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Wednesday, March 22, 2006

"Roe v. Wade for Men"

In this FindLaw column, Professor Joanna Grossman characterizes as a "farfetched claim for avoidance of child support" the argument that "a court order directing [an unwilling father][ to pay $500 per month in child support" violates the father's constitutionally protected reproductive rights.  Professor Sherry Colb also addressed Matt Dubay's lawsuit yesterday, in her own FindLaw column, "Should Men Have the Right to a 'Financial Abortion?'"  (Both Grossman and Colb are skeptical about Dubay's claims).   In Colb's view, Dubay's case and arguments reflect, in part, "men's anger:  why should women have all the control?"  She writes:

Many men are quite angry about how little control they currently exercise over their reproductive lives.  When a man decides to have consensual sexual intercourse with a woman, he risks unwanted fatherhood:  If the woman conceives, it is she, and she alone, who decides whether to terminate her pregnancy.  And that is true even if the woman falsely claimed that she was using birth control, that she had been told by a doctor that she could not conceive, or that if she did conceive, she intended to get an abortion.

In short, the argument goes, a woman has the ability forcibly to place her unwitting partner or ex-partner in a position he never wanted to occupy - that of a father - with all of the financial and emotional baggage that the status carries.

Ethan has, of course, blogged, written, and thought a lot (and, more particularly, a lot more than I have) and carefully about this issue.    In his view:

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.

Now, I am convinced that abortion is immoral and also that Constitution, correctly understood, permits governments reasonably to regulate abortion.  I wonder, how should someone with these views think about Dubay's claim, or Ethan's arguments?  Certainly, I agree with Ethan that "the legal 'right to choose' has confused the moral terrain" in this difficult area.  Like Ethan, I do not believe that the best arguments in favor of a legal right to obtain abortions  -- arguments that owe little to high-flown claims about the mystery of life and one's place in the universe -- categorically preclude legal mechanisms for recognizing fathers' moral right to participate in decisions about obtaining abortions.  But what about Dubay's equal-treatment arguments for "financial abortion"? 

It seems to me that, even if I were "pro-choice" with respect to abortion, I would be reluctant to move to the conclusion that men should have some kind of analogous "right to avoid paternity and the responsibilities that attend it."  Maybe this is because, in my view, men and women alike have a moral obligation to care for the children they produce -- this is true even if it is also true that the law should, for a variety of reasons, permit women to obtain abortions in many cases.  This obligation does not depend on whether procreation is willed, nor is it erased or diminished by the facts that women are differently situated (in that they carry and support children inside their bodies for the first 40 weeks or so of the child's life) and so have the legal right to end that obligation by preventing the birth of the one to whom it is owed.  To borrow Professor Colb's words, it is not clear to me that the perceived need to protect and enhance men's "control" (or lack of it) over their "reproductive lives" (i.e., over the question whether children they produce are born, and entitled to financial support) is one that outweighs -- even in a context in which women have the legal right to abortion -- the obligation to one's children, even those one did not expect or want.   (The "Men's Bill of Rights" recently proposed -- in good fun -- by Will Saletan on Slate seems to reflect a different view!).

Posted by Rick Garnett on March 22, 2006 at 11:49 AM | Permalink


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Tracked on Mar 22, 2006 10:10:14 PM


i have case. and i would to get everybody's thought about it. in some country abortion is illegal.

reply to me on [email protected]
I have a Philippine maid. she started working for us last February march. she had just arrived in Beijing. her nice and her nieces husband sponsored her as they were already there working.

I work at home so I get to see her everyday and she finds in me a friend to talk to. I did help her to improve her life in china. everything was going well. I got her some other job with some friends of mine in the expat community here. One night at her niece work place in a bar restaurant a man introduced himself to her. They started dating each other. The man is married but his wife lives in the united states, not in Beijing. He seemed to be a nice guy a diplomat working for the American embassy. They became lovers. Because he was not used to used condoms I advised her to insist on that point and she did. They have been going out together for over 6 months now. Meanwhile my friends and I got to meet him, go out together etc. he got her an apartment (he pays the rent but the apartment is under her name) etc… he asked me to help her to find an apartment as I speak Chinese he gave me the money for 6 months of rent. He was happy when my maid move into the apartment. so she moved out of her niece’s place last September and everything was fine for her no need to go to hotels anymore when seeing him. But 2 days ago my maid came up to me saying she is pregnant.

