Should Men Have the Right to a "Financial Abortion"? A Biological Father Cries Sex Discrimination When Forced to Pay Child Support for an Unwanted Baby

By SHERRY F. COLB
Tuesday, Mar. 21, 2006

In Michigan, Matt Dubay was recently ordered to pay child support in the amount of $500 a month to his ex-girlfriend, Lauren Wells, for their biological daughter, Elisabeth. When the couple was together, Dubay claims, Wells assured him that she was physically incapable of becoming pregnant. After the two had split up, however, she gave birth to a baby girl and sought support from him.

What makes this case special is that rather than pay the child support (or fail to pay, as often occurs), Dubay, represented by the National Center for Men, has filed a lawsuit in federal court. Dubay claims that he has a right under the Equal Protection Clause of the United States Constitution, to cut off all ties to his unwanted biological child.

This suit reflects a growing sentiment among self-described members of the fathers' rights movement and ought to be taken seriously, even if it is unlikely to prevail in the near future.

Men's Anger: Why Should Women Have All the Control?

Many men are quite angry about how little control they currently exercise over their reproductive lives. When a man decides to have consensual sexual intercourse with a woman, he risks unwanted fatherhood: If the woman conceives, it is she, and she alone, who decides whether to terminate her pregnancy. And that is true even if the woman falsely claimed that she was using birth control, that she had been told by a doctor that she could not conceive, or that if she did conceive, she intended to get an abortion.

In short, the argument goes, a woman has the ability forcibly to place her unwitting partner or ex-partner in a position he never wanted to occupy - that of a father - with all of the financial and emotional baggage that the status carries.

Should Men Have the Ability to Force Abortion? An Unpopular View

Some fathers' rights advocates feel so strongly about this reproductive inequity that they maintain that if either a man or a woman wants to terminate a pregnancy, against the wishes of the other partner, he or she should be able to do so. According to the New York Times magazine, Michael Newdow, for example, railed against "the imbalance in reproductive rights - women can choose to end a pregnancy but men can'tů." Newdow then cut himself off, in order, he said, not to "alienate" the interviewer.

(As readers may recall, Newdow is the man who unsuccessfully sued to stop his biological daughter's school from having the children recite the Pledge of Allegiance. Possibly confirming Newdow's sense of how little control he exercises as a father, the Supreme Court denied Newdow standing to pursue the lawsuit, because of his status as the noncustodial parent, coupled with the Court's deference to California domestic law).

It appears, however, that the belief in a man's right to compel a woman to have an abortion is not widely held -- as least not publicly. And indeed, it seems plainly unreasonable. The primary basis for a woman's right to abortion is that no person should be forced, unwillingly, to sustain the assault on bodily integrity that pregnancy represents for a woman. Though the ability to avoid parenthood is a component of the rationale for this right, it is primarily a matter of physical integrity and would therefore preclude any entitlement on the part of a man (or anyone else) forcibly to terminate a wanted pregnancy. Indeed, one of the very few areas in which pro-life and pro-choice activists would tend to agree, is this one: A man should not have the right to terminate the lives of his unborn offspring in utero.

Another Stance: If the Father Opposes Birth, He Should Not Pay Child Support

There is a less extreme version of this argument: Men and women may be differently situated with respect to pregnancy, so that women but not men have the right to terminate an unwanted pregnancy. But with rights come responsibilities, and a woman who gives birth without the biological father's blessing should not be able to collect child support from him. By failing to terminate her pregnancy in accord with the father's wishes, in other words, she should assume the risk of parenting the child alone.

Some have referred to this approach as the right of men to a "financial abortion." A man who does not want his child brought into the world should let his sexual partner know of his feelings, they contend, and if she nonetheless goes on to keep the child that she conceives with him, then he should have the right to "choose" not to affiliate with that child and not to provide support. He should be entitled to opt out of the role of parent in the only way he can, just a woman is able to opt out absolutely by having an abortion.

This argument is less alarming than the one urging a male right to require abortions. But there is a difficulty here as well. The problem derives from the reality that abortion is not a simple choice for most women, nor do most people in this country believe that it ought to be. Once an unwanted pregnancy begins, there are therefore consequences, for both the man and the woman, however much they would each wish otherwise.

The initiation of an unwanted pregnancy, moreover, is just as likely to be the result of a man's oversight (or "fault"), as it is to be the result of a woman's. Perhaps the couple decided together to risk unprotected sex because contraceptives were not readily accessible. Or perhaps the man's condom broke during intercourse. Or maybe a medical professional had incorrectly informed either the man or the woman that he or she was unable to conceive.

However conception might have occurred, a woman faced with an unwanted pregnancy will not necessarily feel comfortable obtaining an abortion. Her hesitation may result from religious or moral convictions or from the sense that perhaps this pregnancy was "meant to be." In the Dubay case, for example, his ex-girlfriend reportedly believes that life begins at conception. Regardless of her motivation, she faces a real dilemma once she learns that she is pregnant - she must either have the child or have an abortion, neither of which is a trivial matter.

