Oh My! Thought Provoking

[Annie]

I have little to add at this time:

http://www.huffingtonpost.com/dalton-conley/why-my-mans-right-to-_b_11883.html

Dalton Conley

Why My "Man’s Right to Choose" Abortion Argument is Made from a Feminist Perspective (45 comments )
READ MORE: New York Times

I want to take the opportunity to elaborate the position from which I was arguing in the NY Times, while also backing off on a couple points.

One of the (main) modernist projects is about erasing the limitations of biology. If someone is wheelchair bound, we do not -- at least since the passage of the Americans with Disability Act – tell him/her that s/he cannot see a movie because biology has made him unable to walk up the flight of stairs to enter the theater.
In fact, we actively try to mitigate the effects of physical differences even though it comes at enormous costs to the rest of society -- particularly small business owners. Likewise, we reject social assignment based on other physical characteristics such as skin tone, most notably. And many progressives (including myself) think it absurd that only a pair of individuals who have the opposite sex organs should be able to enter the social and economic contract of a marriage with all the rights (and responsibilities) attendant to that contract.

Think of men’s inability to conceive as a disability that needs to be overcome by law where science is not able: nowhere is this brought into sharper focus than in the differences between female and male same sex couples. Someday there may be an artificial womb that will allow (gay) men to have kids by rushing off to the ova bank, and then this may all be moot. More likely, and more confusing, is the likelihood that soon enough there will exist the capability for embryo transplants.

What then, if there is a willing recipient? And what if a woman’s health risks are similar for the two procedures (abortion or transplant)? Should the decision making still rest entirely with women?

And it is not just about men’s rights; in the long run it is about women’s rights too. You can say that it is unfair that men can’t bear children and -- so what -- men just need to get used to it. (This is what Dahlia Lithwick argued in 2002.

However, I would argue that it is this biologically-based argument opens the floodgates for all sorts of essentializing arguments; Larry Summers’ claims about differences between male and female brains are only the beginning. But the rhetorical worries aside, research shows that the main roots of continued gender inequality in the workplace (and home) rests in the asymmetry of the “exit” strategy from childrearing -- the power garnered by men through this implicit threat.

Why is it that men seem to exit from child rearing responsibilities much more often than women do?

One answer may be because of paternity uncertainty. Since a dad can never know that a child is his, he has a weaker attachment. This evolutionary psychology argument should be made moot by genetic testing.

But the advent of testing -- though still young -- has not changed the number of women raising children alone (or with minimal help from their partners). Of course, there may be a significant cultural time lag in the impact of such technologies in redefining social roles. A second possible reason for unequal child care responsibilities is also biologically based: it could be due to the head start in the relationship between mother and child (and the physical and emotional investment of pregnancy) and the continued “special” nature of the relationship when mothers breast feed. The list of biologically based differences could come into play -- perhaps there is pheromonal communication between moms and children that is absent in the father-child relationship; perhaps it is due to the fact that the Y chromosome contributes relatively little genetic material so that on average men contribute less genetic material (however, if this were the case one might expect a more robust relationship between fathers and daughters, but research shows that fathers are less attached to families when the offspring are female); perhaps with a wider average curvature in the crook of the arm then men, women are built for holding babies.

But there are lots of instances where technology has overcome biological limitations. There’s the baby born for those awkward male carriers. There’s the bottle -- which at another time was seen as an instrument of women’s liberation. There just happens not to be the momb (the male womb) -- at least not yet. Until then there exists an asymmetry of rights and responsibilities. It is this asymmetry – not the biological differences per se -- that I argue lead to the oppression of women through the underlying logic of unequal family roles.

Fortunately, not just technology, but civil law as well -- one of the other hallmarks of modern society (according to Durkheim, at least) has given us a way to correct for these differences: through compensation. One form of compensation is child support. Of course, financial child support does not cover all the labor, risks, care, etc. that is required to bring a child into the world or raise it. And non-resident moms, of course, are equally liable for child support as are dads. So, from birth onward, we have equivalence of sorts (even though many states still allow a woman to give up her child for adoption even if the father objects and even though child support is generally inadequate and ill-enforced).

The key to my argument is separating out the costs and risks of pregnancy from the issue of the child as joint property -- for lack of a better word. If you believe that a fetus is only a woman’s and part of her body, then the argument stops there. But then shouldn’t paternal obligations be abrogated too (other than compensating the woman for the “tort” he has inflicted by inseminating her -- i.e. perhaps paying for the cost of an abortion and associated pain and suffering)? From the point of view of the potential “father,” what distinction is there between his responsibilities to a bunch of cells when it is in the uterus to it when it is born if all the material “stuff” that created that child is donated, if you will, by the mother save half of the instruction manual (i.e. DNA)? The answer may be that he engaged in contract with the woman when he engaged in intercourse. Perfectly reasonable is to say that sex is not a contract, in which case, pregnancy should be non-binding on the father, no? (But can the same be said for sex within the marriage contract?) Again, if it all boils down to the fact that “it’s a woman’s body” then let’s have a real discussion of what can and can’t be expected of fathers.

