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Wednesday, March 08, 2006
Men's Reproductive Rights
Contending that women have more options than they do in the event of an unintended pregnancy, men's rights activists are mounting a long shot legal campaign aimed at giving them the chance to opt out of financial responsibility for raising a child.
The National Center for Men has prepared a lawsuit . . . to be filed Thursday in U.S. District Court in Michigan on behalf of a 25-year-old computer programmer ordered to pay child support for his ex-girlfriend's daughter.
The suit addresses the issue of male reproductive rights, contending that lack of such rights violates the U.S. Constitution's equal protection clause.
The gist of the argument: If a pregnant woman can choose among abortion, adoption or raising a child, a man involved in an unintended pregnancy should have the choice of declining the financial responsibilities of fatherhood. The activists involved hope to spark discussion even if they lose.
Those of you that follow my more academic writing know that I have an interest in the subject. Here's the link to my thoughts about this matter from April of last year.
Posted by Ethan Leib on March 8, 2006 at 10:48 PM in Article Spotlight | Permalink
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I am writing a research paper on men's reproductive rights and i was hoping to recieve a bit of help as far as direction on properly researching the topic. Is there a land mark case on the matter? A law review article that address the issue? Any guidance would be much appreciated.
Posted by: Teresita Lopez | Aug 20, 2006 9:56:52 PM
I actually think that reducing the sides to "absolute choice to not have sex" and "the absolute choice to decline all responsibility" is specious.
Whether you are pro-choice or pro-life, whether you have spoken or unspoken agreements, you know that you are engaging in behavior that can create a child, and that no birth control is 100% effective.
Given that, unless a contract is signed *prior to the act* stating that if the natural consequence of sexual activity between heterosexuals (conception) occurs, the man gives up any and all rights to the child and is released from all obligation, why would a reasonable man feel as if he's been taken advantage of?
Getting lost in lust, or in societal convention that encourages spontaneity, or the simple desire to disconnect the act from the natural consequence - none of these change the fact that anyone who can legally have sex understands that a thinking, breathing, needing human being can be created. Without a clear and binding document allowing one genetic donor to act without any culpability, why should the support of the child be the responsibility of only one party?
Posted by: Kael | Jun 2, 2006 3:45:54 PM
I appreciate that people are at least thinking about the issue of men's concerns. While I disagree with Matt Dubay's position, I also feel that the only way to move forward on the issues is to have open forums so that our collective intelligence and creativity can provide ideas.
I am concerned about the implementation of the idea that "we can allow men and women to contract out of support payments if a woman, without the man’s consent, insists on carrying an accidental pregnancy to term." Contracts are voluntary agreements between two or more parties. What if a woman doesn't want to enter into this contract? Does this idea propose that this is a unilateral male option?
Posted by: Jamee | Apr 23, 2006 8:15:18 PM
"Perhaps there is no viable solution that is fair to all parties - the father, mother and child."
That's probably the greatest one.
I'm pro-choice (and when there were two false alarms, my choice would have been to have the baby, and eventually we tried deliberately and have one now), and even more-so now that I've been pregnant, nearly incapacitated by nausea for months during, and had pre-eclampsia (aka Toxemia, aka severe Pregnancy Induced Hypertension) that required a quasi-emergency C-Section 2 months early. What I had, women (and babies) died of. There is no cure save removal of the child from the body.
Until a child can be taken out and grown outside the womb, the choice to bear a child has a life-cost that is only on the woman. Literally, her life and body. No man has died from toxemia.
(Now, I believe the best approach here is contraception and morning-after pills... But those false alarms? We'd not been unprotected. The only 100% no-pregnancy sex is a 69, I suspect. Or hands and good handwashing after. Still, we're not even getting into birth defects that make a child non-viable.)
Once you've got a kid... Yeah, the shift should now be "what's best for the kid." (Which might be smacking both gene-doners on the wrist and finding someone who'd be a good parent. I wish I trusted our adoption system more.)
Man, I wish there were artificial uterii.
Posted by: Beth McCoy | Mar 14, 2006 7:58:04 AM
it becomes very difficult to justify imposing 18 years of child support obligations on a man who never wanted to become a parent (and may have taken reasonable precautions to ensure this) while insisting that a woman has an absolute right to choose.Something which isn't, of course, much of a roadblock for those who insist that both parents have made the relevant choice long before the time that questions like abortion or child support become pertinent. I defend an absolute right to choose - exercisable equally by men and women - at any time prior to conception.
