This weekend’s Washington Post has a heart-wrenching account of a man and his wife trying to choose together what to do about a defective fetus they created.
Thanks to Ariela Migdal for the pointer. This article should interest readers who have been following the response to my “Man’s Right to Choose.”
Posted by Ethan Leib on April 11, 2005 at 10:35 AM
Comments
Well, I’ll take you at your word that your policy of “A Man’s Right To Choose” will remain in the theoretical stage until, as you say, “women have access to affordable and safe abortions–more or less on demand.” As one of my old prawfs used to say, when we’ve reached that stage of human evolution, when we don’t need to worry about the relative inequality of the sexes when it comes to legislating childbirth and childrearing, policies that presume equality of situation (in bargaining power, economic or social status, or whatever) will be a lot less troubling. (Although, the issue remains unaddressed as to whether it is in the best interest of the child to be without support from both parents.) In the mean time, I am happy to defer to your theoretical policy as long as it remains so until we’ve reached that euphoric state in the future.
J Silbey
Posted by: J Silbey | Apr 11, 2005 4:28:17 PM
All the cases you are talking about were decided the right way as far as I’m concerned. Indeed, even Danforth and the bits from Casey that keep men out of the decision from a legal standpoint ultimately come out the right way. Nothing I say makes any sense in a world in which women do not have access to affordable and safe abortions–more or less on demand.
Once those conditions are met, I really do believe that there must be some way for us to acknowledge a man’s right to procreational autonomy. I agree that the possible world I imagine would be a bad one if it were easy for men to get out of their responsibilities. But I simply cannot accept a major premise of your argument: that by the very act of having consensual sex, a man consents to support unintended children that are the product of that intercourse. This premise, you presume, is indifferent to the “deal” the man and woman make before engaging in the sex, whether explicit or implicit. Say a woman said she would have an abortion ex ante if a pregnancy should happen. And that fact induces a man into engaging in consensual sex. Under those circumstances, it seems wrong to me that she can make an about-face and make him pay to support the child. Why shouldn’t the parties be able to make a deal to release the man from support payments, acknowledging that he was not a willing father? Perhaps we should further liberate the woman from the dependancy on the man.
Obviously, the intentional infliction of emotional distress suit makes sense in the extreme and outrageous case of sperm theft. But what about in the case where there is a one-night stand where the woman tells the man that she is on the pill (falsely) and then conceives and only contacts him once the child is born for support payments? My instincts tell me this is probably also an example where the IIED cause of action makes sense.
There is much more to say, of course. And I really do understand where you are coming from. But I remain convinced that a man’s interest in his procreational automony is non-negligible–and that we should be just as outraged when a woman tries to make a decision for a man about his reproductive and financial future as we are when a man tries to make a decision for a woman.
Posted by: Ethan Leib | Apr 11, 2005 3:13:57 PM
A Man’s Right to Choose was timely — just taught Geduldig and will teach Nguyen v. INS tomorrow. In the anti-spirit of those cases, it seems to me that your proposals for “implementing the right” will only further entrench women’s social, political and economic inequality by enabling fathers to avoid one result of choosing to have sex.
Starting from your last point: allowing men to contract out of support payments only hurts the child involved. In what world is it better to protect a father’s wallet than provide for his child, even if he did not intend to have one (a child, that is, and assuming a court can get at his wallet, which happens only a small percentage of the time)? And why should a father be relieved of support payments upon a showing that birth control was used in good faith? How does that help anyone, the woman in particular, who also, we assume, was hoping not to get pregnant? What does her good faith get her? Shouldn’t the default be that if two people are willing to take the risk of sex, they are willing to take the risk of all that involves, including financial and physical burdens of abortion, pregnancy or parenting? Why is a man unburdened so easily, whereas a woman must then suffer the consequences of the unintended pregnancy (be it an abortion or parenting) alone? And, if a man has a cause of action for IIED because he has been forced to become a parent against his will, why not a cross-claim brought by his (presumably) ex-lover for the same. Certainly a woman experiences intentional emotional distress if, after learning she is pregnant and feeling (understandably) troubled by the decision she faces, she is sued for making the decision that most displeases her ex-lover?
It seems the world created by “A Man’s Right to Choose” is a world that leaves men with all the options (renumerative and otherwise) and women with all of the burden when she chooses the path most disagreeable to her once eager lover. This is a world we are trying to renovate, in favor of equal responsibility (for sex and children), equal parenting and equal employment. This is a world unattainable if men can sue women for choosing to be a parent after consensual sex.
Too bad you didn’t sit in on my class today. But you’re welcome when we study Griswold, Roe, Harris and Maher next week.
Posted by: J Silbey | Apr 11, 2005 2:40:06 PM