I got her to go and buy tests to be sure and she is definitely pregnant very sick vomiting etc. she does not want to abort as it is against the law of her country. The man she has been seeing for the past 6-7 months is on his second marriage and has a teenage daughter studying here. he does not want to assume the news. He just want to keep thing secret and makes pressure on her telling her she got no right as he is a diplomat.

so my maid is left alone not knowing how she will do to keep working, give birth on her own, be able to pay for the rent since he does not want to take care of nothing. She has asked me for help but I am French and I do not know the US law about all of this.

she no longer wants to go back home as pregnant as her family and community will reject her. she is only 3 weeks pregnant and also needs financial support to pay the doctors bills etc. so far I am the one paying for everything. I am only 30 and she 43. I do not want such responsibility as my boyfriend and I will move out of china for another expat contract in Australia. I cannot possibly take her with me. it is not like she is my child. I just would like to know she is ok by the time we go. By April she will be 4 months pregnant and maybe she will be able to work for another 2 months after that but at one stage or another she will have to stop.

she does not want the child to be born in china nor Philippines. As that will be the worse for him/her. She thinks it is better for the child to come to be born in the US. For obvious reasons: life will be easier for that child with his dad’s nationality. she does not mind not revelling the truth the this guys wife and family. she is not running after an American citizenship neither.
She is as shocked as him finding out about the news but she is left alone so to speak to deal with it . I do not think this guy should put me in a situation of support when it is him who got her pregnant I am just her boss. But I cannot just leave her by herself like that. I am not a no heart person like he is.

This is why I am writing to u to find out about her rights. I think not to be jugged by her Philippine friends and family back home it would be good for her to flee to the US. The child would not have a stable life in the Philippines. They are very racist their and the American man is a black African American while my maid is olive skin Philippine. For what she told me and what I have myself experienced in the Philippines people will make that child’s life impossible considering that he will be raised by a single mother. Single mothers are not well seen in the Philippines. Now she is in china but the Chinese will never give the Chinese nationality to the child as he comes from foreign parents. The best choice would be for that child to be American citizen.

what are her rights there? How can she get him the American citizenship? For what I know the child has to be declared at the American embassy to get his birth right. But if the father denies it. How can she do?

She is 43 and she thinks she has to take her responsibilities. myself I admire her but life will defiantly be tuff for her as she will hardly survive here with a child being just maid work. I do not thing diplomats are above the American law. he says he does not care anyway because he is someone working for the embassy in the visa section and he is a diplomat so he is protected and she cannot do nothing against him. what are her rights? Not even G. bush is above the law so it is unlikely that that guy working only in the visa section would be above it. besides, he represent the united states of America he cannot get away with this. It is very stressing for me and my maid. And it is not right! A pregnant woman at that age should not be put in such situation but cared for.

I would like for her to be able to move to the US to give birth I think she should also get child support from the dad as she will never be able to raise that child on her own and keep the apartment she has. She should also get compensated for the whole stress and for all the trouble during the pregnancy. he should also pay for the doctors and insurance for the both of them. As the doctors bill are not cheap and she will not be able to work to pay for her own insurance.

With all this trouble She decided to take care of her child on her own which is a lot and raise him by herself. she is willing to protect the guy's family against a drama and divorce or other consequences if his family finds out about the whole story. her goal is not to destroy that jerk and his family but just raise her child and give him access to his rights.

please get back to me on this as soon as possible. I am running out of comforting words for her. In France there is no way this guy would walk away with this. But for the united states I do not know but I would think it is similar.



Posted by: nathalie | Dec 23, 2006 8:03:48 AM

"The well-known duty to mitigate damages should relieve a man of paternity costs when he opposes a pregnancy and the woman could obtain an abortion but doesn't."