None-the-less, while I have no particular desire to defend the logic of people with whom I disagree, I would suggest that - for the reasons I elaborated in my first post - even the most ardently pro-choice should (and, so far as I can tell, do) recoil from this idea. I see no inconsistency in this argument, although if you wish to continue poking holes in the logic of our pro-choice friends, far be it from me to stand athwart your mission. Poke away. ;)
Posted by: Simon | Mar 10, 2006 11:51:05 PM
Prof. Leib:
Morally speaking you make a very strong case. Many of your critics seem to ignore, almost wilfully, the inconsistency in their arguments. Two people together make a child, but only ONE of them has the right to determine whether that child will be born. I entirely agree that pregnancy imposes greater burdens on women than on men, and if the parents disagree about an abortion the woman should have the final say. The problem is that it becomes very difficult to justify imposing 18 years of child support obligations on a man who never wanted to become a parent (and may have taken reasonable precautions to ensure this) while insisting that a woman has an absolute right to choose. As one writer observed, "My body, my choice" has a nice ring to it, but "My body, my choice, your child support payment" is not quite as plausible.
The only argument for the status quo that I can make is a practical one-namely, that if men were allowed to opt out of child support (at or prior to the child's birth) the result would be a sharp decline in the living standards of many children, who as a group are the weakest and most vulnerable members of our society. Perhaps there is no viable solution that is fair to all parties - the father, mother and child.
I believe that this is, in fact, a very powerful argument. We need to be honest about it, however, rather than combine extravagant libertarianism when it comes to women's reproductive rights and a sudden concern for children's welfare when we discuss analogous choices for men.
Posted by: steve132 | Mar 10, 2006 8:08:52 PM
A reasonable person would never expect that the behavior that Dr. Phillips engaged in would lead to the birth of a child. While I deeply sympathize with the child in the middle of this mess, I have a hard time seeing how this is the "man's fault."
Furthermore, it is not unreasonable that someone, upon discovering that this had happened to them, would experience distress. Surely most people are excited about the birth of their child, but when that birth results from a rather personal fraud...it is almost like expecting a raped woman to be excited when the product of that rape is born (I realize that being raped is far worse than having your sperm missapropriated, but the same idea applies).
I too have no sympathy for any parent who uses a child as a pawn. But I fail to see how this addresses the situation of a person who did not want a child in the first place, and took what our society considers to be reasonable precautions to not have that child.
And just as a man chooses which women to have sex with, a woman chooses which men she "relieves [her] biological urges" with. By your reasoning, a man should be careful to not have sex with any woman who might deceive him regarding her childbearing plans. This would seem to suggest that a woman is equally liable to choose a man who would support without question any child that the relationship produces.
Posted by: Bev | Mar 10, 2006 4:30:07 PM
"If we are truly concerned about the welfare of the child, can we honestly say that the child's need for money is far more important than the active involvement of a father?"
Absolutely. Dr. Phillips sued because the birth of his son caused him "extreme emotional distress". He could not sleep and lost his appetite, he alleges. This man should be kept of the child's life completely. Meantime, the child needs food, clothing and shelter. If money is all this man can contribute then we will make him contribute it.
When my wife was pregant, I had sympathetic morning sickness and cravings. After my daughter was born I could not sleep because of night-time feedings, colics and diaper changes. And I was never happier in my life. I have absolutely no sympathy for any parent, mother or father, who sees a child as an incovenience or as a weapon to beat the other parent over the head with. The "welfare of the child" is neither facile nor clicheish. It is the mainstream value of our country for as long as good parents outnumber bad parents.
Posted by: nk | Mar 10, 2006 3:34:23 PM
I am a female pro-lifer, and I have to agree with Prof Leib here. I've had far too much exposure to our family law system, and it is wildly unbalanced. Although I would not want to see abortions spiking, I agree with Leib that removing the almost automatic award of child support from the equation might cause some women to make their decisions more carefully.
I might have more sympathy for women pursuing child support if their approach was balanced. When custody of children is disputed, most women - something over 80% - want sole custody of their children. That is, they want the father to be involved in the child's life to only a minimal extent. However, I assume they all expect the father to pay child support. If we are truly concerned about the welfare of the child, can we honestly say that the child's need for money is far more important than the active involvement of a father?