When might a father’s rights and obligations be said to start? At birth, would be the answer for many people. However, if the issue is the pregnancy risks / costs, the risks of childbirth and the hijacking of the woman’s body toward these ends, then what are we to make of a father’s rights when a fetus is say, 25 weeks -- well within the realm of viability? If the issue is getting the object out of the woman’s uterus, and she chooses to do that post the point of external survivability, then does a man have any say whether the fetus is “born” or “aborted” as long as it is out of her body -- i.e. about the method of extraction?

Another question is why the state needs to get involved here at all?

If a man cannot properly negotiate reproductive decisions with his partner, then how would the courts do any better? I would hope and assume that in almost all cases sexual partners would be able to work out a suitable solution privately. But in some cases this fails. You might argue that it is equally wrong for the state to get involved in custody arrangements and in adoption proceedings, for that matter. Fine. Or you might argue that there is a difference because the object of debate is the woman’s body. This gets us back to the notion that a fetus is part of her body -- an argument that was more sustainable, I would say, before the advent of ultrasound and other technologies that let us “see” into the womb.

If I view the fetus as distinct from the woman’s body, why not go all the way then, and just be pro-life? Again, this is a matter of separating the pregnancy issues from the externality -- if you will -- of the child to be born. Notice that I am not advocating that men should not be able to inflict an abortion. Rather, the notion is that we should act to preserve life that is wanted by at least one of the progenitors. (My life-preserving bias also causes me to support mandatory organ donations post-death [and in some cases, perhaps even pre-death] as well as be vehemently anti-death penalty.)

If the purpose of abortion is to avoid unwanted children then the child wanted by his father is not, in fact, “unwanted.” This must be weighed in tandem with the obvious physical, emotional and other risks and costs associated with the pregnancy itself. To the extent that abortion takes place to end an unwanted pregnancy (not prevent a birth), then it seems to fall entirely in a woman’s domain. However, the complicating factor is the view of the fetus as having two responsible parties with rights over it. Is a better solution a negotiated settlement where the man provides a nest egg to guarantee the support of the child (agrees to have wages docked, etc.) and also compensates the woman for her pregnancy costs (in terms of health risks, lost wages, and so on minus the risks attendant to an abortion)? Non-binding arbitration might also present a potential solution. And of course, as an alternative I think it is entirely logical to say that fatherhood should be entirely voluntary -- absent any rights or responsibilities until entered to through written contract. (One view of insemination sees it as a gift contract, a donation of sperm over which the man has no further claims; however, this flies in the face of the financial responsibility of the father for what the woman does with that gift.) Along these lines, perhaps there should be a pre-sex contract that partners can sign to firm up their reproductive rights and/or responsibilities (downloadable in PDF format for those moments of passion -- might take less time than fumbling with a condom).

We must also keep in mind that if men had rights in reproductive decision-making a new generalized equilibrium would emerge. Heterosexual couples might enter sexual relationships more cautiously (on average) with adequate discussion of reproductive possibilities. Practice of birth control may become more widespread. And, I think, fathers would be more involved in the raising of children, thereby easing the second shift for women and leading to greater gender equality. I recognize that structure of negotiations is such that men and women are starting from unequal positions in the wider world; however, that does not mean that the solution is to ignore reproductive rights differences but rather to actively engage them within that context.

You might counter that other societies -- such as many sub-Saharan African countries -- demonstrate enormous degrees of gender inequality with little salience of abortion. However, we must also consider that the social context differs widely in developing countries where intergenerational flows of investment generally flow from children (in the form of labor and social insurance) to parents, as compared to the rich world where children are the recipients of transfers and are primarily seen for their non-pecuniary benefits. The incentive structure is entirely different with respect to reproduction (and therefore gender inequality).

As with my op-ed on reparations for slavery or the elimination of personhood for corporations (in exchange for the elimination of the dividend tax), I sought in the abortion piece to explore underlying logics that are buried within a debate (or lack of debate). Where I failed my latest effort was in falling out of the interrogative voice and instead slipping into the declarative in the following line: “If a father is willing to legally commit to raising a child with no help from the mother he should be able to obtain an injunction against the abortion of the fetus he helped create.” Many people read my “injunction” line of the piece as advocating the right of the man/state to chain a woman to her bed for nine months. And herewith lies the part I regret. Of course it is not really enforceable or desirable. I had a much longer portion of the essay going into the complications here; however, I chose to delete that for fear of getting too deep into public policy minutiae in a context where I wanted to stimulate debate. However, I now realize that I failed to edit out the key sentence. I duly retract this line and welcome further debate on how to solve this terribly fraught issue of utmost importance.

****Response to comments: I can accept that it is "your" body but will someone please then just engage the argument that fatherhood should then be voluntary? Or make it explicit that in this case, rights and responsibilities are decoupled, it is not fair, and men should get over it. But in that case, are other forms of gender inequality--such as a $1 to .76 cents wage ratio okay too? Should women just "get over it too and accept that life isn't fair? All I'm saying is that we need a real dialogue about the underlying devil's deal that is being cut across this issue--especially since parenthood is the prime root of the wage penalty. I should have framed my argument as: "let's reexamine the debate over fatherhood given it's (only) a woman's right to choose" rather than "let's reexamine the abortion debate, given fathers' responsibilities..." ****

 

[dilloduck]

More proof of abortion being a womens' rights issue gone amok.