No matter which choice a pregnant woman makes - a choice that is (currently) hers by virtue of its substantial physical implications for her body -- the man who helped place her in the situation should not easily be able to wash his hands of the consequences. Barring extreme circumstances (such as those discussed in an earlier column), the availability of abortion should not relieve men of equal responsibility for the children they help create, once those children do make their way into the world.

Dubay's Strongest Argument: Mothers Can Give Up Children for Adoption

Dubay makes one argument that is far more difficult to rebut than the others. It is that after a woman has a baby, in Michigan and elsewhere, she has the right to give up that baby for adoption. If she exercises that right, she cuts off her own financial responsibility to the child, along with other parental rights and responsibilities. A man, by contrast, may not relinquish his financial responsibility for an unwanted child unless the biological mother shares his wish to give up the child for adoption.

Dubay asks: Why shouldn't men have the same right that women have? And doesn't the law engage in sex discrimination by offering one sex an option that the other lacks?

In considering these questions, we need to examine how the different approaches to adoption arose in the first place. It is not difficult to imagine that sex-role stereotypes played a role. Traditionally, in the United States, the law made three assumptions about parenthood: the mother's proper role is that of nurturer; the father's proper role is that of "breadwinner"; and every child, if at all possible, should be part of a nuclear family. Under this set of assumptions, a number of conclusions would seem to follow:

If a woman is unwilling to nurture (or "mother") her child, the law cannot force her to do so. In fact, a child in the custody of an uninterested mother is a child in danger of abuse or neglect. Therefore, if a woman gives birth to a child for whom she does not wish to care, the law would be doing the baby no favors by leaving him or her with the rejecting mother. Adoption would seem a mercy to both mother and baby.

A father who is unwilling to pay for his offspring can, however, safely be forced to pay nonetheless, just as he could be required to provide financial support for his wife or ex-wife. Nothing about the money that he might pay is compromised by his unwillingness to spend it. Financial support - the "father's job" -- can be an impersonal contribution in a way that care and nurturance - the "mother's job" -- simply cannot. It is therefore a "no-brainer," if one embraces these traditional assumptions, that if a man sires a child, he must do his duty by that child and pay money for its support.

The third assumption, again, is that children should - if at all possible - grow up in two-parent male/female households. If we share this assumption, as the law has done in the past (and, to a lesser extent, continues to do), it follows that when a couple splits up before a baby is born, the baby is better off if the mother gives him up to a family containing two parents. Adoption is thus a desirable turn of events and should not only be allowed but encouraged.

Women, though, are often quite attached to their babies and prefer to keep them, regardless of where the father might be. In such a case, the child gains nothing, and loses much, if the father decides not to provide financial support for his biological baby.

However such assumptions developed, they are no longer fair, and rest on outmoded and discriminatory assignments of responsibility. Women currently participate in the workforce in overwhelming numbers, even if their wages continue to lag behind those of their male counterparts. And men participate in nurturing their children far more than they used to; indeed, there are a growing number of "stay-at-home" dads in this country, and their contribution to day-to-day caring for their babies is profound. Under these conditions, it would be as practical to require women who give up their babies to pay child support to custodial fathers, as it is to require men to do the converse.

In reality, this issue may not come up very often. When a woman gives birth to a child whom she does not want to raise, it may be an infrequent occurrence for a man to hope to step into the void and raise the child of his ex-girlfriend alone. When such a case arises, however, there is no good reason to relieve the mother of financial responsibility toward her biological offspring when the law does not do so for a similarly situated father.

Perhaps that should be the outcome of Dubay's lawsuit: the law should no longer permit women to relinquish financial ties to their biological children when the father wants custody of his child. The result would not do much to help Dubay, but it would assist the conscientious father who wants to be a single dad but cannot quite afford the expenses of his child's care. And though Dubay would still be in the same boat, under such a legal regime, he could at least console himself with the knowledge that some women might end up right there with him.

A Philosophical Question: Should We Be Treating Children Like Injuries?

Even if we address the equality problem by forcing women to pay men support for unwanted children, a philosophical question remains: Do we truly want to treat men and women as negligent actors who must pay for their mistakes when they create unwanted babies? As long as a man like Dubay must pay child support for a baby whom he has renounced, are we not suggesting that the child is an injury brought upon society, and that the person who helped cause the injury must pay the price for his conduct?

Forcing men (or women) to pay child support may be the only way, in our world of diminishing governmental assistance, to ensure that more children do not descend into poverty. But if it were possible, it might be better for all of us, as a society, to undertake to ensure that every child has what she needs to survive and to thrive, regardless of how rich or poor her uninterested father is.

With an increasing number of single-parent families on the scene, it is perhaps high time that we embraced the idea that every one of us bears responsibility to protect every child. Until such a time, however, biological fathers, and eventually mothers, will be - and probably should be - financially on the line for their offspring.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her other columns may be found in the archive of her work on this site.

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