Also, keep in mind there is a third party in play here - the Welfare Reform Act of 1996 (apologies if I'm mis-citing, it is spring break and I'm too lazy to look it up). Among other things, this Act put the burden of establishing and enforcing child support orders on the state attorney generals. Essentially, when a woman with a child signs up for public aid, the state requires her to cooperate in locating the father so a child support order can be established. So all other arguments aside, I think this issue alone is going to defeat the case that Leib linked to.
Posted by: Bev | Mar 10, 2006 1:11:40 PM
A very good discussion by thoughtful moral people. The bulk of paternity and child support laws, however, are unnecessary for thoughtful and moral people. Their basic rationale is for "your hardness of hearts". I agree with Dr. Haque. Against the issue of a child and all its needs, both material and emotional and the most important being the love of both a mother and a father, the relative burdens the law or society places on the parents are trivial -- I would say even irrelevant. I cannot see that it is unreasonable for society to place absolute liability on both parents -- "from each according to his or her ability, to the child according to its need". On the narrow question of men's reproductive rights, as a man who was wise enough before birth to pick good parents, I believe that a man has an obligation to his unborn children to choose a good mother for them. At the risk of being crude again: He should always remember how babies are made and be very careful how and with whom he relieves his biological urges. Thus, I would deem not just "broken condom" but even the despicable situation in Irons to be the man's fault.
Posted by: nk | Mar 10, 2006 8:40:21 AM
It seems to me that the quick rejection by most everyone (sorry, Ethan) points to a fundamental flaw in the prochoice case. That is, we typically don't see anything wrong with deriving legal duties from the mere fact of biological parenthood.
There's no natural consequence that follows from releasing a father from any further financial obligation to his child. If the child (and her mother) are more likely to be impoverished, etc., then, if society is concerned about that, the issue can be addressed directly. There's no need to lasso an unwilling father into the mess.
Unless, of course, he's already properly committed.
Posted by: Thomas | Mar 10, 2006 12:04:04 AM
I thought I was clear that I don't have a very good idea of what the consequences would be in terms of incentivizing behavior. It is at least imaginable that if men were no longer be a reliable source of support, more women would choose not to take the risk of pregnancy through abstinence or contraception. But I wouldn't press the point very far.
I understand that the people who disagree with me have very good arguments for their positions. But I don't think I'm way off base when I suggest that "pro-choicers" have no interest in the relationship between reproductive autonomy and men's choices; they focus on women's choices because that's what the movement is all about. And the choice they care to protect first and foremost is the choice to abort. I concede that there may be very good reason to ignore a man's wishes or choices. There may be very good reasons to find his views irrelevant. But I don't think the pro-choice movement has the arsenal to apply without modification an argument constructed to deny that the state can tell a woman what to do with her body in order to completely undermine the semen-provider's choice. The semen provider has emotions that are not irrelevant, I submit. Precisely because I respect the woman's ultimate choice, I would never dream of given men any kind of veto. It's just money, after all....
Posted by: Ethan Leib | Mar 9, 2006 11:17:57 PM
FXKLM - Good point about adoption as the third choice. I do think that it is a complicated, but definitely viable option.
Prof. Leib,
I'm not sure that your position would result in "just more abstinence or more careful contraception." It seems unlikely that your proposed measures would significantly deter those instances, the crucial moments, leading to unplanned pregnancies.
Further, I don't think your argument upsets pro-choicers "because they think it is *only* a woman's choice that has moral significance." There is a very real key factor that makes the moral significance of the woman's choice different from the man's. It is the woman who goes through the procedure and whose body, hormones and related emotions are affected.
Posted by: SarahH | Mar 9, 2006 10:51:40 PM
Simon: My position is only (?) attractive to pro-lifers if you think the end result of my proposal will be more careful contraception and more abstinence. I have no real sense of the empirical consequences, so your guess is as good as mine.