I can tell you are going to fail Con law.

Posted by: meg | Jun 28, 2006 3:00:23 PM

It is very unfortunate that the Dubay lawsuit has stereotypically assigned men to a camp that portrays abortion as a constitutionally protected way to avoid parenthood obligations. But for women, at least according to the U.S. Supreme Court, the privacy rights under Roe v. Wade are based on the woman's right to control over her physical dominion, her bodily integrity. It is about a woman's right to consider the risks to her person of pregnancy and to have the right to choose to mitigate those risks by an early termination.

The Dubay case and artificial insemination ("AI") are very different. In the case of AI, the sperm donation occurs independent of the woman's body. The sperm is handed over to a physician for use in assisting reproduction. In Dubay's case, the sperm donation did not ever exist separate and independent from Lauren Wells' body. Various uniform acts and statutes have been enacted to protect the donor from imposition of paternity obligations. In the case of AI, the legislatures have seen fit to recognize the AI process, and its regulated protections and procedures. To-date, no legislature has effected any "parental waiver right(s)" for the putative father. This is true even in the event of the rape of a male minor. Now there's a situation that I'd like to see legislatively addressed. This is a matter for the legislature and not the courts because it is the legislative process that will provide for the child's right to support as well as protecting the male victim.

Posted by: Jamee | Apr 17, 2006 7:16:04 AM

In all due respect, this "Roe v. Wade for Men" case is going to be very interesting to watch how it unfolds. There are single women who are artificially inseminated, yet the courts don't go after the sperm donor. This case seems similar. The male, Dubay, was just a sperm donor to the woman. Just because she knows his name, what gives her the right to sue him for child support? What if it would have been a one night stand, and she didn't remember or even know his last name? Dubay stated he didn't want to have children, so this case should be treated as artificial insemination. Case closed.

Posted by: Michele | Apr 13, 2006 3:15:11 AM

This is what I get for responding when I don't have enough time to spend to think something out fully. The other huge flaw in the argument that child support might infringe on male reproductive rights is that this isn't a man v. woman thing. The right of support is the child's, and so the man's duty of support (which women of course have as well) runs to that child. The child has no control over his or her existence, and shouldn't be "penalized" by the actions taken by the mother in any event. The only argument I can see in response to this is that the man would owe no duty if the child never existed, and the man wasn't the cause of the child's existence. That's silly, though. Of course the man is one cause of the child's existence. To say otherwise is to insert some artificial notion of proximate causation into the process--to hypothesize that in every pregnancy, there is a point at which the woman must decide whether to continue or to terminate it, and that point (and that decision) are so fundamental to the chain of events that the man's failure to agree breaks the chain of causality.

I'm sure I'm still leaving out a lot.

Posted by: Marcia McCormick | Mar 28, 2006 9:06:37 PM

The equation of financial abortion with women's control over the decision and Victor's analysis are both maddening. It reminds me of debates over the definition of rape under the common law, where those who never experienced it defined what harm it caused. First, I'm not sure that a good claim can be made that a pregnancy or a child is "damages" just like any other tort or contract injury as the limits on wrongful birth litigation demonstrate. To apply a mitigation rule to a decision not to terminate a pregnancy oversimplifies the issues in a way that glosses over the realities of what women (and men for that matter) actually experience and find harmful. Second, the issue of what is at stake in a decision to remain pregnant or terminate a pregnancy involve a lot more than the potential risk to health or life, and even that will differ from woman to woman. Thus, even a rational cost/benefit analysis will come out differently for different women. Finally, there is simply no consideration of the effect of coerced sex. Perhaps everyone is taking for granted that pregnancies that result from rape wouldn't be subject to these limitations, but sexual relationships can be coercive in ways that are not criminalized but nonetheless put the parties in a different "fault" situation vis a vis one another. Again, I just don't think that "fault" is the right concept to apply to unplanned pregnancies--it implies that pregnancy and the children are punishments for bad behavior (sex).