 

[Annie]

More proof of abortion being a womens' rights issue gone amok.

Ya think?

Monday, October 31, 2005

In the Name of the Father: Recognition of Men's Reproductive Rights

I wrote a paper for a Religion, Ethics & Law class while in law school a while back and considering today's SCOTUS nomination and Judge Alito's involvement in the Casey decision, I thought I'd revive that paper.

We were asked to formulate a controversial position and then advocate for that position combining aspects of religion, ethics and legal analysis. Please note the copy below does not include the relevant citations and footnotes contained in the original document.

Update: Looks like Glenn has been thinking about this very issue...

ABORTION AND SPOUSAL NOTIFICATION: As several people point out, that's going to be an issue with regard to Alito. I'm not sure what I think about this issue, but looking at the Pennsylvania statute I notice a lot of exceptions, one of which is this: "Her spouse is not the father of the child."

I'm not sure about Pennsylvania, but in many states her spouse -- even if he's not the father of the child -- would still be on the hook for child support. Likewise, if he didn't want children, but she disagreed, lied to him about birth control, and got pregnant. And he certainly couldn't force her to have an abortion if she did so, even if his desire not to have children was powerful, and explicitly expressed at the outset. (The usual response -- "he made his choice when he had sex without a condom" -- never comes up in discussions of women and abortion.)

So where's the husband's procreational autonomy? Did he give it up by getting married? And, if he did, is it unthinkable that when they get married women might give some of their autonomy up, too?

The problem here is that you can say "my body, my choice" -- but when you say, "my body, my choice but our responsibility," well, it loses some of its punch.

----------------------------------------------------------------------

In the Name of the Father: Recognition of Men's Reproductive Rights
© 1998, Jason Smith
INTRODUCTION

Women hold one of the most powerful duties in the world, that of bearing children. For over 20 years, courts have viewed a woman’s right to reproductive choice as a fundamental "liberty" interest protected by the Bill of Rights. Although males are also required for conception, it is the woman who remains solely in control of whether life ever begins. Unfortunately, courts have allowed this to become the ultimate unfair monopoly.
During the last three decades, the judicial system in the United States has spent a great deal of time identifying and attempting to protect fundamental rights of citizens. Beginning with Griswold v. Connecticut, which protected the rights of married couples to prevent conception, solidified by Einstadt v. Baird, which recognized that same right in unmarried people as well, and eventually expanded by Roe v. Wade, (hereinafter Roe), where the United States Supreme Court decided that aborting an unwanted pregnancy after conception was also fundamental to the individual, the courts have focused on the individual’s right to ‘bear or beget’ a child. Therefore, because of the fundamental nature of the right to bear or beget children, one person should not possess the ability to automatically veto another’s decision. Current law, though, affords women just such veto power.

The debate on abortion rights and wrongs have been ongoing for many years. The primary focus has been on the mother’s right to bodily integrity versus the right of the unborn child, which arguably is a person in and of itself. This paper will not attempt to validate either argument. It will instead focus on the forgotten element in the debate of whether to have a child or not, the father.
A biological father, who would have certain legal rights and responsibilities to the child upon birth, should have the opportunity to have his interests in such child weighed against that of the mother, when she decides to act in conflict with his desires.

RELIGIOUS ASPECTS
Viewing the era surrounding the Roe decision and its progeny, the justifications for the decision are evident, albeit inconsistent with traditional notions of Christianity. One such notion flowing from the Roe decision is that in order for women to gain their equal status in the workplace, they must be able to extinguish the burdens of unexpected, unwanted pregnancies and the costs of caring for the future child when the pregnancy acts as a barrier to a woman’s career. The inconsistency stems from the word ‘burden’. In Psalms 127:3, it says, "Sons are a heritage from the Lord, children a reward from Him." Children are viewed as blessings, not burdens, in the bible. From the Roe decision through the cases following it, it is evident that the rights recognized in women were not of constitutional dimensions so much as they were rights of convenience. It establishes that our courts have recognized worldly desires and goals above the gifts of God.

Again, the decision of the Supreme Court left the decision to carry a baby to term or not solely in the hands of the woman. But is it really a woman’s choice? We have seen that God is the Creator of all life. As the Creator, God has chosen women as the vessel for bearing His creation. A woman is not the creator, and it takes both man and woman to conceive. Females are merely caretakers of the unborn child. God has entrusted the woman to provide nourishment and protection until such time as the child is able to provide such for himself. But who looks out for the child’s interest when the woman chooses to breach that trust? Certainly the innocent child is incapable of mounting a defense. The only person left in the triad of conception, then would be the father.

A father owes it to his unborn child to see that the child lives. If a mother has announced her decision to end the pregnancy, then the father must ". . . plead the cause of the . . . helpless." Although the bible does not condone out-of-wedlock conception, there must be an overriding concern that all fathers have the right to be heard in the decision to have a child or not. Biblically speaking, the argument that a married father speak on behalf of his interests in the child is certainly stronger, but by no means to the exclusion of unwed fathers.
In viewing the scenario of married fathers, we see several instances in the bible where the man should have a voice in the begetting of a child. In 1 Peter 3:7, it is said, "Remember that you and your wife are partners in receiving God’s blessings." As we saw before, the bible views children as blessings from God. As partners in procreation, each should have an equal voice in decisions affecting such partnership.

