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Wednesday, April 06, 2005

A New Collaborator

I'm thrilled to say that my friend Ethan J. Leib will be joining PrawfsBlawg.  Ethan, who begins teaching con law and contracts at Hastings this coming fall, has done a bit of blogging already at dissemination.org.  It's great to have him aboard here.  Welcome Ethan!

By the way, Ethan had a very interesting piece in the Legal Times the other day about what voice, if any, a man should have on the topic of abortion decisions and deliberations.  There's a link here.

Posted by Administrators on April 6, 2005 at 12:02 PM in Housekeeping | Permalink


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I comes down to the fact the two people have too become responsible for the child, wanted or unwanted, The child never has any rights here, so people just do not need to have sex until they are ready to own up to this , you play..... you pay. Stop the blame game, just do not do it. Life is way too short to fight over the fact, that two people had sex, then two need to own it, you do not have to marry one another but pay up, and let this child have a life. Wow, I know this world is coming to an end way too soon..... Sad, very sad.

Posted by: RT | Mar 9, 2006 7:23:32 PM

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: Ethan Leib | Apr 6, 2005 5:22:38 PM

Building on what Rivki said, simply, when a man and a woman have sex, those two people are running the risk of a pregnancy (as well as STDs), unless the woman is in menopause. No birth control is 100% effective -- not those used by women or by men, not tubal ligation, not vasectomies. Therefore, both parties assume the risk of a pregnancy from any sexual encounter.

So why should the choice be wholly of the pregnant woman and not of the impregnator? Because while both people assumed the risk, but only the woman is pregnant!

Let's expand this a bit further, to a story I saw on Dateline or 20/20, or a similar show. Gay couple contracts with surrogate, she is pregnant with triplets and therefore considers selective reduction, gay couple is against abortion and would view reduction as "killing". The pregnancy was not created through sex, but because the surrogate is the one pregnant, with the cooresponding risks, it is her choice.

This proposal would lead to many, many more abortions, (which at least some people would consider to be a problem) because it would allow men to avoid responsibility at any point. How would a woman prove that the man intended to support the child?

Posted by: R | Apr 6, 2005 4:54:30 PM

Ethan seems to ignore the fact that child support payments are made to help the child, not the mother of the unwanted child. The child is dependant upon his/her parents to live and thrive and the Courts recognize this in their determination of child support payments. A child's needs trump any "right" of a father to deny his offspring.

While I sympathize and share the desire not to have any unwanted children, there are simply fewer points at which men can make a decision in the reproductive process. A man can chose to have a vasectomy (which is a significantly more reversible procedure than a woman's tubal ligation) or use birth control of other sorts. Hopefully a male form of the pill will come out in the near future so that these instances of unwanted pregnancies (for men and women) can be further reduced. Until then men are just going to have to deal with the fact that if their attempts at birth control fail then they're on the hook for any children that result. The only reason that a woman has a choice in this case is because it's her body that's being used to incubate the potential child. To deny her her right to abort is to basically enslave her, as well as expose her to a number of health risks that she would not have. And to force her to abort would be to utterly strip her of any rights she has over her own body.

I think Ethan also needs to think over the issue more broadly. He needs to recognize that the issue of unwanted children weigh significantly more heavily on women than on men and he needs to be sensitive to that. A pregnant woman's number one health risk is violence at the hands of her husband/partner. Many women, regardless of whether their children were planned or born in wedlock, are not being paid the child support that they are owed. Women who do try to get child support are often threatened with expensive custody suits and settle for less money than they and their children need for fear of losing the children altogether.

A solution to the problem of unwanted children has to come from a view of preventing all unwanted children, not just discarding those already born. The best way of doing this would be to teach kids how to avoid pregnancies, which would be getting rid of the damaging "abstinence-only" sex education that is getting funded by the national government. Contraception should be cheap and widely available. More options, especially hormonal ones, should be made available to men. Pharmacists should be barred from denying women their birth control (and yes, this is both and actual and growing problem). The only solution to the problem that Ethan seeks to address is preventative. Because once that child is born it has rights, and all its parents have are responsibilities.

Also, the case of the woman who allegedly collected sperm from oral sex and purposefully impregnated herself with it is almost certainly false. Artificial insemination is difficult enough to do in sterile, hospital settings, any sperm exposed first to saliva and subsequently to air and tissue is unlikely to have survived and therefore almost certainly not capable of fertilization. Also, the woman involved says that they had vaginal intercourse and that the birth control failed - a significantly more likely story.

Posted by: rivki | Apr 6, 2005 4:19:13 PM

Hey, nice to find your site (through Volokh.) We hope to have more legal content as our site grows too, so it is good to have discovered this blog.

Posted by: Jonathan M | Apr 6, 2005 3:58:44 PM

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