Frankly, these issues are just too complex. I investigated war crimes in the former Yugoslavia for a number of years, and saw situations in which the women experienced pregnancy and the child born, along with the coopting of the women's own bodies, as a kind of injury that has no analog. Some women, despite the intent of the men who raped them, did not experience pregnancy or the children borne in the same way at all, but found them blessings. Women in consensual relationships also experience the unplanned pregnancy along a wide range of emotions, sometimes conflicting ones at the same time, as do men. To impose from without a regime that does not take into account these experiences is fundamentally unjust.

Posted by: Marcia McCormick | Mar 28, 2006 5:42:22 PM

(Hmmm. I've realized once again that I should add something.

(You might ask, how could we tell whether a man desired (along with a woman) a given pregnancy, when we might not inquire until after a child is born? At that time, how could we know to a moral certainty what the man wished seven months earlier? We certainly wouldn't want to let a man who changed his mind only after he saw the mecomium off the hook!

(I suggest a primary way and a couple of backup ways. First, we should impute a nearly irrebuttable[1] presumption of consent to marriage. A nice, bright-line rule. Marry--children are wanted, man must pay. Don't marry--gotta fall back on...

Second, we should permit any pregnant woman to demand from the putative father a declaration (in a simple form to be prescribed by law) that he consents to the continuation of her pregnancy. If he signs the declaration, he must pay half of pregnancy costs and be liable for child support. If he refuses, or if the woman never seeks his signature, he will not be liable for any amount over the reasonable cost of induced abortion.

(You may ask "what if the man makes oral promises, but won't sign anything?"

(Perhaps he's illiterate. Third, we should provide every pregnant woman with legal process to compel the appearance of a putative father before a court officer, there to declare on his oath whether he approves the pregnancy or not (with the same consequences as above). Failure to appear without reasonable excuse should constitute consent to the pregnancy.

(If the man does not declare by one means or another that he approves a pregnancy, a woman who doesn't want to raise a child by herself should get an abortion.

(Look, we used to make things clear to everyone: if you want to have children, get married. That rule worked and worked fairly well. Among other things, it gave women a powerful method of discerning a man's "true intentions." (Again, sob stories are inapposite here--on a statistical basis, illegitimacy and fights over child support were much more rare under the old regime than they are now.) There is no Constitutional or policy reason not to bring it back, at least to the extent I have suggested.

([1] A married man should not have to support a child which DNA tests prove was fathered by someone else. Any woman who gets pregnant as a result of adultery should do so at her own risk.)

Posted by: Victor | Mar 24, 2006 2:25:41 PM

Joe, even a sincere belief that induced abortion is murder has no (current) legal relevance. In the eyes of the law, that's just a personal preference. Furthermore, the law lacks any effective way to distinguish motives. Does a woman who carries a pregnancy over the objections of the putative father do so because she thinks induced abortion is murder, or because she hopes that seeing the baby will inspire the man to marry the her, or for some other reason? Who can tell? So any qualms the mother might feel about induced abortion are her private problem. (Of course, she might try to persuade her partner to approve her pregnancy--if he did so, I think we should certainly hold him responsible for the future child.)

Rick Garnett, since you did not even address the "mitigation of damages" argument I detailed so carefully, I fear (wrongly I hope) that you have no interest in analyzing this problem rationally.

Your conclusion, that the woman's choices don't bear on the man's responsibility to "his child," simply ignores the fact that in the early stages of the pregnancy the man has no child (in law, at any rate). So at that point, he doesn't have any moral responsibility to a child--he has only a moral responsibility to his (sexual) partner. The financial burden associated with that responsibility can be bounded at the cost of induced abortion (including complications if any), because induced abortion is very much less risky and costly for both parties than pregnancy.

Since we invest the woman with the choice of induced-abortion or pregnancy, we should assign her the responsibility that goes with the power. If she wants to continue a pregnancy against the wishes of her partner, she should assume all of the excess costs. (The man should be liable to contribute the price of induced abortion.)

If you really think that in this sitation, a particular actor (our hypothetical pregnant woman) should not have any duty to mitigate damages, would you please explain why? Why should a well-founded, time-tested principle of law which operates in every other situation not apply in this one?