Matthew 19:5 states, ". . . a man shall leave his father and mother and be joined with his wife, and the two shall become one." Upon marriage, then, the man and woman cease to be individuals, and become one married unit. The next verse says, "what God has joined together, let no man separate." Unfortunately, the courts are all to willing to effect separation when it comes to procreational decisions. They have allowed spouses to act in conflict with each other’s desires, thereby driving a wedge in between the components of the marital unit and creating a polarized and separated marriage unit. Based on the preceding passages, it should be apparent that children are created by God, and passed on to us as gifts. Married couples who become pregnant are at most, one person in the eyes of the Lord, and at least, partners, in receiving children as gifts from God. For this reason, a man’s decision to become a parent or not should be given equal weight as that of his partner, or alterego.

The bible can even be viewed as extending such weight to an unmarried man’s decision. Though the bible does not view children born outside of marriage kindly, one can still find areas advocating an unwed father’s rights. Descriptions of parent-child relationships that do not mention marriage might be seen as giving unwed parents equal decision-making power with regard to their children. One example is the Commandment, "Honor your father and your mother," because, "God has placed them in authority over you." This passage shows a duty to each of the parents without mentioning any relation between the two parents themselves. Following this Commandment in Ephesians is a directive aimed solely at fathers, which states, "And you, fathers, do not provoke your children to wrath, but bring them up in training and admonition of the Lord." This mandate, addressed to fathers only, might be argued to provide guidance to fathers, who lack the bond of marriage, and therefore the additional support of a spouse in child-rearing.
When both biological parents agree on the outcome, there is no dispute to rectify. It is upon disagreement that we must analyze whose choice to honor. It should be fully realized that a father should have an equal voice in the determination of his offspring’s future. Regardless of which choice is favored or condoned in the bible, there is an abundance of evidence suggesting the input of both parents ought to be considered when it comes to decisions affecting their children.

LEGAL ANALYSIS

I. Motherhood

At common law, a pregnant woman had the ability to choose to abort an unwanted child prior to "quickening", the first movement of the fetus in utero, without being subject to criminal liability. Many states enacted anti-abortion laws criminalizing abortions unless done to protect the mother’s life. Many people, women especially, saw these laws as an infringement on constitutionally protected rights involving procreational choices. This alleged infringement was eventually eradicated in 1973. The United States Supreme Court decided in Roe v. Wade that a woman had an absolute right to terminate her pregnancy in the first trimester, without the threat of unwarranted governmental interference. Cases following the line of Roe both strengthened the right and modified the time period in which an abortion is legal.

There are many reasons women choose to have abortions, ranging from concerns of passing hereditary medical conditions down to children, or the desire to avoid medical risks associated with childbirth, to simply being an inconvenient time in one’s life to give birth.

Regardless of the reasons behind the action, the United States Supreme Court has determined that it is a privacy interest the woman enjoys. Although the right to privacy is not expressly provided for in the Constitution, there has long been recognized certain "zones of privacy" guaranteed therein. The Court has determined that a woman’s right to terminate her pregnancy is "so personal and private that it is fundamental or implicit in the concept of ordered liberty, and therefore enjoys freedom from unwarranted governmental intrusion."

The result of Roe and its progeny is that prior to viability of the fetus, the point at which the fetus could survive outside the womb, a woman enjoys a complete and unfettered right to terminate her pregnancy for any reason or no reason at all.

Another avenue a woman may take with regards to an unwanted pregnancy, is to place the child up for adoption. In certain instances under Texas law, the father’s consent is not even required. Therefore a woman has the absolute power to decide whether to bring a conceived child into the world or not, and upon choosing the former, she has the ability to unilaterally place that child up for adoption.

It is evident a woman has significant rights when it comes disposing of an unwanted child, but what happens if she decides to keep it? Obviously, this does not create a conflict when the father also wants the child. However, if the man does not want the child, or in some cases, doesn’t even know about the child, he may still be responsible for hefty obligations.

Just as women have many reasons not to want a conceived child, men also have reasons of their own, some weak and some valid. But in the eyes of the courts, it does not matter.

The Texas Family Code provides that a court may order child support payments based on a computation of monthly income and for a certain time period. Compliance with such a court order may be enforced by the mother bringing contempt proceedings against the father. In addition, there is case law in Texas where men have been held in contempt for failing to maintain support payments and have subsequently been incarcerated. In addition, in the case of Hess v. Hess, the Illinois Appellate Court concluded that "mere violations of visitation terms (by the mother) will not excuse father’s support obligations." This would lead one to believe that the court views a mother’s bond as biological and a father’s bond as solely monetary.

In summary, a woman may choose to bear a child or not regardless of the father’s wishes. Upon bearing the child, she may also seek support from the child’s father regardless of his desires. Finally, she may violate a court order providing the father with visitation, while enforcing a contempt proceeding against him for violating a support order regardless of his intentions. While a woman has what amounts to a complete monopoly on procreational decisions beginning at conception, a man only has legally enforceable duties that spring to life when the child does. By giving women an unequal policy on procreation, the courts have allowed a man to be excluded from the decision-making process, yet held accountable for the decisions of the mother of his child.