Still, it probably is worth specifying one point: those who disagree with me (here and elsewhere) love to point out that the "burden" of child-rearing and child-bearing disproportiately falls onto women -- and that justifies saddling the man with financial obligations. The problem with this explanation is that it is a weird form of bootstrapping. The only reason women are so burdened is because they are choosing to take the child to term. If the women makes a different choice, all you can say is that the man should pay his share for the abortion, a position with which I do not disagree (though, again, fraud is a limiting case). Now if you reply that the burden of the potential abortion itself falls onto women if they make that choice and that justifies getting men on the hook for 18 years, I can only respond that it seems hard to justify 18 years of support payments for a burden that the women herself chose NOT to undertake because she thinks the benefits outweigh that burden.
Adil, as usual, makes a critical analytical point. Perhaps we don't think it is blameworthy at all for a women to change her mind once impregnated. I have a lot of sympathy with that view -- and am not sure how to handle that problem. Still, it is remains open to argue that all that good-faith-change-of-mind-possibility supports is that the woman should have the right -- despite the man's wishes -- to take the baby to term. But we all agree that she has such a right. The question remains why the man has to pay for it if the woman changes her mind. Do men take upon themselves such a risk? Perhaps, but not obviously so. You may be right that a "failure to disclose" will not always or usually constitute fraud; but just as surely you know it sometimes does. Especially when there is a relationship of trust.
A side note: We usually retain the right here to delete comments such as "you are arrogant" or "you are sexist," especially from those too cowardly to sign their real names. In this case, I'll leave them because I know where these people are coming from and how incendiary this issue invariably must be -- even if I don't think name-calling is a very sensible way to discuss what I think is a close call any way you come down.
Posted by: Ethan Leib | Mar 9, 2006 6:20:26 PM
"Adil's concerns about distributive justice are real. But we still need a justification for who should bear the cost of that justice for the child. It isn't obvious to me that -- again using the case of fraud as the easy (if improbable) case -- men always should bear the financial cost."
Quibble: Men only bear SOME of the financial cost, especially factoring in women's opportunity costs.
Fraud: In your case in which a woman lies about being on birth control, there's a colorable argument that as a result of her culpable wrongdoing a man's (shared) causal responsibility for her pregnancy will not ground moral responsibility for the welfare of the child born as a result. But the prospects of generalizing from that case seem dim to me. In your case in which a woman promises to abort in the event of pregnancy, I tend to doubt her promise gives rise to any morally or legally enforcable claims by the man involved. You write of "women who will always refuse to terminate" and "the certain result of an unplanned pregnancy" but (a) failure to disclose does not always constitute fraud (b) many women who consider themselves open to abortion may change their minds when the time comes and that hardly strikes me as blameworthy.
Posted by: Adil Haque | Mar 9, 2006 5:11:48 PM
"To the people who offer the glib reply that men made a choice to undo their zipper, my reply is just as glib: women made just the same choice. The question remains why we allocate the risk the way we do."
Because the consequences for unzipping are DIFFERENT for each. He bears no immediate physical consequences from the conception. (Even a woman who puts her child up for adoption must carry the child to term.) The allocation of risk balances the seriousness and immediacy of the potential consequences. So your response is not glib, it is *gulp -- never thought I'd say this to anyone -- sexist, in that you disregard the biological realities that create the need for a differentiated allocation of risk in the first place.
Posted by: Lawyer K | Mar 9, 2006 5:05:41 PM
To the people who offer the glib reply that men made a choice to undo their zipper, my reply is just as glib: women made just the same choice. The question remains why we allocate the risk the way we do.Because the burden will (tend to) disproportionately fall on women to carry the child to term and then raise and support them. The simple reality is that pregnancy and children are a gift, but one for which the responsibility and risks falls disproportionately on women. Now, being pro-life, I certainly agree with you that the "it takes two to tango" excuse is inadequate justification to obtain an abortion, but to penalize a woman for choosing not to abort their offspring strikes me as being (as you correctly say) deeply disturbing to people on both sides of the abortion debate. It just strikes me as a bunch of boys (it's too hard to call them men) trying to get out of their responsibilities. If you are involved in the conception of a child, you have a responsibility to that child, and to a great extent (a fortiori for those who are pro-choice) to the child's mother.
I take it that many people would allow an opt-out in the case of fraudNo. I have previously stated my discomfort with the fact that believing abortion to be murder leads uncomfortably to the realization that abortion is still murder regardless of the circumstances of conception, which inescapably forecloses the possiblity of exceptions for rape, incest (subject to qualification here) or fraud of the kind you described in the LT piece. Man DO make a real choice about whether he is ready to assume the risk; if there is a problem, it is that they simply don't take that choice seriously enough.
