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(To those of you reading this on Feminist Law Profs, I’m cross-posting there from my own blog.   The links and internal references are to that blog.   So, for example, you can find “my last post” by scrolling down on this page or by clicking on the link, which will take you to my blog.)

There are a number of possible objections to the suggestion in my last post. (Put briefly, I suggested that we not consider men who participate in one-night-stands to be fathers of resulting children. This is part of a longer thread that you can pick up here.) I tried to anticipate and respond to the most obvious objections in a couple of earlier posts. I stand by what I said there so may want to go read that now. It will help put the rest of this in context.

In addition to those points, I’m sure some will argue that declaring that these one-night-stand men are not fathers will encourage men to engage in sex irresponsibly. The rationale goes something like this: When a man is considering whether to engage in the one-night-stand he makes a cost/benefit analysis. On the benefit side is whatever immediate gratification results and perhaps some possibility of a longer term relationship. On the cost side are risks of disease, perhaps of assorted social consequences and, as it stands now, of inadvertently becoming a father. My proposal diminishes the last cost and by doing that, diminishes the overall cost. When you diminish the cost of a behavior it will have the effect, all other things being equal, of increasing the occurrence of the behavior. Put slightly differently, the possibility of parenthood is a deterrent and I propose to remove that deterrent.

I doubt there’s much hard evidence about the magnitude of the deterrent here, but I don’t actually know what is out there. However, as I said in my earlier post about objections, saying the man is not a father does not necessarily mean he is free of all financial obligations. That’s a different question, one which I am deferring. So to the extent the expense of supporting a child is a deterrent that could possibly remain. And if one is serious about deterrence, one might even institute a system of fines for contributing to unintended pregnancies.

Even with all that, there likely is still some deterrent value to possible parenthood and you’d lose that. But still, I’m not convinced that we ought to deploy parenthood as a deterrent. (I’d be happier with the fine.)

From a purely pragmatic perspective, parenthood is very hard to imagine before you actually experience it. Thus, it’s unlikely the rational actor imagined above will properly assess it.

More crucially, parenthood as deterrent takes no account of what might be best to the child, if there is a child. We’re thinking here about presumptively irresponsible individuals here. It’s hard to see why they’d suddenly become wonderful responsible parents.

Thus, I am prepared to forgo whatever added deterrent value there is.

I think at bottom the strongest resistance to my suggestion arises from the impulse is to say that pregnancy is simply the logical and natural consequence of the action and people should be held accountable for logical and natural consequences of their actions. And to this I have two responses.

First, while pregnancy may be a logical and natural consequence, parenthood is not. Being a parent means having particular social and legal obligations. We’ve already seen instances–with sperm donors and with the presumption that the husband is the father–where we assign those obligations to people apart from those who provide genetic material. So we are free here to define the man as a parent or not.

Second, as I’ve said before, you can hold a man accountable without making him a parent. And indeed, we might all be happier in the long run if we do just that. Parental status ought not to be a punishment inflicted on a person. It’s too important for that.

One thing I know I have not addressed is the burden all of this places on women. It’s obvious to me that the consequences of an unplanned pregnancy are not distributed equally between men and women. If I in some way lessen the obligations on men, do I increase those on women? I will consider this next.

by Julie Shapiro (cross-posted to Related Topics)

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