II. Fatherhood

What does it take to become a father? The answer depends on the context of the question. Biologically speaking, it takes the act of sexual intercourse with a woman. Morally and ethically speaking, it takes much more. What does it take to lose one’s rights as a father? Aside from a court declaration of unfitness, it takes a unilateral decision by the mother of his child to either abort her pregnancy or put the child up for adoption.

When analyzing the aspects of fatherhood, we tend to view it as a position of responsibility and support. When the courts analyze fatherhood, in the context of an unwanted pregnancy, they view it as responsibility and support. However, these two analyses differ substantially.

Responsibility and support in the context of general parenting means offering love, care and guidance. In the eyes of the court, it merely means money.

When a man and woman conceive a child, both stand to become parents. In light of this, both are essentially similarly situated. But the decisions are not equally weighed as they should be. Two scenarios arise when men and women disagree on the issue of bearing children. First, the man wants the child and the woman doesn’t. Second, the woman wants the child and the man doesn’t. In each instance, the woman’s choice is absolute and the man’s choice is irrelevant.

Several case examples illustrate just where a man’s procreational rights stand in the eyes of the courts. The recent case of Jerry Krchmar is devastating to biological fathers. When a married woman with whom he had an affair got pregnant, he sued to establish paternity. He offered to pay child support and requested visitation rights (which appears to be the nobility in fatherhood the courts seek to establish in paternity cases). But the court said if the woman is married, her husband, not the biological father, is automatically considered to be the father of any child she bears. This is similar to Texas law in that a child born during a marriage is presumed to be the child of the husband and wife. Therefore, a man who procreates with a married woman who is not his wife, is not entitled to any interest in the child, while a woman who procreates with a married man, not her husband, is entitled to parental rights to the fullest extent. This case shows that although courts espouse a man’s right to procreate in general, it seems virtually non-existent in light of a woman’s.

In another appalling example of injustice and paternal rights, a 12 year old boy, raped by his 16 year old babysitter, was ordered by a Kansas court to pay support for the child that resulted from that crime. In that case, the district attorney's office filed a petition requesting that the babysitter be adjudicated as a juvenile offender for engaging in the act of sexual intercourse with a child under the age of 16, to whom she was not married, in violation of a Kansas statute. Thereafter, the babysitter entered into a plea agreement with the district attorney's office, wherein she agreed to stipulate to the lesser offense of contributing to a child's misconduct. She then applied for and received financial assistance through the Aid to Families with Dependent Children program (AFDC) from Kansas Department of Social and Rehabilitation Services (SRS). SRS filed a petition on behalf of the babysitter, alleging that the boy was the father of her minor daughter. The court rendered a judgment for amounts paid for the birth and support of the daughter and ordered the boy to pay monthly child support reimbursement to SRS. What can be taken from this case is the idea that a male, regardless of whether he intended to conceive, or consented to the act, or was the victim of a crime, may be held liable for supporting the resulting child. The Kansas Supreme Court has established that a woman holds all of the procreational rights, while the man bears all of the associated responsibilities.

The Kansas case also brings up an interesting dilemma with regard to Texas law. Under Section 161.007 of the Texas Family Code,

The court may order the termination of the parent-child relationship of a parent and a child if the court finds that: (1) the parent has been convicted of an offense committed [sections of the Penal Code (including rape)]; (2) as a direct result of the commission of the offense by the parent, the victim of the offense became pregnant with the parent’s child . . .


This statute assumes the victim of rape will be a female, in that it states the victim becomes pregnant. It seems that in Texas, while a father convicted of raping a woman loses his rights to parent the child, a mother convicted of the same thing would not.

Constitutionally, men have a fundamental right both to procreate and to avoid procreation. Realistically, neither right exists.

part 2 to follow

 

[Annie]

2

III. Parenthood & the Double Standard

In the judicial systems’ attempt to identify and insulate fundamental rights of citizens regarding procreation, the courts have focused on the individual’s right to ‘bear or beget’ a child. Missing in these decisions, however, is the issue of whether the rights of individuals with respect to potential parenthood are applied equally between the genders. It appears evident that the rights afforded and obligations imposed resulting from the conception and birth of a child are unequally applied in favor of women. In essence, when it comes to reproductive rights, men are confronted with a set of inequities and inconsistencies. As it stands today, the law places an absolute economic burden on the man, and then, figuratively speaking, slices the male's reproductive capacity by affording him unequal protection in deciding whether to bear or beget a child.

There was a time in our history when this double-standard was appropriate and even required. However, with changing times comes changing policies. The case law and statutes pertaining to a woman’s rights and a man’s responsibilities were originally intended to protect women at a time in our history when single mothers were deserted or abandoned after impregnation and due to a lack of economic resources or societal taboos had to give up their children either through adoption or abortion.


Eventually, the women’s movement allowed women to move from the homemaker to the breadwinner, and with this movement came more needs with regards to procreation. In one case, the United States Supreme Court pointed out that "the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives."
Now gone are the days of protection and in are the days of convenience.