Posted by: Simon | Mar 9, 2006 4:48:44 PM
A few responses:
1. I realize my position annoys both pro-lifers and pro-choicers at the same time. Pro-lifers are upset because my desired rule would likely incentivize more abortions (or is it just more abstinence or more careful contraception?). Pro-choicers are upset because they think it is only a woman's choice that has moral significance.
2. To the people who offer the glib reply that men made a choice to undo their zipper, my reply is just as glib: women made just the same choice. The question remains why we allocate the risk the way we do.
3. I take it that many people would allow an opt-out in the case of fraud: if the semen-provider and the egg-provider never had consensual sex. Reasoning from that easy case (or what I take to be an easy case), I suggest that it is hard to differentiate different sorts of fraud: cases where the woman claims to be on birth control but isn't. I acknoweldge that as we get further and further from the core easy case, we start hitting some much harder ones: cases where the condem breaks. I appreciate that there are tough questions here -- and that dead-beat dads are a bigger problem than the saddling of men with children they never chose to have. But many men and women have understandings spoken and unspoken that their sexual relationship will not result in a child. If that agreement is violated, it strikes me as fair to let the woman have her child but allow the man to opt-out of payments. At the very least, we ought to encourage the women who will always refuse to terminate to let their lovers know the certain result of an unplanned pregnancy. Then the man can make a real choice about whether he is ready to assume the risk.
4. Adil's concerns about distributive justice are real. But we still need a justification for who should bear the cost of that justice for the child. It isn't obvious to me that -- again using the case of fraud as the easy (if improbable) case -- men always should bear the financial cost.
Prior discussions of these subjects are here:
http://prawfsblawg.blogs.com/prawfsblawg/2005/04/a_new_collabora.html
http://prawfsblawg.blogs.com/prawfsblawg/2005/12/a_mans_right_to.html
http://prawfsblawg.blogs.com/prawfsblawg/2005/09/i_have_recently.html
http://prawfsblawg.blogs.com/prawfsblawg/2005/11/mainstreaming_a.html
http://prawfsblawg.blogs.com/prawfsblawg/2005/04/choosing_togeth.html
http://prawfsblawg.blogs.com/prawfsblawg/2005/04/more_on_the_rig.html
The subject never gets old!
Posted by: Ethan Leib | Mar 9, 2006 4:07:58 PM
SarahH: There's a third choice that you seem to forget. If a mother cannot afford to raise a child but is unwilling to abort it, she can always put it up for adoption.
Posted by: FXKLM | Mar 9, 2006 3:22:16 PM
Jonquil: right you are. Curses! My attempt at a Kozinski-like stab at injecting movies into serious subjects fails at the first go! ;)
Posted by: Simon | Mar 9, 2006 1:21:47 PM
I wonder whether this discussion mischaracterizes an issue of justice for children as an issue of fairness between men and women. One side says it isn't fair that women determine whether men bear certain financial obligations. The other says it isn't fair to force women to choose between abortion and shouldering the physical, emotional, and financial burdens of bearing, delivering, and then raising a child all by themselves. Maybe that's a debate worth having, but isn't there a separate requirement of distributive justice that children receive the resources and opportunities they need to develop and flourish? Once a child has been created he or she needs to be cared for, and there's an independent question about who should do so and how. One answer to that question is that those who brought the child into existence should share responsibility for its well-being if they are able to do so. Sounds reasonable to me, gender wars and blame games to one side.
Posted by: Adil Haque | Mar 9, 2006 12:37:48 PM
It's pretty callous to legally allow the father contract out of financial obligations for his child's life. The choice between getting an abortion or not getting financial support from the father is no real choice. Even many pro choice women would be unwilling to have an abortion absent emergency situations like rape or serious medical risk, myself included. So, a mother in that position is either emotionally and perhaps morally punished or she is a single mom with no support for 18 years. And the father what?
Posted by: SarahH | Mar 9, 2006 12:05:38 PM
> . In Indiana Jones and the temple of doom, a young man places his hand into one of several wooden holes, one of which contains an animal which will inject a fatal poison;
That would be Flash Gordon, actually.
Carry on.
