Michael J. Higdon (Tennessee) has posted to SSRN his working paper Fatherhood by Conscription: Nonconsensual Insemination and the Duty of Child Support. Here is the abstract:
Nathaniel was a California teenager who became a father in 1995. The mother of Nathaniel’s child was named Ricci, and at the time of conception, she was thirty-four years old. Nathaniel, however, was merely fifteen. Although Nathaniel admitted to having sex with Ricci voluntarily about five times, the fact that he was under sixteen years of age at the time made it legally impossible for him to consent to sexual intercourse. In other words, under California law, Nathaniel was not only a new father, but was also a victim of statutory rape. Nonetheless, in a subsequent action for child support, the court held that Nathaniel was liable for the support of the child who was born as a result of his rape. According to the court, “Victims have rights. Here, the victim also has responsibilities.”
Much of the law relating to child support is based on the fact that it is typically in a child’s best interest to receive financial support from mothers as well as fathers. So strong is this precept that courts will hold a father liable for child support even in the face of wrongful conduct by the mother. Thus, child support is essentially a form of strict liability with the justification being that the child is an innocent party, and, therefore, it is the child’s interests and welfare that the court must look to in adjudicating support. At first glance, such a standard seems eminently reasonable. Few would argue with the proposition that, if a man voluntarily has sex with a woman and a child results, then he should be liable for child support. The problem with the court’s current approach, however, is that the standard is so strict that even those men who never consented to the sexual act that caused the pregnancy are nonetheless liable for the support of the resulting child. These men include males who became fathers as a result of statutory rape and also adult males who became fathers either as a result of sexual assault or having their sperm stolen and used by a woman for purposes of self-insemination. In all such cases, these “fathers” have been held liable for child support.
The purpose then of this article is, first, to underscore the criticisms that other commentators have raised on how the strict liability approach poses a grave injustice not only to the men who are pressed into the obligations of fatherhood but also to society, which has an interest in protecting all citizens from sexual assault. More importantly, however, I also offer a new objection and, on that basis, a proposed solution. Specifically, the courts’ justification that all children are entitled to support from both biological parents has been seriously undermined by the laws regulating artificial insemination. In that context, a man (regardless of whether he is the sperm donor or the non-donor husband of the inseminated female) only becomes the legal father of an artificially inseminated child if he affirmatively consents. I argue that it is incongruous to allow exceptions for formal sperm donors yet wholesale deny similar protections for those who, although not in the setting of a sperm bank, never consented to the use of their sperm. Accordingly, I propose a solution whereby courts adopt an approach similar (albeit narrower) to that used in artificial insemination cases to adjudicate child support claims against those men who were forced into fatherhood as a result of nonconsensual insemination.
The full paper is available here.