In the courts’ attempt to create equality, it seems they have actually created greater inequality. Today, a man does not have the right to beget a child if the mother of his child chooses to abort. He may not have a choice if the child is put up for adoption. He shall still be liable for support, even if he did not consent to the act that conceived the child, or regardless of whether the children now carry his name or choose the surname of the mother’s new spouse.

Many advocates of maintaining the status quo point to decisions like Roe v. Wade and other similar cases to strengthen their point. However, it is the position of this paper that the cases mentioned are irrelevant when paternal rights have been asserted. In fact, in Roe v. Wade itself, the court stated, "Neither in this opinion nor in Doe v. Bolton do we discuss the father’s rights if any exist in the constitutional context, in the abortion decision. No paternal right has been asserted in either of these cases." In fact, it would seem that some of the justifications set forth by the Court would be inapplicable if paternal rights were advanced. As the dissenters in Danforth suggest, the mother’s interest advanced in Roe was not an interest in controlling her body, but rather an interest in avoiding the post-birth burdens of raising a child. For example, the Court stated that "maternity, or additional offspring, may force upon a woman a distressful life and future." In Roe’s companion case, Doe v. Bolton, the Court discusses an unwanted pregnancy for a woman might mean that she would lose her preferred lifestyle, be compelled to live an undesired future, have to abandon educational plans and lose income or the ability to pursue a career. The appearance of a father asserting his rights to care for and raise the offspring would eliminate these concerns for the mother. The Court added that "the stigma of unwed motherhood may be involved." In this day and age of Murphy Brown and the single mother, the stigma has been eroded immensely. Aside from societal views changing, a father desiring to take on the responsibilities associated with child-rearing would alleviate the stigma, as it would be the unwed father raising the child instead.

The only thing at issue in Roe was the balancing of the pregnant woman’s liberty interest against the state’s interest in the future child. In Casey, the Court announced that, "[the woman’s] suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman’s role. . ." (Emphasis added) The Casey Court also stated that, "even the broadest reading of Roe, however, has not suggested that there is a constitutional right to abortion on demand . . . [r]ather, the right protected by Roe is a right to decide to terminate a pregnancy free of undue interference by the State." (emphasis added) However, the context with which this paper is dealing is the scenario that the biological father has asserted rights in the unborn child and wishes to have his voice heard with regard to the bearing and begetting of the child. A State’s involvement with protection of his right’s could hardly be called ‘undue interference’. In Conn v. Conn, the Indiana Supreme Court stated that, "[a]t least up to now, no right has been determined to be absolute . . . [e]very right must yield and respond to the rights of others and to the stability of society, in the marriage relationship and all others." (emphasis added) The lack of absoluteness is also evidenced in Roe and its progeny in that the time frames set forth allow for increasing state interest throughout the pregnancy term. These arguments would seem to logically call for the weighing of a man’s procreational decisions against that of a woman’s.

Another view of the Roe analysis is that it gives an option to women who would otherwise be "unable to provide for the nurture and care of the infant resulting in a cruelty to the child and anguish to the parent." These arguments do not have merit, however, when a man is asserting his parental rights. The reason Roe chose to avoid dealing with paternal interests not only stemmed from the fact that in that case there was no assertion of paternal rights, but they recognized that in the event such rights were asserted, the reasons the Court gives for its decision would not be supported.

The double-standard ultimately appears to center on the argument that it is the woman who must bear the child and not the man. The Supreme Court, in Danforth, said, "Inasmuch as it is the woman who physically bears the child and who is the [one] more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor." This argument, which led the Supreme Court to confer an overriding power to a pregnant woman to decide whether or not to bear a child to full term or not sounds much like the ‘sweat equity theory’ advanced in many abortion cases. The ‘sweat equity theory’ stands for the proposition that, since between the two spouses, the woman provides the greater bodily contribution, she should have the superior right to decide the outcome. However, this argument has recently been rejected by the Tennessee Supreme Court in a case dealing with in-vitro fertilization.

In Davis v. Davis, the Tennessee Supreme Court concluded that the parties’ possessory rights should be determined on a case-by-case basis. The Court stated, "We conclude, instead, that we must weigh the interests of each party to the dispute, in terms of the facts and analysis set out below, in order to resolve that dispute in a fair and responsible manner." After weighing each party’s interests in the pre-embryos, rather than their biological efforts in the creation thereof, Mr. Davis’s more compelling interests in avoiding procreation prevailed.

By rejecting the "sweat equity theory", this court may be paving the way for the balancing of interests in an abortion case. At a minimum, it has acknowledged the existence of men’s interests pre-birth. In Stanley v. Illinois, the Court acknowledged that a biological father has "an essential civil right to parent and raise [his children]." In addition, "the dissenters in Danforth articulated that the state was not attempting to delegate an interest in the future life of the fetus which the state did not have during the first trimester . . . [r]ather, the state was recognizing that the husband has an interest of his own in the life of the fetus which should not be extinguished by the unilateral decision of the wife." Even if the "sweat equity theory" is not completely abolished, one trial court has suggested it be viewed as a rebuttable presumption. This would allow the court to presume the woman’s right, but create room for a man to assert his own rights and have them weighed against hers. The law must recognize a principle under which both men and women enjoy the autonomy to exercise in an effective manner their respective decisions regarding parenthood.

part 3 to follow.