Posted by: Jonquil | Mar 9, 2006 11:43:46 AM
...
I'm sorry: the woman contributes nine rather unpleasant months and at least eighteen subsequent *years* of her life to any child she bears and has to raise, with all the physical pain, career setbacks, scorn and stress that entails, and men are bitching about having to contribute some money to the kid they dumped on their unsuspecting partner?
In most cases, child-rearing is a difficult and stressful task for *two* parents, let alone a single mother. Come near any self-respecting woman with an idea like that, don't be surprised if she punches you on behalf of our entire gender. God, how arrogant.
Posted by: 20thcenturyvole | Mar 9, 2006 9:24:39 AM
I respectfully dissent. In my view, men have exactly the same right to "choose" an abortion, that is, at any time prior to conception. Thereafter (or at least, shortly thereafter) it ceases to be a question of "reproductive rights," as both the men in the CNN story contend, and as I read Ethan's LT story to be premised on. In other words, I get off this train precisely where Ethan ("We must start with the woman’s right to choose . . . [it is] a right against the state . . . [and] of course, a right against the fetus: the woman’s right to choose is the right to terminate a pregnancy, particularly in the first trimester, above any right that might be asserted on behalf of the ftus") gets on; this even applies, in my view, in circumstances such as Phillips v. Irons case Ethan mentioned; it's important to get beyond the paradigm that this is all just a question of his rights vs. her rights, and see that it is actually the solomonic dividing of the child in two.
Moreover, even if I did not buy into ftal personhood, and accepted a woman's right to choose an abortion as balance to be drawn against merely the potential life abortion ends, I would still not be in favor of this idea, because it strikes me as being vaguely mysoginistic. Any rule which seeks to pressure women to have or not have an abortion seems to come dangerously close to a line that should only be crossed (that is, of individual bodily autonomy) when a genuinely compelling reason - such as ftal personhood - hangs in the balance. I am all for spousal notification; I am by equal measure opposed to spousal consent (which I realize is not entirely what Ethan advocates).
Worse yet, the practical mechanism advocated has both moral and practical difficulties. Ethan suggests:Finally, we can allow men and women to contract out of support payments if a woman, without the man’s consent, insists on carrying an accidental pregnancy to term. This option, not available under current law, would allow the couple to agree that a man could give up all parental rights and responsibilities, perhaps in exchange for a one-time payment to the woman to assist with the costs of birth.Suppose the mother is - as many will be - poor. Suppose further that she is pro-life, and believes sincerely and genuinely that abortiong their child is murder; you are asking her to choose between (at very least what she sees as) infanticide or losing any financial support from the father. That's a ghastly ethical position to create. Continue to suppose that the mother is poor, and may not even have the means to afford the hospital visit for the birth; she now has a way out! She can take the up-front money and have propoer post-natal care in a hospital, for the maximum chance of a healthy baby, or she can have financial support that the father owes the child. Is this what "the right to choose" comes down to - the devil and the deep blue sea?
Every man already has a choice. The debate is over whether the choice is before or after he undoes his zipper, and personally, I don't think that's a good basis for permitting men to emotionaly blackmail women into abortion. In short, I wish to suggest that consensual sex does indeed carry with it a waiver of his right not to be a father
against his will. In Indiana Jones and the temple of doom, a young man places his hand into one of several wooden holes, one of which contains an animal which will inject a fatal poison; imagine doing the same thing with your pecker and you get the idea (except, of course, on the plus side, fatherhood is considerably more rewarding than a lethal poison).
Posted by: Simon | Mar 9, 2006 9:23:43 AM
1. Can you link to the last time you discussed this on this blog?
2. Are you going to write an amicus brief in this case?
Posted by: Jack Johnson | Mar 9, 2006 12:55:48 AM
I read your article. I am familiar with the Irons case. I surmised that the trial court's decision was based in large part on its disgust with the millionaire doctor plaintiff refusing to support his child (not that the mother is any great bargain either) and the appellate court may have ruled otherwise had the parties personally appeared before them. On your main point, I disagree with your "broken condom" defense. If a man wants to do everything to avoid conceiving a child he should not have sex with a woman. Please forgive me, I am quoting a bumper sticker: "Safe sex is in the palm of your hand."
Posted by: nk | Mar 8, 2006 11:46:56 PM
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