Posted by: Victor | Mar 24, 2006 1:57:44 PM

Victor writes: "[O]nce you admit the choice of terminating an inconvenient pregnancy, you lose your rationale for forcing a party who doesn't desire that pregnancy to pay for its consequences." I just don't see it -- maybe, I admit, because I am thinking not so much of a man's position regarding a "pregnancy" and "its consequences" but of a parent's obligations to a child.

In any event, I still do not see why the fact that the law permits, for a complex variety of reasons, women to terminate a pregnancy, does anything to diminish the moral responsibility of a man to his child . . . whether he wanted the child to be born or not.

Posted by: Rick Garnett | Mar 23, 2006 9:52:51 PM

Victor says: "Wise public policy would discourage unwed motherhood by making women face the full costs of solo decisions to bear children."

Oh please, no one really operates like this so-called "economic rational person" over the course of hopping into bed and then nine months of hormonal hell - man or woman.

The woman is in the superior position because that's the way human bodies work. He knows that going in (no matter what lies she tells). And he would not trade it for the world.

The man must still contribute to his unwanted child because that's the cost of his freedom from that child. Her financial cost of freedom maybe financially lower (maybe not) but she still has to go under the knife or raise the kid with or without him.

Posted by: Alana | Mar 23, 2006 8:04:57 PM

The man and woman are simply not in an equal position here, especially in the current society. So, the last two posts seems overly artificial. If some sort of fraud etc. was involved, such as the woman claims not to be able to get pregnant, I think a good case can be made that the man should be less liable. Even here, concerns for the intersts of the born child makes making only the woman liable a bad thing.

"First off, you've neglected to mention the pains and risks of continued pregnancy, which exceed those of induced abortion."

What about those who believe abortion is murder and so forth? Does this factor in to said "pain?"

Posted by: Joe | Mar 23, 2006 6:24:48 PM

One more thing: when we allow women to force men to pay for the children of pregnancies they do not want, by the Iron Law of Subsidy we encourage them to produce unwanted (by one parent) babies. That is, they disproportionately produce future neglected children, juvenile deliquents, teenage moms, and criminals.

Wise public policy would discourage unwed motherhood by making women face the full costs of solo decisions to bear children.

(In case you weren't paying attention before, note that I think men should pay for children whose production they consent to. Also, I believe the existence of a valid marriage should prove consent by the husband to the pregnancy of the wife, so long as he is the genetic father.)

Posted by: Victor | Mar 23, 2006 4:06:02 PM

The well-known duty to mitigate damages should relieve a man of paternity costs when he opposes a pregnancy and the woman could obtain an abortion but doesn't.
When a man and a woman have a sexual encounter, there is a risk of pregnancy. The couple may reduce, though not necessarily eliminate, this risk by use of contraceptives.

Should the female partner become pregnant, by law she alone will choose how to proceed. Chiefly, her choices are (a) to obtain a (medically-induced) abortion, or (b) to attempt to carry the pregnancy to term. Each choice involves risk and cost. As a strict matter of fact, the choice of induced abortion is about 10 times less risky to the woman's life, and 100's of times less risky to her health.
(See, e.g., this survey--don't worry, all authorities agree on this.) Induced abortion is cheaper out-of-pocket (say, 1/20) than pregnancy, and will also avert hundreds of thousands of dollars in costs to support a child.

Now, from an economic point of view, the cost (monetary and medical risk) of induced abortion at the very least accrues as soon as the pregnancy occurs. There is no less dangerous or cheaper course of action than induced abortion. The additional risks and cost of carrying the pregnancy to term, however, are avoidable.

(Anecdotes about difficult abortions or easy pregnancies are inapposite here--all we know ex-ante are the statistical expected costs.)

If the woman and man both desire the pregnancy, then indeed the law very properly may and does oblige both of them to support any resulting child.

