyond simply legalizing it. One needs to dismantle those parts of the culture that still treat fetuses at least as kind-of-sort-of-babies rather than just semi-foreign internal growths (after all, even in the most left-wing of communities, it's not socially-appropriate to think of a fetus the pregnant woman plans to carry to term as the biological equivalent of a tumor), or at least those that indoctrinate women in the virtues of motherly self-sacrifice, and certainly those that still paint abortion as something seedy and morally suspect. After all, for all that it is occasionally useful if women see no problem with casually terminating pregnancies, we as a society generally profit heavily off of a quite contrary set of norms, so there's something quite distasteful about turning around and, as a matter of law, declaring the women whose exercise of agency is shaped by those norms "unreasonable."

So, I'm not buying the "he tried to avoid the pregnancy, so he should get off cheap" argument. The way I see it, under current law and in the society we've got, whatever a woman chooses will probably cost her more than it costs the man who participated in getting her into the situation, and so I'm pretty comfortable with the fact that she has the privilege of deciding what form the costs will take and then (sometimes) passing on a share to him.

As to the contract notion, I see two interlinked issues that would raise problems for me with most such contracts: unequal bargaining power and lack of consideration. After all, neither moral consideration nor nominal consideration generally supports an enforceable contract. If the woman's just promising to forgo her entitlement to collect child support because she believes it's the right thing to do--even if she formalizes it with "consideration" as token as the hypothetical one-time payment to defray the costs of birth--you don't have a contract. You might have a case for promissory estoppel, but there you're limited by equity (which takes us back to questions of bargaining power), and you're probably looking at recovering the reliance interest (i.e., that previously-made lump sum payment), not the full benefit of the bargain. So I wouldn't rule out the possibility if the man could show that, under bargaining conditions not so unequal as to be unconscionable (taking honest--which in my view means extensive--account of gendered sexual power dynamics, economic duress, and so on), he put up the kind of consideration that might plausibly have induced the promise in an arm's-length bargain. However, it's my experience that this is almost never what men who want to contract out of support payments are talking about; instead, it's an attractive option only because one is anticipating a much better bargain than one could get in any commercial context.

So, that leaves the scenario wherein the woman "has forced the man to become a parent against his will," presumably by committing rape, having sex with someone who lacked the legal capacity to consent, impregnating herself with sperm the man discharged elsewhere than into her reproductive organs, or deliberately sabotaging his efforts to prevent pregnancy. In the abstract, I am actually one hundred percent behind the idea that a man should not, in these scenarios, have any legal obligations toward the woman or the resulting child--and I'm probably fine with letting him collect his damages from her, too. Unfortunately, the only scenario there that's at all easy to prove is statutory rape, and one would be implementing this policy in a setting where women are consistently, systematically disadvantaged when it comes to getting judges and juries to believe their word against a man's on just about anything sex-related, and where they're often treated downright nastily in the process. So I'm not sure how okay I am with the idea of giving men the power to, based on bare allegations alone, put a woman through that any time she tries to collect child support. I realize that's an unfair result for men who are genuinely victimized, but I nonetheless suspect it does less harm than the alternative. Still, I'd love to see a way that the system could be improved for male victims without handing a powerful weapon to men who just want to avoid obligations. Requiring a higher burden of proof might suffice to level the playing field and discourage harassment via unmeritorious claims (albeit, of course, excluding more male victims from protection too), but I don't know.

All that said, I do agree with the general principle that women making choices about pregnancies should take the male sperm-producers' preferences into account in some fashion. However, I see it as the sort of situation-dependent question of personal ethics that is very, very difficult to translate into public policy, and perhaps shouldn't be so translated at all. And I think the suggestions in the Legal Times article are way too glib and idealistic even to provide a plausible starting point.

Posted by: Laura Back | Jun 26, 2007 8:44:15 PM

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