 

[Annie]

3

IV. Balancing of Rights

"Abortion is a unique act. It is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedure; for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against human life; and, depending on one’s beliefs, for the life or potential life that is aborted."

The procreational inequality has its roots in an era when gender roles were delineated in favor of men. But since the women’s movement, and the subsequent recognition of women’s equality in all aspects of life, it is time the legal system recognized and extended the constitutional right to bear or beget children to a man’s procreative decisions made during pregnancy.

The Supreme Court has said, "a woman’s right to terminate her pregnancy is so personal and private that it is fundamental or implicit in the concept of ordered liberty, and therefore enjoys freedom from unwarranted governmental intrusion." (emphasis added) The key word is ‘unwarranted’. This term seems to flow from the Court’s analysis of the increasing state interest during the course of a woman’s pregnancy. Pre-viability, the state has no interest, as the Court claims to view it merely as an issue of bodily integrity. However, the state’s interest becomes increasingly present at viability, not only in the woman’s health, but in the newly formed life as well. The courts that have addressed the abortion issue have failed to note one thing, however, that even pre-viability, there are interests other than just the woman’s. Although the state may not act on its own behalf in the prevention of an abortion, could it act on the behalf of a man claiming a constitutional right, that of procreation? It seems that a competing constitutional interest would be sufficient to ‘warrant’ intrusion, at least to the point of balancing the interests.

Affording a woman a unilateral right to terminate a pregnancy without considering the father’s rights appears to be a deprivation of his fundamental right to decide whether to beget a child, a deprivation facilitated by the Supreme Court’s overly broad holdings in Roe v. Wade and Planned Parenthood v. Danforth. In addition, the woman’s choice to abort or not has a significant impact on whether a man will liable for child support obligations. Both of these infringements on biological fathers’ rights appear on their face to be unconstitutional gender discrimination. The Supreme Court has thus far only decided that a state does not have sufficient interest in the procreational decision to warrant its intrusion. Danforth merely precludes the state from granting an absolute veto to the man. How would Roe have been decided if instead of balancing the woman’s liberty interest against the state’s own interest in the fetus post-viability, it was faced with balancing her interest against a man’s right to procreate established both in the Fourteenth Amendment and in case law?

Advocates of the continued discrimination argue that regarding procreation, men and women are not similarly situated. However, a court would be hard-pressed to find another time when two people aren’t more similarly situated. Instead of viewing the situations as merely physical, that a woman can bear children and a man can’t, the fact that both will become parents with all the rights and responsibilities that flow therefrom put a man and woman in the same position biologically and legally. The relationship between men and women with regards to procreation is one of mutual dependance. Both need the other to effect procreation. Until one is capable of procreating without the other, both stand in the same position. Equality is an affirmative right which guarantees that specific rights will be protected against discrimination. An absolute veto is not the answer, for either side. The answer, though, should be a balancing of rights for the parties involved, irrespective of gender.

ETHICAL VIEWS

I. Identifying the Epidemic

"For the past 25 years, an entire generation of young women has been able to obtain reproductive health care . . . [t]oday's decision preserves the right of future generations to make one of life's most fundamental decisions: whether to bear a child." When Margaret Crosby, staff attorney for the ACLU of Northern California, spoke these words in 1973, she failed to acknowledge that with one swipe of the pen, a generation of young men essentially lost their procreational rights.

In the late 1960s, when abortion advocates moved to legalize the procedure, part of their argument was that abortion would be a rare choice, an option for women in life-threatening or other desperate circumstances. Very quickly after legalization, however, abortion became anything but rare.

Three of the most common justifications given by those who favor a woman’s right to abortion are the necessity of access when the mother’s life is in danger, a fear that the baby will suffer severe mental and physical defects, and that the pregnancy is the result of rape or incest. Danger to the mother would be reasonable in almost every instance to overcome the father’s interest in the unborn child, if the two interests were balanced. The problem with arguing the other two is that only 1% of those who have had abortions offered as a reason that they had been advised their child would have defects, and another 1% said the pregnancy resulted from rape or incest. Instead, the same survey revealed that 75% of those who had obtained an abortion did so because having a child would interfere with work, school or other responsibilities, in addition, 66% of them also said they couldn’t afford to have the child, and 50% of the women surveyed just did not want to become a single parent. The excuses to have abortions given by the majority of women surveyed would not even be applicable in a case where a man is offering to take possession of, care for and raise the child.

The abortion figures are staggering. The figures below show estimated annual figures for deaths from various causes:

Annual Abortions (Worldwide) - 53,000,000
Annual Abortions (United States) - 1,500,000
7 Deadliest Wars for U.S. - 1,043,569
Cancer - 550,000
Heart Disease - 700,000
Car Accidents - 40,000
Suicide - 30,000
Homicide - 25,000

Of the 1.5 million abortions reported each year, 51% are carried out by unmarried women. This means, that just about half as many married fathers lose their parental rights through abortion each year as do unwed fathers. Granted, the study does not show the number of consenting fathers, but the Supreme Court has said that statutes that require women to inform the fathers of the choice to abort are unconstitutional, raising the question as to how many are even aware of the abortion.