However, should the woman decide to continue her pregancy against the wishes of the man, current law permits her to impose a large share (often more than half) of the direct costs of child support on the man without regard to his interests. Public prosecutors will aid her to collect the money, using the strongest sanctions available in our society (up to and including imprisonment). (In fact, the man will suffer more than pecuniary damage, because the public authorities will hound him and prospective future mates will shun him.)

In every other area of the law (contract, tort, even ordinary family law), actors are obliged to mitigate damages from conflicts.

For example, consider A, an invitee of B, who while parking his car in B's driveway inadvertently crashes it into B's house causing a water leak. Besides other damages, A will be liable to B for water damage--but only up to the point when B reasonably could and therefore should have shut off the water. Under our law, B may not allow the water to run until her house is entirely washed away then demand that A build her a new one. (Of course, B may summon the aid of a plumber at A's (eventual) expense.)

If A and B agree together to demolish and replace B's house, they may both be held to their joint undertaking. But B may not oblige A against his wishes to finance a new house when he is responsible for no more than modest damage to the old one.

The duty to mitigate damages is supported by strong public policy. Most importantly, it averts waste. Also, it minimizes fraud, and it restrains intemperate acts of vengeance which might provoke feuds. The duty to mitigate damages should apply in every dispute.

When a different sort of encounter between A and B results, not in water damage, but in pregnancy, B should face the same duty to mitigate damages. If A does not desire a pregnancy and the eventual child, the law should require B to mitigate damages (induce abortion) or assume sole responsibility for the costs of continuing her pregnancy.

It's no criticism of this analysis that we could "leave the woman out of it--the child is entitled to support (and that is good public policy)." When the pregnancy has just begun there is no child (in law). So if you propose a reason to exempt pregnant women from the duty to mitigate damages (when their desires conflict with those of the father), please show that your reason applies before any child is born and averts more costs or waste than the normal rule would.

"That's not symmetric!" you cry, "only the woman has to make a hard choice and face the pain and risk of abortion."

Nonsense. First off, you've neglected to mention the pains and risks of continued pregnancy, which exceed those of induced abortion. Second, once the pregnancy occurs, some pain and risk are inevitable. They're a "sunk cost." Only the additional pain and risk of continuing the pregnancy can be avoided. So the woman doesn't face a hard choice with regard to pain and risk. Her choice is only as difficult as her personal desires make it.

"If the man didn't want a baby, he should have kept his trousers on."

It takes two to tango. If the happy couple's contraception fails (whether by accident, negligence, fraud--it doesn't matter) then the pregnancy is clearly the result of misfortune not mutual intent. The duty to mitigate damages applies in precisely this sort of situation--when things are not going the way all the parties want them to. Public policy counsels us against permitting one party to unilaterally impose stiff costs on another.

Look, forbidding abortion and requiring child support are flip sides of one policy--they stand or fall together. If we force women to carry (nearly) any pregnancy, then we may logically force men to pay for their share of the consequences. But once you admit the choice of terminating an inconvenient pregnancy, you lose your rationale for forcing a party who doesn't desire that pregnancy to pay for its consequences.

Posted by: Victor | Mar 23, 2006 2:04:49 PM

The problem with men demanding termination of an unwanted pregnancy is that there is no presumption in favor of abortion either in our laws or in our social mores. The most liberal position is that a woman may have an abortion when she, in consultation with her physician, considers it necessary. (Eugenecists may have a broader definition of "necessity" than protecting the mother's health but that is a fringe view).

As somebody who practiced both in the trial court and the appellate court, I would be very leery to even mention the one-sidedness of the abortion decision as an argument for a case such as Mr. Dubay's. I would expect it to arouse such revulsion that I would lose all credibility on the more meritorious arguments I may have.

If I have read your last paragraph correctly, you also imply that there is a presumption in favor of parenthood. That exists, certainly, in the context of the tort of wrongful birth. It is also to be seen not so much in paternity actions by the mother to obtain child support but by the father to obtain visitation or custody. We may have become, however, by several decades of talk about "throwaway children" that refusing to raise one's child (money is the least a parent can provide) is not thought as contemptible as wanting to abort it in order to save money.

Posted by: nk | Mar 23, 2006 9:20:06 AM

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