Natural Fathers?

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Having once again been interrupted by current events, I return to my earlier topic–can we separate parentage from genetic linkage. I’ve gone at this in steps, starting by considering a sperm donor and working my way to a one-night-stand guy.

In that last post I was exploring the differences between a sperm donor and the one night stand guy. It’s easy for me to say with confidence that it is better that the donor not be a father. I’m considering arguments for treating the one night stand guy differently. They are both genetically related, so no grounds for distinction there. And curiously, as to the intent of the man, the donor actually does intend to create a child and the one-night-stand guy almost assuredly does not. While that’s a difference, it’s one that hardly seems to leave to treating the one-night-stand guy as a father when you don’t treat the donor as a father.

That lead me to think about another difference–the woman’s intent. A woman using a sperm donor intends to be a parent. A woman in a one-night-stand usually doesn’t. The last post noted the oddity of having his status as a parent turn on her intent, but there’s more to be said, so I’m returning to this.

I want to focus, somewhat cautiously, on the importance of being able to choose to become a parent or, perhaps more saliently, to choose not to become a parent. I take it as a given that women should have the right to control their reproductive destiny. For me that means that women must have meaningful access to birth control and to abortion. (I realize, of course, that this hardly describes reality, but I will nonetheless reason from this position.) Meaningful access to abortion means a woman can choose not to become a parent even when she has become pregnant.

What about the corresponding freedom for men? A man has no right to insist that a woman have an abortion, even where it is quite clear that he is the source of the sperm. (To be clear, I think that’s as it should be.)

I know various explanations for this asymmetry. Often when we discuss this in class my students focus on the man’s opportunity to choose whether or not to engage in sex. And while it is true that a man can always ensure non-parenthood by not engaging in procreative sex, that’s not an entirely satisfying answer. For the woman can choose to engage in procreative sex and can, as a result, become pregnant, and can still avoid becoming a parent by electing to have an abortion. For a man, once he chooses to engage in sex, the rest of the chain of events is out of his control. So while this “he already chose” argument is not without some validity, it’s also not totally satisfying.

Suppose instead we accept my proposal that the man is not a father to any child that results from that one-night-stand? Then it seems more reasonable that he would have no say in whether a child is born or not for the woman’s decision to have (or not have) an abortion does not determine his parenthood. To put it a differently, he has less interest (at least legally speaking) in the outcome of her pregnancy and so he has a much weaker claim to a voice in the decision-making.

I think this suggests a larger point, though it hardly establishes it: Assigning paternity to a man by virtue of his genetic connection alone supports men’s control over women. It gives men a powerful claim to an interest in children and therefore in the lives of women who are raising children that they do not have to earn. We think of this as a natural state of affairs even as we think of the man as a “natural father”. I think it is time to more closely examine this particular state of nature.

Julie Shapiro (cross posted to Related Topics)

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0 Responses to Natural Fathers?

  1. AMM says:

    I am not a lawyer (I assume Julie Shapiro is), but my understanding is that the current paternity laws are based on the right of the child to be supported, and the presumption that the child will suffer unreasonably if a father is not found who can be held legally responsible for supplying some or all of this support. It is considered so grossly unfair to bring a child into the world and then not adequately support it, that any “unfairness” that the child’s parents may suffer under the system pales by comparison.

    The current system also has the advantage that it makes those most responsible for the creation of a child also responsible for the child’s care. This should encourage men and women to be more careful about how they have sex if they don’t intend to have a child, though I grant you that it often doesn’t.

    It’s all very well and good to talk about freedoms for the adults — the right of a man to not be legally a father if he didn’t plan on having a child when he had sex, or for the mother to control her body or to keep an undesirable man out of her life, etc., but what about the child, who had no choice in the matter?

    It may seem unfair that a man who took precautions when having sex may still find himself legally responsible for a child, or that a similarly responsible woman may find herself connected with a man she doesn’t want through an unintended pregnancy, but life is full of unfairnesses like this. And, although Ms. Shapiro dismisses this choice, both the man and the woman have the option of not having sex if this possibility is so repugnant to them.

    I agree that the current system offers possibilities for the man to “control” the woman (and vice versa, I should note)[*], in many different ways. But you don’t need to look to one-night-stands for examples of all of these situations — look at most any divorce that involves children, especially when the parents are unwilling to put the children’s needs ahead of their own emotions and desires.

    The problem is that the Law is a rough instrument for dealing with these issues, and the more complicated you make the rules, the more likely you are to have outcomes that nobody expects or wants. At least the current system is simple enough that everyone understands what will happen. I think that the burden is on whoever wants to change them to show that the changes won’t make things worse.

    [*] I put “control” in quotes because who is controlling whom is often a matter of how you look at things. If the child is supposed to visit the father on a weekend, is the mother “controlling” the father by “saddling him with” the child, or is the father “controlling” the mother by “taking the child away” from her? Which is happening depends on who you ask and often what time of day you ask them.

  2. Samquilla says:

    I don’t know much about family law, but my impression is that when we “force” fathers to be fathers, we force them to pay child support. And that’s only if the mother takes them to court. If we “force” mothers to continue a pregnancy, we are forcing them to become the custodial parent, not forcing them to pay child support. To me, that is the reason for a discrepancy in their ability to choose not to bring a child into the world.

    Do you know of any cases where fathers (either one night stand or not) are forced to be the custodial parent? It seems to me that forcing someone to pay child support and forcing someone to be a custodial parent cannot be equated.

    I know in another post you had suggested that requiring that a man pay for a child doesn’t necessarily have to equate with making him the “father” of the child, but it seems to me that that is the only way that men are “forced” to be fathers. I don’t know of any man who has been forced by the state to parent a child in any way other than paying child support.