II. Suggestions for Change

"One of the inherent paradoxes of a woman’s right to terminate her pregnancy is that in protecting the individual privacy of a woman from governmental intrusion, and by allowing her to make the ultimate decision of whether or not to bear a child, the Supreme Court has effectively intruded into the man’s fundamental right to decide whether or not he will beget a child." Throughout this paper, it has been suggested that the rights of biological fathers should be evenly considered against the decision of biological mothers. Just how this might be done can be explained in several ways. To begin, the rights of each party must be presented. Upon discovery of pregnancy, a woman has two primary options; abort or give birth. Upon making the latter choice, she may keep and raise the child, or put it up for adoption. When a man is alerted to his new status as father-to-be, he has no options. Depending on the woman’s decisions, however, he may have resulting obligations. Equality demands that both a man and woman have equal rights and responsibilities. Following are proposed ways of extending more rights to men while keeping women’s rights intact.

Since the cases of Casey and Danforth made it clear that a state may not require a woman to give notice to the father or obtain his consent prior to having an abortion, the following options would only be available to those fathers who were given notice or in some way discovered the pregnancy. This would also overcome the woman’s privacy interest once the pregnancy became known to the father of the child.

Currently, a woman has the right to abort a pregnancy before the fetus becomes viable without providing a reason to do so. In all fairness, a man should have a similar right. Basically, if a woman desires to have the child against the biological father’s wishes, he should be able to extinguish his rights and responsibilities in the child in the same manner a woman can, essentially have a 'male abortion’. Certainly a man would never have the right to require a woman to abort a pregnancy she wishes to continue. However, he should be allowed to pay prenatal costs and costs associated with the actual birth in exchange for the woman releasing him from further financial obligations in the child he does not wish to father. A woman would be required to notify the father, prior to viability, of her intentions carry the pregnancy to term and subsequently seek child support for the child. Upon receiving notice, the man would be offered the opportunity to decide whether or not he wishes to beget the child. Requiring him to make such a decision prior to viability would afford the woman ample time to subsequently make her own decision. If the man did not make his decision timely, he could be held to have waived his right to object, and would be estopped from aborting, much like a woman might be, post-viability. By allowing the woman to seek payment for expenses during pregnancy and up to birth remedies the situation Roe sought to protect, that of the disappearing father. He would endure the costs of bearing and birthing the child, which is much more than it costs a woman to fund her own abortion, while not being responsible for the welfare of the child for the following 18 years. In essence, a man would be held responsible for the acts of creating the child, while not being saddled with the burden of raising it. Although this remedy sounds a bit harsh, it is no more ill-natured than the woman’s alternative of extinguishing the child’s life altogether. Of course, if the woman offered one of the many worries Roe set forth, such as inability to financially support the child, strain on mental and physical health, interference with education, occupation or other career goals, she is still able to obtain the abortion and completely eliminate those concerns. This alternative would give either party the right procreate or not. It would advance each parties’ fundamental interests while averting the infringement caused by current law.

Although it is not the position of this paper that a man’s right to beget a child should always be superior to that of a woman, it should likewise not always be subservient. A second alternative would arise when a father desires to beget and raise a child he was partly responsible for creating while the mother would choose to abort. Current law allows a woman to obtain an abortion without notifying the father, but what happens when he discovers the pregnancy? There have been a number of lower courts awarding injunctions to men in such a situation, though all have been overturned by appeals courts. The courts, in reversing the injunctions, are reluctant to compel a woman to continue the pregnancy when the biological father asserts his rights, primarily by relying on Danforth, which states an injunction against a pregnant woman would constitute governmental intrusion, especially pre-viability, when the state arguably has no interest. However minimal the state’s interest appears, the father’s interest ought to be at least similar to the mother’s if not equal. Casey reasoned that by controlling their reproductive lives, women were able to participate in the economic and social life of the nation. Along those lines, men should be allowed to participate in the family life without undue interference. Based on the physical and emotional effort the woman must endure, the decision to abort or not would be presumed in her favor, but after determining a father to be fit to care for his child, he would be allowed to have his child born. In exchange for requiring the woman to maintain the status quo, the man would pay all necessary costs, including lost wages resulting from the pregnancy, medical care and possibly an additional one-time fee. The father would, in a sense, adopt his own child. This would allow a man his constitutional right to beget a child while compensating the woman for enduring a process she was partly responsible in bringing about in the first place. Additionally, current laws would apply so as to offer these alternatives to only those men who are legally entitled to parental rights with regard to the affected child.

As times change, so do gender roles. Society now demands that ‘errant fathers’ face up to their responsibilities, that men take their role as parent seriously and do away with the out-dated macho idea that their duty is breadwinner. Men are now expected to be present at the birth of their child, and boys are given parenting classes to teach them how to look after children when they are barely out of grade school themselves. It is an inevitable consequence of this shift in society’s expectations of men that ‘father’s rights’ in procreational decisions are seen as a more legitimate cause. Otherwise, the courts are perpetuating an idea that men should take more responsibilities with regards to their children, become more active in their children’s lives, while not allowing them the choice of whether they can enjoy that child or not. Telling a man, on one hand, to grow up and accept it, while on the other hand saying, it is not your decision to make is illogical and irrational.

The time has come for our legal system to recognize that men too should have reproductive rights.


© 1998, Jason Smith